LAWS(MAD)-1948-3-25

PYNDAH RAMAKRISHNAIAH Vs. THE OFFICIAL RECEIVER AND ORS.

Decided On March 18, 1948
PYNDAH RAMAKRISHNAIAH Appellant
V/S
The Official Receiver And Ors. Respondents

JUDGEMENT

(1.) THIS second appeal is by the first defendant, who contends that under the will of his father, the second defendant was not entitled to any exclusive right in the family house under clause 12 of the will.

(2.) THE two material clauses are clause 5 and clause 12. Clause 5 is as follows:

(3.) IT seems to us that very much the same reasoning would apply to the case under consideration. Since the testator intended that the bulk of the property should go to his wife absolutely, the fact that in clause 12 he gave the property to the second defendant after her death was an indication that he intended clause 12 to be an exception to the general clause 5, whereby he gave the bulk of his property to his wife absolutely. That clause 12 is intended to be a definite exception to clause 5. is also shown by the wording of clause 5 in which the testator conveyed : " The entire moveable and Immovable properties belonging to me excluding what I have given herein," which means that he did not intend clause 5 to operate with regard to the items of property specifically mentioned in the will, one of which was the house which was the subject of clause 12; so that strictly construing clause 5, the widow would not be entitled to an absolute interest in this house on the death of" the testator, even if the legacy covered by clause 12 failed. Again, in construing clause 12 we must have regard to the circumstances existing when this will was drawn up. The testator's wife was of course living with him in the house to which clause 12 relates; and he naturally desired that his wife should continue to live in the house after his death. Clause 12 sets out his clear intention that his wife should continue to reside in the family house in which she had always been residing with, her husband and that it was only after her death that the property should pass to the second defendant. This is an illustration of the general principle laid down, in Halsbury, volume 34, Article 475, where the learned author said: