STATE OF ANDHRA PRADESH Vs. SOLASA SOMESWARA RAO

JUDGEMENT

(1.) An interesting point has been raised in this revision. Under a will executed on 2-8-73 3/4ths of the property owned by the testator was bequeathed with a direction the executors may sell away the said 3/4th property and proceeds be given to the son, and whereas with reference to the remaining 1/4th a direction was given that the same be administered by the executors and the annual proceeds be distributed amongst the heirs. Whether such will is hit by either sub-section (1)or sub section (2) of Sec. 7 of the Land Ceiling Act and if so whether the 3/4th of the property bequeathed by the testator is liable to be included in the holdings of the heirs, in proportion to which the successors under Hindu Succession Act will be entitled. The Appellate Tribunal held on a conspectus of case law, that in so far as 1/4th of the property as bequethed under the will was concerned, it partakes the nature of trust and therefore, very rightly the same has been directed to be included in the holding of the heirs in proportion to which they will be entitled under Hindu Succession Act in their respective holdings but vis-a-vis the 3/4th property it hold that it had not been transformed into what may be called residuary estate, because it is still th3 property which the executors will be holding for and on behalf of the testator. In fact it would be as good as being held by the testator himself and therefore the provisions enacted under sub-section (1) or sub-section (2) of section 7 are not attracted, and as long as it is in the hands of the executors the same is not liable for inclusion in the holding of the heirs. I do not see any misconception or error in the construction so placed upon the provisions of the statute and also upon the will by the Appellate Tribunal and therefore, it requires no interference.

(2.) Dealing almost in a sense with similar matter a Division Bench of the Madras High Court in a case reported in Raghavulu Naidu & Sons vs. I. T. Commr (1): A l.R. 1950 Madras Page 790 held:

(3.) Now from the contents of the will executed on 2-8-73 it is quite manifest that in so far as the 3/4th property of the testator was concerned, it was to be sold and the proceeds were to be distributed. If that is so the residue has not crystalised. As long as the obligation of the executors, in furtherance of the object of the testator is not discharged, the residue could not be ascertained. In other words as long as that 3/4th of the property is in the hands of the Executors, the legatees cannot ask for this or that portion of the property which is in the hands of the Executors. In fact they have no right to say so What they are entitled to as cestui que trust is only towards the legacy and that is the proceeds which would be realised after the sale of the 3/4ths property and that will be the residue or residuary estate. If that is so no property as such has fallen to the share of the declarant or any other heir which would be liable for inclusion for the purpose of computation under the Land Ceiling Act. There is yet another aspect. Admittedly even if the entire estate is computed there will not be any surplus withinjthe meaning of Land Ceiling Act. The testator was within the permissible ceiling limit and therefore if he were to be in possession of the same, which is now subject matter" of the will, within the meaningful effect of the provisions enacted either under Sub-Sec. (1) or sub section (2) of Sec. 7 it could not have been subjected to a computation under the Act. If that is so for all practical purposes the executors custody is testator's custody.