MAJJERI LALLEMMA Vs. JOGI PEDDAKKA

JUDGEMENT

(1.) Interpretation of wills, particularly those containing Defeasance clauses and Gift overs and those containing Repugnant clauses, is considerably difficult both for the Judge as well as Counsel. Serious problems arise in the context of Sections 124, 131 of the Indian Succession Act, 1925 and Sec. 95 of the Act. The present case is one such.

(2.) One Pedda Govindappa executed a Will on 30-11-1931 under Ex. A-32 making certain dispositions in favour of his aged mother Nagamma and in favour of his two daughters Peddakka and Govindamma and their children. The said Peddakka (respondent herein) has filed the suit out of which this appeal arises for a permanent injunction restraining the defendants 1 and 2 (appellants) from interfering with the plaintiff's possession of the suit properties. What happened was, Pedda Govindappa gave a life-estate to his mother Nagamma and then directed that the pro- party should go 'absolutely' to his two daughters, and that they should partition the same and enjoy the property but if any of the daughters died without male issue, her property is to go to the other daughter having male children, and if neither had male children, it should go to his sons 'in -law absolutely. The testator died on 3-12-1931, while Nagamma, the life- estate-holder died in March, 1933. His elder daughter Peddakka (plaintiff) was married even by the date of the Will while his younger daughter Govindamma was not married by that date. Govindamma who survived Nagamma died on 23-12-1947 without any male children but leaving a daughter who is the 1st defendant. The 2nd defendant is the husband of the 1st defendant. The elder daughter Peddakka has three sons but it is not clear whether any of these three sons was borne before the demise of Nagamma, the life estate holder. The dispute arose because the 1st defendant (appellant No. 1) claimed the share of property of her mother but the plaintiff, ths elder daughter claimed Govindamma's share of property, on the basis of the gift over. The trial Court decreed the suit and" the lower appellate Court confirmed the said decree. Both the Courts held that after the death of the life-estate holder Nagamma on 19-3-1933, the property devolved on the two daughters of Peda Govindappa, namely, Peddakka (Plaintiff) and Govindamma (mother of 1st defendant) that upon Govindamma's death without male children on 28-12-1947, her share of property devolved on her elder sister Peddakka as per the gift over. They held that though Govindamma was under the will of her father, given an absolute estate initially, the same was cut down to a life-estate because she did not have male children. It was argued for the appellants based on S. 124 of the Indian Succession Act, 1925 that the tims of distribution according to the Will was the life-time of Nagamma and that the gift over to Peddakka (plaintiff) would have taken place only if Govindamma died without male issue before the death of Nagamma i.e., before 19-3-1933, but that inasmuch as Govindamma died long after 19-3-1933 the absolute estate given to her in a half share did not gel divested and did not vest in her sister Peddakka. But the lower Courts rejected this contention and held that, on the facts of the case, the time of distribution was not the life-time of Nagamma that even though Govindamma did not die before 19-3-1933, her interest in the half share was cut down to a life-estate and devolved on her sister Peddakka. Rulings of the Privy Council, Supreme Court and of various High Courts were referred to.

(3.) In this Second appeal, it is contended by Sri R. V. Subba Rao, ths learned counsel for the defendants appellants, namely, the heirs of Govindamma, that an absolute estate was given to Govindamma in the earlier clauses of ths Will and the latter clauses dealing with a gift over on failure of male children, was void because of S. 95 of the Act. Alternatively, it is argued that S. 131 was subject to S. 124 and the gift over would have taken effect only if Govindamma had died during the life-time of Nagamma, without male Children. Various rulings including Narendranath Sircar Vs. Kamal Basini Dasi (1) I. L. R. 23 Calcutta 563 (PC) and Tarkeshwari Devi Vs Ram Ran Bikat Prasad Singh (2) A.I.R. 1972 S.C. 639. are relied upon.