RAJAH MALRAJU VENKATA RAMA KONDAL RAO BAHADUR ZAMINDAR VARU Vs. RANI RAJYALAKSHMI PAPAYAMMA RAO ZAMINDARINI GARU

JUDGEMENT

(1.) THE plaintiff is the appellant and seeks to reverse the decree by the Subordinate Judge, dismissing his suit to obtain possession of the properties, which had been later converted into one for the declaration of his title. THE following pedigree would show how the appellant and two of the three defendants to the plaint are related : 2. THE appellants maternal grand-father was the Zamindar of Vuyyur and other estate in the old Nuzvid Zamindari: and his mother was his grandfathers only child. On 10-7-1900 the grand-father bad executed a will. Ex. A-l, making thereby various dispositions, and among others bequeathing to his daughter three villages of Krishnampalem, Mangayapalem and Guddigudem. It is common ground that the aforesaid will was executed while the testator was in a sound and disposing state of mind, and its being genuine is also not disputed in this case, In the same year the will was written, the testator had entered into an ante-adoption agreement which is dated 8-8-1900 and is Ex. A-2 in the case. In the later document a reference is made to the will and the natural father of the would-be adopted son was one of the attesting witnesses to the, will. THE testator on 12-8-1900 took in adoption Raja Venkatagiri Apparao, and is alleged to have executed another will on 15-1-1906. A copy of this later will has been filed in this case, which is Ex. B-2, and it is respondents case that therein the bequest in favour of the daughter, her mother, was reiterated with the modification that the estate created in favour of the daughter would not revert to the testator even if there were no male issue born to the daughter but only female children. THE mother died on or about 10-11-1943, and the suit giving rise to the present appeal, was filed on 13-3-1948. 3. THE appellants case In the plaint is that the grand-father had by the will given his daughter only a life estate in the three villages, after her had directed the properties being enjoyed absolutely by her male issue, and failing such issues, had directed the estate to revert to the parent estate, thereby showing the dominant intention of conferring only a life estate on his daughter, which was in accordance with the deep-rooted notions prevailing at the time in the testators community. THE next part of the appellants case is that the Madras High Court had in an earuer litigation found the daughter to have died intestate, a will put forward as hers having been then held to be void and the appellant as the only son was therefore entitled to the properties as the next heir under the will: the defendants not having been given any right under the document. THE concluding part of the appellants case Is that their father was appointed a Receiver by the Madras High Court over the suit properties along with other properties after his mothers death; but on the termination of the Receivership the sisters got into possession, were wrongfully enjoying the ncome and had refused to deliver possession, or to render account. THE plaint was subsequently amended in consequence of the Madras Estates Abolition Act, No. XXVI of 1948, whereunder a Notification was also issued in the Gazette of 15-8-1950, about taking over the estate from 7-9-1950. THE appellant by the amendment of the plaint has sought a declaration of his title, if he be found not entitled to the possession because of the Act. This alternative relief was in addition to the prayer for accounts, which had been already claimed in the original plaint. 4. THE 3rd defendant to the suit was the Receiver who had been appointed by the Madras High Court during the pendency of the earlier Writ Petition, the appellant had filed for challenging the constitutionality of the Estates Abolition Act. THE 2nd defendant, who is the younger sister, has compromised with, the appellant and accordingly a decree had been passed. THE suit proceeded to trial only between the appellant and the respondent, who was the 1st defendant and the elder sister. THE position taken by her is that the three villages were given to the mother absolutely and the testators dominant intention was not to create a life estate for his daughter; the intention of giving her an absolute estate having been again manifested in the later will of 15-1-1908. She has further pleaded that by long period of adverse possession the daughter, her mother, had acquired an absolute title to the villages which would after her death devolve on her stridhana heirs. THE parties had adduced no oral evidence and the trial Court after an elaborate discussion of the cases relied by the parties has found the will to have created an absolute estate in favour of the appellants mother, with the result that the appellant had no title to the villages as against his sister who was the preferential heir to her mothers stridhan property. THE Court has further found the estate, if any, conferred by the will in favour of the appellant to be void due to the bequest being in favour of a person, who was unborn at the time of the testators death. 5. THErefore, the short question arising for adjudication in this appeal is what estate the daughter had obtained under the will. If she had only a life estate because of the subsequent bequests in the will in favour of her male issue the respondent would not inherit. On the other hand the appellant would not succeed if the mother be held to have got under the will an absolute estate. THE original will is in Telugu and the parties are not agreed about its translation. THE Subordinate Judge has translated Clause 2 of Ex. A-l, which is the relevant part of the document, for the purposes of this case, as follows: