BANDURA RAMAMURTY Vs. KOPPULA VAJRAM

JUDGEMENT

(1.) THIS is an appeal by the third defendant against the judgment of the Subordinate Judge of Berhampur dated October 27, 1954, decreeing the plaintiffs' suit. Originally there were three defendants including the appellant. Defendants 1 and 2 during the pendency of the suit compromised with the plaintiffs whereby the plaintiffs after receiving Rs. 1500/- in cash from the said defendants relinquished all their rights in Sch. A properties. The defendants 1 and 2 in their turn admitted to have no right in respect of B Sch. properties. Defendant 3, the appellant before this Court, alone contested the suit.

(2.) PLAINTIFFS' case was short and simple. Late N. Krishnamurty, the brother of the two plaintiffs executed a will (Ext. 1) on August 18, 1932, whereby he gave away all his properties to his mother, Rukmini with certain, directions. Krishna Murty had two other sisters, Thyaramma and Ammajiamma. At the time of the execution of the will, Ammajiamma was unmarried. Accordingly, Krishna Murty gave directions by the aforesaid registered will to his mother to alienate certain properties to discharge certain existing debts and to meet the expenses of the marriage of Ammajiamma. Ammajiamma in due course was given in marriage to defendant No. 3. Defendant 1 is the husband's brother of Thyaramma and defendant 2 was her co-wife. Both Ammajiamma and Thyaramma died in the year 1939-From the date of the will until their mother's death in 1936, the properties left after discharging the debts and meeting the marriage expenses of the youngest daughter, Ammajiamma, were in possession or their mother, Rukminamma. From after the death, of their mother till 1939, all the four sisters enjoyed the said properties jointly. After the death of the two sisters, Thyaramma and Ammajiamma the plaintiffs became entitled to ail the properties left by their mother and they alone were in possession of the same till about 1944 when the three defendants colluded together and set up a claim that the properties of the four sisters had been partitioned and divided by metes and bounds amongst themselves. Schs. A and B properties according to them had fallen to the share of Thyaramma and Sch. C properties fell to the share of the third defendant's wife. Accordingly, they trespassed and disturbed the possession of the plaintiffs. According to the plaintiffs there was no such division or partition of the lands as alleged by the defendants and they inherited, the entire properties left by the will of their brother by way of survivorship. Accordingly, the plaintiffs filed the present suit for recovery of possession of the A, B and C schedule lands as described in detail in the plaint and for mesne profits for three years, that is, for the years 1948, 1949 and 1950. They also prayed for a direction to determine the future mesne profits from the date of the suit in respect of the suit lands. In this appeal we are not concerned with A and B Sch. Properties. That third defendant claims title only to C Schedule properties.

(3.) MR. Ramdas sought to rely upon the following cases; Menumallaswami v. Narayanaswami, AIR 1932 Mad 489. What was held in that case was that where a will contains a gift and then is followed by a gift-over the rule is if the intention of the testator as represented by his words was to confer an absolute estate that estate cannot be cut down by anything that follows. This is directly against the contention of MR. Ramdas. The next case cited was the case of Mitha Bai v. Meher Bai, AIR 1922 Bom 179. In the will itself the testator stated; "As whatever surplus of my property may remain over after my decease the Malik thereof shall be my wife. She shall during her life-time apply the same and spend it in a good way". The words "she shall during her life-time apply and spend the money in a good way" cut down the absolute estate created by the use of the word 'Malik' to a life-estate. There is no such word of restraint in Ext. 1. The next case that was cited was the case of Habibullah v. Ananga Mohan, AIR 1942 Cal 571. The dominant intention of the testator is that case was the exclusion of his son from his property and his estate to pass intact to his widow and after her to his grandsons (son's son) in succession and on the death of grandson or grand-sons to the objects specified in the will. Their Lordships held the second dominant intention was inconsistent with the series of absolute interest and therefore the widow took a life-estate only though the words used by the testator would have conferred an absolute estate on the widow. There being no ambiguity in the dominant intention of the testator in the present case this case does not help the contention of MR. Ramdas. In the case of Harakumari Dasi v. Mohini Chandra Sarkar, 12 Cal WN 412, their Lordships held that giving effect to all the words of the will the widow took an estate for life with the power of alienation and to the extent which Such power was not exercised the daughter similarly took the property. The language of the will in this case is widely different from the language employed in Ext. 1. The case in Radha Krishnayya v. Sakuntala, 1950-2 Mad LJ 239 concerns a deed of family settlement and I need not refer to the same. The only other case relied upon is the case reported in Thayalai Achi v. Kannammal, AIR 1935 Mad 704. In that case it was held that on a construction of the will and of the words used, the testator had the intention of giving to his wife a right to enjoy the property as absolutely as possible and that if she did not, during her lifetime, get rid of the property or that into which it had been turned and did not leave it by will, her enjoyment would come to an end with her death and what was left (subject of course to the payment of debts and expenses) would pass to Natraj Pillai. The case came up to be considered in a later decision of the Madras High Court reported in Krishnaswami v. Srinivasan, AIR 1945 Mad 362. Chandra Sekhar Aiyar, J. considered this decision and did not quite approve of the same. His Lordship however on a consideration of the words employed in the will in question held that the properties belonged absolutely to the donee after the testator's death and the testator had no power to make a disposition after death of A after giving her an absolute estate.