RAMAMMA Vs. SUBBARAMI REDDI

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of Nellore giving the plaintiff a decree in a suit brought by her to enforce the provisions of a will made in her favour by her deceased husband dealing with properties which at the time when he made the will and at the time of his death were the joint family properties of himself and his infant son. The learned District Judge has held that the provision made by the testator for his wife would have been a proper provision for him to make during his lifetime, that such a disposition of joint family properties during his lifetime would have been good, and that, if he could make such a provision during his lifetime, he could equally make it after his death, and he has relied on the decision of Sadasiva Ayyar and Spencer, JJ., in Patra Chariar v. Srinivasa Chariar (1917) I.L.R., 40 Mad., 1122, which as I shall point out presently, is distinguishable from the present case. Mr. A. Krishnaswami Ayyar, for the appellants, has contended that it is now settled law that a co-parcener cannot devise joint family property by will because on the date of his death when the will takes effect, there is nothing for the will to operate on, as at the moment of his death his share passes by survivorship to the other co-parceners, That was very clearly laid down in Vittla Butten v. Yamenamma (1874) 8 M.H.C.R., 6, where it is said, at page 12 that the will in the case referred to cannot take effect. At the moment of death, the right of survivorship, is in conflict with the right by devise. Then the title by survivorship, being the prior title, takes precedence to the exclusion of that by devise.

(2.) It has been contended before us, and certain general dicta of the Privy Council have been referred to, to the effect that testamentary capacity is co-extensive with the right of making gifts inter vivos. That that principle has not a universal application is shown by the decision of the Privy Council in Lakshman Dada Naik v. Ramachandra Dada Naik (1874) 8 M.H.C.R., 6, which expressly approved the decision of the Madras High Court to which I have just; referred. At that time the view that prevailed in the Madras High Court was that a co-parcener might during his lifetime make a gift of his undivided share (a view which has since been overruled) and the Madras High Court held in Vittla Butten v. Yamenamma (1874) 8 M.H.C.R., 6, that in spite of that he could not. dispose of his undivided share by will. The Privy Council in Lakshman Dada Naik v. Ramachandra Dada Naik (1881) I.L.R. 6 Bom., 48 (P.C.), says at page 62, with reference to the case: Its reasons for making the distinction between a gift and a devise are that the co-parcener s power of alienation is founded on his right to a partition; that that right dies with him: and that the title of his co- sharers by survivorship resting in them at the moment of his death, there remains nothing upon which the will can operate. This principle was invoked in Suraj Bunsi Koer v. Sheo Proshad Singh (1880) I.L.R., 5 Cal., 148 (P.C.); L.R., 6 I.A., 88, and was fully recognized by their Lordships.

(3.) This principle has already been applied to a case exactly such as the present by Muttusami Ayyar, J. in Lakshmi v. Subramanya (1889) I.L.R., 12 Mad., 490. At page 492, the learned Judge says: It is conceded that where a Hindu father disposes by will of ancestral property, the disposition is inoperative as against his son, but it is argued that when the disposition made is in the nature of a provision for the maintenance of the testator s widow, the will is valid. I am unable to adopt this view. The ground on which a will in regard to ancestral or joint family property was found to be invalid in the case of Vittla Butten v. Yamenamma (1874) 8 M.H.C.R., 6 is that directly the testator dies the co-parcener s right of survivorship takes effect and that a testamentary disposition cannot be permitted to prevail against that right. In the absence of the testamentary power, the contention that that power was exercised for the purpose of making a provision for the support of the testator s wife could not, in my opinion, validate the will.