YETHIRAJULU NAIDU Vs. MUKUNTHU NAIDU

JUDGEMENT

(1.) In these appeals four a question arise for determination. The first question is under the will of the testator, what estate do the three sons of the testator take in the property described in the will as No. 101, Acharappen Street.

(2.) The argument on the one side was that this particular property, which may be conveniently referred to as house No. 1, devolved with the rest of the property (which may be referred to at house No. 2 and house No. 3) devised by the will. On the other side it was contended that the three sons took an " absolute" estate in house No. 1. I feel no doubt that the testator intended that house No. 1 should not devolve in the same way as house No. 2 and house No. 3. No doubt house No. 1 is included with house No. 2 and house No. 3 under the heading " Particulars of properties", but when the testator deals with the income of the houses pending the final division of his estate, he only provides for the income of house No. 2 and house No. 3. With regard to the income of these two houses he directs that his executors after making certain monthly payments (including a sum of Rs. 6 a month as the rent of house No. 1 which he sets apart as the teerva of a certain charity) shall divide it and pay it to the three sons in equal shares. I think it is quite clear that the words " these properties when they occur in the last paragraph of the will refer to the properties with which the testator had just been dealing, viz., house No. 2 and house No. 3. The same words occur at the beginning of the will, in the passage where the executors are appointed. No doubt the more natural meaning to give to these words where they thus occur would be to read them as referring to the properties which have just been enumerated which would include house No. 1, They may, however, be read as referring to the properties dealt with in the two following paragraphs, viz., house No. 2 and house No. 3. This construction gives the meaning to the words which I think the testator clearly intended them to have when he uses them at the end of the will, and makes them consistent with the express provision of the will with regard to the dispositions of house No. 1, and houses Nos. 2 and 3, respectively.

(3.) The effect of the will as regards house No. 1 is to create an estate in English phraseology, in fee simple, or to use the words which have been adopted by the Courts of this country, an absolute estate in the three sons. The three sons took as members of a joint family and their respective interests pass to their representatives not under the will but under the Hindu Law of inheritance. That is to say, the plaintiff and his branch and the 1 defendant and his branch take the property to the exclusion of the 4 defendant whose husband died without male issue.