PYNDAH RAMAKRISHNAIAH Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) This second appeal is by the first defendant, who contends that under the will of his father, the second defendant was not entitled to any exclusive right in the family house under clause 12 of the will.

(2.) The two material clauses are clause 5 and clause 12. Clause 5 is as follows: The entire moveable and immoveable properties belonging to me, excluding what I have given herein and what I am going to give in future, the remaining entire properties shall pass to my wife Pydah Sattiraju. Clause 12 is as follows: The house wherein I am residing shall, after the death of my wife, pass to my fourth son Pydah Satyanarayanamurthi (second defendant). The argument of Mr. Raghava Rao for the first defendant is that clause 12 does not expressly give the wife a life interest; so that Clause 12 could not operate immediately on the death of the testator and so under clause 5 the wife obtained an absolute interest in the property, which ultimately devolved upon her sons. Pydah Sattiraju died before her husband. It is however conceded by the learned advocate for the appellant that the question for consideration is the same as if the wife had survived her husband.

(3.) It is conceded that in certain simple cases, such as where a person be queathes property to his heir-at-law B on the death of A, a Court would hold that by necessary implication there was a grant to A, with the remainder to B; because otherwise there would be something in the nature of an intestacy, there being nobody to take the property upon the testator's death. The learned advocate for the appellant has drawn our attention to the relevant articles in Halsbury, Volume 34, page 427 on the subject, and to Theobald on Wills, Chapter 52. One of the exceptions to the rule that a life estate may be presumed where there is a gift of the remainder to the heir-at-law, is where there is a residuary legatee. In the case of residuary legacy there would be no intestacy if a life estate was not presumed; because the residuary legatee would enter into immediate possession. Even to this exception there are however exceptions, e.g., where the general construction of the document would indicate that A should have a life estate. Such an example is given in Theobald where there is a gift to a residuary devisee after the death of A, A should then take a life estate by implication, the reason being that the very wording used indicates that the testator did not intend with regard to that particular gift that the residuary devisee should take the property immediately on the testator's death, but only after the life of A.