TURLAPATY RAJESWARA RAO Vs. KAMARAJUGADDA RANGAMMA

JUDGEMENT

(1.) This is an appeal against the decree and judgment of the Subordinate Judge of Bezwada dismissing the suit O.S. No. 48 of 1944, filed by the appellants for a declaration of title and for possession of the suit properties. The relationship of the parties can be seen from the following pedigree:

(2.) Pedda Veerabadra Rao died on 9 March, 1918. Before his death, on 5 December, 1917, he executed a will, Ex. P-1, disposing of his properties in the manner mentioned in the document. After his death Syamalamba was in possession and enjoyment of the plaint schedule properties till her death on 17 January, 1944. Basaveswara and Mrutyunjaya who were the sister's sons of the testator and in whose favour certain bequests were made, predeceased the widow Syamalamba. The plaintiffs, who are the testator's paternal uncle's grandsons, filed the suit for recovery of the plaint schedule properties claiming to be the next reversioners to the estate of Veerabadra Rao First defendant is the wife of Basaveswara, one of the nephews of the testator. Second defendant is the widow of Mrutyunjaya, another nephew of the testator. Third defendant is the daughter of the second defendant. The other defendants are alienees. Defendants 1 to 3 contested the suit on the ground that under the will of Veerabadra Rao, Basaveswara and Mrutyunjaya got a vested right in the suit properties and though they predeceased the widow, they are entitled to the suit properties as heirs of the testator's nephews. The learned Subordinate Judge accepted the case of the defendants and dismissed the suit. The plaintiffs have preferred the above appeal against the judgment and decree of the Subordinate Judge.

(3.) The only question that arises in this appeal is therefore one of the construction of the will. If, under the will, Basaveswara and Mrutyunjaya got a vested interest, the suit would be liable to be dismissed. If, on the other hand, what Basaveswara and Mrutyunjaya got under the will was only a contingent interest in the suit properties, as they predeceased the widow, the plaintiffs would be entitled to succeed. As the decision in the appeal turns upon the construction of the will, it is as well that we extract the relevant portions of the will. The testator after giving the reasons for his executing the will, and also after dedicating certain properties to the temple, proceeded to dispose of his other properties in the following manner: 5. The jewels which my wife Thurlapati Syamalamba has been wearing and six acres of land out of the land which fell to my share in Mounje Adivavulapati Vasathi agraharam shall permanently pass to my wife with powers of disposition thereto by way of gift, exchange and sale. 6. Excluding the property which has been set apart to be conveyed to the aforesaid Sri Swami-varu and to my wife, in respect of all the remaining moveable and immoveable properties belonging, to me and in respect of the liabilities and assets, my wife alone shall be the kartha (owner) without having powers of gift, exchange and sale. After her lifetime, my nephews, namely, Kamarajugadda. Basaveswara Sarma and Mrutyunjaya Sarma shall become the karthas of the said moveable and immoveable property and of the liabilities and assets and they have been hereby empowered to enjoy my property with such rights and interest as I have been enjoying, i.e., with powers of disposition; thereto by way of gift, sale, etc., and from son to grandson and so on in succession. 7. Should any misunderstandings arise between my wife and my nephews, my wife alone shall retain the said property in her possession during her lifetime, without having the powers of gift, exchange and sale, shall collect the income realised therefrom and shall give two shares to the nephews and enjoy one share for herself. After her lifetime, the entire moveable and immoveable property shall pass to my nephews. 8. After my lifetime, my wife, and after the lifetime of my wife, my nephews and their sons grandsons and so on in succession shall be the dharmakarthas of Sri Raja Rajeswara Swami Varu and these individuals alone shall give the income realised therein for the nitya neivedya dheeparathanas and to the archakas. 9. My nephews shall perform my obsequies and the obsequies of my wife. As they are my father's daughter's sons and my sister's sons, I have no other persons in the world than these to whom: I can show affection. I have, therefore, wholeheartedly executed this will in my own hand.and without going against my conscience, providing that the moveable and immoveable properties belonging to me should, as mentioned above, pass to my sister's sons.