{"id":142701,"date":"2011-04-01T00:00:00","date_gmt":"2011-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/siddamurthy-jayarami-reddy-d-by-vs-godi-jaya-rami-reddy-anr-on-1-april-2011"},"modified":"2016-03-29T00:14:02","modified_gmt":"2016-03-28T18:44:02","slug":"siddamurthy-jayarami-reddy-d-by-vs-godi-jaya-rami-reddy-anr-on-1-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/siddamurthy-jayarami-reddy-d-by-vs-godi-jaya-rami-reddy-anr-on-1-april-2011","title":{"rendered":"Siddamurthy Jayarami Reddy (D) By … vs Godi Jaya Rami Reddy & Anr on 1 April, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Siddamurthy Jayarami Reddy (D) By … vs Godi Jaya Rami Reddy & Anr on 1 April, 2011<\/div>\n
Author: R Lodha<\/div>\n
Bench: Aftab Alam, R.M. Lodha<\/div>\n
                                                                                                          \n\n                                                                    REPORTABLE\n\n\n\n\n\n                 IN THE SUPREME COURT OF INDIA\n\n                   CIVIL APPELLATE JURISDICTION\n\n\n                   CIVIL  APPEAL NO. 2916 OF 2005\n\n\n\n\n\nSiddamurthy Jayarami Reddy (D) by LRs.                       .... Appellants\n\n\n                                    Versus\n\n\nGodi Jaya Rami Reddy & Anr.                                    ....Respondents \n\n\n\n\n\n                                JUDGMENT\n<\/pre>\n
R.M. Lodha, J.\n<\/p>\n<\/p>\n
             The   controversy   in   this   appeal,   by   special   leave,   is <\/p>\n
concerned   with   will   dated   May   21,   1920   executed   by   Bijivemula <\/p>\n
Subba   Reddy   resident   of     Chennavaran,     village   Kattera   Gandla, <\/p>\n
Badwel   Taluq,   Cuddapah   District.     The   question   is   one   of <\/p>\n
construction upon which the two courts – High Court and trial court – <\/p>\n
are not in accord and, have taken divergent view. <\/p>\n
                                                                                    1<\/span><\/p>\n
2.            At   the   time   of   execution   of   the   will,   Bijivemula   Subba <\/p>\n
Reddy   –   a   Hindu   –   was   aged   about   75   years.   He   had   his   wife <\/p>\n
Subbamma, daughter Pitchamma, son-in-law Rami Reddy, widowed <\/p>\n
sister   Chennamma,   widowed   daughter-in-law     and   granddaughter <\/p>\n
Lakshumamma living. His only   son Sesa Reddy had died in 1917. <\/p>\n
The testator was man of sufficient wealth.  He had landed  property <\/p>\n
(wet   and   dry   lands   and   wells)   at   various   places,   namely,   in <\/p>\n
Katteragandla, Rampadu,   Varikuntla and   Thiruvengala Puram. He <\/p>\n
also   owned   few   houses   and   plots   of   lands   at   different   places.   He <\/p>\n
had moveable properties as well in the form of bonds, securities and <\/p>\n
promissory notes. The will recites, as indeed is the undisputed fact, <\/p>\n
that   the   testator,   except   one   house   situate   at   Kotha   Laxmipally <\/p>\n
village in which he had 1\/3rd  share,   was the absolute owner of the <\/p>\n
properties  specified therein.\n<\/p>\n<\/p>\n
3.            Pitchamma   had   no   child   although   she   had   married     20 <\/p>\n
years before the execution of the will.   The testator desired that his <\/p>\n
daughter Pitchamma adopted a son with the consent of her husband <\/p>\n
and his granddaughter Lakshumamma got   married to the adopted <\/p>\n
son of his daughter Pitchamma.\n<\/p>\n
                                                                                      2<\/span><\/p>\n
4.            The   will   is   written   in   vernacular   (Telugu).     The <\/p>\n
correctness   of its English translation annexed with the appeal was <\/p>\n
disputed   by   the   respondents.     The   parties   were   then   directed   to <\/p>\n
submit agreed translation of the will which they did and that reads as <\/p>\n
follows:\n<\/p>\n<\/p>\n
        “I, Bijivemula Subba Reddy son of Balachennu, resident of <\/p>\n
        Chennavaran   village   Kattera   gandla,   Badwel   Taluq <\/p>\n
        Cuddapah   District,   cultivation,   this   the   21st  day   of   May, <\/p>\n
        1920, with sound mind, free will executing the will.<\/p>\n
               Now I am aged about 75 years. My wife Subbamma <\/p>\n
        is living. I had one son by name Sesa Reddy. He died at <\/p>\n
        the age of 24 years, about three years back. He had one <\/p>\n
        wife   and   one   daughter   aged   about   6   years   by   name <\/p>\n
        Lakshumma.   I  have   one   daughter  by  name  Pitchamma.   I <\/p>\n
        have given in marriage to one Rami Reddy adopted son of <\/p>\n
        Siddamurthi Duggi Reddy, Papireddypally village Rampadu <\/p>\n
        Majira., though she married about 20 years back,  but she <\/p>\n
        has no issues.\n<\/p><\/blockquote>\n
<\/blockquote>\n
               She   intended   to   take   a   boy   in   adoption   with   the <\/p>\n
        consent of her husband.\n<\/p><\/blockquote>\n
<\/blockquote>\n
               As   I  am   old   I  could   not   [sic]   able   to   run   my   family. <\/p>\n
        After   the   death   of   my   son,   since   15   years,   the   above <\/p>\n
        persons are looking after my family and my welfare.<\/p>\n<\/blockquote>\n
               I have also one widow sister by name Chennamma. <\/p>\n
        She  is   living  with   me  since  30  years.   She  is  also  helping <\/p>\n
        me   in   all   aspects.   I   intend   to   give   my   grand   daughter <\/p>\n
        Lakshumamma   to   the   proposed   adopted   son   of   my <\/p>\n
        daughter Pitchamma.<\/p><\/blockquote>\n
               In the said event, I intend to give all my belongings, <\/p>\n
        moveable and immovable properties to the said Lachumma <\/p>\n
        and   the  adopted   son  of  my  daughter   Pitchamma.   But   my <\/p>\n
                                                                                              3<\/span><\/p>\n
daughter and her husband so far did not take any steps for <\/p>\n
getting a boy in adoption. Now as I am sick and suffering <\/p>\n
from fever and other ailments, I am doubting whether I can <\/p>\n
perform the above said acts during my life time. <\/p>\n
        I   own   lands   in   Katteragandla   Village,   Rampadu <\/p>\n
village, Varikuntla village, and Thiruvengala puram village, <\/p>\n
both wet and dry lands and also wells. I also own a Midde <\/p>\n
in   Majira.   I   have   one   Beeruva   in   Pancha   of   my   house.   I <\/p>\n
also   have   household   articles,   kallamettelu.   I   also   have <\/p>\n
lands   in   Papireddypally   village   of   Rampadu   Majira,   two <\/p>\n
plots and I have absolute rights in one of the same. I also <\/p>\n
have   one   house   in   Kotha   Laxmipally   village,   of   Kathera <\/p>\n
gandla majira and in that I have 1\/3rd     share.   I also have <\/p>\n
bonds   and   securities   and   promissory   notes   transactions. <\/p>\n
As   I   have   the   above   said   moveable   and   immoveable <\/p>\n
properties   and   as   I   am   having   absolute   rights   over   the <\/p>\n
same,   none   others   have   any   rights   whatsoever   in   the <\/p>\n
above   said   properties.   Therefore,   I   intend   to   execute   the <\/p>\n
will and the same shall come into force after my demise.<\/p>\n
                The following are the terms of the will.\n<\/p>\n<\/p>\n
              1)      After   my   demise,   my     grand   daughter, <\/p>\n
                      Lachumamma who is the daughter of my <\/p>\n
                      son   shall   have   absolute   rights   in   my <\/p>\n
                      entire properties.\n<\/p>\n<\/p>\n
              2)      As   my   grand   daughter   is   minor,   till   she <\/p>\n
                      attains   the   age   of   majority   and   attains <\/p>\n
                      power   to   manage   the   above   said <\/p>\n
                      properties,   I   hereby   appoint   my   son   in <\/p>\n
                      law   Siddamurthy   ramireddy   as   executor <\/p>\n
                      of the will till then.\n<\/p>\n<\/p>\n
              3)      According   to   the   will   of   my   grand <\/p>\n
                      daughter   Laxmamma,   in   case   to   marry <\/p>\n
                      the  adopted son  of  my daughter,  it  shall <\/p>\n
                      be performed.\n<\/p>\n<\/p>\n
              4)      As   I     am   having   my   wife   Subbamma, <\/p>\n
                      Widow daughter in law, Pitchamma, and <\/p>\n
                                                                                 4<\/span><\/p>\n
                              my   widow   sister   Chennamma,   the <\/p>\n
                              present   guardian,   Ramireddy   and   my <\/p>\n
                              grand   daughter   Laxmumma,   after <\/p>\n
                              attaining   majority,   shall   look   after   the <\/p>\n
                              above   persons.   If   they   do   not   satisfied <\/p>\n
                              (sic)   with   the   above   arrangements,   they <\/p>\n
                              shall enjoy my property with limited rights <\/p>\n
                              and   necessary   arrangements   shall   be <\/p>\n
                              made by the guardian and after him and <\/p>\n
                              my   grand   daughter   Laxmamma   after <\/p>\n
                              attaining majority.\n<\/p>\n<\/p>\n
                      5)      In case, as God’s grace is not in favour of <\/p>\n
                              my   aforesaid   proposals,   namely   if   my <\/p>\n
                              daughter did not take any boy in adoption <\/p>\n
                              and   if   the   said   boy   will   not   accept   to <\/p>\n
                              marry   my   grand   daughter   Laxmamma,   I <\/p>\n
                              intend   to   give   my   aforesaid   properties, <\/p>\n
                              1\/3rd  share   to   my   daughter   Pitchamma <\/p>\n
                              and  her  husband  who  is  also   my  son   in <\/p>\n
                              law   Ramireddy   together.   The   remaining <\/p>\n
                              2\/3rd share is given to my grand daughter <\/p>\n
                              Laxmumma.\n<\/p>\n
\n                      Accordingly   I   executed   the   will   and   they   have <\/p>\n
               the   right   to   partition   and   they   shall   enjoy   the <\/p>\n
               properties   after   division   with   absolute   rights   during <\/p>\n
               their life time and thereafter their legal heirs”<\/p>\n
5.             Bijivemula Subba Reddy died within   few months of the <\/p>\n
execution   of   the   will.       After   few   years   of   death   of   the   testator, <\/p>\n
Pitchamma   wanted     to   adopt   Godi   Venkat   Reddy     as   her   son   but <\/p>\n
her   husband   Rami   Reddy   did   not   agree   to   that   adoption.   Rami <\/p>\n
Reddy left the Village Chennavaran,  his wife Pitchamma and settled <\/p>\n
in   other   village   –   Pappireddypally.   Rami   Reddy  then   married     with <\/p>\n
                                                                                          5<\/span><\/p>\n
Subbamma.     Out   of   the   wedlock   of   Rami   Reddy   and   his   second <\/p>\n
wife, two sons were born : (i)  Siddamurthy Jayarami Reddy and (ii) <\/p>\n
Siddamurthy Rami Reddy.\n<\/p>\n<\/p>\n
6.           Lakshumamma married Godi Venkat Reddy somewhere <\/p>\n
in 1926 and out of that wedlock one son Godi Jayarami Reddy was <\/p>\n
born.   Unfortunately  Godi Venkat Reddy died within three  years  of <\/p>\n
marriage.     Godi   Jayarami   Reddy   has   one   son   Godi   Ramachandra <\/p>\n
Reddy.       Rami   Reddy   died   in   1939;   Pitchamma   died   in   1953   and <\/p>\n
Lakshumamma died in 1971.\n<\/p>\n<\/p>\n
7.           In   1980,   the   two   sons   of   Rami   Reddy,   born   out   of <\/p>\n
wedlock of his second wife Subbamma, filed a suit for partition of the <\/p>\n
schedule     properties   –   the   properties     bequeathed     by   Bijivemula <\/p>\n
Subba Reddy vide his will dated May 21, 1920 – claiming 1\/3rd share <\/p>\n
therein under that will. They also claimed rent and profits. The case <\/p>\n
of the plaintiffs was that they and the defendants were members of a <\/p>\n
composite family and were in joint possession and  enjoyment of the <\/p>\n
properties of Bijivemula Subba Reddy and as per the will they were <\/p>\n
entitled to 1\/3rd  share.     During the pendency of the suit, one of the <\/p>\n
sons   died   and   his   legal   representatives   were   brought   on   record. <\/p>\n
The plaintiffs  are the present appellants.\n<\/p>\n
                                                                                  6<\/span><\/p>\n
8.            The   defendants   traversed   the   claim   of   the   plaintiffs   and <\/p>\n
set up the plea that there was a dispute between Pitchamma and her <\/p>\n
husband Rami Reddy over the adoption of Godi Venkat Reddy;  Rami <\/p>\n
Reddy   left   the   house   somewhere   in   1924   and   settled   in   Village <\/p>\n
Pappireddypally.   It was averred that Rami Reddy married a second <\/p>\n
wife   and   not   only   abandoned   Pitchamma   but   also   abandoned   his <\/p>\n
rights   to   the   property   given   under   the   will.   Pitchamma   then   looked <\/p>\n
after   the   family   in   the   absence   of   any   male   member,   managed   the <\/p>\n
properties   and   got   the   patta   of   these   properties   transferred   in   the <\/p>\n
name of Lakshumamma and bequeathed her share in the property by <\/p>\n
a will  in 1953 to Lakshumamma.\n<\/p>\n<\/p>\n
9.            The defendants also set up the plea that Lakshumamma <\/p>\n
purchased   few   properties   mentioned   in   the   schedule   from   her   own <\/p>\n
resources in 1955.  They gave the  details of those properties.  They <\/p>\n
further set up the case that Lakshumamma after executing the will on <\/p>\n
March   6,   1953   partitioned   the   properties   between   herself   and   first <\/p>\n
defendant.   By   way   of   additional   written   statement,   the   plea   of  res  <\/p>\n
judicata was raised.  The defendants are the respondents herein. <\/p>\n
                                                                                     7<\/span><\/p>\n
10.           On the basis of the pleadings of the parties, the trial court <\/p>\n
framed diverse issues; the parties let in oral as well as documentary <\/p>\n
evidence and the trial court heard the counsel for the parties. <\/p>\n
11.           The trial court in its judgment dated December 22, 1986 <\/p>\n
negated   the   plaintiffs’   claim   that   they   and   the   defendants   were <\/p>\n
members  of a composite  family  and   the subject  properties  were in <\/p>\n
their   joint   possession   and   enjoyment.       However,   the   trial   court   did <\/p>\n
hold  that  under  the  will  dated  May 21,  1920    Pitchamma  and  Rami <\/p>\n
Reddy   got   1\/6th  share   each   in   the   properties   of   the   testator.   While <\/p>\n
concluding     so,   the   trial   court   held   that   there   was   no   condition <\/p>\n
imposed in the will by the testator that his daughter Pitchamma and <\/p>\n
son-in-law   Rami   Reddy   must   adopt   a   son   and   her   granddaughter <\/p>\n
should marry the adopted son of Pitchamma and her husband. It was <\/p>\n
only   a   pious   wish   of   Bijivemula   Subba   Reddy   that   his   daughter <\/p>\n
Pitchamma adopted a son with the consent of her husband and that <\/p>\n
his  granddaughter Lakshumamma  should marry the adopted  son  of <\/p>\n
Pitchamma   and   her   husband.   The   trial   court   further   held   that   the <\/p>\n
plaintiffs were not claiming the property directly as legatees under the <\/p>\n
will but as legal heirs of Rami Reddy and Pitchamma since will had <\/p>\n
come   into   force   and   was   acted   upon   after   the   death   of   Bijivemula <\/p>\n
                                                                                      8<\/span><\/p>\n
Subba Reddy and, accordingly, Pitchamma and Rami Reddy got 1\/6th <\/p>\n
share   each.     The   trial   court   also  held  that   the  property   acquired  by <\/p>\n
Pitchamma by way of bequest under the will was a separate property <\/p>\n
and   after   her   death,   it   devolved   upon   her   husband’s   heirs   (i.e. <\/p>\n
plaintiffs)   and,   thus,   plaintiffs   were   entitled   to   1\/3rd  share   in   the <\/p>\n
schedule   properties.     The   trial   court   negated   the   plea   of   adverse <\/p>\n
possession   set   up   by   the   defendants   and   passed   a   preliminary <\/p>\n
decree   for   partition   in   favour   of   plaintiffs   with   regard   to   their   1\/3rd <\/p>\n
share.\n<\/p>\n<\/p>\n
12.            The   defendants   (present   respondents)     challenged   the <\/p>\n
judgment and decree  passed by  the  trial  court  in  appeal before the <\/p>\n
High Court.  The High Court formulated three points for determination <\/p>\n
in the   appeal viz; (i)   whether Rami Reddy failed to comply with the <\/p>\n
obligations  cast on him under the will dated May 21, 1920 executed <\/p>\n
by Bijivemula Subba Reddy and  he abandoned the family and if so, <\/p>\n
whether   his   legal   heirs   (Plaintiffs)   could     claim   his   share   in   the <\/p>\n
property of the   testator; (ii) whether will  executed by Pitchamma in <\/p>\n
1953   was   genuine,   true   and   bona   fide   and   (iii)   whether   the <\/p>\n
defendants   have   acquired   rights   in   the   schedule   properties   by <\/p>\n
adverse possession.\n<\/p>\n
                                                                                            9<\/span><\/p>\n
13.           The   High   Court   held   that   it   was   obligated   upon   Rami <\/p>\n
Reddy under the will to maintain the dependants of the testator   and <\/p>\n
act as an executor of the will.   Rami Reddy failed to discharge both <\/p>\n
obligations   –   in   maintaining   the   dependants   of   the   testator   and     in <\/p>\n
acting   –   as   executor.   The   High   Court,   thus,   concluded   that   Rami <\/p>\n
Reddy   could   not   claim   any   property   under   the   will.   The   High   Court <\/p>\n
overturned the finding of the trial court as regards  the will  executed <\/p>\n
by    Pitchamma  and  held  that   the  will   executed   by  her  in   1953   was <\/p>\n
genuine and true. As regards plea of adverse possession set up by <\/p>\n
the defendants–although negated by the trial court–the High Court <\/p>\n
held that  there  was ouster of  the  plaintiffs  60  years  back and there <\/p>\n
was   no   semblance   of   any   enjoyment   of   property   by   the   plaintiffs’ <\/p>\n
predecessors-in-title along with the defendants jointly. Consequently, <\/p>\n
the   High   Court   by   its   judgment   dated   April   20,   2003   reversed   the <\/p>\n
judgment   and   decree   of   the   trial   court   and   allowed   the   appeal <\/p>\n
preferred by the defendants.\n<\/p>\n<\/p>\n
14.           It   is   from   the   judgment   of   the   High   Court   that   present <\/p>\n
appeal by special leave arises.\n<\/p>\n<\/p>\n
15.           Mr.   R.   Sundaravaradan,   learned   senior   counsel   for   the <\/p>\n
appellants argued: The importation of Section 57 and Section 141 of <\/p>\n
                                                                                     10<\/span><\/p>\n
Indian   Succession   Act,   1925   (for   short,   `the   1925   Act’)   is   wholly <\/p>\n
inappropriate since the present case is concerned with the muffussil <\/p>\n
will   of   a   Hindu   dated   May   21,   1920   with   regard   to   the     properties <\/p>\n
situate   outside   the   city     of   Madras.   The     muffussil   wills   (executed <\/p>\n
before   1927)   do   not   require   the   formalities   of   execution,   attestation <\/p>\n
and revocation to be carried out in the manner required by the 1925 <\/p>\n
Act.   The   parties did not join issue about the truthfulness of the will <\/p>\n
and   there   was   only   dispute   about   its   construction   and <\/p>\n
implementation. Even if it be assumed that Section 141 of the 1925 <\/p>\n
Act is attracted, the same has been complied with; the  attesters were <\/p>\n
already  dead.\n<\/p>\n<\/p>\n
16.            It was vehemently contended by Mr. R. Sundaravaradan <\/p>\n
that   the   property   vested   in   the   executor   in   1920   on   the   death   of <\/p>\n
testator and Section 141 of the 1925 Act, even if applicable, could not <\/p>\n
divest   such   vesting   in   title.   Dealing   with   the   expression   “take   the <\/p>\n
legacy” in Section 141, it was argued by learned senior counsel  that <\/p>\n
the   said   expression   means     taking   possession   of   legacy     and     not <\/p>\n
vesting  of the  legacy.  He submitted  that the word “executor” used <\/p>\n
in the will has been used in loose sense of the term; Rami Reddy was <\/p>\n
the son-in-law of the testator, he was looking after and managing the <\/p>\n
                                                                                       11<\/span><\/p>\n
lands and, therefore, the legacy bequeathed to him was  not because <\/p>\n
he   was   to   be   the   executor   in   strict   sense   but   because   he   was   the <\/p>\n
testator’s son-in-law and manager.\n<\/p>\n<\/p>\n
17.            Learned senior counsel submitted that   there is no legal <\/p>\n
evidence   of   mismanagement,   malversation   or   misappropriation   and <\/p>\n
a vague allegation that the executor has not done his job required no <\/p>\n
serious consideration.     He argued that the marriage of Rami Reddy <\/p>\n
with Subbamma was with the consent of Pitchamma and there was <\/p>\n
no legal impediment for a Hindu to have a second wife before Hindu <\/p>\n
Succession   Act,   1956   or   Bigamy   Prevention   Act,   1949   especially <\/p>\n
when   Pitchamma   was   barren   and   it   is   indeed   a   legal   requirement <\/p>\n
based   on   Shastric   injunction   to   have   progeny   so   that   religious <\/p>\n
efficacy   of   satisfying   the   souls   of   forefathers   is   completed.   Learned <\/p>\n
senior counsel  contended that there was no voluntary and conscious <\/p>\n
abandonment by Rami Reddy and the High Court was in clear error <\/p>\n
in holding so.\n<\/p>\n<\/p>\n
18.            Mr. R. Sundaravaradan criticized the findings of the High <\/p>\n
Court   on   the   plea   of   adverse   possession   set   up   by   the   defendants <\/p>\n
and genuineness of the will executed by Pitchamma in 1953 in favour <\/p>\n
of Lakshumamma.\n<\/p>\n
                                                                                       12<\/span><\/p>\n
19.            Mr.   P.S.   Narasimha,   learned   senior   counsel   for   the <\/p>\n
respondents, on the other hand, supported the judgment of the High <\/p>\n
Court.\n<\/p>\n<\/p>\n
20.            Indian   Succession   Act,   1865   (for   short,   `the   1865   Act’) <\/p>\n
was enacted to provide for intestate and testamentary succession in <\/p>\n
British   India.   Section   331   of   the   1865   Act,   however,   excluded   its <\/p>\n
applicability to intestate or testamentary succession to the property of <\/p>\n
any Hindu, Muhammadan or Buddhist and it further provided that its <\/p>\n
provisions shall not apply to any will made, or any intestacy occurring, <\/p>\n
before January 1, 1866.\n<\/p>\n<\/p>\n
21.            By   the   Hindu   Wills   Act,   1870   (for   short,   `the   1870   Act’), <\/p>\n
statutory   provisions   were   made   to   regulate   the   wills   of   Hindus, <\/p>\n
Jainas, Sikhs and Buddhists in the Lower Provinces of Bengal and in <\/p>\n
the   towns   of   Madras   and   Bombay.   Inter   alia,   Section   2   thereof <\/p>\n
provided as follows :\n<\/p>\n<\/p>\n
          “S. 2.  The following portions of the Indian Succession Act, <\/p>\n
          1865, namely,–\n<\/p><\/blockquote>\n
<\/blockquote>\n
                sections   forty-six,   forty-eight,   forty-nine,   fifty,   fifty-<\/p>\n
          one,   fifty-five   and   fifty-seven   to   seventy-seven   (both <\/p>\n
          inclusive),<\/p>\n
                sections  eighty-two,  eighty-three, eighty-five, eighty-<\/p>\n
          eight to one hundred and three (both inclusive),<\/p>\n
                                                                                         13<\/span><\/p>\n
              sections   one   hundred   and   six   to   one   hundred   and <\/p>\n
       seventy-seven (both inclusive),<\/p>\n
              sections   one   hundred   and   seventy-nine   to   one <\/p>\n
       hundred and eighty-nine (both inclusive),<\/p>\n
              sections one hundred and ninety-one to one hundred <\/p>\n
       and ninety-nine (both inclusive),<\/p>\n
              so much of Parts XXX and XXXI as relates to grants <\/p>\n
       of   probate   and   letters   of   administration   with   the   will <\/p>\n
       annexed, and<\/p>\n
              Parts   XXXIII   to   XL   (both   inclusive),   so   far   as   they <\/p>\n
       relate   to   an   executor   and   an   administrator   with   the   will <\/p>\n
       annexed,<\/p>\n
              shall,   notwithstanding   anything   contained   in   section <\/p>\n
       three hundred and thirty-one of the said Act, apply–<\/p>\n<\/blockquote>\n
              (a)     to   all   wills   and   codicils   made   by   any   Hindu, <\/p>\n
       Jaina,   Sikh   or   Buddhist,   on   or   after   the   first   day   of <\/p>\n
       September   one   thousand   eight   hundred   and   seventy, <\/p>\n
       within the said territories or the local limits of the ordinary <\/p>\n
       original civil jurisdiction of the High Courts of Judicature at <\/p>\n
       Madras and Bombay; and<\/p>\n<\/blockquote>\n
              (b)     to   all   such   wills   and   codicils   made   outside <\/p>\n
       those territories and limits, so far as relates to immoveable <\/p>\n
       property situate within those territories or limits:”<\/p>\n<\/blockquote>\n
22.          The 1925 Act which   came into force on September  30, <\/p>\n
1925 has  eleven  parts.  Part VI has twenty three chapters.  Section <\/p>\n
57 to Section 191 are covered by Part VI.   Section 57  provides thus:<\/p>\n
       “S.57. Application of certain provisions of Part to a class of <\/p>\n
       Wills   made   by   Hindus,   etc.  –  The   provisions   of   this   Part <\/p>\n
                                                                                        14<\/span><\/p>\n
        which   are   set   out   in   Schedule   III   shall,   subject   to   the <\/p>\n
        restrictions and modifications specified therein, apply–<\/p>\n<\/blockquote>\n
                  (a)    to   all   Wills   and   codicils   made   by   any   Hindu, <\/p>\n
                         Buddhist, Sikh or Jaina on or after the first day <\/p>\n
                         of September, 1870, within the territories which <\/p>\n
                         at the said date were subject to the Lieutenant-<\/p>\n
                         Governor of Bengal or within the local limits of <\/p>\n
                         the ordinary original civil jurisdiction of the High <\/p>\n
                         Courts   of   Judicature   at   Madras   and   Bombay; <\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
                         and<\/p>\n<\/blockquote>\n
                  (b)    to   all   such   Wills   and   codicils   made   outside <\/p>\n
                         those   territories   and   limits   so   far   as   relates   to <\/p>\n
                         immoveable   property   situate   within   those <\/p>\n
                         territories or limits; and <\/p>\n<\/blockquote>\n
               (c)       to   all  Wills   and   codicils   made   by   any   Hindu, <\/p>\n
                         Buddhist, Sikh or Jaina on or after the first day <\/p>\n
                         of January, 1927, to which those provisions are <\/p>\n
                         not applied by clauses (a) and (b):]<\/p>\n
               Provided that marriage shall not revoke any such Will <\/p>\n
        or codicil.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Clauses (a) and (b) of Section 57 of the 1925 Act are pari materia to <\/p>\n
clauses (a) and (b) of Section 2 of the 1870 Act.  Clause (c) is a new <\/p>\n
provision.\n<\/p>\n<\/p>\n
23.            As noticed above, present case is concerned with the will <\/p>\n
executed in  1920.  The will  is  admittedly  a muffussil will  as it has <\/p>\n
not   been     executed   within   the   local   limits   of   ordinary   original   civil <\/p>\n
jurisdiction of the High Court of Judicature  at   Madras. Clause (a) of <\/p>\n
Section 57 is apparently not attracted. The subject will also does not <\/p>\n
                                                                                               15<\/span><\/p>\n
relate   to   immoveable   properties   situate   within   the   local   limits   or <\/p>\n
territories as set out in clause (a).   In this view of the matter, clause <\/p>\n
(b)   is  also   not attracted.  Clause (c)  does  not  get   attracted,  as    it <\/p>\n
applies to wills and codicils made on or after January 1, 1927.<\/p>\n
24.           Since the subject will is not covered by any of the clauses <\/p>\n
of   Section   57,   Part   VI   of   the   1925   Act   is   not   applicable   thereto. <\/p>\n
Section 141 which falls in Chapter XIII of Part VI of the 1925 Act that <\/p>\n
provides –   if a legacy is bequeathed to a person who is named an <\/p>\n
executor of the will, he shall not take the legacy, unless he proves the <\/p>\n
will or otherwise manifests an intention to act as executor — is, thus, <\/p>\n
not applicable to the subject will.    As a matter of fact, both  learned <\/p>\n
senior counsel were  ad idem  that Section 141 of the 1925 Act, as it <\/p>\n
is, has no application at all.\n<\/p>\n<\/p>\n
25.           We may also state that although the statutory provisions <\/p>\n
concerning construction of wills from Sections 74 to 111 of the 1925 <\/p>\n
Act   do   not   apply     but   the   general   principles   incorporated   therein <\/p>\n
would surely be relevant for construction of the subject will.<\/p>\n
26.           It is well  settled that the court   must put itself   as far as <\/p>\n
possible in the position of a person making a will in order to collect <\/p>\n
the   testator’s   intention   from   his   expressions;   because   upon   that <\/p>\n
                                                                                      16<\/span><\/p>\n
consideration   must   very  much   depend   the   effect   to   be   given   to   the <\/p>\n
testator’s   intention,   when   ascertained.       The   will   must   be   read   and <\/p>\n
construed as a whole  to gather  the intention of the testator  and the <\/p>\n
endeavor   of   the   court   must   be   to   give     effect   to   each   and   every <\/p>\n
disposition.     In   ordinary   circumstances,   ordinary   words   must   bear <\/p>\n
their   ordinary   construction   and   every   disposition   of   the   testator <\/p>\n
contained   in     will   should   be   given   effect   to   as   far   as   possible <\/p>\n
consistent with the testator’s desire.\n<\/p>\n<\/p>\n
27.           The   above   are   the   principles   consistently   followed   and, <\/p>\n
we   think,   ought   to   be   guided   in   determining   the   appeal   before   us. <\/p>\n
What   then   was   the   intention   of   this   testator?   The   only   son   of   the <\/p>\n
testator had predeceased him.   At the time of execution of   will,  he <\/p>\n
had his wife, widowed sister, widowed  daughter-in-law, daughter and <\/p>\n
minor granddaughter surviving;  the only other male member was his <\/p>\n
son-in-law – Rami Reddy.    He intended to give  all his properties  to <\/p>\n
the   granddaughter   but   he   was   aware   that   after   her   marriage,   she <\/p>\n
would join her husband’s family. The testator intended that his entire <\/p>\n
estate remained in the family and did not go out of that and having <\/p>\n
that   in   mind,   he   desired   that   his   daughter   adopted   a   son   with   the <\/p>\n
consent of her husband and   his granddaughter married the adopted <\/p>\n
                                                                                      17<\/span><\/p>\n
son   of   his   daughter.     He,   therefore,   stated,   “I   intend   to   give   all   my <\/p>\n
belongings,   moveable   and   immoveable   properties   to   the   said <\/p>\n
Lakshumamma   and   the   adopted   son   of   my   daughter   Pitchamma”. <\/p>\n
He   expressed   in   unequivocal   terms,   “after   my   demise,   my <\/p>\n
granddaughter   Lakshumamma   who   is   the  daughter   of   my  son   shall <\/p>\n
have absolute rights in my entire properties”.  <\/p>\n
28.             The testator  gave two very particular directions in the will <\/p>\n
that   until   Lakshumamma   attained   the   age   of   majority   and   attained <\/p>\n
power   to   manage   properties;   (one)     Rami   Reddy   shall   act     as   an <\/p>\n
executor till then and (two) the executor shall   look after the female <\/p>\n
members   in   the   family,   namely,   his   wife   Subbamma,   widowed <\/p>\n
daughter-in-law,  daughter  Pitchamma,   widowed    sister  Chennamma <\/p>\n
and   granddaughter   Lakshumamma.     Rami   Reddy,   thus,   was <\/p>\n
obligated   to   carry   out   the   wishes   of   the   testator   by   managing   his <\/p>\n
properties and looking after  the minor granddaughter Lakshumamma <\/p>\n
till she attained majority and  also look after other female  members in <\/p>\n
the family.\n<\/p>\n<\/p>\n
29.             The   clause,   however,   upon   which   the   appellants’   are <\/p>\n
claiming  the rights in the properties of Rami Reddy is the clause that <\/p>\n
reads “…if my daughter did not take any boy in adoption and if the <\/p>\n
                                                                                           18<\/span><\/p>\n
said boy will not accept to marry my granddaughter Lakshumamma, I <\/p>\n
intend   to   give   my   aforesaid   properties,   1\/3rd  share   to   my   daughter <\/p>\n
Pitchamma and her husband, who is also my son-in-law Rami Reddy <\/p>\n
together.   The   remaining   2\/3rd  share   is   given   to   my   granddaughter <\/p>\n
Lakshumamma”.\n<\/p>\n<\/p>\n
30.              Mr. R. Sundaravaradan, senior counsel for the appellants <\/p>\n
is   right   in   contending   that   the   above   clause   in   the   will   is   not   a <\/p>\n
repugnant   condition   that   invalidates   the   will   but   is   a   defeasance <\/p>\n
provision.\n<\/p>\n<\/p>\n
31.              In  Mt. Rameshwar Kuer & Anr. v.  Shiolal Upadhaya and  <\/p>\n
Ors.1,   Courtney-Terrell,   C.J.,   speaking   for   the   Bench,   explained   the <\/p>\n
distinction   between   a   repugnant   provision   and   a   defeasance <\/p>\n
provision thus :\n<\/p>\n<\/p>\n
          “The   distinction   between   a   repugnant   provision   and   a <\/p>\n
          defeasance provision is sometimes subtle, but the general <\/p>\n
          principle of law seems to be that where the intention of the <\/p>\n
          donor  is   to  maintain  the  absolute   estate  conferred  on  the <\/p>\n
          donee but he simply adds some restrictions in derogation <\/p>\n
          of   the   incidents   of   such   absolute   ownership,   such <\/p>\n
          restrictive   clauses   would   be   repugnant   to   the   absolute <\/p>\n
          grant   and   therefore   void;   but   where   the   grant   of   an <\/p>\n
          absolute   estate   is   expressly   or   impliedly   made   subject   to <\/p>\n
          defeasance on the happening of a contingency and where <\/p>\n
          the  effect  of  such defeasance  would  not  be a  violation  of <\/p>\n
          any rule of law, the original estate is curtailed and the gift <\/p>\n
          over must be taken to be valid and operative.”<\/p>\n<\/blockquote>\n
1 A.I.R. 1935 Patna 401<\/p>\n
                                                                                        19<\/span><\/p>\n
32.           The   distinction   between   a   repugnant   provision   and   a <\/p>\n
defeasance   provision   explained   in  Mt.   Rameshwar   Kuer1  has   been <\/p>\n
followed subsequently. In our view, Patna High Court  rightly explains <\/p>\n
the   distinction   between   a   repugnant   provision   and   a   defeasance <\/p>\n
provision.\n<\/p>\n<\/p>\n
33.           The question, however, upon which the fate of this appeal <\/p>\n
depends  is : whether Rami Reddy became entitled to any legacy by <\/p>\n
virtue of the defeasance clause under the will at all. <\/p>\n
34.           The testator was clear in his mind that after his death, his <\/p>\n
granddaughter   should   have   absolute   rights   in   his   entire   properties. <\/p>\n
He   has   said   so   in   so   many   words   in   the   will.     However,     he <\/p>\n
superadded   a   condition   that,   should     his   daughter   Pitchamma   and <\/p>\n
son-in-law Rami Reddy not  adopt a son or  if his daughter and son-<\/p>\n
in-law   adopted   a   son   but   that   boy   did   not   agree   to   marry   his <\/p>\n
granddaughter, then 1\/3rd share in his properties shall go over  to his <\/p>\n
daughter Pitchamma and her husband Rami Reddy. The bequest  to <\/p>\n
the extent of 1\/3rd  share in the properties of the testator   in favour of <\/p>\n
Pitchamma and her husband Rami Reddy jointly was   conditional on <\/p>\n
happening of an uncertain event noted above. As a matter of fact and <\/p>\n
in law,  immediately after the death of testator in 1920, what became <\/p>\n
                                                                                 20<\/span><\/p>\n
vested   in   Rami   Reddy   was   not   legacy   but   power   to   manage   the <\/p>\n
properties   of   the   testator   as   an   executor;   the   legacy   vested   in <\/p>\n
Lakshumamma, albeit, defeasibly   to the extent of 1\/3rd  share.   The <\/p>\n
only   event   on   which   the   legacy   to   Lakshumamma   to   the   extent   of <\/p>\n
1\/3rd  share   was   to   be   defeated   was   upon   happening   of   any   of   the <\/p>\n
above events.  Mr. R. Sundaravaradan, learned senior counsel, thus, <\/p>\n
is not right in contending that on the death of testator in 1920,   the <\/p>\n
legacy   came   to   be   vested   in   Rami   Reddy   and   once   vesting   took <\/p>\n
place, it could not have been divested.\n<\/p>\n<\/p>\n
35.            It has come in evidence that Pitchamma wanted to adopt <\/p>\n
Godi     Venkat   Reddy   as     her    son,     but     her       husband   –   Rami <\/p>\n
Reddy   –   did   not   agree   to   that   and   as   a   result   thereof   Godi   Venkat <\/p>\n
Reddy could not be adopted by Pitchamma. On the issue of adoption <\/p>\n
of Godi Venkat Reddy, a serious dispute ensued between Pitchamma <\/p>\n
and her husband.   Rami Reddy left the family of the testator and the <\/p>\n
village Chennavaran somewhere in 1924 and went to nearby village <\/p>\n
Pappireddypally where he married second time. It may be that there <\/p>\n
was   no   legal   impediment   for   Rami   Reddy   to   have   a   second   wife <\/p>\n
before the Hindu Succession Act, 1956 or Bigamy Prevention Act of <\/p>\n
1949 when no child was begotten from Pitchamma yet the fact of the <\/p>\n
                                                                                        21<\/span><\/p>\n
matter is that he abandoned the family of the testator.   There is no <\/p>\n
merit in the submission of Mr. R. Sundaravaradan  that abandonment <\/p>\n
was not voluntary and conscious.\n<\/p>\n<\/p>\n
36.           Rami   Reddy     neither   continued   as   a   guardian   of   minor <\/p>\n
granddaughter   Lakshumamma   nor   looked     after   the   testator’s   wife, <\/p>\n
widowed  daughter-in-law, widowed  sister and daughter. The female <\/p>\n
folk  were left in lurch with no male member to look after. He took no <\/p>\n
care or interest in the affairs of the family or properties of the testator <\/p>\n
and thereby failed to discharge his duties as executor.   <\/p>\n
37.           In view of the predominant desire  that his granddaughter <\/p>\n
should have his properties and that his properties did not go out of <\/p>\n
the family, the testator  desired that his daughter adopted a son with <\/p>\n
the consent of her husband and his granddaughter married that boy. <\/p>\n
The conditional  legacy to Rami Reddy   (to the extent  of 1\/3rd  share <\/p>\n
jointly   with   Pitchamma)   was   not   intended   to   be   given   to   him   if   he <\/p>\n
happened to  be  instrumental  in  defeating  the testator’s wish   in    not <\/p>\n
agreeing to the adoption of a son by his (testator’s) daughter. Such <\/p>\n
an intention might not have been declared by the testator in express <\/p>\n
terms but necessary inference to that effect can safely be drawn by <\/p>\n
reading the will as a whole.  In the  circumstances,  the  legacy to the <\/p>\n
                                                                                      22<\/span><\/p>\n
extent   of   1\/3rd  share   cannot   be   held   to   have   ever   vested   in   Rami <\/p>\n
Reddy jointly with Pitchamma as it was he who defeated the adoption <\/p>\n
of son by the testator’s daughter.   As a matter of fact by his conduct, <\/p>\n
Rami Reddy rendered himself disentitled to any legacy. <\/p>\n
38.           Not   only   that   Rami   Reddy   did   not   discharge   his <\/p>\n
obligations   under   the   will   of     looking   after   the   family  and   managing <\/p>\n
the   properties   as   an   executor   but   he   was   also   instrumental   in <\/p>\n
frustrating   the   adoption   of   son   by   the   testator’s   daughter.   Much <\/p>\n
before   the   defeasance   clause   came   into   operation   when <\/p>\n
Lakshumamma   married   Godi   Venkat   Reddy   who   could   not   be <\/p>\n
adopted   as   son   by   Pitchamma,   Rami   Reddy   had   already   left   the <\/p>\n
testator’s family for good and abandoned the  legacy that could have <\/p>\n
come to him under that  clause.\n<\/p>\n<\/p>\n
39.           The   plea,     of   the   appellants,   that   Rami   Reddy’s   family <\/p>\n
from the second wife and the testator’s family was a composite family <\/p>\n
and the properties were joint family properties of the plaintiffs and the <\/p>\n
defendants, has not been accepted by the trial court as well as High <\/p>\n
Court. We have no justifiable reason to take a different view on this <\/p>\n
aspect.\n<\/p>\n
                                                                                     23<\/span><\/p>\n
40.            Importantly, Rami Reddy during his life time – although he <\/p>\n
survived   for   about   19   years   after   the   death   of   the   testator   –   never <\/p>\n
claimed any legacy under the subject will.\n<\/p>\n<\/p>\n
41.            All   in   all,   on   the   construction   of   the   will   and,   in   the <\/p>\n
circumstances, it must be held, and we hold that  no legacy came to <\/p>\n
be   vested   in   Rami   Reddy   and   he   did   not   become   entitled   to   any <\/p>\n
interest  in the estate  of the testator  and, therefore,   the  plaintiffs  did <\/p>\n
not   acquire   any  right,   title   or  interest   in   the   properties   of   Bijivemula <\/p>\n
Subba Reddy.\n<\/p>\n<\/p>\n
42.            In view of the above, the challenge to the  findings of the <\/p>\n
High   Court   on   the   plea   of   adverse   possession   set   up   by   the <\/p>\n
defendants and the genuineness of the will executed by Pitchamma <\/p>\n
in 1953 pale into significance and needs no consideration. <\/p>\n
43.            In   fairness   to   Mr.   R.   Sundaravaradan,   learned   senior <\/p>\n
counsel for the appellants, it must be stated that he cited the following <\/p>\n
authorities:    (Katreddi)   Ramiah   and   another  v.  Kadiyala   Venkata  <\/p>\n
Subbamma   and   others  [A.I.R.   1926   Madras   434];  Balmakund  v. <\/p>\n
Ramendranath   Ghosh  [A.I.R.   1927   Allahabad   497];  Ratansi   D.  <\/p>\n
Morarji  v.  Administrator-General   of   Madras  [A.I.R.   1928   Madras <\/p>\n
1279];  Bhojraj v. Sita Ram and others [A.I.R. 1936 Privy Council 60]; <\/p>\n
                                                                                         24<\/span><\/p>\n
Ketaki   Ranjan   Bhattacharyya   and   others            v.     Kali   Prasanna  <\/p>\n
Bhattacharyya and others<\/a> [A.I.R. 1956 Tripura 18]; P. Lakshmi Reddy <\/p>\n
v.  L.   Lakshmi   Reddy<\/a>  [(1957)   SCR   195];  AL.   PR.   Ranganathan  <\/p>\n
Chettiar   and   another  v.  Al.   PR.   AL.   Periakaruppan   Chettiar   and  <\/p>\n
others  [A.I.R.   1957   S.C.   815];  Darshan   Singh   and   others  v.  Gujjar  <\/p>\n
Singh (Dead) By LRs. and others<\/a> [(2002) 2 SCC 62]; Govindammal v. <\/p>\n
R.   Perumal   Chettiar   and   others<\/a>  [(2006)   11   SCC   600]   and <\/p>\n
Govindaraja Pillai and others  v.  Mangalam Pillai and another  [A.I.R. <\/p>\n
1933 Madras 80]. However, in view of our discussion above, we do <\/p>\n
not think we need to deal with these authorities in detail.    <\/p>\n
44.             In the result, appeal fails and is dismissed with no order <\/p>\n
as to costs.\n<\/p>\n<\/p>\n
                                                          …………………….J.\n<\/p>\n
                                                              (Aftab Alam)<\/p>\n
                                                           ………………….. J.\n<\/p>\n
                                                            (R.M. Lodha) <\/p>\n
NEW DELHI,<\/p>\n
APRIL 1, 2011.\n<\/p>\n
                                                                               25<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Siddamurthy Jayarami Reddy (D) By … vs Godi Jaya Rami Reddy & Anr on 1 April, 2011 Author: R Lodha Bench: Aftab Alam, R.M. Lodha REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2916 OF 2005 Siddamurthy Jayarami Reddy (D) by LRs. …. Appellants Versus Godi […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-142701","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSiddamurthy Jayarami Reddy (D) By ... vs Godi Jaya Rami Reddy & Anr on 1 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/siddamurthy-jayarami-reddy-d-by-vs-godi-jaya-rami-reddy-anr-on-1-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Siddamurthy Jayarami Reddy (D) By ... vs Godi Jaya Rami Reddy & Anr on 1 April, 2011 - 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