Full Judgment Text
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PETITIONER:
YELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU
Vs.
RESPONDENT:
YALAMANCHILI CHEVA ABHAYI AND ORS.
DATE OF JUDGMENT:
04/02/1966
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1967 AIR 207 1966 SCR (3) 446
ACT:
Will-Construction of-Property whether could be claimed as
persona designata in terms of the will.
HEADNOTE:
The respondent filed a plaint claiming properties mentioned
in Schedules A and B thereof on the ground that he was
adopted by the appellant who was widow of L. Apart from
adoption the respondent’s claim was based on being mentioned
as persona designata in L’s will. The relevant words in the
will were : "It has been settled that my wife should take,
the second son of my elder brother.......... in adoption,
celebrate his marriage, etc., and after he passes his
minority she should deliver possession of my other movable
and immovable properties that I have. ........... The trial
court held that the respondent had not been adopted by the
appellant nor was he entitled to any rights as persona
designata in L’s will. On appeal the High Court held that
while there was no adoption, the respondent was entitled to
the property as persona designata. The appellant came to
this Court. The question presented for determination was
whether the High Court was right in holding that upon a true
construction of the will Ex.B-1 there was a gift of the
property to the plaintiff as persona designata.
HELD :. The will contained no direct words of disposition in
favour of the respondent. There was no expression of devise
in favour of the respondent. There was only a direction to
the widow to adopt and’ the gift to the respondent was on
condition of being adopted. The. respondent’s claim as
persona designata could not therefore be accepted. [448 G-H,
450 A]
Fanindra Deb Raikat v. Rajeswar Dass, 12 I.A. 72 relied on.
Nidhoomoni Debya v. Saroda Pershad Mookerjee, 3 I.A. 253
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 752 of 1963.
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Appeal from the judgment and decree dated December 16 1958
of the Andhra Pradesh High Court in Appeal Suit No. 284 of
1954.
M. A. Narasayya Chaudhury, I Shivamurthy and K. R. Sarma,
for the appellant.
W. S. Barlingay and E. Udayaratnam, for the respondent.
The Judgment of the Court was delivered by
Ramnswami J. This appeal is brought on behalf of the defen-
dant against the judgment and decree of the High Court of
Andhra Pradesh dated December 16, 1958 in A. S. No. 284 of
1954 whereby
447
it reversed the judgment and decree of the Court of
Subordinate Judge, Vijayawada in O. S. No. 171 of 1950.
In the suit which is the subject-matter of this appeal the
plaintiff alleged that he was duly adopted by the defendant-
the widow of Lakshmayya and therefore entitled to properties
mentioned in Schs. A & B of the plaint. The plaintiff also
asserted that, apart’ from his right as an adopted son, he
was entitled to the properties claimed as a persona
designata under the will dated November 30, 1946-Ex. B-1
executed by Lakshmayya. The suit was contested by the
defendant who alleged that the plaintiff was not adopted as
the son of Lakshmayya. The trial court rejected the case of
the plaintiff that he was adopted by the widow after the
death of Lakshmayya. The trial court further held that the
plaintiff was not entitled to any rights under the will as a
persona designata. The trial court accordingly dismissed
the suit, On appeal by the plaintiff the High Court
confirmed the finding that no adoption had been made. It,
however, held on the construction of the will that the
plaintiff was entitled to the properties claimed as a
persona designata. The High Court allowed the appeal and
granted a decree to the plaintiff for possession of the
properties subject to certain incidental directions given in
the decree.
The question presented for determination in this appeal is
whether the High Court was right in’ holding that upon a
true construction of the will-Ex. B-1 there was a gift of
the properties to the plaintiff as a persona designata.
It is necessary, at this stage, to set out the material
provisions of the will Ex. B-1 executed by Lakshmayya:-
"I have no male or female issue. I have
wife, by name Sivapanchakshari, mother by name
Basavamma, and elder brother by name Somaiah.
For the last 10 days I am suffering from a
disease akin to paralysis and fearing that I
may not survive, I make the following
settlement as set down below to take place
after my life.
A.C.
Land called Mallukunta .. .. .. . . .. 1-60
Out of Raksh kunta (?) vadde land .. . 1-25
Out of Maddurivari land .. .. .. .. 1-05
Oat of Pooravarnamvari land .. .. .. 2-60
--------------
TOTAL 6-50
Six acres and (50) fifty cents seri wet land;
10 cents in Kolli Chinna Bapaiah’s (back)
yard; and 300 yards of house-site towards the
west of my house (belonging to my mother-in-
law) with a tiled house thereon, have been
448
settled upon my wife to enjoy as she likes
with all rights of gift, mortgage, exchange,
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sale, etc.
2. Southern side., garden 80 cents (eighty
cents of seri wet land) has been settled. upon
my mother Basavamma to enjoy with all rights
of gift, mortgage, exchange, sale, etc.
3. It has been settled that my wife should
take, the 2nd son of my elder brother,
Yalamanchili Somaiah, in adoption, celebrate
his marriage, etc., and after he passes his.
minority she should deliver possession of .my
other movable and immovable properties that I
have and described here below. During the
life-time of my wife, if the adopted son and
she live together without any trouble, (she)
is to live in my house, and if there is
disagreement between the adopted son and my
wife, (she) is to live in .a room of my house.
My wife has been given power over my minor
(son’s) property, to collect debts due to me
and to discharge debts due by me."
The testator then mentioned two items of debts due to him.
He ,thereafter enumerated the debts due by him which
aggregated to Rs. 15,803/-. A description of the land is
also given.
The question involved in this appeal is whether the
disposition of the properties to the plaintiff is as a
persona designata or by reason of his fulfilling a
particular legal status, namely, the adopted :son of the
testator. The question in such a case is really one of
intention of the testator which must be ascertained from the
Ianguage of the various clauses of the will and the
surrounding circumstances of the execution of the will. As
pointed out by the Judicial Committee in Fanindra Deb Raikat
v. Rajeswar Dass(1)
"The distinction between what is description
only and what is the reason or motive of a
gift or bequest may often be very fine, but it
is a distinction which must be drawn from a
consideration of the language and the
surrounding circumstances."
In the present case we are satisfied on reading the various
clauses of the will, that there is no gift to the plaintiff
and there was only a direction to the defendant to adopt the
plaintiff as the son of Lakshmayya and the intention of, the
testator was that the Plaintiff should take as an adopted
son and, therefore, the gift made to the plaintiff was
conditional on his being adopted. The reason is that there
are no. direct words of disposition in favour of the
plaintiff. In this connection the, language of cl. 3 of the
win is
(1) 12 1. A. 72.
449
in contrast with that of cls. 1 and 2 where words of
disposition are used with regard to the gifts made to the
widow-Sivapanchakshari and to the mother of the testator-
Basavamma. Clause 3 of the will does not contain any
expression of devise of the property in favour of the
plaintiff. Clause 3 only contains a direction that the wife
of the testator should take the plaintiff in adoption,
celebrate his marriage etc. and "after he passes his
minority she should deliver possession of my other movable
and immovable properties to him". It is manifest that in
the present case there is a direction to the widow to adopt
and, the gift to the plaintiff is on the condition of his
being adopted. It appears to us, upon reading the will as a
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whole, that the testator had no intention to give the
property to the plaintiff irrespective of the adoption to be
made by the widow in accordance with the direction. On
behalf of the respondents reference was made to the decision
of the Judicial Committee in Nidhoomoni Debya v. Saroda
Pershad Mookerjee(1) in which it was held that there was a
gift of his property by the testator to a designated person
(the words being "I declare that I give my property to
Koibullo whom I have adopted"), and this gift was not
dependent on the performance of certain ceremonies by his
widows. The principle of the decision is not applicable to
the present case where the language of the testamentary
instrument is materially different. We think the present
case is similar to that of Fanindra Deb Raikat v. Rajeswar
Dass(2) where the Judicial Committee held on a true
construction of the angikar-patra by which the deceased
purported to give his property to the respondent by virtue,
of his being the adopted son, that the gift did not take
effect inasmuch as the adoption was invalid. At page 89 of
the Report the Judicial Committeee observed :
"They think the question is whether the
mention of him as an adopted son is merely
descriptive of the person to take under the
gift, or whether the assumed fact of his
adoption is not the reason and motive of the
gift, and indeed a condition of it. The words
are authorize you by this angikar-patra to
offer oblations of water and pinda to me and
my ancestors after My death, by virtue of your
being my adopted son. Moreover, you shall
become the proprietor of all the movable and
immovable properties which I own and which I’
may leave behind; you shall become entitled to
my dena-pawna (debts and dues), and you and
your sons and grandsons shall enjoy them
agreeably to the custom of the family.’ He is
to make the offerings by virtue of being an
adopted son, and ’moreover’ he is to become
the proprietor. This is to be the consequence
of the adoption."
(1) 3 1. A. 253. (2) 12 1. A.
72.
450
For the reasons expressed we hold that the High Court was in
error in interpreting the will of Lakshmayya as a gift of
the properties made to. the plaintiff as a. persona
designata. We are, therefore, of the opinion that the
plaintiff is not entitled to the properties on the basis of
the will executed by Lakshmayya and the suit of the
plaintiff should be dismissed. This appeal is accordingly
allowed with costs.
Appeal allowed.
451