CIVIL APPELLATE JURISDICTION: Civil Appeal No. 245 of 1965.
Appeal by special leave from the judgment and order dated October 31, 1962 of the Andhra Pradesh High Court in Appeal No. 563 of 1959. K.R. Chaudhuri, for the appellants. K. Sen and T. Satyanarayana, for respondents Nos. 1 to 3. The Judgment of the Court was delivered by
Mitter, J. This is an appeal by special leave from a judgment and decree of the High Court of Andhra Pradesh confirming the decree passed by the Subordinate Judge at Eluru in O.S. No. 112 of 1955. The only question involved in this appeal is, whether, under the terms of the will of one Boddu Adilakshmi, defendants 4 and 5 took her properties as joint tenants or tenants in common.
The facts leading to the litigation may be stated as follows. The testatrix, Adilakshmi, who was childless herself brought up defendants 4 and 5, Boddu Ramarao and Kosury Lakshmamma, from their infancy. At the date of the will executed on June 28, 1913 the girl (defendant 5) had been with her for 15 years and the boy (defendant 4) for 10 years and both were minors at the time. In order to provide for them after her death she executed a will covering all her properties, movable and immovable. The translation of the relevant portion of the will which was in vernacular is as follows :--
" ........ my entire property should
hereafter my lifetime pass to. both these
minors, Lakshmamma and Ramarao, that until
their minority period is over, Banda Ramaswamy
Garu should act as their guardian and deal
with all the affairs, that after their
minority period is over the entire property
should be in possession of both of them, that
both of them should enjoy throughout their
lifetime the said property without powers
of gift transfer and sale and that after their
death the children that may be born to them
should enjoy the same with powers of gift,
transfer and sale."
The testatrix died within a few days after the execution of the will. Defendants 4 and 5 divided the properties left by the testatrix by a registered partition deed dated December 27, 1929’ by which those mentioned in Schedule A to the plaint fell to the share of the 4th defendant while the others mentioned in Schedule B fell to the share of the 5th defendant. The 4th defendant married the 1st defendant, Boddu Satyavathi who is the ’daughter of the 5th defendant. The 2nd defendant is the daughter born out of this wedlock. Some years thereafter, the 4th defendant married one Boddu Manikyam. the plaintiffs 1 to 4 being the issues of the marriage of the 4th defendant with her. The 5th defendant and the 1st defendant mortgaged the B schedule properties with the 3rd defendant who brought a suit on the mortgage and obtained a decree. The plaintiffs filed the suit against all the defendants in 1955. for a declaration that after the death praying of defendants 4-and 5, the 1st defendant and the children of the 4th defendant or such of them as may be alive at the time would be entitled to share the properties in suit equally between them and that any alienation made by defendants 4 and 5 or their assignees or alienees would not bind the interests of ’the ultimate feversloners beyond their lifetime and further that the mortgage decree mentioned above was not binding on the plaintiffs or the ultimate reversioners. In the trial court a ’number of issues were framed but the only question canvassed before the High Court on appeal related to the effect of the will of Adilakshmi. The trial court came to the conclusion that defendants 4 and 5 were only the holders of life estate and that they had succeeded to the estate of Adilakshmi as tenants in common. The High Court held that
"the right of ’the children of
defendants 4 and 5 to step into the shoes of
the parents has been expressly mentioned in
the instrument. The residuary estate has been
given to the children. that may be bor n to the
legatees who. it is provided, should enjoy the
properties with powers of gift. transfer and
sale. A life estate has been given to
defendants 4 and 5 and an absolute estate to
their children. On a fair construction of the
language. it is difficult to accede to the
contention of the appellants that the children
of defendants 4 and 5 who may be actually
alive at the time of the death of defendants 4
and 5, would take the properties per capita." The High Court further held that the conduct of the defendants in partitioning the properties went to fortify the above conclusion. The ultimate conclusion of the High Court was
"the bequest in favour of defendants 4
and 5 was that of a life estate with a vested
remainder in favour of their children and that
the children should take the vested remainder
per stripes and not per capita."
In our view. the High Court came to the correct conclusion. Before examining the principles of law involved, we may consider the intention of the testatrix in giving her properties to defendants 4 ,red 5. She brought them up like her own children but she did not want them to have the power of sale or alienation and desired that the properties be preserved for the benefit of their children. would be reasonable therefore for her to make provision in such way that the ’foster children would enjoy the income of the properties for their lives and that their children should inherit the Ip.C. l68 111 properties as full owners on the death of their parents. The donees of the life estate were minors at the date of the will and there was no knowing when they would get married and how many children each would have. It would therefore be reason able to expect that the testatrix would so arrange her affairs that each of the foster children should get half of the income of the property for life and that their children should succeed to the respective interest of their parents. It is hardly likely that the testatrix would know the difference between joint tenants and tenants in common and she would naturally be eager to treat the foster children as her own children so that the heirs of the foster children would take share and share alike the properties be in divided per stirpes among them.
Let us now consider the position in law. The law has bee n summarised in Mulla’s Transfer of Property Act (Fifth Edition at page 226. As early as 1896 it was held by the Judicial Committee of the Privy Council in Jogeswar Narain Deo v. Ram Chand Dutt & others(1) that
"The principle of joint tenancy appears
to be unknown to Hindu law. except in the case
of coparcenary between the members of an
undivided family." and that it was not right to import into the construction of a Hindu will an extremely technical rule of English conveyancing. Many years later the principle was reiterated in the case of Babu Rani v. Rajendra Baksh Singh(2).
It was argued before us that there were indications in the will that the intention of the testatrix was that the foster children should take as joint tenants and that this was apparent from the clause in the will which provided that
"the entire property should be in
possession of both of them and that both of
them should enjoy throughout their lifetime
the said property and that after their
death the children that may be born to them
should enjoy the same ...... " We do not think that from this one can spell out a joint tenancy which is unknown to Hindu law except as above stated. The testatrix did not expressly mention that on the death of one all the properties would pass to the other by right of survivorship. We have no doubt on a construction of the will that ’the testatrix never intended the foster children to take the property as joint tenants. The foster children who became tenants in common partitioned the property in exercise of their right. (1) 23 I.A. 37 at 44. (2) 60 l.A.95 at 10
As by the will the foster children were to have a life interest with a vested remainder to their children, the latter could only take per stirpes and not per capita. As Halsbury points out (Volume 39--Third Edition) at page 1106, Art. 1638 that a stirpital distribution would be adopted
"where the gift was to a number of
parents and their children in such a manner
that the children were substituted for, or
took on the death of, their respective
parents; and gifts to several parents and at,
or after, their deaths to their children, or
to their issue, have received this
construction as meaning at or after their
respective deaths." It is not necessary to cite many instances where this construction has been adopted. In re Hutchinson’s Trusts(1) the testatrix bequeathed personality in trust for A.B. for life and after his decease for his issue, and on failure of his issue to F.H.S. and R.S. share and share alike, and after the decease of the said F.H.S. and R.S. to their children share and share alike, and to their heirs for ever. Kay, J. felt that he was bound by authority to say that the words
"after the decease of the said Francis
Hutchinson Synge and his brother Robert Synge
mean after their respective deaths, or after
the decease of each of them, and that there is
a disposition of the share of each which was
an absolute interest in the first instance
upon his death." (see at page 816). This rule was further amplified by Romer. J. in Errington, In re. Gibbs v. Lassam(1) where he said (at p. 425)
"The rule, stated in its simplest way
is this: Where a testator gives the income of
his estate to two people, A. and B., for their
lives and follows that gift by a direction
that at their death, or at their deaths, or at
or after the death or deaths of A. and B. the
property is to go to their issue, the Court
does not construe the gift as a gift only to
take effect on the death of both in favour of
the issue of both, but construes it as a gift,
to take effect on the death of each, of the
share to the income of which the deceased was
entitled, to the issue of the deceased." (1) 21 Ch. D. 11. (2) 1927 1 Ch. D, 421 In Mcdonnell v. Neil(1) the Judicial Committee referred to the dictum of Kay, J. in re Hutchinson’s Trusts(2) and observed that the construction was borne out by a long line of authority.
In the result, the appeal will stand dismissed with costs. appellant must pay the court fees. G.C. Appeal dismissed. (1) [1951] A.C.342 (2) 21 Ch. D. 811.