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PETITIONER: S.   JHANSI LAKSHMI BAI & ORS.

       Vs.

RESPONDENT: POTHANA APPARAO & ORS.

DATE OF JUDGMENT: 17/03/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR 1355            1970 SCR  (1)  28  1969 SCC  (2)  91

ACT: Indian  Succession Act, 1925 s. 105-Bequest by will to  wife absolutely and residue to other persons-Legatee  predeceases testator-Whether device accelerated-Bequeath by will for two purposes-No   allocation  of  amount-One  of  the   purposes fulfilled without the amount-Effect of.

HEADNOTE: A Hindu executed a will directing his wife to sell, Sch.   C property and utilise the amount for celebrating the marriage of  one Sitharathnam and for constructing a Ramamandiram  in his name, and further devised that his wife shall enjoy Sch. E  property  absolutely  and after  her  life-time  whatever remained  out  it, it will pass to two named  persons.   The wife   predeceased  the  testator,  and  the   marriage   of Sitharathnam was celebrated in the testator’s life-time  and expenses in that behalf were defrayed by the testator.   The appellants  who were the testator’s nearest  heirs,  claimed the  properties contending that the disposition of the  Sch. C  &  E  properties lapsed, because the  wife  who  was  the legatee of the properties died before the testator and  that there was nothing in the will providing for the acceleration of  Sch.  E property in case of the legatee’s dying  in  the testator’s life-time. HELD  : (i) The wife had no beneficial interest in  Sch.   C property.  She was merely appointed to sell the property and to,  utilise the proceeds for the purposes specified in  the will.   There was no "joint bequest" of Sch.  C  properties. In  the absence of allocation of the amounts to be  utilised for  celebrating  the  marriage  of  Sitharathnam  and   for constructing  a Ramamandiram, it must be presumed  that  the fund  was  to  be utilised in equal  moieties  for  the  two purposes.   Failure of one of the purposes will result in  a moiety  of  the  amount devised falling  into  the  residue. Since  no  part of the fund was needed for the  marriage  of Sitharathnam  the legacy failed pro tanto and fell into  the residue.  Under the will the wife was made the owner of  the residue,  but by her death during the life time of  testator the  residuary bequest lapsed and vested as on intestacy  in the  nearest heirs of the testator.  The devise of a  moiety of  the  fund  to  be applied  for  the  construction  of  a

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Ramomandiram  however  stood good and the trust  had  to  be carried  out.   The wife died during the life  time  of  the testator  but on that account the charitable trust  was  not extinguished. [31 E; 32 D] Jogeshwar  Narain Deo v. Ram Chund Dutt and Others, L.R.  23 I.A. 37, 43, referred to. (ii) The  wife died during the life time of the  testator  : thereby  the  estate in Sch.  E properties  granted  to  the named  persons  was accelerated.  The nearest heirs  of  the testators  were therefore not entitled to any share in  Sch. E properties. Section  105  of the Indian Succession Act,  enacts  that  a legacy  shall  lapse  and form part of the  residue  of  the testator’s  property  if the legatee does  not  survive  the testator  except  where  it appears by  the  will  that  the testator intended that the legacy shall, on the legatee  not surviving  him,  go to some other person.  It could  not  be said that the intention 29 of  the testator that a legacy shall not lapse may be  given effect to only if the testator expressly directs that if the legatee  dies  during his life time the legacy shall  go  to some  other  person,  and that intention  to  exclude  lapse cannot  be inferred.  Section 105(1) does not say, nor  does it  imply, that the testator must have  expressly  envisaged the possibility of lapse in consequence of the legatee dying during his life time and must have made a provision for that contingency. [33 F] Browne v. Hope, L.R. 14 Equity Cases 343; Lowman Devenish v. Pester,  (1885)  2  Ch. 348; Dunstan,  Dunstan  v.  Dunstan, (1918) 2 Ch. 304, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 445 of 1966. Appeal  by special leave from the judgment and  order  dated March  9, 1964 of the Andhra Pradesh High Court  in  Letters Patent Appeal No. 2 of 1963. M.   C. Chagla and T. Satyanarayana, for the appellants. P.   Ram Reddy and K. Jayaram, for the respondents. The Judgment of the Court was delivered by Shah,  J.  One Appanna died on March 12, 1953,  leaving  him surviving no wife or lineal descendant.  Subba Rao  claiming to  be the father’s sister’s son of Appanna instituted  suit No. 64 of 1953 in the Court of the Subordinate Judge, Eluru. for  partition and separate possession of his half share  in the  properties  described  in Schs.  A, B, C, D  &  E.  The plaintiff  claimed that Appanna died intestate, and that  he and  his  brother  Venugopala Rao  were  the  nearest  heirs entitled to the entire estate of Appanna.  To this suit were impleaded Pothana Apparao (husband of the sister of Mangamma wife  of  Appanna),  his  children,  certain  relations   of Mangamma  and the tenants on the lands in suit.   Venugopala Rao  was  impleaded  as the 24th defendant.   The  suit  was defended  by  Pothana Apparao and others  contending,  inter alia, that Appanna had made and executed a will on July  14, 1948,  devising his property in favour of  various  legatees and the plaintiff’s suit for a share in the property was  on that  account not maintainable.  The, Trial Court held  that Appanna of his free will and while in a sound state of  mind had executed the will on July 14, 1948, whereby he  disposed of  his properties described in Schs.  A, B, C, D &  E,  but the Court held that the disposition of the property in Schs. C  &  E  lapsed because Mangamma who was a  legatee  of  the

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properties died before the testator, and that the  direction in  the  will  that whatever remained out  of  the  Sch.   E property  after  the  life time of Mangamma  shall  pass  to Venkataswamy   and  Seshagirirao  defendants  Nos.  3  &   2 respectively or their descendants was void and incapable  of taking  effect.   The  learned Judge  accordingly  passed  a decree in favour of the plaintiff and the 24th defendant for possession of properties described in Schs.  C & E. 30 In appeal to the High Court of Andhra Pradesh, Chandrasekhar Sastry, J., allowed the appeal filed by Pothana Apparao  and his  two sons Venkataswamy and Seshagirirao,  and  dismissed the  claim  of  the plaintiff in respect of  Schs.   C  &  E properties.  An appeal under the Letters Patent filed by the plaintiffs  against  the judgment of Chandrasekhar,  J.  was dismissed. It  has been concurrently found by all the Courts that  when he  was  in  a sound and disposing  state  of  mind  Appanna executed  on  July  14,  1948,  the  will  set  up  by   the defendants.  In an appeal with special leave this Court will not  ordinarily allow a question about due execution  to  be canvassed,   and  our  attention  is  not  invited  to   any exceptional circumstances which may justify a departure from the rule. The  only question which survives for consideration  relates to  the true effect of the dispositions made by the will  in respect  of  Sch.  C and Sch.  E properties.   The  relevant provisions of the will may first be set out:               "I am now about forty years of age.  I do  not               have  male or female issue. . . . My  wife  is               alive. . . . and with the fear that I may  not               survive I have made               the  following  Provisions in  respect  of  my               immovable  and movable properties to be  given               effect to.               I have given power to my wife Mangamma to sell               the  immovable  property mentioned  in  the  C               Schedule hereunder and utilise the amount  for               celebrating the marriage and other  auspicious               functions  of Tholeti Narsimha Rao’s  daughter               Seetharatnam  mentioned in the B Schedule  and               for  constructing a Ramamandiram in  Rajavaram               village in my name.               "The  immovable  property mentioned in  the  E               Schedule hereunder shall be enjoyed by my wife               Mangamma with all powers of disposition by way               of  gift, sale, etc., Whatever remains out  of               the   said  E  Schedule  mentioned   immovable               property   after  her  life-time,  (the   said               property)  shall pass either to the said  Ven-               kataswamy     and    Seshagiri    or     their               descendants.........  In the event of my  wife               taking   a  boy  in  adoption   the   property               mentioned  in the E schedule  hereunder  shall               pass  to the said adoptee with all  powers  of               disposition  by way of gift, sale  etc.  after               her life-time...........               If, for any reason, the properties and  rights               do  not pass to the individuals  mentioned  in               the aforesaid               31               paras,  such  properties and rights  shall  be               enjoyed  by  my wife  Mangamma  with  absolute               rights." Appanna  had  directed his wife Mangamma to  sell  the  pro-

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perties described in Sch.  C and to utilise the proceeds for two purposes, "celebrating the marriage and other auspicious functions"   of  Seetharatnam,  and  "for   constructing   a Ramamandiram  in  Rajavaram village" in his name.   But  the marriage of Seetharatnam was celebrated during the  lifetime of  Appanna,  and expenses in that behalf were  defrayed  by Appanna,  and no expenses remained to be incurred after  the death  of Appanna.  Mangamma had no beneficial  interest  in Sch.   C  property.  She was merely appointed  to  sell  the property  and  to  utilise the  proceeds  for  the  purposes specified  in  the will.  The Trial Judge clearly  erred  in holding that the estate lapsed because Mangamma died  during the  lifetime  of  Appanna.  In the  view  of  Chandrasekhar Sastry,  J.,  since  there  was  a  joint  bequest  for  two purposes,  and  one of the purposes for which  the  Sch.   C properties  were  devised was accomplished  by  Appanna  the bequest in its entirety must enure for the remaining purpose i.e. constructing a Ramamandiram, and the plaintiffs’  claim for possession of the C Schedule properties must fail.   The learned Judges of the High Court agreed with that view. But there was no "joint bequest" of the properties.  In  the absence  of  allocation of the amounts to  be  utilised  for "celebrating the marriage and other auspicious functions" of Seetharatnam and for constructing a Ramamandiram, it must be presumed that the fund was to be utilised in equal  moieties for  the two purposes.  Failure of one of the purposes  will result  in a moiety of the amount devised falling  into  the residue. In  Jogeswar  Narain Dea v. Ram Chund Dutt and  Others(1)  a devise  under the will of a Hindu testator who had  given  a fouranna  share of his estate to his daughter and  her  -son for  their  maintenance  with  power  of  making  alienation thereof by sale or gift fell to be construed.  The  Judicial Committee held that on a true construction of the will  each took an absolute interest in a two-anna share in the estate. In dealing with the contention that there was a joint estate granted  to the daughter and her son the Judicial  Committee observed :               "........  Mr. Branson......  maintained  upon               the authority of Vydinada v. Nagammal (ILR  11               Mad. 258) that,. by the terms of the will  the               Rani and the appellant became, in the sense of               English  law,  joint tenants  of  the  4-annas               share of Silda, and not tenants in common; and               that her alienation of her share before it was               severed, and without the consent of the other               (1)   L. R. 23 1. A. 37,43.               32               joint    tenant,,   was   ineffectual.     The               circumstances of that case appear to be on all               fours with the circumstances which occur here,               and, if well decided, it would be a  precedent               exactly  in point.  There are two  substantial               reasons why it ought not to be followed as  an               authority.  In the first place, it appears  to               their  Lordships that the, learned  Judges  of               the High Court of Madras were not justified in               importing  into  the construction of  a  Hindu               will  an extremely technical rule  of  English               conveyancing.  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." That  principle applies here. The fund was devised  for  the construction of a Ramamandiram at Rajavaram     village and

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for   "celebrating   the  marriage  and   other   auspicious functions"of   Seetharatnam. Since no part of the  fund was needed forthe  benefit  of  Seetharatnam,  the   legacy failed pro tanto and fell into the residue.  Under the  will Mangamma was made the owner of the residue, but by her death during the lifetime of Appanna the residuary bequest  lapsed and  vested  as on intestacy in the plaintiff and  the  24th defendant.  The devise of a moiety of the fund to be applied for  the construction of a Ramamandiram however stands  good and the trust must be carried out.  Mangamma is dead, but on that  account the charitable trust is not  extinguished  The Trial Court must give appropriate directions for utilisation of  that moiety for constructing a temple according  to  the direction of Appanna in the will. The testator gave to his wife Mangamma an absolute  interest in the E Schedule properties, for she was invested with  all powers  of disposition "by way of gift, sale etc." The  will then proceeded to direct that whatever remained out of the E Schedule   properties   after  her  death  shall   pass   to Venkataswamy  and Seeshagirirao.  If Mangamma  had  survived Appanna,  probably the devise in favour of Venkataswamy  and Seshagirirao  may  have failed, but that question  does  not arise for consideration. Section  105  of  the Indian  Succession  Act,  1925,  which applies to the wills of Hindus provides :               "(1)  If  the  legatee does  not  survive  the               testator,  the legacy cannot take effect,  but               shall  lapse and form part of the  residue  of               the testator’s property, unless it appears  by               the  will that the testator intended  that  it               should go to some other person.               (2).  .    .         .              ." 33 Mr.  Chagla for the plaintiffs contends that the  estate  in the  E  Schedule properties devised in  favour  of  Mangamma lapsed,  for, there was nothing in the will which  expressly provided  that  in the event of Mangamma  dying  during  the testator’s  lifetime, the devise in favour  of  Venkataswamy -and Seshagirirao shall be accelerated.  Counsel relies upon the  judgment  of Wickens, V. C., in Browne v.  Hope(1)  and contends that a legacy does not lapse, if the testator  does two  things-he,  in  -clear words, excludes  lapse;  and  he clearly  indicates the person who is to take the  legacy  in case  the legatee should die in his lifetime.   In  Browne’s case(1)  the testator gave, by his will, the residue of  his estate  to  trustees to pay and transfer the same  to  seven named  legatees  in equal shares as tenants in  common,  and their respective executors, administrators and assigns;  and he  declared that such shares shall be vested  interests  in each  legatee  immediately upon the execution  thereof,  and that  the  shares of the married women shall  be  for  their separate  use.   It was held that the share of  one  of  the legatees-a married woman-who died after the date of the will but before the testator, did not belong to her husband,  who was her legal personal representative, and it lapsed. Counsel  says that the rule of interpretation as  enunciated by Vice Chancellor Wickens is incorporated in s. 105 of  the Indian Succession Act, 1925.  He submits that a legacy  will not lapse only if the testator by express direction excludes lapse,  and indicates clearly the person who shall take  the legacy if the legatee dies during his lifetime. We are concerned to construe the provisions of s. 105 of the Indian  Succession Act.  That section enacts that  a  legacy shall  lapse and form part of the residue of the  testator’s property if the legatee does not survive the testator except

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where it appears by the will that the testator intended that the legacy shall on the legatee not surviving him go to some other person.  We are unable to agree that the intention  of the  testator  that a legacy shall not lapse  may  be  given effect to only if the testator expressly directs that if the legatee dies during his lifetime the legacy shall go to some other person, and that intention to exclude lapse cannot  be inferred.   Section 105(1) does not say, nor does it  imply, that  the  testator  must  have  expressly,  envisaged   the possibility  of  lapse in consequence of the  legatee  dying during his lifetime and must have made a provision for  that contingency. In  In re.  Lowman Devenish v. Pester (2 ) a  testator,  who under  a settlement was absolutely entitled to a  moiety  of the  proceeds  of a certain real estate under  a  trust  for sale, by his will devised,, (1) L. R. 14 Equity Cases, 343. (2) [1885] 2 Ch. 348. 34 that  real estate by its proper description,  together  with certain  real estate of his own, to trustees, to the use  of H.  for  life, with remainder to trustees  to  preserve  the contingent  remainders,  with remainder to the  use  of  the first  and other sons of H successively in tail  male,  with remainder  to  the use of the first and other  sons  of  his niece E successively in tail male, with remainder to the use of  the first and other sons of his niece M successively  in tail -male, with remainder to the use of the first and other sons  of  his  niece  F  successively  in  tail  male,  with remainder  over.   H  survived  the  testator  and  died   a bachelor.  M also survived the testator and died  unmarried. E was still alive but unmarried and seventy years of age.  F had  two sons, the eldest of whom died before the  testator. It  was  held  that when there are  in  a  ’Will  successive limitations of personal estate in favour of several  persons absolutely, the first of those persons who survives the tes- tator takes absolutely, although he would have taken nothing if  any  previous legatee had survived and had taken  :  the effect  of the failure of an earlier gift is to  accelerate, not to destroy, the later gift. This  rule  was  applied  in In  re.   Dunstan,  Dunstan  v. Dunstan(1).    A  testatrix  by  her  will  gave   freeholds absolutely to A, subject to the bequest that whatever out of the  freeholds should remain after A’s death shall be  given to a named charity.  It was held that if A had survived  the testatrix the gift to the charity would have been  repugnant and  void, and A would have taken the freeholds  absolutely. But  since  A  died in the lifetime of  the  testatrix,  the doctrine  of  repugnancy  did not apply,  and  the  gift  to charity was accelerated and took effect. Mangamma died during the lifetime of the testator :  thereby the estate in Sch.  E properties granted to Venkataswamy and his  brother Seshagirirao was accelerated.   The  plaintiffs are  therefore  not  entitled  to  any  share  in  Sch.    E properties. The  decree of the High Court is modified.  It  is  declared that  there is intestacy in respect of a half share  in  the fund  arising  by  sale  of  Sch.   C  properties,  and  the plaintiff  and the 24th defendant are entitled to take  that half share in the fund.  It is directed that the Trial Court will  issue  appropriate directions for application  of  the other half of the fund arising by sale of Sch.  C properties for  constructing  Ramamandiram  at  Rajavaram  village   as directed  by  the  testator in his will.   Subject  to  this modification  the appeal will be dismissed.   The  appellant

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will pay 3/4th of the costs of the contesting respondents in this Court. Y.P.                 Appeal dismissed. (1)  [1918] 2 Ch. 304. 35