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PETITIONER: S. RAJAGOPAL CHETTIAR

       Vs.

RESPONDENT: HAMASAVENI AMMAL AND ORS.

DATE OF JUDGMENT23/08/1991

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAMASWAMY, K.

CITATION:  1992 AIR  704            1991 SCR  (3) 714  1991 SCC  (4) 383        JT 1991 (3)   522  1991 SCALE  (2)395

ACT:     Hindu   Succession  Act,  1956:  Section   14(1)   Hindu Law--Will-Scope  and  construction  of--Testator  bequething properties  to daughter and after her to her male  children- Daughter whether acquiring absolute Estate.     Constitution  of  India,  1950: Article  136--Appeal  by Special Leave--Contention neither raised in Courts below nor in  Special Leave Petition--Cannot be raised for first  time during the course of arguments in appeal.

HEADNOTE:     ’P’ executed a will on 22.6.1924. The terms of the  will provided  that  after the death of testator his  wife  shall enjoy  the  properties till her lifetime; after  her  wife’s lifetime  the properties shall be enjoyed absolutely by  his daughter and after her daughter the properties should go  to her male children.     A question arose as to whether on the basis of the  will the  daughter acquired a fife estate or an absolute  estate. The High Court held that the fact that the testator directed that after her daughter the properties shall go to her  male children clearly showed an intention that daughter’s  inter- est  in  the properties was not absolute.  Accordingly,  the High  Court  held  that the daughter acquired  only  a  life estate  in  the properties. Hence this  appeal  against  the judgment of the High Court. . Dismissing the appeal, this Court,     HELD: 1. It cannot be held that the,testator of the will wanted to give absolute right in the property to his  daugh- ter. The intention of the testator to give absolute right in the property to his daughter is negatived by a clear mention in the will that after his daughter the property shah  ulti- mately go to her male children. In case the intention of the testator was to give the properties absolutely in favour  of his daughter and not merely life interest then there was  no question  of mentioning .that after her it should go to  her male children. Accordingly, the view taken by the High Court was correct. [716C-E] 715     2.  A  contention neither raised in any  of  the  courts

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below  nor  before the High Court nor in  the  petition  for special leave cannot he permitted to be raised for the first time  before  this  Court during the  course  of  arguments. [716F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  902  of 1977.     From  the  Judgment  and Order dated  13.7.1976  of  the Madras High Court in S.A. No. 1575 of 1973.    , K. Ram Kumar and Ms. Janki Ramachandran for the Appellant. M. Raghuraman for the Respondents- The Judgment of the Court was delivered by     KASLIWAL,  J. This appeal by Special Leave is.  directed against  the  Judgment of the High Court  of  Judicature  at Madras dated 29.7.1976. The short controversy in the case is regarding  the ambit and scape of a will dated  22.6.  1924. executed by one Padmanabha Chettiar. The construction of the will  is in question in the present case. A  translation  of the will as supplied by the appellant in this Court reads as under:                         "On the 2nd day of June, 1924,  i.e.               Tamil 9th day of Ani of Raktakshi. year,  this               will executed by me, Padmanabha Chettiar,  son               of  Sami Chettiar, Vysya  caste,  cultivation,               resident of New Street, Sultanpettai,  Koppam,               Palakkadu    Taluq,   Kallikottai    District,               presently at Aniaimalai, is to the effect.  As               I do not have male progeny and I have attained               old age, the movable and immovable  properties               mentioned  hereunder  in  my  possession   and               enjoyment,  both ancestral and also  self  ac-               quired, shall be enjoyed by me absolutely till               my life time, after my lifetime my wife Dhana-               lakshmi  Ammal shall enjoy likewise  till  her               lifetime;  after  her  lifetime  as  described               hereunder  A  Schedule  properties  shall   be               enjoyed absolutely by my daughter and wife  of               Anaimalai  Subramania  Chettiar,   Rajalakshmi               Ammal, and after her it should go to her  male               children".      The question which arises on the basis of the  contents of the above will is whether Rajalakshmi Ammal had  acquired a life estate 716 under  the will or an absolute estate. The High  Court  took the  view  that  it was one of the  cardinal  principles  of construction of wills that so far as legally possible effect should  be given to every disposition contained in the  will unless  the law prevents such effect being given to it.  The High  Court  held that the fact that the  testator  directed that  after Rajalakshmi Ammal it shall go to her male  chil- dren  clearly showed an intention that  Rajalakshmi  Ammal’s interest in the properties should not be absolute. The  High Court thus arrived to the conclusion that Rajalakshmi  Ammal should  be  deemed to have held only a life  estate  in  the properties  and after her death, her ’male children got  the properties absolutely.     After  going through the contents of the will  we  agree with the view taken by the High Court. We do not agree  with the  contention of the  learned counsel for  the   appellant raised before us that Padmanabha Chettiar, the testator,  of the  will wanted to give absolute right in the  property  to

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his wife Dhanalakshmi Ammal and thereafter absolute right in favour  of his daughter Rajalakshmi Ammal. The above  inten- tion is negatived by a clear mention in the will that  after Rajalakshmi  Ammal the property shall ultimately go  to  her male children. In case the intention of the testator was  to give the properties absolutely in favour of Rajalakshmi  and not  merely  life  interest then there was  no  question  of mentioning that after her it should go to her male children.     Learned counsel for the appellant also raised a  conten- tion that even if it may be considered that only life inter- est  was  given to Rajalakshmi Ammal under  the  will,  such right  became  absolute under Section 14 (1)  of  the  Hindu Succession Act, 1956. This contention was neither raised  in any of the courts below nor before the High Court nor in the petition for special leave and we cannot permit this  ground to be raised for the first time before us during the  course of arguments. In the result we find no force in this  appeal and the same is dismissed with no order as to costs. T.N.A.                                          Appeal  dis- missed. 717