Boddu Venkatakrishna Rao & Ors Vs.
Shrimati Boddu Satyavathi & Ors  INSC 274 (23 November 1967)
23/11/1967 MITTER, G.K.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
CITATION: 1968 AIR 751 1968 SCR (2) 395
CITATOR INFO :
E 1980 SC1173 (27)
Hindu Law--Will by childless testarix--Two
foster Children to have life estate and their children to inherit after
them--Foster children whether inherit as joint tenants or
tenant-in-common--Their children whether inherit per capita or per stirpes.
A childless Hindu lady brought up a boy B and
a girl K as foster children. She made a will whereby after her death B and K
were to get a life estate in her property and 'after their death the children
that may be born to them should enjoy the same with powers of gift transfer and
sale'. After the lady's death B and K divided the property in equal shares by a
partition deed. B married K's daughter and had a child by her. He then took
another wife and had four children by her. The said four children filed a suit
for a declaration, inter alia, that after the death of B and K, their
children--namely, K's daughter and B's children--would be entitled to take the
property in equal shares. The trial court as well as the High Court held that B
and K had inherited a life estate as tenants in common and their descendants
would inherit per stirpes and not per capita.
The plaintiffs-appellants came to this Court.
It was urged on their behalf that B and K had inherited as joint tenants and
not as tenants in common.
HELD: A joint tenancy is unknown to Hindu law
except in the case of a coparcenary between members of an undivided family. The
terms of the will also did not in the present case spell out a joint tenancy.
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. [398 G--399 A] Jogeswar Narain Deo v. Ram Chund Dutt & Ors. 23 I.A.
37 and Babu Rani v. Rajendra Baksh Singh, 60
I.A. 95, relied on.
In re Hutchinson's Trusts, 21 Ch. D. 811,
Errington, In re: Gibbs v. Lassam.  1 Ch. D. 421 and Mcdonnel v.
Neil.  A.C. 342, referred to.
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 reasonable to expect
that the testarix 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 interests 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 being divided per stirpes between them. 1398
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 245 of 1965.
396 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
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 397 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 111 398 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
Let us now consider the position in law. The
law has been 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 10 399 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 forever. 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
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, 421 400 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)  A.C.342 (2) 21 Ch. D. 811.