S. Jhansi Lakshmi Bai & Ors Vs.
Pothana Apparao & Ors  INSC 82 (17 March 1969)
17/03/1969 SHAH, J.C.
CITATION: 1969 AIR 1355 1970 SCR (1) 28 1969
SCC (2) 91
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
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 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,
(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.
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.
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
P. Ram Reddy and K. Jayaram, for the
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 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
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- 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
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 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
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
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 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
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)  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(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 will pay 3/4th of the
costs of the contesting respondents in this Court.
Y.P. Appeal dismissed.
(1)  2 Ch. 304.