Yelamanchili Siva Panchakshamma
Godavaru Vs. Yalamanchili Cheva Abhayi & Ors  INSC 35 (4 February
04/02/1966 RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1967 AIR 207 1966 SCR (3) 446
Will-Construction of-Property whether could
be claimed as persona designata in terms of the will.
The respondent filed a plaint claiming
properties mentioned in Schedules A and B thereof on the ground that he was
adopted by the appellant who was widow of L. Apart from adoption the
respondent's claim was based on being mentioned as persona designata in L's
will. The relevant words in the will were: "It has been settled that my
wife should take, the second son of my elder brother.......... in adoption,
celebrate his marriage, etc., and after he passes his minority she should
deliver possession of my other movable and immovable properties that I have.
........... The trial court held that the respondent had not been adopted by
the appellant nor was he entitled to any rights as persona designata in L's
will. On appeal the High Court held that while there was no adoption, the
respondent was entitled to the property as persona designata. The appellant
came to this Court. The question presented for determination was whether the
High Court was right in holding that upon a true construction of the will
Ex.B-1 there was a gift of the property to the plaintiff as persona designata.
HELD :. The will contained no direct words of
disposition in favour of the respondent. There was no expression of devise in
favour of the respondent. There was only a direction to the widow to adopt and'
the gift to the respondent was on condition of being adopted. The. respondent's
claim as persona designata could not therefore be accepted. [448 G-H, 450 A]
Fanindra Deb Raikat v. Rajeswar Dass, 12 I.A. 72 relied on.
Nidhoomoni Debya v. Saroda Pershad Mookerjee,
3 I.A. 253 distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 752 of 1963.
Appeal from the judgment and decree dated
December 16 1958 of the Andhra Pradesh High Court in Appeal Suit No. 284 of
M. A. Narasayya Chaudhury, I Shivamurthy and
K. R. Sarma, for the appellant.
W. S. Barlingay and E. Udayaratnam, for the
The Judgment of the Court was delivered by
Ramnswami J. This appeal is brought on behalf of the defen- dant against the
judgment and decree of the High Court of Andhra Pradesh dated December 16, 1958
in A. S. No. 284 of 1954 whereby 447 it reversed the judgment and decree of the
Court of Subordinate Judge, Vijayawada in O. S. No. 171 of 1950.
In the suit which is the subject-matter of
this appeal the plaintiff alleged that he was duly adopted by the defendant-
the widow of Lakshmayya and therefore entitled to properties mentioned in Schs.
A & B of the plaint. The plaintiff also asserted that, apart' from his
right as an adopted son, he was entitled to the properties claimed as a persona
designata under the will dated November 30, 1946-Ex. B-1 executed by
Lakshmayya. The suit was contested by the defendant who alleged that the
plaintiff was not adopted as the son of Lakshmayya. The trial court rejected
the case of the plaintiff that he was adopted by the widow after the death of
Lakshmayya. The trial court further held that the plaintiff was not entitled to
any rights under the will as a persona designata. The trial court accordingly
dismissed the suit, On appeal by the plaintiff the High Court confirmed the
finding that no adoption had been made. It, however, held on the construction
of the will that the plaintiff was entitled to the properties claimed as a
persona designata. The High Court allowed the appeal and granted a decree to
the plaintiff for possession of the properties subject to certain incidental
directions given in the decree.
The question presented for determination in
this appeal is whether the High Court was right in' holding that upon a true
construction of the will-Ex. B-1 there was a gift of the properties to the
plaintiff as a persona designata.
It is necessary, at this stage, to set out
the material provisions of the will Ex. B-1 executed by Lakshmayya:- "I
have no male or female issue. I have wife, by name Sivapanchakshari, mother by
name Basavamma, and elder brother by name Somaiah.
For the last 10 days I am suffering from a
disease akin to paralysis and fearing that I may not survive, I make the
following settlement as set down below to take place after my life.
Land called Mallukunta .. .. .. . . .. 1-60
Out of Raksh kunta (?) vadde land .. . 1-25 Out of Maddurivari land .. .. .. ..
1-05 Oat of Pooravarnamvari land .. .. .. 2-60 -------------- TOTAL 6-50 Six
acres and (50) fifty cents seri wet land;
10 cents in Kolli Chinna Bapaiah's (back)
yard; and 300 yards of house-site towards the west of my house (belonging to my
mother-in- law) with a tiled house thereon, have been 448 settled upon my wife
to enjoy as she likes with all rights of gift, mortgage, exchange, sale, etc.
2. Southern side., garden 80 cents (eighty
cents of seri wet land) has been settled. upon my mother Basavamma to enjoy
with all rights of gift, mortgage, exchange, sale, etc.
3. It has been settled that my wife should
take, the 2nd son of my elder brother, Yalamanchili Somaiah, in adoption,
celebrate his marriage, etc., and after he passes his.
minority she should deliver possession of .my
other movable and immovable properties that I have and described here below.
During the life-time of my wife, if the adopted son and she live together
without any trouble, (she) is to live in my house, and if there is disagreement
between the adopted son and my wife, (she) is to live in .a room of my house.
My wife has been given power over my minor
(son's) property, to collect debts due to me and to discharge debts due by
me." The testator then mentioned two items of debts due to him.
He ,thereafter enumerated the debts due by
him which aggregated to Rs. 15,803/-. A description of the land is also given.
The question involved in this appeal is
whether the disposition of the properties to the plaintiff is as a persona
designata or by reason of his fulfilling a particular legal status, namely, the
adopted :son of the testator. The question in such a case is really one of
intention of the testator which must be ascertained from the Ianguage of the
various clauses of the will and the surrounding circumstances of the execution
of the will. As pointed out by the Judicial Committee in Fanindra Deb Raikat v.
Rajeswar Dass(1) "The distinction between what is description only and
what is the reason or motive of a gift or bequest may often be very fine, but
it is a distinction which must be drawn from a consideration of the language
and the surrounding circumstances." In the present case we are satisfied
on reading the various clauses of the will, that there is no gift to the
plaintiff and there was only a direction to the defendant to adopt the
plaintiff as the son of Lakshmayya and the intention of, the testator was that
the Plaintiff should take as an adopted son and, therefore, the gift made to
the plaintiff was conditional on his being adopted. The reason is that there
are no. direct words of disposition in favour of the plaintiff. In this
connection the, language of cl. 3 of the win is (1) 12 1. A. 72.
449 in contrast with that of cls. 1 and 2
where words of disposition are used with regard to the gifts made to the
widow-Sivapanchakshari and to the mother of the testator- Basavamma. Clause 3
of the will does not contain any expression of devise of the property in favour
of the plaintiff. Clause 3 only contains a direction that the wife of the
testator should take the plaintiff in adoption, celebrate his marriage etc. and
"after he passes his minority she should deliver possession of my other
movable and immovable properties to him". It is manifest that in the
present case there is a direction to the widow to adopt and, the gift to the
plaintiff is on the condition of his being adopted. It appears to us, upon
reading the will as a whole, that the testator had no intention to give the
property to the plaintiff irrespective of the adoption to be made by the widow
in accordance with the direction. On behalf of the respondents reference was
made to the decision of the Judicial Committee in Nidhoomoni Debya v. Saroda
Pershad Mookerjee(1) in which it was held that there was a gift of his property
by the testator to a designated person (the words being "I declare that I
give my property to Koibullo whom I have adopted"), and this gift was not
dependent on the performance of certain ceremonies by his widows. The principle
of the decision is not applicable to the present case where the language of the
testamentary instrument is materially different. We think the present case is
similar to that of Fanindra Deb Raikat v. Rajeswar Dass(2) where the Judicial
Committee held on a true construction of the angikar-patra by which the
deceased purported to give his property to the respondent by virtue, of his
being the adopted son, that the gift did not take effect inasmuch as the
adoption was invalid. At page 89 of the Report the Judicial Committeee observed
"They think the question is whether the
mention of him as an adopted son is merely descriptive of the person to take
under the gift, or whether the assumed fact of his adoption is not the reason
and motive of the gift, and indeed a condition of it. The words are authorize
you by this angikar-patra to offer oblations of water and pinda to me and my
ancestors after My death, by virtue of your being my adopted son. Moreover, you
shall become the proprietor of all the movable and immovable properties which I
own and which I' may leave behind; you shall become entitled to my dena-pawna
(debts and dues), and you and your sons and grandsons shall enjoy them
agreeably to the custom of the family.' He is to make the offerings by virtue
of being an adopted son, and 'moreover' he is to become the proprietor. This is
to be the consequence of the adoption." (1) 3 1. A. 253. (2) 12 1. A.
450 For the reasons expressed we hold that
the High Court was in error in interpreting the will of Lakshmayya as a gift of
the properties made to. the plaintiff as a. persona designata. We are,
therefore, of the opinion that the plaintiff is not entitled to the properties
on the basis of the will executed by Lakshmayya and the suit of the plaintiff
should be dismissed. This appeal is accordingly allowed with costs.