Usha Subbarao
Vs. B.E. Vishveswariah & Ors [1996] INSC 766 (8 July 1996)
Agrawal, S.C. (J) Agrawal, S.C. (J) Nanavati G.T. (J) S.C. Agrawal
J.
CITATION:
1996 SCC (5) 201 JT 1996 (6) 607 1996 SCALE (5)308
ACT:
HEAD NOTE:
Special
leave granted.
This
appeal by the plaintiff arises out of a suit wherein the appellant claimed 1/5
share of her deceased husband in the properties left by her father-in-law, Dr.
N.S Nanjundiah, on the basis of a Will executed by Dr.Nanjundiah on March 13,
1935. The said suit was decreed in full by the trial court. But on appeal, the
Karnataka High Court, by the judgment dated April 15, 1994, has set aside the
said judgment of the trial court in respect of properties mentioned in
Schedules "A", "B" and "D" to the said Will and
has confined the decree to properties mentioned in Schedule "C" to
the Will. The questions that fall for consideration in this appeal relate to
construction of the Will.
Dr.
N.S. Nanjundiah (hereinafter referred to as 'the testator') died on July 28, 1938 leaving behind his wife Smt. Nadiga
Nanjamma and five sons, namely, B.N. Subba Rao B.N. Shankar Rao, B.N. Visweswaraiah,
B.N. Rama Rao and B.N. Ganesh. The appellant is the wife of b.N. Subba Rao who
died on February 21,
1954 without leaving
any issue. Smt. Nadiga Nanjamma died on March 28, 1959. After the death of Smt. Nadiga Nanjamma,
the appellant filed the suit giving rise to this appeal.
As
indicated earlier, in the Will dated March 13, 1935 the immovable and moveable
properties of the testator were specified in four groups specified in Schedules
"A", "B","C" and "D" attached with the
Will. Schedule "A" consists of four items of immovable properties.
Item No. 1 is house No. 318, 3rd Road, Margosa Avenue, Malleswaram City and items Nos. 2, 3 and 4 are
agricultural lands. Schedule "B" consists of shares and securities
standing in the name of Smt. Nadiga Nanjamma. Schedule "C" consists
of thrift deposit accounts in the Bank of Mysore Limited standing An the names
of five sons of the testator. Schedule "D" consists of shares and
securities and fixed deposits in banks. The relevant parts of the Will dated |
- March 13, 1935 are set out as under:- "During
my life time I will be An charge and management of my properties. After my life
time, if my wife Nadiga Nanjamma should survive me, she the said Nadiga Nanjamma
shall be in charge and management of all my properties given in Schedule A, B,
C and D together with their accretions and together with my properties acquired
by me in Future. My wife, the above mentioned Nadiga Nanjamma will have no
power to dispose of any of these properties mentioned in Schedules A, B, C, and
D by sale, gift, will, mortgage or hypothecation. She the said Nadiga Nanjamma
is entitled to take the produce of the lands mentioned in A Schedule and use
the same for the maintenance of herself and her children. She the said Nadiga Nanjamma
also entitled to use the interest dividends and incomes of the properties
mentioned in B and D Schedules for the same purpose.
With
regard to the house (Item no. 1 of the A Schedule) my wife, the abovenamed Nadiga
Nanjanma and her children are entitled to live in that house during the life
time of my wife, and the said house should not be partitioned during my wife, Nadiga
Nanjamma's life time.
Mr. C.
Nagappa, B.A., L.L.B., Advocate, Lakshmi Vilas Agrahar, Mysore, one of the
Executors and Trustees of this Will, shall be in possession of the lands viz.,
items Nos. 2, 3 and 4 of the A Schedule, during the minority of my children.
The above mentioned Mr. C. Nagappa shall make arrangements for the cultivation
of the said lands, for the collection of produce therefrom, for the payment of Kandayam
over same and for the delivery of all produce from the lands to my wife, the
above mentioned Nadiga Nanjamma and her children.
The
properties mentioned in the B Schedule stand in the name of my wife, the abovesaid
Nadiga Nanjamma. The income from these properties, as stated above, shall be
used for the maintenance, education Upanayanam and marriage of my children,
during their minority. After my sons attain the age of majority, the income
from the properties mentioned in the B Schedule only shall be used by my wife,
the abovenamed Nadiga Nanjamma, for her own maintenance if she lives separate
from any of major sons. The properties of the said B Schedule shall be liable
to partition after the demise of my wife, the abovenamed Nadiga Nanjamma, among
her surviving children.
With
regard to the properties given in the C Schedule, that is, thrift deposits at
the Bank of Mysore, Bangalore City, they shall be the property of each of my
children on whose respective names those deposits have been made, after they
attain their age of majority. Where Upanayanams and marriages are to be
performed for my children, if the income from other sources of my property are
found insufficient to meet the expenses, my wife the abovenamed Nadiga Nanjamma
is entitled to withdraw from the respective deposits not more than rupees three
hundred only, (Rs. 300/-) for each Upanayanam and not more than Rupees five hundred
only (Rs. 500/-) (for each marriage), during the minority of my children.
With
regard to the properties mentioAed in B and D Schedules, the investments, that
is, stock and shares, may have to be altered in some cases either by conversion
or by investment and for the payment of further calls on some of the shares; my
wife the abovenamed Nadiga Nanjamma is entitled only to transact the operations
of conversion encasement or payment of further calls on shares, as the case may
be, and she the abovenamed Nadiga Nanjamma has also powers to reinvest the same
in suitable securities, when necessary, through the Bank of Mysore Limited,
Bangalore City but the corpus in each case shall remain in tact.
Only
the interest, dividend or other incomes of the above shares etc. might be used
by my wife for the maintenance of herself and her children as stated above.
After
any of my sons attain the age of majority if he, the major son, demands
partition during the life time of my wife, the said Nadiga Nanjamma, he is
entitled to get for his share the thrift deposit in the Bank of Mysore Limited,
Bangalore City, standing in his name as mentioned in C Schedule, and also to
get his portion in items 2, 3 and 4 of the A Schedule and his portion in D
Schedule Of properties, with the exception of item 1 of A Schedule, the
partition being determined according to the prevailing Hindu Law in force at
that time. After the life time of both myself and my wife, the said Nadiga Nanjamma,
all the properties mentioned in A, B and D Schedules shall be divided equally
among my surviving children." At the time when the said Will was executed
all the five sons of the testator were minors and the eldest son, B.N. Subba Rao,
the husband of the appellant, was aged 12 years. It appears that there was
considerable difference between the age of the testator and his wife. At the
time of execution of the Will, the testator was aged about 53 years while his
wife. Smt. Nadiga Nanjamma, was aged 28 years. In the Will the testator made
the following provision regarding guardianship of the minor sons :
"If
some of my sons happen to be still minors at the time of tile demise of myself
and my wife, the said Nadiga Nanjamma, my major sons shall be the guardians and
Managers of the minor sons' persons and properties. If all my sons, however,
happened to be minors at the demise of myself and my wife, the abovenamed Nadiga
Nanjamma, I appoint the following gentlemen as Guardians during my children's minority
:
(1)
Mr. C. Nagappa, C.A., L.L.B., Advocate, Lakshmi Vilas Agrahar,
Mysore
(2)
Mr. B. Srikanta Rao, No. 9, 3rd Road, Cham-rajpet Bangalore City.
(3)
Mr. B. Ramaswariah, Retired School Master, No. 2, Sunkalpet, Bangalore City.
(4)
Mr. M.B. Varadarajengar, Advocate, Sultanpet, Bangalore City, and
(5)
Mr. B.R. Subba Rao, Tutor, University College, residing at No. 1493, Kothwal Ramanna
Street, Mysore."
The
case of the appellant is that the respective shares in the various properties
of the testator vested in the five sons of the testator as per the Will, on the
death of the testator and that after the death of her husband, B.N. Subba Rao,
the appellant is entitled to the share in the properties that had vested in him
prior to his death in accordance with the Will. The trial court, namely, the
XVII Additional City Civil Judge, Bangalore City, by his judgment dated
February 4, 1985, accepted the said plea of the appellant and held that the
succession opened on the death of the testator by virtue of which all the sons
of the testator became entitled to equal shares in the properties and the
recital in the Will that the partition should take place amongst the surviving
children after the death of Smt. Nadiga Nanjamma is really intended to refer to
the children surviving the testator. The said view of the trial court has been
reversed by the High Court in appeal by the impugned judgment. The High Court
has held that right was given to the children surviviny the testator to demand
partition after the death of the testator subject to the conditions imposed in
the Will and in the absence of such a demands the division was to take place
after the death of Smt. Nadiga Nanjamma among the children surviving Smt. Nadiga
Nanjamma.
The
High Court further held that since after attaining majority B.N. Subba Rao did
not demand partition during his life and Smt. Nadiga Nanjamna continued to
manage the properties during her life time and since B.N. Subba Rao had already
expired when Smt. Nadiga Nanjamma died, it could not be held that B.N. Subba Rao
had a right title or interest in the properties except to demand partition by
metes and bounds which specified event did not happen during life time of Smt. Nadiga
Nanjamma. On that view the High Court held that the appellant could not claim
any right in respect of properties specified in Schedules "A",
"B" and "D", but she was held entitled to her husband's
interest in Schedule "C" properties.
In
view of the said decision of the High Court it is necessary to determine the
date when the bequest made in favour of the sons of the testator under the Will
vested in the legatees. If it is found that the legacy vested in the legatees
on the death of the testator, the appellant) as the legal representative of one
of the legatees who died after the death of the testator, would be entitled to
claim the interest of her deceased husband as per the said bequest.
But if
it is found that the bequest was to vest in the lega- tees only after the death
of Smt. Nadiga Nanjamma, the appellant would not be entitled to claim any
interest because her husband had pre-deceased Smt. Nadiga Nanjamma.
For
the purpose of determining the date of vesting of the interest in the bequest
it is necessary to hear in mind the distinction between a vested interest and a
contingent interest. An interest is said to be a vested interest when thee is
immediate right of present enjoyment or a present right for future enjoyment.
An interest is said to be contingent if the right of enjoyment is made
dependent upon some event. or condition which may or may not happen. On the
happening of the event or condition a contingent interest becomes a vested
interest. The Transfer of Property 1882 as well as The Indian Succession Act,
1925 recognise this distinction between a vested interest and a contingent
interest. Vested interest has been thus defined in Section 19 of The Transfer
of Property Act, 1882 :
"Section
19. Where, on a transfer of property, an interest therein is created in favour
of a person without specifying the time when it is to take effect, or in terms
specifying that it is to take effect forthwith or on the happening of an event
which must happen, such interest is vested, unless a contrary intention appears
from the terms of the A vested interest is not defeated by the death of the
transferee before he obtains possession.
Explanation.- An intention that an interest
shall not be vested is not. to be inferred from a provision whereby the
enjoyment thereof is postponed, or whereby a prior interest in the same
property is given or reserved to some other person, or whereby income arising
from the property is directed to be accumulated until the time of enjoyment
arrives or from a provision that if a particular event shall happen the
interest shall pass to another person." Contingent interest is defined in
Section 21 of the said Act in the following terms :
"Section
21, Where, on a transfer of property, an interest therein is created in favour
of a person to take effect only on the happening of a specified uncertain
event, of if a specified uncertain event shall not happen, such person thereby
acquires a contingent interest in the property. Such interest becomes a vested
interest, in the former case, on the happening of the event, in the latter,
when the happening of the event becomes impossible.
Exception,--Where, under a transfer of
property, a person becomes entitled to an interest therein upon attaining a
particular age, and the transferor also gives to him absolutely the income to
arise from such interest before he reaches that age, or directs the income or
so much thereof as may be necessary to be applied for his benefit, such
interest is not contingent."
In the
Indian Succession Act provision with regard to date of vesting of a legacy when
payment or possession is postponed is contained in Section 119 which provides
as "Section 119. Date of vesting of legacy when payment or possession
postponed.-- Where by term terms of a bequest the legatee is not entitled to
immediate possession of the thing bequeathed, a right to receive it at the
proper time shall, unless a contrary intention appears by the will, become
vested in the legatee on the testator's death, and shall pass to the legatees's
representatives if he dies before that time and without having received the
legacy, and in such cases the legacy is from the testator's death said to be
vested in interest.
Explanation: An intention that a legacy to any
person shall not become vested in interest in him is not to be inferred merely
from a provision whereby the payment or possession of the thing bequeathed is
postponed, or whereby a prior interest therein is bequeathed to some other
person, or whereby the income arising from the fund bequeathed is directed to
be accumulated until the time of payment arrives or from a provision that; if a
particular event shall happen, the legacy shall go to another person."
Section 120 of the Indian Succession Act makes the following provision for date
of vesting when legacy is contingent upon specified uncertain event :-
"Section 120. Date of vesting when legacy contingent upon specified
uncertain event,---
(1) A
legacy bequeathal in case a specified uncertain event shall happen does not
vest until that event happens.
(2) A
legacy bequeathed in case a specified uncertain event shall not happen does not
vest. until the happening of that event becomes impossible.
(3) In
either case, until the condition has been fulfilled, the interest of the
legatee is called contingent.
Exception.- Where a fund, is bequeathed to
any person upon his attaining a particular age, and the will also gives to him
absolutely the income to arise from the fund before he reaches that age, or
directs the income, or so much of it as may be necessary, to be applied for his
benefit, the bequest of the fund is not contingent."
By
virtue of Section 119, in a case where bequest is of a vested interest and by
the terms of the bequest the legatee is not entitled to immediate possession of
the thing bequeathed, the right to receive it at the proper time becomes vested
in the legatee on testator's death and in the event of the death of the legatee
without having received the legacy the said right to receive it passes to the
legal representatives of the legatee. This is however, subject to a contrary
intention being expressed in the Will. But in the case of a contingent bequest,
Section 120 prescribes that legacy vests in the legatee only after the
happening or not happening of the contingency which means that in the ever of
the legatee dying prior to happening of that contingency no interest passes to
his legal representatives. Although the question whether the interest created
is a vested or a contingent interest is dependent upon the intention to be
gathered from a comprehensive view of all the terms of the document creating
the interest, the court while construing the document has to approach the task
of construction in such cases with a bias in favour of vested interest unless
the intention to the contrary is definite and clear. [See :Rajes Kanta Roy v. Santi
Devi, 1957 SCR 77, at p. 90]. As regards Wills the rule is that "where
there is doubt as to the time of vesting, the presumption is in favour of the
early vesting of the gift and, accordingly it vests at the testator's death or
at the earliest moment after that date which, is possible in the contest."
[See : Halsbury's Laws of England 4th.,
Vol. 50, para 589 at p. 395].
In
order to determine whether the appellant can claim any right in the properties
of the testator, it is, therefore, necessary to examine the nature of the
bequest that was made by the testator in favour of his five sons including the
deceased husband of the appellant. If it is found that the bequest is in the
nature of vested interest, it would vest in the husband of the appellant on the
death of the testator and after the death of her husband the appellant as his
legal representative, would be entitled to claim her husband's interest in the
properties. But in case the bequest is found to be in the nature of a
contingent interest which was to vest in the legatees only after the death of Smt.
Nadiga Nanjamma, the appellant would not be entitled to claim any interest in
the properties since her husband had pre-deceased Smt. Nadiga Nanjamma.
We
must, therefore, construe the Will to Find out the intention of the testator in
this regard. With regard to construction of Wills the law is well settled that
intention has be ascertained from the words used keeping in view the
surrounding circumstances, the position of the testator, his family
relationship and that the Will must be read as a whole, [See : Gnanambal Ammal
v. T. Raju Ayyar and Others, 1950 SCR 949, at p. 955, Navneet Lal Alias Rangi
v. Gokul and others, 1976 (2) SCR 924, at pp. 927, 928]. If the Will is thus
read, it is found that under the Will Smt. Nadiga Nanjamma was vested with the
management of all the properties specified in Schedules "A"
"B" and "D" but she had no power to dispose of any of those
properties by sale, gift, Will, mortgage or hypothecation. She was entitled to
take the produce of the lands mentioned at items Nos. 2, 3 and 4 in Schedule "A"
and use the same for the maintenance of herself and her children, She was also
entitled to use the interest, dividends and income of the properties mentioned
in Schedules "B" and "D" for the same purpose.
With
regard to properties mentioned in Schedule "C", the testator has
directed that where Upanayanams and marriages were to be performed for the
children during their minority and income from other sources of his property
was insufficient to meet the expenses; Smt. Nadiga Nanjamma could withdraw from
the thrift deposit account of the said child not more than Rs, 300/- for Upanayanam
and not more than Rs. 500/- for marriage of the child. As regards properties
mentioned in Schedules "B" and "D", it was provided that Smt.
Nadiga Nanjamma was entitled only to transact the operations of conversion,
encashment or payment of further calls on shares, as the case may be, and she
had also power to reinvest the same in suitable securities but the corpus in
each case had to be kept intact and only the interest, dividend or other
incomes of the said shares could be used by her for the maintenance of herself
and children as stated above, with regard to the house mentioned at item No. 1
of Schedule "A" it was directed that Smt. Nadiga Nanjamma and the
children were entitled to live in it during the life time of Smt. Nadiga Nanjamma
and that it would not be partitioned during her life time. As regards the lands
mentioned at item Nos. 2, 3 and 4 in Schedule "A" it was provided
that during the minority of the children Shri C. Nagappa, Advocate and one the
Executors and Trustees of the will, Shall be in possession of the lands and
shall make arrangments for the cultivation of the said lands, for the
collection of produce therefrom, for the payment of Kandayam over same and for
the delivery of all produce from the lands to Smt. Nadiga Nanjamma and her
children. As regards partition of the properties, it was provided that if any
of the sons after attaining the age of majority demands partition during the
life time of Smt. Nadiga Nanjamma, he would be entitled to get his share of the
thrift deposit account in the Bank Mysore Limited, Bangalore City, standing in
his name as mentioned in Schedule "C" and he would also to get his
portion in properties mentioned at items Nos. 2, 3 and 4 in Schedule
"A" and his portion in properties specified in Schedule "D"
with the Exception of the property mentioned at items No. 1 Schedule
"A" and that the partition would be determined according to the
prevailing Hindu Law in force at that time. It was further provided that after
the life time of the testator and his wife, Smt Nadiga Nanjamma, all the
properties mentioned in Schedules "A", "B" and
"D" shall divided equally among "my surviving children. With
regard to properties mentioned in Schedule "B" it is stated in the
Will that the said properties stood in the name of Smt. Nadiga Nanjamma and
that income from those properties shall be used for the maintenance, education,
Upanayanam and marriage of children, during their minority and after sons of
the testator attain the age of majority, the income from the properties
mentioned in Schedule "B" only shall be used by Smt. Nadiga Nanjamma,
for her own maintenance if she lives separate from any of major sons and that
the said properties shall be liable to partition after the demise of Smt. Nadiga
Nanjamma among "her surviving children".
Thus
according to the Will the right to separate enjoyment of the share in respect
of properties mentioned at items Nos. 2, 3 and 4 of Schedule was as well as
properties mentioned in Schedules "C" and "D" was available
to each of the sons of the testator on his attaining the age of majority and
that the right to separate enjoyment of the bequest relating to share in the
property mentioned at item No. 1 of Schedule "A" and properties
mentioned in Schedule "B" was available only after the death of Smt. Nadiga
Nanjamma. But ever during the period the right to separate enjoyment was not
available to the legatees the income from the properties was available for the
maintenance of the legatees, their education, their Upanayanams and marriages
as well as for maintenance of Smt. Nadiga Nanjamma.
The
Explanations in Section 19 of the Transfer of Property Act and Section 119 of
the Indian Succession Act incorporate the rule that where enjoyment of the
property is postponed but the present income thereof is to be applied for the
done the gift is vested and not contingent. In Rajes Kanta Roy v. Santi Devi
(supra) this Court has pointed out that this rule operates normally where the
entire income is applied for the benefit of the done. In that case, however,
under the terms of the settlement the entire income was not available to the donees
for their actual use but only a portion thereof was available and the balance
was to be used for discharge of debts. It was held that since the donees were
sons of the settlor who were under an obligation to discharge his debts out of
the properties which devolve upon them, the balance of the income which was
meant to be applied for the discharge of the debts was also an application of
the income for the benefit of the donees and, therefore, entire income is to be
applied for the benefit the donees. Similarly, in the instant case we find that
the income from the properties was to be used partly for the maintenance,
education, Upanayanams and marriages of the legatees and partly for the
maintenance of their mother, Smt. Nadiga Nanjamma. Since the legatees, as sons
were under an obligation to maintain their mother, it must be held that the
entire income from the properties was to be applied for the benefit of the
legatees and in accordance with the rule referred to above, the bequest in favour
of the legatees must be held to be of a vested interest.
Does
the said bequest cease to be a bequest for a vested interest for the reason
that the right to separate at items Nos. 2, 3 and 4 in Schedule "A"
and the properties specified in Schedules "C" and "D" is
not available the legatee obtains majority and the right to separate enjoyment
of his share in the property mentioned at item No. 1 in Schedule "A"
and the properties specified in Schedule "B" is not available during
the life time of Smt; Nadiga Nanjamma ? In our opinion, this question must be
answered in the negative. Under the English law where a condition can be fairly
read as postponing merely the right of possession or of obtaining payment,
transfer or conveyance, so that there is an express or implied distinction
between the time of vesting and time of enjoyment, the gift is held to be
vested at the earlier date if the rest of the context allows. But where
postponement of the gift is on account of some qualification attached to the
done, the gift is Prima facie contingent on his qualification being acquired A
gift to a person "at", "if", "as soon as",
"when" or "provided" he attains a certain age, without
further context to govern the meaning of the words, is contingent and vests
only on the attainment of the required age, this being a quality or description
which the done must in general possess in order to claim under the gift. But if
the words of a gift express a distinction between, the gift itself and the
event denoting the time of payment, division or transfer, and this time is the
attainment by the done of the age of twenty-one years or other age or is any
other event which, assuming the requisite duration of life, must necessarily
happen at a determinable time, then prima facie the gift is not contingent in
respect of that event. [See : Hulsbury's Laws of England. 4th Edn., Vol. 50 paras
591, 592 and 604, at PP.396, 397, 405]. The same is the position in India and it has been succinctly brought
out in illustration (ii) to Section 119 and illustration (ii) to Section 120 of
The Indian Succession Act. The said illustrations are as under :
Illustration
(ii) to Section 119 "(ii) A bequeaths to B 100 rupees, to be paid to him
upon his attaining the age of 18. On A's death the legacy becomes vested in
interest in B." Illustration (ii) to Section 120 "(ii) A sum of money
is bequeathed to A "in case he shall attain the age of 18," or
"when he shall attain the age of 18." A's interest in the legacy is
contingent until the condition is fulfilled by his attaining that age." In
the present case, the testator in the Will has not used words similar to those
contained in illustration (ii) to Section 120. The testator after making the
bequest in favour of the legatees has given the direction that a son on
attaining majority could demand partition according to the prevailing Hindu law
in force at that time to get his portion in items Nos. 2, 3 and 4 in schedule
"A" and the thrift deposit standing in his name as mentioned in
Schedule "C" as well as his portion in the properties specified in
Schedule "D". This is a case where the testator has made a
distinction between the gift itself and the event denoting the time of payment,
division or transfer, viz., attaining the age of majority. It falls in the same
category as illustration (ii) to Section 119 of The Indian Succession Act and
must be held to be a bequest of vested interest in respect of these properties.
Similarly,
the direction in the Will excluding the property at item No. 1 of Schedule
"A" and the properties mentioned in Schedule "B" for
partition during the life time of Smt. Nadiga Nanjamma and that Smt. Nadiga Nanjamma
would be entitled to reside in the house at item No. 1 of Schedule
"A" and to use the income from the properties mentioned in Schedule
"A" for her own maintenance if she lives separate from any of the
major sons, only creates a limited life interest in the said properties in favour
of Smt. Nadiga Nanjamma and it does not have the effect of rendering the
bequest in respect of those properties as a contingent bequest and it continues
to be a bequest of a vested interest in those properties. Reference in this
context may be made to the decision of the Privy Council in Rewun Persad v. Radha
Beeby, (1846) 4 M.I.A. 137, where the testator gave his wife a life estate and
after her death one moiety of the estate to his brother and the other moiety to
his two sons. The brother and one of the sons died during the life time of the
widow. It was held that as the share of the sons were vested the widow of the
pre-deceased son was entitled to succeed to her husband's share. Similarly, in Bhogabati
Kalicharan, (1911) 38 I,A. 54, the bequest was to the mother for life, then to
the wife for her life and then to the nephews. The Privy Council rejected the
contention that there was no vesting in the nephews until the death of the
survivor of the mother and the widow and held that the nephews were intended to
take a vested and transmissible interest on the death of the testator though
their possession and enjoyment were postponed. The same position; is reiterated
in illustration (to Section 119 which reads as under :
Illustration
(iii) to Section 119 "(iii) A fund is bequeathed to A for life, and after
his death to B.
On the
testator's death the legacy to B becomes vested in interest in B." The
High Court has referred to the following direction by the testator in the Will
:
"After
the life time of both myself and my wife, the said Nadiga Nanjamma, all the
properties mentioned in A, B and D Schedules shall be divided equally among my
surviving children." The High Court has construed the expression "my
surviving children" to mean the children of the testator who survive Smt. Nadiga
Nanjamma and has held that after the death of Smt. Nanjamma only the children
surviving Smt. Nanjamma could claim partition in respect of the premises
mentioned in Schedules "A", "B" and 'D".
The
learned counsel for the appellant has urged that in the Will the testator has
deliberately used two different expressions, viz., "her surviving
children" while dealing with the division" of properties mentioned in
Schedule "B" after the demise of Smt. Nadiga Nanjamma and the
expression "my surviving children" while dealing with division of
properties mentioned in Schedules 'A', 'B' and 'D' after the death of Smt. Nanjamma.
The submission is that the expression "my surviving children" must
mean the children surviving the testator, while the expression "her
surviving children" must mean children surviving Smt, Nanjamma and that
all the children surviving the testator are entitled to their share in the
properties mentioned in Schedules 'A' 'B' and 'D' after the death of Smt. Nanjamma.
In our opinion, nothing much can be made out of the difference in phraseology
because if the expression "my surviving children" is construed to
mean the children surviving the testator and the expression "her surviving
children is construed to mean the children surviving Smt. Nanjamma, there will
arise a contradiction in the Will in so far as partition of Schedule
"B" properties is concerned because at one place it is mentioned that
properties of Schedule 'B' shall be liable to partition after the demise of my
wife, the above mentioned Nadiga Nanjamma, among her surviving children",
meaning thereby that the said properties were divisible among the children
surviving Smt. Nanjamma while at another place in the Will, it is stated that
after the life time of both myself and my wife, the said Smt. Nadiga Nanjamma,
all the properties mentioned in A, B and "D" Schedules shall be
divided equally among my serviving children, meaning, thereby, that the
properties in Schedules "A", "B" and "D" were
divisible among the children surviving the testator. The expressions "my
surviving children" and "her surviving children" must,
therefore, be construed in the same sense. The words " surviving
children" normally mean children surviving the testator. The said
expression in a particular context could also mean the children surviving Smt. Nadiga
Nanjamma. The expression has to be given a meaning which is in consonance with
the other parts of the Will. Reading the Will as a whole and keeping in view
the direction enabling a son on attaining majority to seek partition of his
share in properties at items Nos. 2, 3 and 4 in 'D' it cannot be said that the
expression "surviving children" in the context of division of
properties mentioned in Schedules 'A', 'B' and 'D' was not used in the normal sense
to mean the children surviving the testator.
We are
unable to read the Will as indicating a contrary intention to make a departure
from the rule regarding vesting of the legacy as contained in Section 119 of
the Act. In our opinion, the Will cannot be construed as creating a contingent
interest in the sons of the testator so as to postpone the date pf vesting of
the legacy till after the death of Smt. Nadiga Nanjamma. On a proper
construction the Will must be construed as containing a bequeath of a vested
interest in favour of the sons surviving the testator which means that the
legacy vested in the legatees, including the husband of the appellant, at the
time of testator's death and after the death of her husband, the appellant is
entitled to claim the one-fifth share of her husband in properties mentioned in
Schedules "A" "B" and "D" in addition to
properties mentioned in Schedule "C" viz. the thrift deposits
standing in the name of the appellant's husband in the Bank of Mysore Ltd.
The
appeal is, therefore, allowed, the impugned judgment of the High Court is set
aside to the extent it denies the appellant one-fifth share in the properties
mentioned in Schedules "A" "B" and "D" and it is
held that apart from the share in properties mentioned in Schedule
"C" the appellant is also entitled to one-fifth share in the
properties mentioned in Schedules "A", "B" and
"D" as held by the trial court. There is no order as to costs.
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