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M. Parameswaramma and ors. Vs. Y. Ramachandrarao (Died) Machiraju Sreeramamurty and ors. - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 265 of 1959
Reported inAIR1964AP45
AppellantM. Parameswaramma and ors.
RespondentY. Ramachandrarao (Died) Machiraju Sreeramamurty and ors.
Appellant AdvocateA.V. Krishnarao, Adv.
Respondent AdvocateY.G. Krishnamurty and ;V. Sitharamarao, Advs.
DispositionAppeal dismissed
family - interpretation - testator bequeathed property to his two sisters - words used in will ' after my sisters my sisters children shall get the properties ' dispute on correct interpretation of words ' after my sisters ' - expression used in will signifies that after death of any sister rights in property will not devolve by survivorship - surviving coparcener cannot claim in property by survivorship - high court ascertained their shares by succession. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is.....chandra reddy, c.j.1. this appeal is filed by the unsuccessful plaintiffs against the judgment of the subordinate judge, vijayawada, dismissing 0. s. no. 53 of 1956, a suit for recovery of possession of the plaint schedule properties by the first plaintiff and for past and future mesne profits, or, in the alternative for partition of the plaint schedule properties into six equal shares and for allotment of five such shares to plaintiffs 2 to 6 etc.2. the controversy raised by this appeal bears on certain dispositions made by one dr. thummalapalli harinarayana, a retired disttict medical officer, who died childless on 1-3-1950. dr. harinarayana, who had amassed considerable properties, executed his will on 27-5-1946 in and by which he disposed of both his self-acquired and ancestral.....

Chandra Reddy, C.J.

1. This appeal is filed by the unsuccessful plaintiffs against the judgment of the Subordinate Judge, Vijayawada, dismissing 0. S. No. 53 of 1956, a suit for recovery of possession of the plaint schedule properties by the first plaintiff and for past and future mesne profits, or, in the alternative for partition of the plaint schedule properties into six equal shares and for allotment of five such shares to plaintiffs 2 to 6 etc.

2. The controversy raised by this appeal bears on certain dispositions made by one Dr. Thummalapalli Harinarayana, a retired Disttict Medical Officer, who died childless on 1-3-1950. Dr. Harinarayana, who had amassed considerable properties, executed his will on 27-5-1946 in and by which he disposed of both his self-acquired and ancestral properties endowing the former to several charities and the latter to his near relations including two of his sisters the terms of which were modified by codicils executed subsequently. The testator was one of four brothers and two sisters. His sisters are the first plaintiff and one Sree Mahalakshmamma, mother of the first defendant. His brothers, Balaramaiah and Kalyanasundaram predeceased him, while the third brother Jagannadham was given in adoption to his paternal uncle. His wife, Annapoornamma, died in the year 1945. So, the position in 1946 was that he had one natural brother and two sisters. He, therefore, thought of making a bequest of substantial properties to his two sisters under the testament dated 27-5-1946.

3. It is unnecessary for our purpose to set out all tne dispositions he made under the wilt. It is sufficient to refer to three of them contained in paragraphs 8, 11 and 12. Paragraph 8 is in these terms :

'My lands S. Nos. 10/1, 48/1, 371/1 and 372/1 o! Valivartipadu village of Gudivada Taluk should be given to my sisters, Yeliamraju Sree Mahatakshmamma and Machiraju Parameswaramma, each getting half of the above land with life interest only. After them, my sisters' children shall get the above properties with life interest only. My sisters grand children alone shall have Ihe above properties with absolute rights.'

The disoosition in this behalf was altered bv a codicil made by him on 19th March 1949 under which his sister-in-law Mahalakshmamma Garu, was to enjoy the income from these lands for her life and, after her demise, the above lands were to be divided equally between his sisters.

4. Under paragraph 11 of the will, the testator devised certain properties to his sister, Sree Mahalakshmamma with life-interest only. They are :

(a) The old House No. 5/54 situated in the old town of Bezwada.

(b) The nine garisas as Has. 6/68, 6/69, 6/70, 6/71, 6/72, 6/73, 6/74, 6/75 and 6/76 and the old HouseNo. 6/77 together with the adjacent vacant site situated to the south of Kansas site in the old town of Gudivada.

(c) Valivartipadu land S. Nos. 290, 293 and 296,'

(d) Mandapadu land S. No. 39/4.

5. The bequest in favour of the other sister, the first plaintiff, is contained in paragraph 12 and it reads as follows :

(a) The old House No. 20/35 with the out House No. 20/43 together with the adjecent vacant site on the north eastern side, situated in Buckinghampet, Bezwada.

(b) The three godowns Nos. 20/156, 20/157, and 20/158 situated near the Ansari Park in Buckinghampet, Bezwada.

(c) The garden site at Bezwada.

(d) Bezwada land S. No. 14/79. (e) Goilapudi land S. No. 336/2 and 377. Clause 13 recites : 'After my sisters, my sisters' children shall get the above properties mentioned in paras 11 and 12 with only life Interest. My sisters' grand children alone will Have absolute rights in those properties.'

6. Paragraph 14 throws a flood of light on the intention of the testator as to the nature of the gifts made by him to his two sisters and their children. So, it is useful to extract it here. It reads :

'As my sister-in-law, T. Mahalakshmamma Garu is being given a maintenance of Rupees One hundred and eighty only by me half yearly, each of my sisters Yeliamraju Sree Mahalakshmamma and Machiraju Parameswaramma or their heirs should pay Rupees One hundred and eighty only from the income of the properties given to them, to my sister-in-law, T. Mahalakshmamma Garu in the month of January every year during her life time. The properties given to my sisters shall be the first charge for paying the maintenance of my sister-in-law, T. Mahalakshmamma Garu at the rate of rupees three hundred and sixty annually.'

7. As already mentioned, the testator died on 1-3-1950 and the two sisters enjoyed the properties allotted to them tinder the will till 14-1955, when the elder of the sisters, Sree Mahalakshmamma expired. Immediately, disputes arose between the two branches as to the character of the bequests made by Dr. Harinarayana and as to whether the properties bequeathed to Sree Mahalakshmamma also should be enjoyed by the first plaintiff for her life. As these disputes could not be resolved, the plaintiffs resorted to Court by laying an action for the reliefs mentioned above.

8. The basis of the claim of the plaintiffs was that the dispositions to the nephews of the testator were not intended to take effect until the death of the survivor of the two sisters and till that event happened the surviving sister was to enjoy the properties given to her as well as to her sister and that even alter her death they were to be distributed per capita amongst all the nephews. The first plaintiff is the mother and plaintiffs 2 to 6 are her children, the fourth plaintiff being the daughter and the rest her sons. To this suit was impleaded the son of Mahalakshmamma as the first defendant. Originally the two sons of the first plaintiff were added as defendants 2 and 3 but, later on, they were transposed as plaintitfs 5 and 6.

9. The chief answer of the first defendant, the contesting defendant, was that there being separate gifts infavour of the two sisters, the properties devolved on theirrespective children after the deaths of the respective sisters and that the properties did not survive to the first plaintiff on the death of Sree Mahalakshmamma. It was also stated that the distribution contemplated by the testator in paragraph 13 was a stirpital one and not capital one.

10. This defence prevailed with the trial Court with the result that the suit was dismissed with costs. It is this decree that is the subject matter of the present appeal.

11. The contentions urged in support of this appeal are the same as those underlying the plaint. To substantiale these gounds, the learned counsel for the appellants has relied upon certain decisions of Indian as well as English Courts to which we will advert immediately.

12. At the outset, it is useful to remember that It is not very profitable to refer 1o construction of other wills because the interpretation of each will necessarily depends upon the words used by the will considered as a whole. The result which follows on a fair and reasonable construction of the said words must vary from will to will. It is only the principles that emerge from the rulings that should be used in construing the terms of a particular will. Bearing this in mind, we will discuss the dispositive clauses in the present case with reference to the case law on the topic.

13. In Achammal v. Narayanaswami Naicken, 41 Mad LJ 429 : (AIR 1921 Mad 619), the testator had two wives and one of them had a daughter, Mangammal. The will, which fell to te interpreted by the Division Bench of the Madras High Court, provided that, after the death of the testator, his two wives were to take the properties set out in Schedules 1 and 2 respectively and enjoy them without allenating them. It went on to say that, after the death of these two wives, his daughter, Mangammal, should take the abovenamed entire properties with all rights and enjoy the same. The question arose whether the daughter was entitled to the properties allotted to her mother on her death or whether she had to wait till the death of her step-mother. It was ruled by the Division Bench that, on the death of one of the widows, the surviving widow became entitled to the properties by survivorship and the daughter was entitled to them after the life time of the surviving widow. This case did no! present any problem for the reason that it was specifically stated in the will that it was only after the death of the two wives that the daughter should take the entire properties with all rights and enjoy the same. The situation in the present case is altogether dissimilar.

14. We will turn to the rulings of the English Courts prayed in aid by the learned counsel for the appellants. The one that was placed at the forefront of the arguments is Re Telfair Garrioch v. Barclay, (1902) SS LT 496. There, the testator by his will dated 18th August 1869, after revoking all prior wills, directed his real and personal estate, alter payment of his debt and funeral expenses, to be sold and the proceeds invested on the securities therein mentioned and he added :

'The Interest due on such securities is to be paid to my widow for and during the term of her naiural life. After her death, this interest is to be paid to my sisters-in-law, Elizabeth Walcot Grant and Hughina Houston Garrioach, in equal parts -- that Is to say, that they shall each receive the half amount of the interest during their natural lives.After their deaths, this interest is to be paid to Williammina Johan Garrioch, my wife's niece, during her natural life. And after her death, this interest is to be paid to Euphemia Garrioch another of my wife's nieces, during her natural life. And after her death ..... my will isthat all the securities become the property of the Royal National Life Board Institulion of England.'

The question that arose for consideration was whether Hughina Houston was entitled to the whole of the income of the fund during her life and it was answered in the affirmative. It was thought that the interest having been dealt with as a whole throughout and different generations being provided for in due order, the entire estate after the deaths of the sisters-in-law went again to the nieces in succession and after their deaths there was a gift over. The foundation of this view was the dictum of Lord Abinger C. B. in Pearce v. Edmeades, ( (1838) 3 Y and Coll 246), that 'If, in a will, after words creating a devise to two in common, you find, by other words, that the devise over is only to take effect after the death of both, the effect of that is to control the former words'. Farwell, J. applying that principle said that in the case before him the whole was to go over on the death of both, so that it could not be given to residue if on a fair reading there was an implied gift of the whole interest to Williamina after the deaths of both.

15. Re Riall, Westminster Bank Ltd. v. Harrison, (1939) 3 All ER 657, cited to us by the learned counsel for the appellants seems to Belong to the same category of cases. There, the testatrix directed her trustees, alter payment. of certain legacies, to divide the balance of her residuary estate into two equal moieties and to pay the income from one moiety to one of her two sisters for life and, after her death, to pay the income of that moiety io that sister's husband. The income of the other moiety was given to her other sister for life. On the death of the last survivor of the life tenants, the residuary estate was to be divided among a number of charitable institutions. The trusts of the first moiety having determined on the death of the first sister, the question arose whether cross-reminders could be implied so as to entitle the surviving life tenant-during the remainder of her life to the income to which the deceased life tenant had been entitled, or whether during his period such income passed to the charitable institutions or passed as an intestacy. Simonds J. who heard the matter, expressed the opinion that the testatrix's intention was that the tenants for life should receive the whole income from the residuary estate until the death of the last survivor of them and that only then should the charitable institutions mentioned in the will become entitled to their shares in the capital of the residue. We shall presently show that this decision also does not hold any analogy here.

16. We shall now refer to Ragdale In Re Public Trustee v. Tuffill, 1934 Ch 352, called in aid by the appellant. In that case, a testator devised and bequeathed the residue of his estate to the public Trustee upon trust for sale and conversion and to pay one-half of the net income arising from the fund so created io Rose Thornton Ragdale and the other half to Florance Tuffill and 'from and after their decease' to pay the principal as well as the income to a specified charity. The question arose whether there was an intestacy as regards Rose Thornton Ragdale's share, and if not, whether it was payable, both capital and Income, to the charity or whether Rose Thornton Ragdale's share of income was payable to Florence Tutfill for her life. It was laid down by Farwell J. (the same learned Judge who decided In re Telfair) that there was no intestacy, that the clear intention of the testator was to benefit both Rose Thornton Ragdale and Florence Tuffill and on the true construction of the will the girt over to the charity did not take effect till the death of both the annuitants and that the surviving annuitant was entitled therefore to the whole of the income from the fund.

17. The last of the cases to which our attention was drawn was In Re Foster, 1946 Ch 135, rendered byRomer, J. There, the testator bequeathed a residue. The relevant terms of the will recited :

'The residue of my estate to be divided between my brother and my four sisters during their life time but after their death to be equally divided between my nephews and nieces.'

The brother died soon after the lestator. It was heldby Romer J., that the income was divisible equally between 'the testator's four sisters and the survivor or survivors of them for the time being and, on the death of the last survives, the capital was divisible among the testator's nephews and nieces. It is worth recalling the concessionsmade in that case and which appear to have largely influenced the learned Judge in coming to the conclusion Indicated above. The learned Judge refers to the admissions;namely, (i) it was admitted that there was no intestacy arising by reason of the death of the testator's brother,whatever else might be the true destination of the Income which he had enjoyed or of the share of the estate which produced it (ii) it was conceded that whatever benefits thenephews and nieces take they take as a class per capita and not under a stirpitai distribution; and (iii) it wasadmitted that the nephews and nieces must, in any event, await the deaths of all the testator's sisters before becoming entitled to a payment of capital.

18. The [earned Judge after reviewing the authorities cited on either side expressed his conclusions as the proper application of the rule stated in In Re Hulchinson's Trusts, (1882) 21 Ch 0 811, in the tollowing words :

'(1) It applies in general where the gift to the second-takers, being issue of the first takers, can fairly be construed as a gift to them per stirpes; (2) its application is not imperative where the second takers are either not issue of the first takers at all or, being such issue, the gift in their favour is, on construction, a gift to them per capital; and (3) the rule may be displaced by a sufficiently clear indication of intention on the part of the testator, to be gathered from the will as a whole, that the estate or fund in question, when passing to the second takers, is to passto them as one entirety or mass.'

19. It is to be seen from these rules that when the gift over is in favour of the issues of tenants for life, that could be fairly construed as a gift to them per stirpes. That decision far from helping the appellants, to someextent militates against them since the present case cannot be brought within either Rule 2 or Rule 3.

20. It is manifest that In all these cases the terms of the will warranted the conclusion that the gift over tookeffect only after the death of the last of the life tenants. They were not cases which dealt with gifts of separate items of properties to each of the life tenants which weredirected to be enjoyed after the death of the first-takersby their respective children. Thus they do not lend any countenance to the theory that it is an invariable rule that whenever different generations have been provided for in a will, the last generation takes the gift as a class. That rule applies only to cases where the interest is dealt with as a whole throughout and successive generations are directed to enjoy the interest jointly. It can have no application to cases where separate gifts are made to the first generation with a direction that their respective children should take the respective properties.

21. We will now divert our attention to that class of cases which are quite close to the facts of the case on hand. (1882) 21 Ch 0 811 was a decision of Kay J. In that case, a testatrix bequeathed personally in trust tor A. 8. 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 shere alike, and to their heirs for ever'.

F.H.S. died without having had issue, R. S. survived him and died leaving children and A.B., who survived them both, died without issue. The learned Judge construed the bequest as a gift after the respective deaths of F.H.S. and R.S. to their respective children with the result that as there had been an absolute gift to each of them in the first instance, only cut down in favour of his children in the events which happened, the fund was divisible in moieties between the representatives of F.H.S. end the children of R.S. The learned Judge remarked that this rule would have been of considerable advantage if both the tenants tor life, or the persons to whom the interest was first given, had children. The doctrine of that case applies with full vigour to the case on hand. Since in this case both the life tenants have children, the construction of gift does not present much of a problem,

22. In the same trend of thought is In Re Erringtone, (1927) 1 Ch 421. There, the testator gave the income of one third part of his residuary estate to his daughter, Elizabeth Errington for her own absolute use and benefit, and from and after her decease such one-third part was to be divisible between his daughters, Jane Gibbs and Susanna Lassan or 'if dead between their issue share and share alike'. Jane Gibbs died in the life time cf Elizabeth Errinston leaving an issue. Romer J. opined that on the death of Elizabeth Errington, the issue of Jane Gibbs took a moiety oi the one-third part of the testator's residuary estate in equal shares per capita. The learned Judge followed the decision (1832) 21 Ch D 811. In the course of his judgment, Romer J. observed that the rule adopted by Kay J. in that case was one which appeared to him (Homer J.)

'to be one that has the supreme merit, a merit that not all rules of construction possess, that in the vast majority of cases it gives effect to the intention cf the testator'.

We are in entire agreement with this statement of law. The principle thus enunciated normally gives effect to the intention of the testator and it applies with full force when all the life-tenants have children.

23. At this stage, it is necessary to consider Jiban Krishna v. Jitendra Nath Das, (1949) 1 Mad LJ 628 at p. 633 : (AIR 1949 FC 64 at pp. 68-69), decided by the Federal Court of India relied on by both the sides. The important provisions of the will ran thus :

'I have two sons Bejoy Sashi Das and Benoy Sashi Das. My elder son Bejoy Sashi Das is a man of very loose moral character and is addicted to drinking and prostitutes. J, therefore, think that if any property is given to him, it will be lost. My younger son Benoy Sashi has no sense of right or wrong and is of extremely irritable disposition. So, I think that they may at any time do some thing wrong or waste the properties. Hence, the sons of my said two sons, Bejoy Sashi and Benoy Sashi shall get all the properties. Benoy Sashi gets nothing. His wife and children such of them as will remain alive shall get a monthly allowance of Rs. 50/- and my youngest son Benoy Sashi Dass shall get a monthly allowance of Rs. 50/-. Be it also stated that the marriages of their sons and daughters shall be performed from this estate.'

24. The point that arose for decision before their lordships of the Federal Court was whether on a proper interpretation of the terms of the will the residuary estate that was bequeathed to the sons of the two sons of the testator was to be distributed amongst them per capita or, per stirpes. . Their Lordships opined that the interests of all the grandsons should be held to be equal and that the intention of the testator was that his grand children should get the residuary estate per capita and not per stirpes. It may be noted that in that case there was no issue as to survivorship or as to whether the gift over in favour of the sons was to be postponed till the death of the survivor of the two sons, the only problem for solution being whether the distribution was a capital or a stirpital one. Their Lordships thought that the gift was made to the grandsons ranking as a class. We do not think that the appellants can derive any assistance from it as there is no similarity between the facts of that case and of the present case. We are not persuaded that here the second takers were denoted as a class to whom a gift of both sets of properties was made.

25. The passage which is pertinent in this regard is the one occurring at p. 636 (of Mad L J) : (at p. 71 of AIR) and it is in these words :

'In the case before us the residuary estate has been given to all the grandsons of the testator, and although they are sons of different parents, they censtitute only one class whose relationship to the testator is identically the same. If the gift had been to the sons of the testator and their children or if it had been to one of the sons and the children of the other per stirpes rule would certainly have been applicable according to the principles discussed above. As the sons are eliminated altogether there is no further Question of stocks of families. The grandsons take as one class and there is no scope for the application of the per stirpes rule in such cases.'

26. Applying the principle contained in this decision to the present case, there can be no room for doubt that in the instant case the division is a stirpilal one because the testator gave the properties to his sisters and their children. This is not a case where he gifted the properties straightaway to his sisters' children as a class. In such a situation it should he inferred that it is the families as such that were designed to be benefited by the testator. In the else before the Federal Court, no question of stocks of families arose as the sons were completely eliminated.

27. In Fani Bhusan Saha v. Fulkumari Dasi, AIR 1937 Cal 1, the relevant clauses of the will that fell to be interpreted by a Division Bench of the Calcutta High Court ran as follows :

Clause 7 : My sons, upon coming by the moveable and immovable properties which I have in my own name or benami in equal shares after my death without powers of sale, gift etc., shall spend out of the income of those properties the said total amount of Rs. 533 (five hundred and thirty three) year after year for all time to come and continue to enjoy the balance of the income. My sons shall after my death collect all sorts of dues in respect of my estate either jointly or severally according to their respective shares and comply with my directions by maintaining the rites laid down by me above.

'Clause 10 : My sons shall on coming by the properties to be left by me at my death continue to hold and enjoy them without powers of sale, gift etc. On their death my son's son (grandson) shall obtain the propsries to be left by me in absolute right with powers of sale, gift, etc., and shall maintain the rites laid down by me in compliance with the directions set out in this will made by me.' ,

Construing this will, their Lordships, inter alia, observed that if any one of the sons died his share passed to hisson and could not lapse by survivorship to his brothers. In the course of his judgment, it was remarked :

'It has next been contended that Clause 10 of the will should be interpreted as meaning that the grandsons would come in after the death of all the sons of the testator and this interpretation is sought to be justified by the words of the will which are as follows : 'On their death (that is to say, ihe death of the sons) my son's son (grandson) shall obtain the properties to be left by me in absolute right, etc.'

The difficulty of accepting this interpretation would bethat in that case the residue in respect of each life estatewould remain undisposed of until all the sons were deadand that it is only in the event of the death of the sonsthat the grandsons would come to inherit. Moreover, thewords 'on their death' are neutral words and need notnecessarily be read as meaning 'on the death of all thesons'. The true meaning of the two clauses taken together,in our opinion, is that it was intended that each of thesons would get life interest in 1/7th of the estate leftby the testator, and on his demise that share would passon in absolute right to the grandsons of that son. This isthe natural interpretation which to our mind is the correctInterpretation to be put upon the will.'

28. We respectfully assent to the proposition enunciated in this passage.

29. To a like effect is the judgment of the Madras High Court in Devaki Ammal v. Adinarayana Chetty, (1943) 2 Mad LJ 579 : (AIR 1944 Mad 28). Happell J., while construing the demise, observed ihat it could not have been the intention of the settlor that the issue of the sister who died first should be without provision during the period between the death of their mother and the death of her sister and that the proper interpretation would be that the daughters took the estate under the general law as tenants-in-common.

30. Recently, a Division Bench of our High Court happened to interpret a will which contained recitals similar to those contained in the will which is the subject-matter of this appeal (in Appeal Suit No. 563 of 1959 (Andh Pra)). The learned Judges came to the conclusion that the bequestin favour of the first degree was that of a life-estate with a vested remainder in favour of the second degree and that the second degree should take the vested remainder per stirpes and not per capita.

31. The problem posed on this appeal, viewed in the light of the principles enunciated above can easily be salved. In' the present case, separate items of properties were bequeathed to the sisters and it is not a case where the two legatees were directed to enjoy the properties jointly. By Clause 13 the testator directed that after the lifetime of the sisters, their children should get the properties enumerated in paragraphs 11 and 12 with life-estate only. There is no room for doubt that the expression 'after my sisters' is equated to 'after the decease of each of the sisters', i.e., after the death of the respective legatees. There being a disposition of properties to each of the sisters, on their respective deaths, they would devolve on their respective children. It is the absence of the words 'respective children' that has given rise to the argument that the gifts could not be effective till after the death of both the sisters. In our opinion, in the context, its only denotation is that on the respective deaths of the legatees their respective children succeeded to the estate, of course, only for life.

32. It does not also appear to us that all the nephews were designated as a class, in which case alone, the question of per capita distribution would arise. The intention of the testator is abundantly clear, namely, that he intended to benefit both the families, the families of both the sisters. This intention is brought out forcibly in paragraph 14 of the will which has already been extracted above. If really the testator decided that his nephews should have no interest in the properties till the death of both his sisters and that the distribution should be per capita and not per stirpes, he would not have said that the amount payable to his sister-in-law was to be paid by each of the sisters or their heirs in two equal halves. This direction would surely be otiose and even unintelligible, if the enjoyment by the nephews is postponed till after the death of both sisters and much more so if the division was to be per capita. The testator knew at the time when he made the will that one of his sisters had five children and the other only one. He would not have thought of making a direction which would be most unjust. It would not be equitable to direct a sister with five children taking 5/6ths property and another sister and her child taking only l/6th to make equal contribution to the maintenance of his (testator's) sister-in-law. In our opinion, the recitals in paragraph 14 which are quite relevant in the context of this enquiry gives a clear indication that the gift in favour of each set of nephews took effect after the respective deaths of the life-tenants and that the nephews succeeded to the respective properlies that were bequeathed to their mothers.

The primary duty of the Court is to ascertain the Intention of the testator from reading the entire document. The Court has to look into the language of the will clossly as the intention of the testator has to be gathered mainly from the words used by him. Since the effect of the demises In favour of his sisters and nephews has to be interpreted by interpreting the will as a whole, we will advert to all the relevant clauses in this context. Clauses 8, 11, 12 and 13 read in conjunction with Clause 14, can leave only one impression and that is that the gift was not given In a mass to all the nephews described as a classin which case alone the rule of per capita distribution would apply. It is difficult to posit that the properties were given in mass to be enjoyed by all the nephews as a class. The gifts must be read distributively so as to give the properties gifted to the sisters to the respective children of each of them. The reltvant terms of the will, read as a whole, are susceptible of only one construction and that is the one indicated above.

33. There are considerable difficulties in the way of adopting the construction suggested by the learned counsel for the appellants, since that construction -- if adopted would leave the nephews by the deceased sister unprovided for till the death of the surviving sister. Also, the family of one of the sisters will be benefited much more than the family of the other sister.

34. The learned counsel for the appellants wants us in construing the will to take into account attendant circumstances. Even if we take into account the surrounding circumslances, namely, the position of the testator and his family relationship, we do not think that we can reach a different conclusion. It is true that Shree Mahalakshmamma had only one son and he had married the daughter of one who had considerable properties. But that cannot drive us to the inference that the testator wanted that one sister's children should be given 5/6ths or the properties bequeathed by him and the other sister and her child should get only one-sixth. In this connection, we cannot ignore the fact that all the sons of Parameswaramma (one of the sisters of the testator) were well placed, one was a doctor another an Engineer and the third a lawyer and her daughter was married to an Income-tax Officer, while the first defendant, Sree MahaIakshmamma's son bad no profession. The testator knew the position occupied by all these persons. Therefore, he would not have thought that he would be doing something inequitable in directing that the children of his sisters should take the properties that ware assigned to them. We are firmly of the opinion that the language of the will clearly indicates that the children of each of the sisters would take the properties mentioned! in the respective clauses on the deaths of their respective mothers. The mere fact that the legatees belong to the same generation and are equally related to the testator cannot lead us to the conclusion that the testator intended a capital division and not a stirpital one. We are unable to disagree with the conclusion of the trial Court as to the effect of the disposition contained in Clauses 11 and 12.

35. In our opinion, there is also no room for invoking the doctrine of cross-remainders in this case.

36. In the result, the appeal fails and is dismissed with costs. Advocate's fee Rs. 1,000/- (One thousand).

37-39. The rest of the judgment -- paras 37 to 39 -- have been omitted as then contain no point of law.)

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