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Jonnala Veerareddy Vs. Marreddy Seethamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 217 of 1973
Judge
Reported inAIR1976AP306
ActsSuccession Act, 1925 - Sections 222
AppellantJonnala Veerareddy
RespondentMarreddy Seethamma
Appellant AdvocateC. Padmanabha Reddy, Adv.
Respondent AdvocateP.L.N. Sarma, Adv.
Excerpt:
.....her death to be enjoyed by his adopted son and his wife. 4. the ordinary method of appointing an executor for a testator is to nominate a person in the body of his will by the express designation of 'executor'.even tough a testator may fail to nominate a person on express terms to be his 'executor',yet if upon a reasonable construction of his will it appears that a particular person has been appointed to perform the essential duties of the executor such an appointment is sufficient to constitute that person an executor. this decision is also distinguishable from the present case where the provisions of the will clearly point to the conclusion that the petitioner had general power to receive and pay what was due to and from the estate and a general power of administration was conferred..........the third respondent in adoption. he also stated that he had brought up on shivanagendramkrishna reddy. he directed that his elder sister seethamma (the petitioner) should get the marriage of the adopted son (respondent 3) and shivanagendramma performed, incurring expenses for the marriage from out of the income of the property. he bequeathed the entire a schedule property and all his moveables in favour of his adopted son (respondent 3) and shivanagedramma. he also bequeathed his b schedule property in favour of his wife (respondent 1) with life interest and after her death to be enjoyed by his adopted son and his wife. the c schedule property was directed to be managed on his behalf by the testator's brother's son the fourth respondent. as the fourth respondent was a minor, the c.....
Judgment:

Alladi Kuppuswami, J.

1. The only question for consideration in this appeal is whether the respondent here is an executrix entitled to probate of the will executed by one Jonnala Ramireddy. She filed an application before the District Court, Guntur for the issue of a probate. This was opposed on various grounds only one of which is necessary to set out for the purpose of this appeal. The third respondent in the petition contended that she was not appointed as executrix under the will and was therefore not entitled to the issue of a probate. This contention was nagatived and the petition was allowed with costs. The third respondent has preferred this appeal.

2. The array of parties is referred to as in the court below :

The testator, Rami Reddy, died leaving a brother, the second respondent and two sisters, the petitioner and the eleventh respondent. Respondents 3 to 5 are the sons of the second respondent. The first respondent is the testator's widow. The sixth respondent is the son of the petitioner and respondents 7 to 10 are his children. The third respondent who is the natural son of the second defendant was also the adopted son of Rami Reddy. Under the will, Rami Reddy referred to the fact that he had taken the third respondent in adoption. He also stated that he had brought up on Shivanagendramkrishna Reddy. He directed that his elder sister Seethamma (the petitioner) should get the marriage of the adopted son (respondent 3) and Shivanagendramma performed, incurring expenses for the marriage from out of the income of the property. He bequeathed the entire A Schedule property and all his moveables in favour of his adopted son (respondent 3) and Shivanagedramma. He also bequeathed his B Schedule property in favour of his wife (respondent 1) with life interest and after her death to be enjoyed by his adopted son and his wife. The C Schedule property was directed to be managed on his behalf by the testator's brother's son the fourth respondent. As the fourth respondent was a minor, the C Schedule property was directed to be managed on his behalf by the testator's brother-in-law, Korapola Venkata Reddy and after the legatee attained majority the property should be handed over to him with the income. His sister, Seethamma, the petitioner should pay Rupees 1,116 to his brother's daughter Subbamma. He bequeathed D Schedule property in favour of his sister's son Ramakrishna Reddy (respondent 6) and E. Schedule property to Ramakrishna Reddy's son Shivasranga Reddy (respondent 7)and F Schedule property to Shivasatyanarayna Reddy (respondent 8). He directed his sister Seethamma, the petitioner, to purchase Ac. 2-00 dry land and give it to Shivaprasad Reddy, (respondent 9). The petitioner should also collect all the amounts due to him under the mortgages, promissory notes and also the Fixed Deposit of Rs. 25,000 in the Andhra Bank. She should give a sum of Rs. 1,500 to Korrapolu Venkata Reddy for the purpose of bullock cart and other cultivation expenses out of the income form the estate. She should also give five hundred rupees with of jewels to his niece Saraswati. He gave a life estate in G. Schedule property to his sister, Narayanamma (respondent 11) with vested remainder to his brother's son Ranga Reddy (respondent 4). In a latter part of the will, he testator says that his sister is entitled to purchase Ac. 2-00 to be given to R-9 and Ac. 2-00 to be taken by herself at any place of her choice. The will concludes by saying that the petitioner should manage his property, maintain the accounts accurately and then hand over the property together with the entire income to his adopted son (R-3) as soon as he attained majority.

3. The question for consideration is whether having regard to the terms of the above will it can be said that the petitioner is appointed as executrix.

4. The ordinary method of appointing an executor for a testator is to nominate a person in the body of his will by the express designation of 'executor'. Even tough a testator may fail to nominate a person on express terms to be his 'executor', yet if upon a reasonable construction of his will it appears that a particular person has been appointed to perform the essential duties of the executor such an appointment is sufficient to constitute that person an executor. The person so appointed is called executor according to the tenor. In this case, the petitioner has not been appointed by express designation of 'executrix' under the will. But it is contended that she is an 'executrix' according to the tenor of the will a contention which has been accepted by the court below. We are also inclined to agree with the view of the lower court.

5. The relevant terms of the will have already been set out. As far as the petitioner is concerned, it is found that she is entitled to collect the outstanding of the testator. Certain items of the property mentioned in different schedules are bequeathed to specified individuals. Regarding to A Schedule which is bequeathed to the adopted son who is minor, the executrix is given the power to manage the property. She is also directed to perform the marriage of his adopted son, R 3 with Shiva Nagendrama incurring expenses from out of the income of the estate. Apart from this, she is empowered to buy Ac. 2-00 in any place of her choice and deliver possession to the ninth respondent. Similarly, she is entitled to purchase Ac. 2-00 of land and hand it over to the eighth respondent. Apart from this she is entitled to purchase Ac. 2-00 for herself. She is asked to purchase jewels worth Rs. 500 for the testator's niece. V. Saraswathi, to pay Rs. 1,116 to R-5 and Rs. 1,500 to Venkatas Reddy. Thus she is given powers generally to administer the estate, except those items which are specifically bequeathed to certain named individuals. She is given considerable discretion in the matter of purchasing Ac. 2-00. She is also directed to arrange for the marriage of the adopted son with Shivanagendramma. At the time of his death, the testator had several relations, but it would appear from the recitals is that he had great confidence in his elder sister, the petitioner and gave her several powers and duties under the will. Having regard to all these clauses we are inclined to take the view that the petitioner was appointed to perform the essential duties of an executrix and therefore, even though she was not expressly designated 'executrix' she must be considered as executrix according to the tenor of the will.

6. In Williams & Mortimer on Executors, Administrators and Probate (15th Edition at page 15) it is stated---'An executor appointed by implication is usually called executor according to the tenor for although no executor is expressly nominated in the will by the word 'executor' yet if by any word or circumstances the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts as much as the ordaining or constituting him or them to be executors ....... ' On page 16 several examples of appointment by tenor are given. One of the instances given is a case where there was a direction to a person to pay all just debts and it was held that such a person is an executor according to the tenor (vide in the Goods of Pamela Cook 1902 Probate D. 114). In Viramma v. Seshamma, AIR 1931 Mad 343 the testator provided in the will that his nephew was to discharge the debts due by him to the world. It was held that the nephew was appointed an executor of the will by implication and that probate should be granted to him. Under the illustrations in Section 222 of the Succession Act one of the illustrations given is 'I appoint my nephew residuary legatee to discharge all lawful demands against my will and codicils signed on different dates.' In our view this case is much stronger not only the power to collect all outstandings, of the testator (testator having no debts on his death), but was also given discretion to purchase three sets of land of Ac. 2-00 each at places of her choice and give it to the respective legatees and she was also directed to perform the marriage of the adopted son with Shivanagendramma and to manage the estate.

7. Sri Padmanabha Reddy, learned counsel for the appellant drew our attention to the decision in Seshamma v. Chennappa, (1897) ILR 20 Mad 467 in which it was held that where it was provided in a will that the plaintiffs, should take care of the estate during the minority of a son who was adopted to the testator and imposed upon them the duty of providing for the maintenance of persons named therein, the plaintiffs were not appointed executors by implication, it was observed that the duties which the plaintiffs are directed to be performed are not specifically the duties of an executor. It is not the administration of the estate which they were told to carry out. But rather it was an guardian of the child whose adoption is contemplated that they were intended to act. There was no intention to vest any property in them. They were only directed to protect the property during the minority. We are of the view that the facts in the present case are entirely different. As we have already observed, it is not merely a case where the petitioner was to be the guardian of the adopted son during his minority and was liable to hand over the property on his attaining majority. There were several other matters of administration which she was directed to carry out with regard to other legatees. Another decision that was relied on is that in U.M. Pathummal v. Bhaargavan Rajan, : AIR1964Ker258 . In that case two persons Bhargavan and Velappan claimed to be executors. It was found that the only right conferred on them under paragraph 6 of the will was to collect the income from the property for two years and distribute the same among the several individuals mentioned in paragraph 11 of the will. It was held that this is not a general power for administration of the estate, but, it only shows that they were trustees to the particular persons for whose use they hold it. They had no general power to receive and pay what was due to and from the estate and therefore they were not executors according to the tenor. This decision is also distinguishable from the present case where the provisions of the will clearly point to the conclusion that the petitioner had general power to receive and pay what was due to and from the estate and a general power of administration was conferred on the petitioner. The mere fact that some items were directly bequeathed to certain legatees and she had no duties to perform as far as those legatees are concerned, does not make her any the less an executrix.

8. For the above reasons we agree with the court below that the petitioner in the O.P. (the respondent herein) was an executrix according to the tenor of the will and was entitled to the issues of probate.

9. No other contention was raised before us. The appeal is dismissed, but in the circumstances without costs.

10. Appeal dismissed.


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