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K. Subhadramma Vs. P. Sakuntallamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 248 of 1962
Judge
Reported inAIR1964Ori158
ActsHindu Law
AppellantK. Subhadramma
RespondentP. Sakuntallamma and ors.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateP.V.B. Rao and ;K. Mrutyanjay Rao, Advs.
DispositionAppeal dismissed
Cases ReferredMadhavrao v. Balabhai
Excerpt:
.....statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the..........mr. ramdas urged that by this clause the line of succession was limited to the male heirs of the legatee of the testator and when the line became extinct the properties would go to the nearest heir of the testator. on behalf of defendant-respondent no. 1 it was urged by mr. p. v. b. rao relying on an earlier passage in the will -- that it was an absolute bequest to subba rao and the property will, on his death, devolve on his heirs according to hindu law, and that any clause in the will referring to the purusha santatis of subba rao claiming under the will will be void as offending the principles of hindu law arid laying down a new line of succession not authorised by law. he relied for this purpose on ganesh chander v. lal behari, air 1936 pc 318.3. in my opinion the.....
Judgment:

R.L. Narasimham, C.J.

1.The decision of this appeal depends solely on the construction of a Will (Ext. A) said to have been executed by one Raghabayya on 19-10-1947. The plaintiff appellant is Raghabayya's brother's daughter. By that Will Rag'habayya bequeathed the disputed properties to his wife's brother P. Subba Rao. It is admitted that the said Subba Rao obtained possession of the properties by virtue of the Will and, after his death, those were inherited by his son Appa Rao who however died on 6-1-1958 issueless -- leaving a widcw Sakuntallamma, (defendant-respondent No. 1). The plaintiff's suit was based mainly on a clause in the Will which, translated in English, is as follows:

'My nephew P. Subba Rao and his Purusha Santathis shall be the , claimants under this Will.'

2. On behalf of the appellant-plaintiff, Mr. Ramdas urged that by this clause the line of succession was limited to the male heirs of the legatee of the testator and when the line became extinct the properties would go to the nearest heir of the testator. On behalf of defendant-respondent No. 1 it was urged by Mr. P. V. B. Rao relying on an earlier passage in the will -- that it was an absolute bequest to Subba Rao and the property will, on his death, devolve on his heirs according to Hindu Law, and that any clause in the will referring to the Purusha Santatis of Subba Rao claiming under the Will will be void as offending the principles of Hindu Law arid laying down a new line of succession not authorised by law. He relied for this purpose on Ganesh Chander v. Lal Behari, AIR 1936 PC 318.

3. In my opinion the contention of Mr. Rao must prevail. In the earlier portion of the Will the testator had made it absolutely clear that he bequeathed his estate to Subba Rao as full owner, with a right of alienation and absolute enjoyment. Hence after Subba Rao's death the line of succession laid down by the Hindu Law must be followed and any clause in the Will restricting succession to the male heirs alone of the legatee Subba Rao must be held to be invalid.

4. Mr. Ramdas, however relied on some observations in Madhavrao v. Balabhai, AIR 1928 PC 33 where also the question of the construction of a Will which referred to 'the male heirs' of the testator's daughter was considered. Though the High Court held on a construction of the Will that the intention of the testatorwas to create an estate descendible to the male heirs-only and, as such, invalid, their Lordships of the Privy Council held that the Will created an independent gift in favour of the male heirs of the testator's daughter who were living when the Will was executed. They further held that there was nothing in the words of the grant to show that the estate so conferred was nothing but an absolute estate upon such persons. They repelled the suggestion that the estate was limited to their life or else that any other line of descent was marked out after their death. This decision therefore, which turns on the construction of the Will in that case is no authority for the extreme proposition urged by Mr. Ramdas that a Will laying down a line of succession amongst the male heirs of the legatee only, would be valid, in the later Privy Council decision AIR 1936 PC 318 this earlier decision was noticed and it was held that it did not in any way affect the principles that no line of succession not permitted under the Hindu Law can be drawn.

I must therefore hold that the lower courts rightly dismissed the plaintiff's suit. The appeal is dismissed but there will be no order for the costs of this Court.


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