1. The property which is the subject-matter of the suit out of which this appeal arises belonged to one Chinnayya. The plaintiff claims to be a son of Chinnayya by a permanently kept concubine. The first defendant is the legitimate son of Chinnayya, a man of feeble intellect. The second defendant is his wife. The third defendant, who is the husband of Gangamma, a daughter of Chinnayya, claims to have been taken into the family of Chinnayya as his illatom son-in-law. This suit was tried in part with another suit filed by the third defendant, claiming an equal share in the property of Chinnayya with the legitimate son, the first defendant, on the basis of his adoption as an illatom son-in-law ; and a common judgment was delivered.
2. The principal questions tried in the suit were whether the plaintiff was a dasi putra, entitled to a half of the share of a legitimate son, and (2) whether the will, Ex. D-I, was true and valid. The learned Judge upheld the contention of the plaintiff that he was a dasi putra : but held that the will of Chinnayya was binding on the plaintiff and that he could be given nothing more than had been bequeathed to him under the will. In this Court, it is not denied that the plaintiff is the son -by the permanently kept concubine ; and so the only question remaining is whether the will, under which he was left a sum of Rs. 100 only, is binding on him.
3. As originally framed, there was no issue in this suit, as there was in the connected suit, whether the will was binding on the plaintiff; and it is argued that since the judge allowed such an issue to be framed at a very late stage, when the evidence was almost concluded, the plaintiff was not given a fair opportunity of combating the will. The two suits were however tried together ; and even at an earlier stage in the suit, when the learned Judge refused to add an additional issue relating to the will, because it was not then quite clear to him that the issue would be relevant, he stated that he might allow the issue to be raised at a later stage. Although the plaintiff objected to the examination of D.W. 4 to speak to the will; yet he at no time asked the Court for an adjournment in order to enable him to adduce the evidence to repel the evidence let in on the defendants' side. Even in this Court, the learned Advocate for the plaintiff is unable to say that there are any witnesses whom he would have examined in the trial Court, had he been given a further opportunity. We are therefore of opinion that the appellant has not been prejudiced in any way by the procedure adopted by the learned District Judge.
4. The appellant's learned advocate argues that the lower Court did not give sufficient attention to the question whether the land which was the subject of the suit was the self-acquired property of Chinnayya or was ancestral property, although that question was raised in the pleadings in the other suit. We have examined the grounds of appeal to this Court and find no allegation that the property was ancestral property that could not be disposed of by will.
[After examining the evidence His Lordship continued]
Since there is no evidence of any value in rebuttal, we accept the evidence of D.Ws. 1 and 4 and hold that their evidence proves that the testator was in a sound disposing state of mind when he gave instructions for the drafting of the will and executed it.
5. The only other question is whether by Clause 4 of the will the testator bequeathed the residue of his property to his legitimate son. If he did, then it is agreed that nothing more can be decreed to the plaintiff than was given to him by the learned District Judge. If, however, there was no bequest of the residue to the legitimate son, then there would be an intestacy with regard to the bulk of the property, and the plaintiff would not be deprived of a share of it. Clause 4 of the will does not specifically contain words of bequest. It seemed to assume that the property other than the property which was the subject of the legacies was the property of the legitimate son and that the main object of that clause was to provide an executor for the will and a trustee for the property of the son. It has been suggested that the fact that there is a later clause in which legacies were given to the plaintiff and his sister is an indication that it was not the intention of the testator to bequeath the residue of his property to the first defendant; but the evidence shows that the addition of the fifth clause was an afterthought, on account of the importunity of the plaintiff's sister, and is therefore no indication that the fourth clause did not purport to dispose of the residue of the property.
6. In Halsbury's laws of England, Vol. 34 page 225, Article 282, it is said:.a recital showing that the testator is under the impression that he has made a certain disposition is evidence of an intention, inadvertently not expressed, to make that gift. Accordingly in such a case the Court may give effect to such intention if the other provisions of the will allow this to be done ; and the inference from such a recital may be sufficient to overcome and correct the terms of an express gift to the person in question, provided that the Court is satisfied that there has been a mistake in carrying out the testator's intention...
In Chapter IX, page 599, of Jarman on Wills, we find a similar exposition of the law.
7. The fourth clause of Ex. D-I above referred to is as follows:
As my son Venkataramanappa is of weak mind and is unfit to manage his own affairs, my senior son-in-law, Bhimappa, shall be his guardian and shall manage all affairs. My son-in-law Bhimappa shall have control over the whole of my son's property and he shall protect my son and safeguard my son's property. In regard to the management of the business in my shop and in regard to the collection of the amounts due to me from others, I appoint my son-in-law Bhimappa, as guardian of my son and confer all powers on the former (Bhimappa).
8. It was conceded that Venkataramanappa had no property of his own. When, therefore, the testator was speaking of his sons property, he could only have been referring to property that became his son's by virtue of the will that he was executing. He gave instructions in this clause for the management of the shop and the collection of outstandings and said in the same sentence that he appointed his son-in-law, Bhimappa, as the guardian of his son, obviously to manage the business and collect the outstandings of what had been the testator's business, for the benefit of the son. Despite the absence of any precise words giving the residue of the property to Venkataramanappa, this clause seems to us to make it clear that Bhimappa was to manage what was, at the time of the writing of the will, the testator's property, on behalf of and for the benefit of Venkataramanappa. Applying the principle of law enunciated in the above paragraph from Halsbury, we feel that this clause sufficiently indicates the intention of the testator, an intention which should be given effect to.
9. The learned advocate for the third defendant has referred us to two cases which he considers support his contention that Chinnayya died intestate with regard to the bulk of his property. The first is Shyam Pratap Singh v. Collector of Ettawah (1946) 2 M.L.J. 235 a decision of the Privy Council. The relevant words of the will were:
To-day M has given him (P) to me in adoption and I have taken him in adoption. After my death, my adopted son, P, shall be the 'gaddinashin' and the owner of my entire moveable and immoveable property. After my death, he shall, like myself, have all the powers. P is yet a minor, therefore during his minority, my mother, B, who was my guardian during my minority and who managed the entire estate very well, shall remain the guardian of my adopted son P and shall manage the entire estate. I have, therefore, executed this will while in a sound state of body and mind and after full deliberation.
Their Lordships held, agreeing with the learned Subordinate Judge against the High Court, that this document was not a will at all and was merely a document appointing a guardian, the rest of the document being merely narrative. Their Lordships then considered whether even though that document could be regarded as a will, there was an effective disposal of the property which was the subject of the will. They pointed out that there were no direcf words of gift and then went on to say after referring to Ulagalum Perumal Sethurayar v. Subbulukshmi Nachiar (1939) 1 M.L.J. 812 : 1939 L.R. 66 IndAp 134 : I.L.R. (1939) Mad. 443 (P.C.)
In that case, the settlor had deliberately broken the line of succession and settled the estate on somebody outside that line, and that is the ratio decidendi. But in the present case, Raja Hukum did not break the line of succession, on the contrary he gave the property to the person who would succeed under the rule of lineal primogeniture, and moreover expressly directed that he should be the gaddinashin and have all the powers which the testator had possessed...
Their Lordships therefore held that there was not a disposal, not only because there were no words of bequest, but because the testator could not have intended to give to his adopted son what would have been his even without the will. The other case relied on by the third defendant in Satish Chandra v. Niladri Math : AIR1935Cal788 . There, the material part of the will was:
On my demise my wife shall become full (absolute) owner of my entire moveable properties according to law, consequently there is no necessity for any will in respect of the same also.
It is difficult to conceive of a clearer indication that the testator did not bequeath the moveable properties to his wife. That was what the learned Judges in that case held. This case, therefore, affords no support to the argument of the learned advocate for the third defendant.
10. The appeal fails and is dismissed with the costs of the first defendant. The' appellant must pay the court-fee due to Government.
Frederick William Gentle, C.J.
11. I agree.