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T. Kunhikkalavan Vs. E. Kochuraman and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1918 of 1947
Judge
Reported inAIR1952Mad685; (1951)IMLJ486
ActsHindu Law; Succession Act, 1925 - Sections 97
AppellantT. Kunhikkalavan
RespondentE. Kochuraman and ors.
Appellant AdvocateP.C. Raghavan and ;M. Sekhara Menon, Advs.
Respondent AdvocateS. Venkatachala Sastry and ;N. Sundaram Ayyar, Advs.
DispositionAppeal dismissed
Cases ReferredRam Narayan Singh v. Ram Saranlal
Excerpt:
.....the death of his wife kunhikurumba the sons of his younger brother paru, namely, raman and kunhayappan, and their descendants should enjoy the properties. the defeated plaintiff has preferred this second appeal. according to him, the intention of the testator, as could be gathered from a reading of the relevant clauses in the will, was not to confer an absolute estate upon the legatees, raman and kunhayappan, but only to give them a life estate, and he lays particular stress on the passage in paragraph 6 of the will, which recites that the legatees and their descendants will enjoy the properties and look after his two daughters to whom some provision was made for maintenance under the will, 5. i do not think that i can accept this contention. the words 'raman and kunhayappan and their..........appeal. the suit came to be instituted by the appellant in the following circumstances : the suit properties originally belonged to one kunhikalavan. he executed a will marked ex. p. 1 in the case, on the 26th of july 1895 giving a life estate to his wife, kunhikurumba, and the remainder to his nephews, that is, his brother's sons, raman and kunhayappan. the will recited that after the death of his wife kunhikurumba the sons of his younger brother paru, namely, raman and kunhayappan, and their descendants should enjoy the properties. there was also a pious wish expressed therein that these legatees and their descendants will look after his daughters. during the lifetime of kunhikalavan one of the legatees, kunhayappan, died with the result that raman became the sole legatee under.....
Judgment:

Chandra Reddi, J.

1.The plaintiff, whose claim to recover the suit property was dismissed by the District Munsif of Chowghat and confirmed by the Subordinate Judge of Ottapalam, has preferred this second appeal. The suit came to be instituted by the appellant in the following circumstances : The suit properties originally belonged to one Kunhikalavan. He executed a will marked Ex. P. 1 in the case, on the 26th of July 1895 giving a life estate to his wife, Kunhikurumba, and the remainder to his nephews, that is, his brother's sons, Raman and Kunhayappan. The will recited that after the death of his wife Kunhikurumba the sons of his younger brother Paru, namely, Raman and Kunhayappan, and their descendants should enjoy the properties. There was also a pious wish expressed therein that these legatees and their descendants will look after his daughters. During the lifetime of Kunhikalavan one of the legatees, Kunhayappan, died with the result that Raman became the sole legatee under the will. On the death of Kunhikalavan and his widow Kunhikurumba Raman got into possession and enjoyment of the properties.

2. In execution of a decree in a small cause suit, one Aydross, the predecessor in interest of the present respondent, brought the suit properties to sale and purchased them himself in Court auction in or about the year 1932, and a sale certificate was issued to him on 24th October 1932.

3. Twelve years later, that is, in the year 1944, the appellant instituted the present suit for recovering the suit property on the basis that under the will, Ex. P. 1, Raman and his brother had only a life estate in the suit properties and the vested remainder was given to the children of Raman and Kunhayappan by the testator and, therefore, the only interest which the decree-holder auction-purchaser acquired in the suit properties by virtue of the court-sale, is only what Raman had in the property namely life estate which came to an end with the death of Raman and that, in any event, since the children of Raman acquired a joint interest along with Raman under the terms of the will, the purchaser in the Court auction sale was entitled only to the share of Raman. The suit was resisted by the defendant on the ground that the bequest to Raman and Kunhayappan under the will was a vested remainder and not a mere life estate, and therefore the auction purchaser acquired the absolute right possessed by Raman in the suit properties by virtue of the court-sale. Another defence raised to the suit was that since the debts incurred by Raman were not incurred for any illegal or immoral purpose, the sale in pursuance of the execution of the decree obtained for these debts was valid and binding upon the sons.

4. Accepting the contentions advanced on behalf of the defendants, the trial Court dismissed the suit, which was confirmed on appeal by the District Judge. The defeated plaintiff has preferred this second appeal. In this appeal it is contended by Mr. Raghavan on behalf of the appellant, that the construction placed upon the will by the Courts below is erroneous and the will conferred on Raman only a life estate, the remainder having been given to his descendants. According to him, the intention of the testator, as could be gathered from a reading of the relevant clauses in the will, was not to confer an absolute estate upon the legatees, Raman and Kunhayappan, but only to give them a life estate, and he lays particular stress on the passage in paragraph 6 of the will, which recites that the legatees and their descendants will enjoy the properties and look after his two daughters to whom some provision was made for maintenance under the will,

5. I do not think that I can accept this contention. The words 'Raman and Kunhayappan and their descendants will enjoy the property' cannot lend themselves to the construction that the legatees, Raman and Kunhayappan, were given only a life estate, while their children should get a remainder in those properties. In this connection a reference may be made to the provisions of Section 97 of the Indian Succession Act which provides that where property is bequeathed to a person and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will. One of the illustrations given under that section is 'a bequest to A and his heirs'. The section lays down that in such a case A takes the whole interest which the testator had in the property.

6. Though the provisions of this section, do not in terms apply to Hindu wills, yet the principle embodied in that section applies to such wills. Vide 'Damodara Moothan v. Am-mu Amma', : AIR1944Mad22 . It has been laid down in a number of decisions that where the testator makes a bequest to a person and his heirs, or to a person and children or descendants, it confers an absolute estate on that person. These words do not mean that a life estate alone was given to the legatee and a vested remainder conferred on his children or his descendants. Such conventional expressions are used to convey the intention of the testator to convey an absolute estate upon the legatee and they are only words of inheritance. These words are frequently employed in Hindu wills and have acquired the force of technical words conferring an alienable and heritable estate. They do not indicate that the heirs of descendants of the legatee were denoted as direct objects of a distinct and independent gift. The decision in 'Damodara Moothan v. Am-mu Amma', : AIR1944Mad22 , is apposite in this context. Reference may also be made in this connection to the principle laid down in 'Brij Inder Bahadur v. Rani Janakf, 5 Ind App 1 , 'Ram Narayan Singh v. Ram Saranlal', 47 Cal 683 (sic). In all these cases it was held that the words 'legatee and his heirs' or 'legatee and the heirs of his body', or legatee and 'the children born of his loins' etc. only indicate the intention of the testator to confer an absolute estate on the legatee. Not a single case has been cited, before me, laying down the contrary principle, and the principle stated above cannot be seriously disputed.

7. Mr. Raghavan argued that the recitals in the will show that the intention of testator was to give only a life estate to his nephews and the remainder to his descendants and reliance for this contention was placed on the passage in paragraph 6 of the will wherein the testator desired that the legatee and their descendants will take possession of the property and look after his daughters. I do not think this would give any indication of the testator's intention to give only a life estate to the legatee. In this view of the matter it is not necessary for me to go into the question whether the sale is also valid on the ground of the theory of pious obligation.

8. This second appeal fails and is dismissed, but having regard to the circumstances of this case, I direct each party to bear his costs inthis Court. (Leave refused).


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