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illapavuluri Chalapati Rao Vs. Patchi Golla Subba Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1929Mad691; 117Ind.Cas.289
Appellantillapavuluri Chalapati Rao
RespondentPatchi Golla Subba Rao and anr.
Cases ReferredRamachandra Rao v. Ramachandra Rao A.I.R.
Excerpt:
- - with the best consideration i can give to the matter i agree with the judgment just delivered by my learned brother and only add these few words of my own in deference to the three judgments which have been already pronounced on the matter and with which we are now disagreeing. but if the disposition goes further and clearly confers absolute title, then no doubt, man and woman equally enjoy the benefit without distinction. 19. the appellant's point is not a bad one would a father while expecting a son (that he did expect one is clear from para......heir shall have any manner of right. he has no rights to my property nor have i any to his. my wife seshamma is the only one entitled and none else.3. paragraph 3 sets forth that the third wife owing to unchastity has no right.4. paragraph 5 gives seshamma leave to adopt in case the child then in her womb was not a boy.5. paragraph 6 authorizes seshamma to look after the karnam's inam, ' during the minority of my son ' and to transfer it to him when he comes of age. seshamma is entitled to the sums due under certain decrees:after my death all the aforesaid matters shall be given effect to by my wife.6. the translation has been vigorously canvassed during the course of argument, but the above fairly represents the conclusion agreed upon by both sides. our task would have been lighter.....
Judgment:

Odgers, J.

1. My learned brother has discussed 'this case in detail and I have only to say that I agree with the conclusion to which he has come. The whole controversy arises with regard to the use of the word ' hukkudharulu ' and whether that word is such a word of amplitude as can without more confer upon a Hindu female an absolute estate. There is of course no reason why if suitable words are used a Hindu female should not take as large an estate as a Hindu male under a will but if no such words of sufficient amplitude are used, then one has to apply the ordinary Hindu notions as to what quantum of estate a Hindu female takes. Hukkudharulu has been finally translated as ' the person who has the right ' which of course is for our purpose somewhat ambiguous. But it is, however, stated in the judgments what the word actually means and one would have thought that if the word in the Andhra country had been in common use to connote an absolute right then both the District Munsif and the Subordinate Judge would have said something to that effect. But as pointed out by my learned brother they have abstained from doing so. There is nothing from the further contents of the will from which we can gather that the testator intended his fourth wife to have anything larger than a woman's estate because his bequest of the decree amounts would not necessarily give her the same estate in them as in the immovable property. With the best consideration I can give to the matter I agree with the judgment just delivered by my learned brother and only add these few words of my own in deference to the three judgments which have been already pronounced on the matter and with which we are now disagreeing. The decree will be reversed and the appeal remanded to the Subordinate Judge for decision on issues 1, 2 and 3. Appellant will have his costs throughout. Court-fee will be refunded.

Jackson, J.

2. The sole point for consideration in this appeal is the interpretation of the will Ex. J. It is styled a will (sic); para. 2 sets forth the reasons for the testator having divided from his younger brother, and concludes:

Inasmuch as this property has come to ma by virtue of partition, neither my younger brother nor any other heir shall have any manner of right. He has no rights to my property nor have I any to his. My wife Seshamma is the only one entitled and none else.

3. Paragraph 3 sets forth that the third wife owing to unchastity has no right.

4. Paragraph 5 gives Seshamma leave to adopt in case the child then in her womb was not a boy.

5. Paragraph 6 authorizes Seshamma to look after the karnam's inam, ' during the minority of my son ' and to transfer it to him when he comes of age. Seshamma is entitled to the sums due under certain decrees:

After my death all the aforesaid matters shall be given effect to by my wife.

6. The translation has been vigorously canvassed during the course of argument, but the above fairly represents the conclusion agreed upon by both sides. Our task would have been lighter had this matter been more satisfactorily handled from the outset. The learned Munsif and the Subordinate Judge carry the actual vernacular into their judgments without an attempt at translation, so that it is impossible to say what exactly was in their minds. The learned District Munsif finds that the will conveyed absolute title to Seshamma with the power of alienation, but he does not indicate the particular passage or passages which led him to this conclusion. He notes that the will gave Seshamma title to immovable, and in the same words to moveable property. The will

road as a whole conclusively shows that the testator conveyed his property with full powers of alienation.

7. It was pointed out to him that there were no words conveying absolute estate, and in their absence the estate conveyed would presumably be a life estate, he meets this by saying:

I do not see any reasons why a female should only have restricted powers unless full powers were given under the document in disposition of the property given to her.

8. If this means anything at all, it means that when a husband states, ' title vests-in my wife ' the wife takes an absolute title with power to alienate, unless the husband specially provides that such. power of alienation is withheld.

9. This exactly misstates the law. If the husband states ' the title vests in my wife ' she will get whatever that title gives her under Hindu law. If he further states, with words of amplitude, it-is an absolute title with power to alienate (or words to that effect) then she will take absolute title, and no presumption from what a Hindu woman usually enjoys will be allowed to detract from the clear force of the language employed.

10. But if he uses no words of amplitude there is no grant of absolute estate. The District Munsif is quite against the view that any difference should be made between gifts to females and gifts to males. He overlooks that if the gift or bequest merely refers the parties to their ordinary legal title there must be a distinction between men and women, because under Hindu Law the man has a larger title than the woman. But if the disposition goes further and clearly confers absolute title, then no doubt, man and woman equally enjoy the benefit without distinction. The learned District Munsif is so anxious to lay down that in such cases there shall be no distinction, that he has not paused to consider whether in the present suit the case has arisen at all. He should have given a reasoned and referenced finding that under Ex. J' an absolute gift was made.

11. Appellate Courts exist to correct such, aberrations. But the learned Subordinate Judge has confined himself to a. vague review of the case, without coming to grips with it at all. He concedes that on the face of the document there are no words stating absolute gift. But

I should think there are clear indications in the will itself, not to speak of the intentions of the testator, that his wife was to take the property absolutely.

12. In his opinion the fact that Seshamma was expecting a child would not prevent an absolute gift. Here follows the vernacular extract; and he proceeds to note how the will recites that the mother and Subbamma have no right and also gives Seshamma the right to adopt.

Having regard to all these I do not see sufficient reason to disturb the finding.

13. So the learned Judge finds, although there are no words to that effect, that there must have been an absolute conveyance, because the will recites a partition and a disinheritance of an unchaste wife, because Seshamma is given the right to adopt, and because her pregnancy was not an absolute bar to such a disposition. A judgment of this character is a negation of all reason. In fact there has been no rational examination of this will until it reached this Court on second appeal.

14. Devadoss, J., observes:

Seshamma is bequeathed the amount due under various decrees, and the bequest can only be the absolute interest in the decrees. In these circumstances can it be said that the intention of the testator was not to bequeath his property to his wife absolutely.

15. I confess to some doubt, whether the bequest of the decrees conferred more than a limited interest, but will not labour the point, because it does not affect the argument. Lot us suppose that Seshamma is declared entitled to the decrees, and such title must carry absolute interest, it does not follow that when she is declared entitled to the immovables, such title must also carry absolute interest.

16. The same word is used in either case, she is entitled to the immovables, so far as her title may go. It is necessary for this argument to find, as his Lordship does find later on, that the word conferring the title, 'hakkdarulu,' can only mean the right to ownership.

17. Now I understand that 'huq' in Arabic means, truth, and is an attribute of God. Then in Urudu 'huq' is what is truly due to one, one's rights and from what our translations tell us, in Telugn it seems to mean title or right. Of course the man with the title may be the owner, or he may have a more limited interest, as for instance, that of trustee. But standing by itself it means no more than 'right' and that sense entirely fits the contest of this will. My brother has no 'huq' or 'right' (no question of absolute right in his case). My third wife has no right (no question of absolute right in her case). My fourth wife has the right. She is my heir at law. He would never have said, my brother and third wife have no fee simple, but my fourth wife shall have fee simple; because no one ever supposed that the brother or other wife could claim such a title. Obviously in this passage he is dealing throughout with ordinary rights according to Hindu Law. I am confirmed in this opinion, by the judgments of the lower Courts. If 'hukdarlu' can only mean right to ownership, then in the district where the phrase is familiar this point would have been vehemently pressed, and the Judges would not have confined themselves to transcribing the vernacular without a word upon its significance. Nor would they have been driven to vague remarks about the will as a whole and its clear intentions if they could have fastened upon a word of amplitude which settled the whole matter. The Subordinate Judge states in terms that the will contains no such word and whatever force this exotic word may have in other parts of India, I have no doubt that in Bezwada the word means no more than right or title.

18. In the second appeal the appellant recurred to his argument that the pregnancy of Seshamma precluded the likelihood of an absolute grant, and Devadoss, J., meets that by saying that the object of the will was to disinherit the third wife. But the third wife could be disinherited without necessarily giving an absolute title to Seshamma.

19. The appellant's point is not a bad one Would a father while expecting a son (that he did expect one is clear from para. 6 when he talks of the boy having the karnam's post) go out of his way to confer absolute title upon the mother knowing that the birth of the son would nullify his act? And if it be said, without any warrant that I can see, that he expected a daughter and only assumed the adoption of a son, why should he imperil that son's estate by giving Seshamma full power of alienation before the event? Ordinarily it would seem that a father expecting to have either a son or an adoptive son would not give the mother an absolute estate.

20. Therefore I find nothing in this document to lead one to suppose that the husband did more than declare his fourth wife's right to inheritance, after negativing the possible claims of his brother and of his third wife. The law in this matter presents no difficulty. If a Hindu woman takes immovable property given her by her husband, she takes it as stridhana under the Hindu law, and has no right of alienation, unless the gift was coupled with an express power of alienation, unless, that is to say, there are words of sufficient amplitude to confer the power upon her: Narasinga Rao v. Mahalakshmi Bai A.I.R. 1928 P.C. 156. In the light of this clear and pertinent ruling it is hardly necessary to go through the whole law on the subject, ably analyzed in Ramachandra Rao v. Ramachandra Rao [1919] 42 Mad. 283, which must be read with Ramachandra Rao v. Ramachandra Rao A.I.R. 1922 P.C. 80. I find that Seshamma had no power to alienate to Tarabayamma who had only the limited interest of a daughter.


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