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(Suryadevara) Venkata Krishnayya and ors. Vs. Vasireddi Madamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1928Mad926
Appellant(Suryadevara) Venkata Krishnayya and ors.
RespondentVasireddi Madamma and ors.
Cases ReferredVenkatyamma Garu v. Venkataramanayyamma Bahadur Garu
Excerpt:
- .....apart from intention, a joint tenancy and, as my learned brother has observed in the course of the argument, joint tenancy is almost unknown among hindus except in the case of members of an undivided hindu family. for these reasons i am of opinion that the appeal should be allowed with costs throughout.ramesam, j.3. i entirely agree. the will we have to consider is ex. a dated 7th july 1902, executed by one vasireddi venkatappiah. he is a kamma by caste and it is well known that in this caste the custom of illatom prevails. sometimes among kammas they even take sister's sons as members of a joint family with them without a marriage. in this will in clause 2 the testator refers to the fact that he has a daughter aged 3 and a sister who had two sons, of whom the elder, subbiah, was aged.....
Judgment:

Coutts-Trotter, C.J.

1. These will cases always entail a certain amount of difficulty. Vernacular wills are drawn up inartistically and it may be that in this very will there are certain clauses which are not easily reconcilable with others. The main trouble no doubt has arisen from the fact that this testator contemplated that his daughter should marry his nephew Subbiah in illatom. Unfortunately that project was thwarted by his death. After expressing his wish that the illatom marriage should take place, he says:

To the said properties and to my assets and liabilities, my daughter Subbamma and my sister's son Subbiah shall be the kartas (heirs entitled) and they shall be discharging the debts from out of the income of the lands and be supporting my mother and wife.

2. It is really a matter of first impression and in this particular case, I not being very familiar with Telugu wills-I have seen plenty of Tamil ones-do not derive much assistance from the other terms of the will. But construing them as best I can it seems to me impossible to accept either of the contentions upon which the respondent must rest his case. The first is that the gift so given to Subbiah was conditional on his marrying this girl. He was the only responsible male in the family, and might well have been selected as an heir in any event. In fact he died when she was only a child. That is the main argument accepted by the learned Judge. Mr. Raghava Rao puts forward another argument that the gift must be construed as a joint tenancy passing by survivorship. I do not agree though, as I say, it is very much a matter of impression. I see nothing in the authorities that can compel me to say that a gift like this is in law, apart from intention, a joint tenancy and, as my learned brother has observed in the course of the argument, joint tenancy is almost unknown among Hindus except in the case of members of an undivided Hindu family. For these reasons I am of opinion that the appeal should be allowed with costs throughout.

Ramesam, J.

3. I entirely agree. The will we have to consider is Ex. A dated 7th July 1902, executed by one Vasireddi Venkatappiah. He is a Kamma by caste and it is well known that in this caste the custom of illatom prevails. Sometimes among Kammas they even take sister's sons as members of a joint family with them without a marriage. In this will in Clause 2 the testator refers to the fact that he has a daughter aged 3 and a sister who had two sons, of whom the elder, Subbiah, was aged 17. Then he says that his sister's son should be kept as illatom son-in-law and that his daughter Subhamma should be given in marriage to him. By saying that he should be kept as illatom son-in-law, what he apparently meant was that he should be kept in the house with a view to his marrying his daughter when the proper time arrived. So ' illatom son-in-law ' means intended son-in-law. Then later on in the will we have got this sentence in the same paragraph.:

To the said properties and to my assets and liabilities my daughter Subbamma and my sister's son Subbiah shall be karthas (heirs entitled) and they shall be discharging the debts from out of the income of the lands and be supporting my mother and wife.

4. Mr. Raghava Rao, the learned vakil for the respondent, argued that the word ' kartha ' here simply means manager and that they were constituted managers for the purpose of discharging the debts and supporting the mother and wife. I am not able to accept this argument. 'Kartha' as used in wills and other legal documents in Telugu always means heirs, the persons entitled. In this sentence the testator makes them the devi-sees of all the rest of his property except in so far as is disposed of by specific provisions in the will. He then gives a schedule of his property. In para. 12 he gives a certain parcel of land which was given to his junior sister-in-law for maintenance to his daughter after his sister-in-law's death. In para. 15 he provides that his uncle's widow Parvathamma shall have rights of alienation by gift, sale, etc., over the land given to her for her maintenance He also says that some house site should vest in his daughter. He also says that any property left by oversight should also go to his daughter after his death. The moveables, that is, the cattle and vessels, should also go to his daughter. Apart from these specific dispositions, the rest of the property is governed by the main dispositive clause in para. 2 and the property not specifically disposed of goes to the sister's son and the daughter. It is true that the main motive in making his disposition is that he expected that his daughter would marry his nephew. He hoped that they would live long enough to marry and enjoy the property given to both. He took the risk of any one of them not living up to the marriageable age. We can only construe the will according to the actual language used and we cannot make another will by taking the events which he did not contemplate and making other provisions for them with reference to his supposed intention with reference to such other events.

5. The next argument of Mr. Raghava Rao is that this disposition must be taken to be a grant to them as joint tenants and in support of his argument he relies on Narput Singh v. Mahomed Ali [1885] 11 Cal. 1. That was a case from Oudh. There was no formal grant in that case, The grant is supposed to be contained in a number of letters addressed by the Chief Commissioner. There was no argument on the question of joint tenancy. Anyhow I do not think that case is of much value in the face of the later decision of the Privy Council in Jogeswar Narain Deo v. Ram Chandar Dutt [1896] 23 Cal. 670, which has ever since been accepted as the leading authority in all India. In that case they overruled an earlier decision in Vydinada v. Nagammal [1888] 11 Mad. 258, where it was held that a gift to two persons, a male and a female, was a gift to them as joint tenants and observe that the principle of joint tenancy appears to be unknown to Hindu law except in the case of a coparcenary between the members of an undivided family. The case of daughter's sons as decided in the Jaggampet case, Venkatyamma Garu v. Venkataramanayyamma Bahadur Garu [1902) 25 Mad. 678, is merely an extension of this category by judicial decision. And the case of Hindu females, two widows or two daughters jointly succeeding to a husband or a father, is not really a coparcenary under Hindu law. It is a peculiar ease standing by itself, though it resembles joint family as regards survivorship.

6. The proper construction of this will is that Subbiah and Subbamma take as tenants-in-common under the will, each taking an absolute estate The plaintiffs being the heirs of Subbiah are entitled to the decree they seek. The plaintiffs will also be entitled to subsequent profits from the date of the plaint and the lower Court, in passing the final decree, will make an enquiry into such subsequent profits. I agree with my Lord that the appeal should be allowed with costs throughout.


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