REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 2916 OF 2005

Siddamurthy Jayarami Reddy (D) by LRs. …. Appellants

Versus

Godi Jaya Rami Reddy & Anr.          ….Respondents  

JUDGMENT

R.M. Lodha, J.  

The  controversy  in  this  appeal,  by  special  leave,  is  

concerned  with  will  dated  May  21,  1920  executed  by  Bijivemula  

Subba Reddy resident  of   Chennavaran,   village Kattera Gandla,  

Badwel  Taluq,  Cuddapah  District.   The  question  is  one  of  

construction upon which the two courts – High Court and trial court –  

are not in accord and, have taken divergent view.  

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2. At  the  time of  execution  of  the  will,  Bijivemula  Subba  

Reddy  –  a  Hindu  –  was  aged  about  75  years.  He  had  his  wife  

Subbamma, daughter Pitchamma, son-in-law Rami Reddy, widowed  

sister  Chennamma,  widowed  daughter-in-law  and  granddaughter  

Lakshumamma living. His only  son Sesa Reddy had died in 1917.  

The testator was man of sufficient wealth.  He had landed  property  

(wet  and  dry  lands  and  wells)  at  various  places,  namely,  in  

Katteragandla, Rampadu,  Varikuntla and  Thiruvengala Puram. He  

also owned few houses and plots of lands at different places. He  

had moveable properties as well in the form of bonds, securities and  

promissory notes. The will recites, as indeed is the undisputed fact,  

that  the  testator,  except  one  house  situate  at  Kotha  Laxmipally  

village in which he had 1/3rd share,  was the absolute owner of the  

properties  specified therein.   

3. Pitchamma had no child although she had married  20  

years before the execution of the will.  The testator desired that his  

daughter Pitchamma adopted a son with the consent of her husband  

and his granddaughter Lakshumamma got  married to the adopted  

son of his daughter Pitchamma.  

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4. The  will  is  written  in  vernacular  (Telugu).   The  

correctness  of its English translation annexed with the appeal was  

disputed  by  the  respondents.   The parties  were  then  directed  to  

submit agreed translation of the will which they did and that reads as  

follows:  

“I, Bijivemula Subba Reddy son of Balachennu, resident of  Chennavaran  village  Kattera  gandla,  Badwel  Taluq  Cuddapah  District,  cultivation,  this  the  21st day  of  May,  1920, with sound mind, free will executing the will.

Now I am aged about 75 years. My wife Subbamma  is living. I had one son by name Sesa Reddy. He died at  the age of 24 years, about three years back. He had one  wife  and  one  daughter  aged  about  6  years  by  name  Lakshumma. I have one daughter by name Pitchamma. I  have given in marriage to one Rami Reddy adopted son of  Siddamurthi Duggi Reddy, Papireddypally village Rampadu  Majira., though she married about 20 years back,  but she  has no issues.

She  intended  to  take  a  boy  in  adoption  with  the  consent of her husband.

As I am old I could not [sic] able to run my family.  After  the  death  of  my  son,  since  15  years,  the  above  persons are looking after my family and my welfare.

I have also one widow sister by name Chennamma.  She is living with me since 30 years. She is also helping  me  in  all  aspects.  I  intend  to  give  my  grand  daughter  Lakshumamma  to  the  proposed  adopted  son  of  my  daughter Pitchamma.

In the said event, I intend to give all my belongings,  moveable and immovable properties to the said Lachumma  and the adopted son of my daughter Pitchamma. But my  

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daughter and her husband so far did not take any steps for  getting a boy in adoption. Now as I am sick and suffering  from fever and other ailments, I am doubting whether I can  perform the above said acts during my life time.  

I  own  lands  in  Katteragandla  Village,  Rampadu  village, Varikuntla village, and Thiruvengala puram village,  both wet and dry lands and also wells. I also own a Midde  in Majira. I have one Beeruva in Pancha of my house. I  also  have  household  articles,  kallamettelu.  I  also  have  lands  in  Papireddypally  village  of  Rampadu  Majira,  two  plots and I have absolute rights in one of the same. I also  have  one house  in  Kotha  Laxmipally  village,  of  Kathera  gandla majira and in that I have 1/3rd   share.  I also have  bonds and securities and promissory  notes transactions.  As  I  have  the  above  said  moveable  and  immoveable  properties  and  as  I  am having  absolute  rights  over  the  same,  none  others  have  any  rights  whatsoever  in  the  above said properties. Therefore, I intend to execute the  will and the same shall come into force after my demise.

The following are the terms of the will.  

1) After  my  demise,  my   grand  daughter,  Lachumamma who is the daughter of my  son  shall  have  absolute  rights  in  my  entire properties.

2) As my grand daughter  is  minor,  till  she  attains  the  age  of  majority  and  attains  power  to  manage  the  above  said  properties,  I  hereby  appoint  my  son  in  law Siddamurthy  ramireddy as executor  of the will till then.

3) According  to  the  will  of  my  grand  daughter  Laxmamma,  in  case  to  marry  the adopted son of my daughter, it shall  be performed.

4) As  I   am  having  my  wife  Subbamma,  Widow daughter in law, Pitchamma, and  

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my  widow  sister  Chennamma,  the  present  guardian,  Ramireddy  and  my  grand  daughter  Laxmumma,  after  attaining  majority,  shall  look  after  the  above  persons.  If  they  do  not  satisfied  (sic) with the above arrangements,  they  shall enjoy my property with limited rights  and  necessary  arrangements  shall  be  made by the guardian and after him and  my  grand  daughter  Laxmamma  after  attaining majority.

5) In case, as God’s grace is not in favour of  my  aforesaid  proposals,  namely  if  my  daughter did not take any boy in adoption  and  if  the  said  boy  will  not  accept  to  marry my grand daughter Laxmamma, I  intend  to  give  my  aforesaid  properties,  1/3rd share  to  my  daughter  Pitchamma  and her husband who is also my son in  law Ramireddy  together.  The remaining  2/3rd share is given to my grand daughter  Laxmumma.

Accordingly I  executed the will  and they have  the  right  to  partition  and  they  shall  enjoy  the  properties  after  division  with  absolute  rights  during  their life time and thereafter their legal heirs”

5. Bijivemula Subba Reddy died within  few months of the  

execution  of  the  will.    After  few  years  of  death  of  the  testator,  

Pitchamma wanted  to adopt Godi Venkat Reddy  as her son but  

her  husband  Rami  Reddy  did  not  agree  to  that  adoption.  Rami  

Reddy left the Village Chennavaran,  his wife Pitchamma and settled  

in other village – Pappireddypally. Rami Reddy then married  with  

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Subbamma.  Out  of  the wedlock of  Rami Reddy and his  second  

wife, two sons were born : (i)  Siddamurthy Jayarami Reddy and (ii)  

Siddamurthy Rami Reddy.  

6. Lakshumamma married Godi Venkat Reddy somewhere  

in 1926 and out of that wedlock one son Godi Jayarami Reddy was  

born.  Unfortunately Godi Venkat Reddy died within three years of  

marriage.  Godi Jayarami Reddy has one son Godi Ramachandra  

Reddy.   Rami Reddy died in 1939; Pitchamma died in 1953 and  

Lakshumamma died in 1971.  

7. In  1980,  the  two  sons  of  Rami  Reddy,  born  out  of  

wedlock of his second wife Subbamma, filed a suit for partition of the  

schedule  properties – the properties  bequeathed  by Bijivemula  

Subba Reddy vide his will dated May 21, 1920 – claiming 1/3rd share  

therein under that will. They also claimed rent and profits. The case  

of the plaintiffs was that they and the defendants were members of a  

composite family and were in joint possession and  enjoyment of the  

properties of Bijivemula Subba Reddy and as per the will they were  

entitled to 1/3rd share.   During the pendency of the suit, one of the  

sons  died  and  his  legal  representatives  were  brought  on  record.  

The plaintiffs  are the present appellants.  

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8. The defendants traversed the claim of the plaintiffs and  

set up the plea that there was a dispute between Pitchamma and her  

husband Rami Reddy over the adoption of Godi Venkat Reddy;  Rami  

Reddy  left  the  house  somewhere  in  1924  and  settled  in  Village  

Pappireddypally.  It was averred that Rami Reddy married a second  

wife  and  not  only  abandoned Pitchamma but  also  abandoned his  

rights to the property given under the will.  Pitchamma then looked  

after the family in the absence of any male member, managed the  

properties  and got  the  patta  of  these properties  transferred in  the  

name of Lakshumamma and bequeathed her share in the property by  

a will  in 1953 to Lakshumamma.  

9. The defendants also set up the plea that Lakshumamma  

purchased few properties mentioned in the schedule from her own  

resources in 1955.  They gave the  details of those properties.  They  

further set up the case that Lakshumamma after executing the will on  

March 6,  1953 partitioned the properties  between herself  and first  

defendant.  By way of  additional  written statement,  the plea of  res  

judicata was raised.  The defendants are the respondents herein.  

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10. On the basis of the pleadings of the parties, the trial court  

framed diverse issues; the parties let in oral as well as documentary  

evidence and the trial court heard the counsel for the parties.  

11. The trial court in its judgment dated December 22, 1986  

negated  the  plaintiffs’  claim  that  they  and  the  defendants  were  

members of a composite family and  the subject properties were in  

their joint possession and enjoyment.   However, the trial court did  

hold that under the will dated May 21, 1920  Pitchamma and Rami  

Reddy got 1/6th share each in the properties of the testator.  While  

concluding   so,  the  trial  court  held  that  there  was  no  condition  

imposed in the will by the testator that his daughter Pitchamma and  

son-in-law Rami  Reddy must  adopt  a  son and  her  granddaughter  

should marry the adopted son of Pitchamma and her husband. It was  

only  a  pious  wish  of  Bijivemula  Subba  Reddy  that  his  daughter  

Pitchamma adopted a son with the consent of her husband and that  

his granddaughter Lakshumamma should marry the adopted son of  

Pitchamma and  her  husband.  The trial  court  further  held  that  the  

plaintiffs were not claiming the property directly as legatees under the  

will but as legal heirs of Rami Reddy and Pitchamma since will had  

come into force and was acted upon after  the death of  Bijivemula  

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Subba Reddy and, accordingly, Pitchamma and Rami Reddy got 1/6th  

share each.  The trial court also held that the property acquired by  

Pitchamma by way of bequest under the will was a separate property  

and  after  her  death,  it  devolved  upon  her  husband’s  heirs  (i.e.  

plaintiffs)  and,  thus,  plaintiffs  were  entitled  to  1/3rd share  in  the  

schedule  properties.   The trial  court  negated  the  plea  of  adverse  

possession  set  up  by  the  defendants  and  passed  a  preliminary  

decree  for  partition  in  favour  of  plaintiffs  with  regard  to  their  1/3rd  

share.

12. The  defendants  (present  respondents)   challenged  the  

judgment and decree passed by the trial court in appeal before the  

High Court.  The High Court formulated three points for determination  

in the  appeal viz; (i)  whether Rami Reddy failed to comply with the  

obligations  cast on him under the will dated May 21, 1920 executed  

by Bijivemula Subba Reddy and  he abandoned the family and if so,  

whether  his  legal  heirs  (Plaintiffs)  could   claim  his  share  in  the  

property of the  testator; (ii) whether will executed by Pitchamma in  

1953  was  genuine,  true  and  bona  fide  and  (iii)  whether  the  

defendants  have  acquired  rights  in  the  schedule  properties  by  

adverse possession.  

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13. The  High  Court  held  that  it  was  obligated  upon  Rami  

Reddy under the will to maintain the dependants of the testator  and  

act as an executor of the will.  Rami Reddy failed to discharge both  

obligations -  in maintaining the dependants of  the testator  and  in  

acting  -  as  executor.  The  High  Court,  thus,  concluded  that  Rami  

Reddy could not claim any property under the will. The High Court  

overturned the finding of the trial court as regards  the will  executed  

by  Pitchamma and held that the will executed by her in 1953 was  

genuine and true. As regards plea of adverse possession set up by  

the defendants—although negated by the trial court—the High Court  

held that there was ouster of the plaintiffs 60 years back and there  

was  no  semblance  of  any  enjoyment  of  property  by  the  plaintiffs’  

predecessors-in-title along with the defendants jointly. Consequently,  

the High Court  by its  judgment dated April  20,  2003 reversed the  

judgment  and  decree  of  the  trial  court  and  allowed  the  appeal  

preferred by the defendants.  

14. It  is  from the  judgment  of  the  High  Court  that  present  

appeal by special leave arises.  

15. Mr.  R.  Sundaravaradan,  learned senior  counsel  for  the  

appellants argued: The importation of Section 57 and Section 141 of  

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Indian  Succession  Act,  1925  (for  short,  ‘the  1925  Act’)  is  wholly  

inappropriate since the present case is concerned with the muffussil  

will  of  a Hindu dated May 21, 1920 with regard to the  properties  

situate outside the city  of  Madras.  The  muffussil  wills (executed  

before 1927) do not require the formalities of execution, attestation  

and revocation to be carried out in the manner required by the 1925  

Act.  The  parties did not join issue about the truthfulness of the will  

and  there  was  only  dispute  about  its  construction  and  

implementation. Even if it be assumed that Section 141 of the 1925  

Act is attracted, the same has been complied with; the  attesters were  

already  dead.  

16. It was vehemently contended by Mr. R. Sundaravaradan  

that  the  property  vested  in  the  executor  in  1920  on  the  death  of  

testator and Section 141 of the 1925 Act, even if applicable, could not  

divest  such  vesting  in  title.  Dealing  with  the  expression  “take  the  

legacy” in Section 141, it was argued by learned senior counsel  that  

the said expression means  taking possession of legacy  and  not  

vesting  of the  legacy.  He submitted  that the word “executor” used  

in the will has been used in loose sense of the term; Rami Reddy was  

the son-in-law of the testator, he was looking after and managing the  

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lands and, therefore, the legacy bequeathed to him was  not because  

he was to be the executor in strict sense but because he was the  

testator’s son-in-law and manager.

17. Learned senior counsel submitted that  there is no legal  

evidence of mismanagement, malversation or misappropriation and  

a vague allegation that the executor has not done his job required no  

serious consideration.   He argued that the marriage of Rami Reddy  

with Subbamma was with the consent of Pitchamma and there was  

no legal impediment for a Hindu to have a second wife before Hindu  

Succession  Act,  1956  or  Bigamy  Prevention  Act,  1949  especially  

when Pitchamma was barren and it  is  indeed a legal  requirement  

based  on  Shastric  injunction  to  have  progeny  so  that  religious  

efficacy of satisfying the souls of forefathers is completed. Learned  

senior counsel  contended that there was no voluntary and conscious  

abandonment by Rami Reddy and the High Court was in clear error  

in holding so.

18. Mr. R. Sundaravaradan criticized the findings of the High  

Court on the plea of adverse possession set up by the defendants  

and genuineness of the will executed by Pitchamma in 1953 in favour  

of Lakshumamma.  

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19. Mr.  P.S.  Narasimha,  learned  senior  counsel  for  the  

respondents, on the other hand, supported the judgment of the High  

Court.

20. Indian Succession Act,  1865 (for  short,  `the 1865 Act’)  

was enacted to provide for intestate and testamentary succession in  

British  India.  Section  331  of  the  1865  Act,  however,  excluded  its  

applicability to intestate or testamentary succession to the property of  

any Hindu, Muhammadan or Buddhist and it further provided that its  

provisions shall not apply to any will made, or any intestacy occurring,  

before January 1, 1866.

21. By the Hindu Wills Act, 1870 (for short, ‘the 1870 Act’),  

statutory  provisions  were  made  to  regulate  the  wills  of  Hindus,  

Jainas, Sikhs and Buddhists in the Lower Provinces of Bengal and in  

the  towns  of  Madras  and  Bombay.  Inter  alia,  Section  2  thereof  

provided as follows :

“S. 2.  The following portions of the Indian Succession Act,  1865, namely,—

sections  forty-six,  forty-eight,  forty-nine,  fifty,  fifty- one,  fifty-five  and  fifty-seven  to  seventy-seven  (both  inclusive),

sections eighty-two, eighty-three, eighty-five, eighty- eight to one hundred and three (both inclusive),

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sections one hundred and six to one hundred and  seventy-seven (both inclusive),

sections  one  hundred  and  seventy-nine  to  one  hundred and eighty-nine (both inclusive),

sections one hundred and ninety-one to one hundred  and ninety-nine (both inclusive),

so much of Parts XXX and XXXI as relates to grants  of  probate  and  letters  of  administration  with  the  will  annexed, and   

Parts  XXXIII  to  XL (both inclusive),  so far  as they  relate  to  an  executor  and  an  administrator  with  the  will  annexed,

shall, notwithstanding anything contained in section  three hundred and thirty-one of the said Act, apply—

(a) to  all  wills  and codicils  made by any Hindu,  Jaina,  Sikh  or  Buddhist,  on  or  after  the  first  day  of  September  one  thousand  eight  hundred  and  seventy,  within the said territories or the local limits of the ordinary  original civil jurisdiction of the High Courts of Judicature at  Madras and Bombay; and   

(b) to  all  such  wills  and  codicils  made  outside  those territories and limits, so far as relates to immoveable  property situate within those territories or limits:”

22. The 1925 Act which  came into force on September 30,  

1925 has  eleven  parts.  Part VI has twenty three chapters.  Section  

57 to Section 191 are covered by Part VI.   Section 57  provides thus:

“S.57. Application of certain provisions of Part to a class of  Wills made by Hindus, etc. –  The provisions of  this Part  

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which  are  set  out  in  Schedule  III  shall,  subject  to  the  restrictions and modifications specified therein, apply—

(a) to  all  Wills  and  codicils  made  by  any  Hindu,  Buddhist, Sikh or Jaina on or after the first day  of September, 1870, within the territories which  at the said date were subject to the Lieutenant- Governor of Bengal or within the local limits of  the ordinary original civil jurisdiction of the High  Courts  of  Judicature  at  Madras  and Bombay;  and

(b) to  all  such  Wills  and  codicils  made  outside  those territories and limits so far as relates to  immoveable  property  situate  within  those  territories or limits; and  

(c) to  all  Wills  and  codicils  made  by  any  Hindu,  Buddhist, Sikh or Jaina on or after the first day  of January, 1927, to which those provisions are  not applied by clauses (a) and (b):]

Provided that marriage shall not revoke any such Will  or codicil.”   

Clauses (a) and (b) of Section 57 of the 1925 Act are pari materia to  

clauses (a) and (b) of Section 2 of the 1870 Act.  Clause (c) is a new  

provision.     

23. As noticed above, present case is concerned with the will  

executed in  1920.  The will  is  admittedly  a muffussil will  as it has  

not  been  executed  within  the  local  limits  of  ordinary  original  civil  

jurisdiction of the High Court of Judicature  at   Madras. Clause (a) of  

Section 57 is apparently not attracted. The subject will also does not  

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relate  to  immoveable  properties  situate  within  the  local  limits  or  

territories as set out in clause (a).  In this view of the matter, clause  

(b)  is also  not attracted. Clause (c) does not get  attracted, as  it  

applies to wills and codicils made on or after January 1, 1927.

24. Since the subject will is not covered by any of the clauses  

of  Section  57,  Part  VI  of  the  1925  Act  is  not  applicable  thereto.  

Section 141 which falls in Chapter XIII of Part VI of the 1925 Act that  

provides –  if a legacy is bequeathed to a person who is named an  

executor of the will, he shall not take the legacy, unless he proves the  

will or otherwise manifests an intention to act as executor — is, thus,  

not applicable to the subject will.    As a matter of fact, both  learned  

senior counsel were ad idem that Section 141 of the 1925 Act, as it  

is, has no application at all.  

25. We may also state that although the statutory provisions  

concerning construction of wills from Sections 74 to 111 of the 1925  

Act  do  not  apply   but  the  general  principles  incorporated  therein  

would surely be relevant for construction of the subject will.

26. It is well settled that the court  must put itself  as far as  

possible in the position of a person making a will in order to collect  

the  testator’s  intention  from  his  expressions;  because  upon  that  

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consideration must very much depend the effect to be given to the  

testator’s intention, when ascertained.   The will  must be read and  

construed as a whole  to gather  the intention of the testator  and the  

endeavor  of  the  court  must  be  to  give   effect  to  each  and  every  

disposition.   In  ordinary  circumstances,  ordinary  words  must  bear  

their  ordinary  construction  and  every  disposition  of  the  testator  

contained  in   will  should  be  given  effect  to  as  far  as  possible  

consistent with the testator’s desire.

27. The above are the principles consistently followed and,  

we think, ought to be guided in determining the appeal before us.  

What  then was the intention of  this  testator? The only  son of  the  

testator had predeceased him.  At the time of execution of  will, he  

had his wife, widowed sister, widowed  daughter-in-law, daughter and  

minor granddaughter surviving;  the only other male member was his  

son-in-law – Rami Reddy.  He intended to give all his properties to  

the granddaughter  but  he was  aware that  after  her  marriage,  she  

would join her husband’s family. The testator intended that his entire  

estate remained in the family and did not go out of that and having  

that  in mind,  he desired that  his daughter  adopted a son with  the  

consent of her husband and   his granddaughter married the adopted  

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son of his daughter.  He, therefore, stated, “I intend to give all  my  

belongings,  moveable  and  immoveable  properties  to  the  said  

Lakshumamma and the adopted son of  my daughter  Pitchamma”.  

He  expressed  in  unequivocal  terms,  “after  my  demise,  my  

granddaughter Lakshumamma who is the daughter of my son shall  

have absolute rights in my entire properties”.   

28. The testator  gave two very particular directions in the will  

that  until  Lakshumamma attained the age of  majority and attained  

power to  manage properties;  (one)   Rami Reddy shall  act   as an  

executor till then and (two) the executor shall  look after the female  

members  in  the  family,  namely,  his  wife  Subbamma,  widowed  

daughter-in-law, daughter Pitchamma, widowed  sister Chennamma  

and  granddaughter  Lakshumamma.   Rami  Reddy,  thus,  was  

obligated to  carry  out  the  wishes  of  the  testator  by managing his  

properties and looking after  the minor granddaughter Lakshumamma  

till she attained majority and  also look after other female  members in  

the family.  

29. The  clause,  however,  upon  which  the  appellants’  are  

claiming  the rights in the properties of Rami Reddy is the clause that  

reads “…if my daughter did not take any boy in adoption and if the  

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said boy will not accept to marry my granddaughter Lakshumamma, I  

intend to give my aforesaid properties,  1/3rd share to my daughter  

Pitchamma and her husband, who is also my son-in-law Rami Reddy  

together.  The remaining 2/3rd share  is  given to  my granddaughter  

Lakshumamma”.

30. Mr. R. Sundaravaradan, senior counsel for the appellants  

is  right  in  contending  that  the  above  clause  in  the  will  is  not  a  

repugnant  condition  that  invalidates  the  will  but  is  a  defeasance  

provision.  

31. In  Mt. Rameshwar Kuer & Anr. v.  Shiolal Upadhaya and  

Ors.1, Courtney-Terrell, C.J., speaking for the Bench, explained the  

distinction  between  a  repugnant  provision  and  a  defeasance  

provision thus :

“The  distinction  between  a  repugnant  provision  and  a  defeasance provision is sometimes subtle, but the general  principle of law seems to be that where the intention of the  donor is to maintain the absolute estate conferred on the  donee but he simply adds some restrictions in derogation  of  the  incidents  of  such  absolute  ownership,  such  restrictive  clauses  would  be  repugnant  to  the  absolute  grant  and  therefore  void;  but  where  the  grant  of  an  absolute estate is expressly or impliedly made subject to  defeasance on the happening of a contingency and where  the effect of such defeasance would not be a violation of  any rule of law, the original estate is curtailed and the gift  over must be taken to be valid and operative.”

1 A.I.R. 1935 Patna 401

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32. The  distinction  between  a  repugnant  provision  and  a  

defeasance provision explained in  Mt. Rameshwar Kuer1  has been  

followed subsequently. In our view, Patna High Court  rightly explains  

the  distinction  between  a  repugnant  provision  and  a  defeasance  

provision.

33. The question, however, upon which the fate of this appeal  

depends  is : whether Rami Reddy became entitled to any legacy by  

virtue of the defeasance clause under the will at all.  

34. The testator was clear in his mind that after his death, his  

granddaughter should have absolute rights in his entire properties.  

He  has  said  so  in  so  many  words  in  the  will.   However,   he  

superadded a condition that,  should  his daughter Pitchamma and  

son-in-law Rami Reddy not  adopt a son or  if his daughter and son-

in-law  adopted  a  son  but  that  boy  did  not  agree  to  marry  his  

granddaughter, then 1/3rd share in his properties shall go over  to his  

daughter Pitchamma and her husband Rami Reddy. The bequest  to  

the extent of 1/3rd share in the properties of the testator  in favour of  

Pitchamma and her husband Rami Reddy jointly was  conditional on  

happening of an uncertain event noted above. As a matter of fact and  

in law,  immediately after the death of testator in 1920, what became  

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vested  in  Rami  Reddy  was  not  legacy  but  power  to  manage  the  

properties  of  the  testator  as  an  executor;  the  legacy  vested  in  

Lakshumamma, albeit, defeasibly  to the extent of 1/3rd share.  The  

only event  on which the legacy to Lakshumamma to the extent  of  

1/3rd share was to be defeated was upon happening of any of the  

above events.  Mr. R. Sundaravaradan, learned senior counsel, thus,  

is not right in contending that on the death of testator in 1920,  the  

legacy  came to  be  vested  in  Rami  Reddy and  once  vesting  took  

place, it could not have been divested.

35. It has come in evidence that Pitchamma wanted to adopt  

Godi   Venkat  Reddy as   her   son,   but   her    husband  –  Rami  

Reddy – did not agree to that and as a result thereof Godi Venkat  

Reddy could not be adopted by Pitchamma. On the issue of adoption  

of Godi Venkat Reddy, a serious dispute ensued between Pitchamma  

and her husband.   Rami Reddy left the family of the testator and the  

village Chennavaran somewhere in 1924 and went to nearby village  

Pappireddypally where he married second time. It may be that there  

was  no  legal  impediment  for  Rami  Reddy  to  have  a  second  wife  

before the Hindu Succession Act, 1956 or Bigamy Prevention Act of  

1949 when no child was begotten from Pitchamma yet the fact of the  

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matter is that he abandoned the family of the testator.  There is no  

merit in the submission of Mr. R. Sundaravaradan  that abandonment  

was not voluntary and conscious.  

36. Rami Reddy  neither continued as a guardian of minor  

granddaughter Lakshumamma nor looked  after the testator’s wife,  

widowed  daughter-in-law, widowed  sister and daughter. The female  

folk  were left in lurch with no male member to look after. He took no  

care or interest in the affairs of the family or properties of the testator  

and thereby failed to discharge his duties as executor.    

37. In view of the predominant desire  that his granddaughter  

should have his properties and that his properties did not go out of  

the family, the testator  desired that his daughter adopted a son with  

the consent of her husband and his granddaughter married that boy.  

The conditional legacy to Rami Reddy  (to the extent of 1/3rd share  

jointly with Pitchamma) was not  intended to be given to him if  he  

happened to be instrumental in defeating the testator’s wish in  not  

agreeing to the adoption of a son by his (testator’s) daughter. Such  

an intention might not have been declared by the testator in express  

terms but necessary inference to that effect can safely be drawn by  

reading the will as a whole.  In the  circumstances,  the  legacy to the  

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extent  of  1/3rd share cannot  be held to have ever vested in  Rami  

Reddy jointly with Pitchamma as it was he who defeated the adoption  

of son by the testator’s daughter.   As a matter of fact by his conduct,  

Rami Reddy rendered himself disentitled to any legacy.  

38. Not  only  that  Rami  Reddy  did  not  discharge  his  

obligations under the will  of  looking after the family and managing  

the  properties  as  an  executor  but  he  was  also  instrumental  in  

frustrating  the  adoption  of  son  by  the  testator’s  daughter.  Much  

before  the  defeasance  clause  came  into  operation  when  

Lakshumamma  married  Godi  Venkat  Reddy  who  could  not  be  

adopted  as  son  by  Pitchamma,  Rami  Reddy  had  already  left  the  

testator’s family for good and abandoned the  legacy that could have  

come to him under that  clause.

39. The plea,   of  the appellants,  that  Rami  Reddy’s  family  

from the second wife and the testator’s family was a composite family  

and the properties were joint family properties of the plaintiffs and the  

defendants, has not been accepted by the trial court as well as High  

Court. We have no justifiable reason to take a different view on this  

aspect.  

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40. Importantly, Rami Reddy during his life time – although he  

survived for about 19 years after the death of the testator – never  

claimed any legacy under the subject will.   

41. All  in  all,  on  the  construction  of  the  will  and,  in  the  

circumstances, it must be held, and we hold that  no legacy came to  

be vested in  Rami  Reddy and he did  not  become entitled  to  any  

interest in the estate of the testator and, therefore, the plaintiffs did  

not acquire any right, title or interest in the properties of Bijivemula  

Subba Reddy.  

42. In view of the above, the challenge to the  findings of the  

High  Court  on  the  plea  of  adverse  possession  set  up  by  the  

defendants and the genuineness of the will executed by Pitchamma  

in 1953 pale into significance and needs no consideration.  

43. In  fairness  to  Mr.  R.  Sundaravaradan,  learned  senior  

counsel for the appellants, it must be stated that he cited the following  

authorities:   (Katreddi)  Ramiah  and  another v.  Kadiyala  Venkata  

Subbamma  and  others [A.I.R.  1926  Madras  434];  Balmakund v.  

Ramendranath  Ghosh [A.I.R.  1927  Allahabad  497];  Ratansi  D.  

Morarji v.  Administrator-General  of  Madras [A.I.R.  1928  Madras  

1279];  Bhojraj v. Sita Ram and others [A.I.R. 1936 Privy Council 60];  

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Ketaki  Ranjan  Bhattacharyya  and  others v.  Kali  Prasanna  

Bhattacharyya and others [A.I.R. 1956 Tripura 18]; P. Lakshmi Reddy  

v.  L.  Lakshmi  Reddy [(1957)  SCR  195];  AL.  PR.  Ranganathan  

Chettiar  and  another v.  Al.  PR.  AL.  Periakaruppan  Chettiar  and  

others [A.I.R. 1957 S.C. 815];  Darshan Singh and others v.  Gujjar  

Singh (Dead) By LRs. and others [(2002) 2 SCC 62]; Govindammal v.  

R.  Perumal  Chettiar  and  others [(2006)  11  SCC  600]  and  

Govindaraja Pillai and others v.  Mangalam Pillai and another [A.I.R.  

1933 Madras 80]. However, in view of our discussion above, we do  

not think we need to deal with these authorities in detail.     

44. In the result, appeal fails and is dismissed with no order  

as to costs.

   …………………….J.            (Aftab Alam)

    ………………….. J.        (R.M. Lodha)  

NEW DELHI, APRIL 1, 2011.

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