Karnataka High Court
Vishveswaraiah vs Usha Subbarao on 15 April, 1994
Equivalent citations: II(1994)DMC360, ILR1994KAR1295
JUDGMENT Vasanthakumar, J.
1. Dr. N.S. Nanjundiah died on 28.7.38, leaving behind his wife Nadiga Nanjamma and five sons by name B.N. Subbarao, B.N.Viswesariah, B.N.Rama Rao, B.N. Ganesh Rao, B.N. Shankar, out of whom as on the date of presentation of this Original Suit Number 10555/80, two sons by name B.N. Subarao, B.N. Shankar had expired. The suit was filed by Usha Subba Rao wife of late B.N. Subba Rao who is the plaintiff and Nadiga Nanjamma and her three surviving sons are defendants, Defendants one to four in the original cause.
2. Few facts to state are:
Plaintiff has sought partition of suit schedule properties on the assumption that suit schedule properties as being the self acquired properties of her late father-in-law namely Dr. N.S. Nanjundiah and that her late husband B.N. Subba Rao having succeeded to the Estate by virtue of he being the legal heir to whom 1/5 share was devolved after the death of Dr. N.S. Nanjundiah. Further plaintiff has pleaded that by virtue of the Will executed by her late father-in-law, her late husband having got his share quantified at 1/5 th share in the suit schedule properties, and since defendants have not made any arrangements to divide the schedule properties by metes and bounds, necessity arose for her to file the suit. The geneological tree of the family being:
Dr.N.s.Nanjundain(Died on 28.7.38) =Nadiga Nanjamma (Died on 28.3.59) First defendent | __________________________________________________________________ | | | | B.N.Subba Rao B.N.Viswaswariah B.N.Ramarao (Died on 21.2.54) (second Defendent) (Third Defendent) | | | __________________________________________________ | | B.N.Ganesh Rao B.N.Shankar (4 Defendent) (5 Defendent) =Usha Subba Rao PLAINTIFF
3. Further plaintiff has pleaded that First Defendant Nadiga Nanjamma was entrusted to manage and control the family properties under the Will dated 13.3.35 executed by Dr. N.S. Nanjundiah.
The Will reads as follows:
"This is the last Will and Testament of me, N.S. Nanjundiah, son of S.N. Subba Rao, Brahmin aged about 53 years, and retired District Medical and Sanitary Officer, Mysore Government, residing at House No. 318, 3rd Road, Margosa Avenue, Malleswaram, Bangalore City.
Whereas I, the said N.S. Nanjundiah, have been suffering from Rheumatisim and Gout, for some years past, and whereas I have not been able to recover from the same till now completely, I the said N.S. Nanjundiah, desire to make Will regarding my properties, moveable and immoveable, while yet my senses and limbs are under my control, Accordingly, I make this my last Will and Testament.
I am possessed of properties moveable and immovable which are given in the Schedules A, B, C and D attached to this Will. These are all my self-acquisitions excepting the following:
1) 7 1/2 percent 17 Preference Shares of Buckingham and Karnatic Mills, Madras, of the face value of rupees one hundred each.
2) 15 Ordinary shares of Buckingham and Karnatic Mills, Madras, of the face value of rupees on hundred each.
3) 3.1/2 percent Government of India Loan (1845-55) stock of the face value of rupees five hundred only.
4) Five Mysore Bank Shares of the face value of Rupees one hundred each all of which I inherited from my father, Mr. S.N.Subba Rao, at a partition under a succession certificate granted to myself and my brother by the Subordinate Judge's Court, Bangalore and by the Resident's Court, C and M, Station, Bangalore.
And I have been in possession and enjoyment of all my properties as sole owner. None else has any right or title or interest therein and I have no debts whatever.
Besides myself, following are the members of my family:
1. My wife Nadiga Nanjamma aged about 28 years. My sons:
2. B.N. Subba Rao aged about 12 years.
3. B.N. Shankar Rao aged about 10 years.
4. B.N. Visveswaraiah aged about 5 years.
5. B.N. Rama Rao aged about 3 years and
6. B.N. Ganesh aged about 6 months.
There are no other Members of my family at present.
My brother Mr. B.Srikanta Rao, residing at No. 9, 3rd Road, Chamarajpet, Bangalore City, divided from me in or about the year 1923. My brother and I have been living separately and have been in seperate enjoyment and possession of our respective properties ever since the year 1923. My brother Mr. B. Srikanta Rao or any body else has no right whatsoever to any of my properties mentioned in the Schedule A, B, C and D. During my life time I will be in charge and management of my properties. After my life time, if my wife Nadiga Nanjamma should survive me, she the said Nadiga Nanjamma shall be in charge and management of all my properties given in Schedule A, B, C and D together with their accretions and together with any properties acquired by me in future. My wife, the above mentioned Nadiga Nanjamma will have no power to dispose of any of these properties mentioned in Schedules A, B, C and D by sale, gift, will, mortgage or hypothecation. She the said Nadiga Nanjamma is entitled to take the produce of the lands mentioned in A Schedule and use the same for the maintenance of herself and her children. She the said Nadiga Nanjamma is also entitled to, to use the interest, dividends and incomes of the properties mentioned in B and D schedules for the same purpose.
With regard to the house (Item No. 1 of the A Schedule) my wife, the above named Nadiga Nanjamma and her children are entitled to live in that house during the life time of my wife, and the said house should not be partitioned during my wife, Nadiga Nanjamma's life time.
Mr. C. Nagappa, B.A., L.L.B., Advocate, Lakshmi Vilas Agrahar, Mysore, one of the Executors and Trustees of this Will, shall be in possession of the lands viz., items numbers 2, 3 and 4 of the A Schedule, during the minority of my children. The abovementioned Mr. C. Nagappa shall make arrangements for the cultivation of the said lands, for the collection of produce therefrom, for the payment of Kandayam over same and for the delivery of all produce from the lands to my wife, the abovementioned Nadiga Nanjamma and her children.
The properties mentioned in the B Schedule stand in the name of my wife, the abovesaid Nadiga Nanjamma. The income from these properties, as stated above, shall be used for the maintenance, education, Upanayanam and marriage of my children, during their minority. After my sons attain the age of majority, the income from the properties mentioned in the B Schedule only shall be used by my wife, the abovenamed Nadiga Nanjamma, for her own maintenance if she lives separate from any of major sons. The properties of the said B Schedule shall be liable to partition after the demise of my wife, the abovenamed Nadiga Nanjamma, among her surviving children.
With regard to the properties given in the C Schedule, that is, thrift deposits at the Bank of Mysore, Bangalore City, they shall be the property of each of my children on whose respective names those deposits have been made, after they attain their age of majority. Where Upanayams and marriages are to be performed for my children, if the income from other sources of my property are found insufficient to meet the expenses, my wife the abovenamed Nadiga Nanjamma is entitled to withdraw from the respective deposits not more than Rupees three hundred only (Rs. 300/-) for each Upanayanam and not more than Rupees Five Hundred only (Rs. 500/-) (for each marriage), during the minority of my children.
With regard to the properties mentioned in B and D schedules, the investments, that is, stock and shares, may have to be altered in some cases either by conversion or by encashment and for the payment of further calls on some of the shares; my wife the abovesaid Nadiga Nanjamma is entitled only to transact the operations of conversion, encashment or payment of further calls on shares, as the case may be, and she the abovenamed Nadiga Nanjamma has also powers to reinvest the same in suitable securities, when necessary, through the Bank of Mysore, Limited, Bangalore City but the corpus in each case shall remain in-tact. Only the interest, dividend or other incomes of the above shares etc. might be used by my wife for the maintenance of herself and her children as stated above.
After any of my sons attain the age of majority if he, the major son, demands partition during the life time of my wife, the said Nadiga Nanjamma, he is entitled to get for his share the thrift deposit in the Bank of Mysore Limited, Bangalore City, standing in his name as mentioned in C. Schedule, and also to get his portion in items 2, 3, and 4 of the A Schedule and his portion in D Schedule of properties, with the exception of item 1 of A Schedule, the partition being determined according to the prevailing Hindu Law in force at that time. After the lifetime of both myself and my wife, the said Nadiga Nanjamma all the properties mentioned in the A, B and D Schedules shall be divided equally among my surviving children. If some of my sons happen to be still minors at the time of the demise of myself and my wife, the said Nadiga Nanjamma, my major sons shall be the guardians and Managers of the Minors sons' persons and properties. If all my sons, however, happened to be minors at the demise of myself and my wife, the abovenamed Nadiga Nanjamma, I appoint the following gentlemen as Guardians during my children's minority:
1. Mr. C. Nagappa, B.A.LL.B., Advocate, Lakshmi vilas Agrahar, Mysore.
2. B. Srikanta Rao, No. 9, 3rd Road, Chamarajpet, Bangalore City.
3. Mr. B. Ramaswariah, Retired School Master, No. 2, Sunkalpet, Bangalore City.
4. Mr. M.B. Varadarajengar, Advocate, Sultanpet, Bangalore City and
5. Mr. B.R. Subba Rao, Tutor, University College, residing at No. 1493, Kothwal Ramanna Street, Mysore.
I appoint the very same gentlemen as the Executors and Trustees of this Will after my lifetime to carry out my intentions in the same way in which I have charged my wife the said Nadiga Nanjamma to carry them out as stated above and the decision of the majority among the Executors and Trustees shall be binding on my wife and the rest of the Executors and Trustees.
The jewels that are on the person of my wife, the abovenamed Nadiga Nanjamma, and the Silver ware in her custody are her exclusive properties or Stree Dhana and my sons or other children have no right whatsoever on the same except when she bequeaths them to her children at the time of her demise.
A letter written by me and my wife, the said Nadiga Nanjamma, has been sent to the Bank of Mysore Limited, Bangalore City, informing them that my wife the abovenamed Nadiga Nanjamma is entitled to interest, dividends and other incomes due on the properties of B Schedule after my demise and that she the said Nadiga Nanjamma, has got powers after my demise to convert or encash Mysore State Loan Securities and encash Malleswaram Co-operative Bank Provident Fund Bond, standing in her name and to reinvest all the proceeds over same through the Bank of Mysore Limited, Bangalore City and she the said Nadiga Nanjamma is not entitled to take or use or otherwise dispose of the corpus of the properties noted in Schedule 8.
All the papers connected with the properties mentioned in A, B and D schedules are kept in safe custody with the Bank of Mysore Limited, Bangalore City, and the thrift deposit account pass Books of the Bank of Mysore Limited in favour of my sons B.N. Subba Rao, B.N. Shankara Rao, B.N. Visveswaraiah, B.N.Rama Rao, and B.N. Ganesh, as noted in Schedule C attached to this Will, are in personal custody of my wife. This Will, will come into force after my demise.
I hereby revoke all my former Wills and all codicils, if any.
Dated this Thirteenth day of March one Thousand Nine Hundred and Thirty Five.
Sd/-
N. NANJUNDIAH Retired Surgeon Mysore Medical Service.
Signed by the Testator in the presence of us both present at the same time, who in his presence and in the presence of each other have hereunto set out names and signatures as witnesses:
Sd/- (1) N. Vedantachar, Asst. Master, Practising Primary School, Bangalore, No. 8, lind Cross Road, Malleswaram, Bangalore. 13.3.1935.
(2) Hanumantha Rao Pawar, Retired Rasaldar, 195, Sampige Road, Malleswaram, Bangalore City. 3.3.1935.
A SCHEDULE OF PROPERTIES
1. House No. 318, 3rd Road, Margosa Avenue, Malleswaram, Bangalore city.
2.
3. = Description of lands in Kanarose.
4. B SCHEDULE OF PROPERTIES
1) Five percent 1955, Mysore State Loan Stock Certificate number 0400 for Rupees one thousand and Two hundred only.
2) Five and a half percent 1938 Mysore State Loan Stock Certificate number 0530 for Rupees Seven thousand and seven hundred only,
3) Six and a quarter percent 1940 Mysore State Loan Stock Certificate number 0690 for Rupees Seven Thousand, Six hundred and Seventy five only.
4) Twenty five shares of the Bank of Mysore Limited, Share Certificate Number A.2223 for five shares of rupees one hundred each numbered 15122-15126 and share certificate Number A.1650 for twenty shares of rupees one hundred each number 8525-8544. The total face value of these shares is two thousand and five hundred rupees only.
5) Malleswaram, Co-operative Bank's provident Fund Bond No. 277 dated 15.5.1933 for Rupees One thousand seven hundred and five only due on 18.5.1940.
The properties of this B Schedule stand in the name of my wife Nadiga Nanjamma (C) SCHEDULE OF PROPERTIES
1) Thrift deposit account number 8/109 of the Bank of Mysore Ltd., Bangalore City standing in the name of my son B.N.Subba Rao, for Rupees six hundred and seventy six and annas four only.
2) Thrift Deposit account number 8/110 of the Bank of Mysore Ltd., Bangalore City standing in the name of my son B.N.Shankar Rao for Rupees Eight Hundred and Seventy six and annas four only.
3) Thrift Deposit account number 8/111 of the Bank of Mysore Ltd., Bangalore City standing in the name of my son B.N. Viswesvaraiah for Rupees eight hundred and seventy six and annas four only.
4) Thrift Deposit account No. 8/112 of the Bank of Mysore Ltd., Bangalore City standing in the name of my son B.N.Rama Rao for Rupees Eight hundred and seventy six and annas four only.
5) Thrift deposit account number 9/489 of the Bank of Mysore Ltd., Bangalore City standing in the name of my son B.N. Ganesh for Rupees Eight Hundred only.
(D) SCHEDULE PROPERTIES
1. Three shares of rupees fifty each of the Malleswaram Co-operative Ltd., bearing Scrip Number 604, face value one hundred and fifty only.
2. Five shares numbers 3412 to 3416 of the Malleswaram Co-operative Bank Ltd., of Rupees fifty each bearing share certificate number one hundred and sixty seven. Face value is rupees Two hundred and fifty only.
3. Ten shares of rupees twenty five each of the Central Bank Ltd., Palai,Travancore State, Bearing Scrip No. 478 (four hundred and seventy eight). Face value rupees two hundred and fifty only,
4. Twenty shares of Rupees ten each of the Calicut Bank Ltd., Bearing Scrip Number one thousand one hundred and fifty four. Face value rupees two hundred only.
5. Thirty shares of rupees thirty each of the Malankara Bank Ltd., Tiruvalla, Travancore State, Bearing Script number one hundred and sixty four. Face value rupees nine hundred only.
6. Five shares of rupees and hundred each of the Industrial Investment Trust Limited of Bombay bearing Scrip No. 00583. Face value rupees five hundred only.
7. Thirty shares of the Travancore National Bank Ltd., Alleppey, Travancore State of rupees one hundred each. Share certificate one thousand and fifty one for shares numbers 1929 to 1938 and 8064 to 8084. Total face value rupees three thousand only.
8. Fixed deposit receipt number two thousand two hundred and seventy six, dated twenty ninth day of August, one thousand nine hundred and thirty two, for rupees two thousand three hundred and fifty only, falling due on the twentyninth day of August one thousand nine hundred and forty two, and bearing interest at six and a half percent per annum (The Mysore Provincial Co-operative Bank Ltd., the Apex Bank).
9(a). Twenty one shares of the Bombay Provincial Co-operative Bank Ltd., of rupees fifty each bearing Script number two thousand and one hundred and nineteen for ten shares numbers 14216-14225 and also script number three thousand two hundred and eighty eight for eleven shares numbered 211180 to 211190. The face value rupees one thousand and fifty only.
9(b) Two shares for rupees fifty each of the Bombay Central Co-operative Bank Limited bearing Scrip Number eight hundred ninety six for shares numbered 9607 and 9608. Face value rupees one hundred only.
Both the above Banks are now amalgamated into one Bank and stand in the name of the Bombay Provincial Co-operative Bank Appollo Street, Fort, Bombay.
10) Eighty three shares of rupees fifty each of the Quilon Bank Limited, Quilon, Travancore State, bearing Scrip Number four hundred and thirty six for twenty shares numbered 12223 to 12242 and scrip number four hundred and seventy one for ten shares numbered 13085 to 13094 and scrip number five hundred and eighty two for twenty shares numbered 15587 to 15606. The share certificate of another thirty three shares in the same Bank is awaited. The total face value of all the above shares is rupees Four Thousand and fifty only.
11) Ten shares of the Gokak Mills Ltd., Forbes Buildings, Homestreet, Appollo Bunder, B'bay of the face value of one hundred rupees each bearing scrip number five thousand four hundred and nine and five shares numbered 25724 to 25728 and share numbers 25804 to 25808 respectively. Total face value is rupees one thousand only.
12) Seven and a half percent seventeen preference shares of the Buckingham and Carnatic Mills, Limited, Madras, bearing Number 18990 to 19006 of the face value of rupees one hundred each and bearing scrip number three hundred and thirty eight. Total face value of these shares one thousand and seven hundred only.
13) Fifteen ordinary shares of the face value of rupees one hundred each of the Buckingham and Carnatic Mills, Limited, bearing Scrip Number Nine hundred and Seventy eight and share numbers 73354 to 73368. Total face value of these shares is rupees one thousand and five hundred only.
14) Three and a half percent 1854-55 India Loan Stock Certificate bearing Number M-38 for rupees five hundred only.
15) Twenty shares numbered 10750 to 10769 of rupees one hundred each, of the Travancore National Bank Limited, Alleppey, Travancore State, bearing share certificate number one thousand one hundred and thirty eight. The face value of these shares is rupees two thousand only.
16) Two shares number 35 and 135 of rupees one hundred each of the Orient Book Centre Limited, Bangalore City. The share Certificate number is twenty. Face value is rupees two hundred only.
17) Two hundred fully paid up ten rupee shares B. Preference eight and a half percent of Spencer and Co. Ltd, Mount Road, Madras, bearing Scrip Number three hundred and sixty five and share numbers 178695 to 178894 Total face value of these share is rupees two thousand only.
18) Fifty fully paid six and a half percent A preference shares of rupees ten each of Spencer and Co. Ltd., Mount Road, Madras, bearing Script Number four hundred and seventy Three and share numbers 127937 to 127986, Face value of these shares is rupees five hundred only.
19) Ten shares of rupees one hundred each of the Bank of Hindustan Ltd., Madras bearing Scrip Number one thousand and seventy three and share numbers 15758 to 15762 face value of these shares is rupees one thousand only.
20) Forty five fully paid up ten rupees seven percent Ordinary preference shares of Bosotto Brothers Ltd., Mount Road, Madras bearing Scrip Number one hundred and twenty four and share numbers 30121 to 30165. The face value of these shares is rupees four hundred and fifty only.
21) Fifteen ordinary fully paid ten rupees shares of Bosotta Brothers, Ltd., Madras, bearing Scrip Numbers 16612 to 16626. The face value of these shares is rupees one hundred and fifty only.
22) Five shares of rupees one hundred each of the South Arcot Electricity Distribution Company Ltd., 99. Poona-Malle High Road, Vepery Post Office, Madras, Certificate Number 655 and share number 3788 to 3792.
23) Ten shares of the Indo Carnatic Bank Ltd., 99, Armenian Street, Madras of rupees fifty each. The share certificates of these shares is awaited and the face value is rupees five hundred only.
24) Four Debentures numbered 4131 to 4134 of the face value of thirty five pounds each of the New Zealand Red Wood Forest Ltd., The Total face value of these debentures is one hundred and forty pounds only.
25) Two hundred and fifty rupees shares of Deman Greyhound Racing Company Ltd., bearing share certificate number one hundred and sixty five and share numbers 39868 to 40119. The face value of these shares is rupees two hundred and fifty only.
26) One six percent credit National Paris Bond of 1921 -number 5907833 of the face value of five hundred frances.
27) One fifty-two and half percent City of Paris 1892 bond number 584929 of the face value of one hundred francs.
28) One bond of series 058 - number 17742 of the Paris Exhibition 1925 - of the face value of one hundred franks.
29) One seven percent Madras Municipal Corporation Debenture for rupees five hundred only and
30) One six percent Madras Corporation Municipal Debenture for rupees five hundred only - ten number 29 and 30 are endorsed in favour of the Bank of Mysore Ltd., Bangalore City, against an cverdraft allowed me in the current account of myself and my wife Nadiga Nanjamma and become redeemable when the overdraft account is closed.
31) Two six and a quarter percent Mysore State Loan Bonds of Rupees one hundred each now in the custody of the Comptroller to the Government of Mysore, having been offered as Security Deposit in favour of my Father-in-law Nadiga Nanjappa. Octroi Mutsaddi, Bhadravathi Municipality. This becomes redeemable after the retirement of my father-in-law the said Mr. Nadiga Nanjappa.
Sd/-
N.S. NANJUNDIAH Retired Surgeon Mysore Medical services.
Signed by the testator in the present or us both present at the same time, who is his presence and in the presence of each other having hereunto set out signature as witnesses:
1) Sd/- N.Vedantachar, Asst. Master Practicing Primary School, Bangalore, No. 8, II Cross Road, Malleswaram, 13.3.1935.
2) Sd/- Hanumantha Rao Powar, Retd. Rasaldar, 195., Sampige Road, Malleswaram, Bangalore City.
13.3.1935.
Presented in Bangalow No. 318, III Road, Margosa Avenue, Malieswaram, Bangalore City in 16th March 1935 at 6 P.M. by Execution admitted by Sd/-
N.S. Nanjundiah L.T.Mark Identified by:
Sd/- Hanumantha Rao Powar, Retd., Rasaldar, 195, Sampige Road, Malleswaram, Bangalore City.
Sd/- B. Krishna lyengar Sub-Registrar, Bangalore City.
16.3.1935.
Registered as No. 45 of Book III, Vol.8 Pages 142 to 153. Fee levied Rs. 25/-. Private attendance fee Rs. 10/- in all Rs. 35/-.
Sd/-
B. Krishna lyengar Sub-Registrar, Bangalore.
20.3.1935.
CODICIL The nomination of five trustees made by me in the body of this Will is hereby cancelled.
Sd/-
Mlleswaram, N.S. Nanjundiah Retd. Surgeon.
95.1937.
Signed by the Testator in our Presence and signed by us in "he presence of each other.
Sd/-
K.V. Narayanao Rao, B.Sc.
(Course) S/o. Venkataramaiah Shanbhogue Kadaba, Gubbi Tq.
Tumkur District.
Sd/-
H.V.Anniaya, 318, Margosa Avenue, Malleswaram, 9.5.1937.
P.O., Bangalore.
TRUE COPY Sd/-
(Not clear) Compared executing the Kannada Portion re-discription of lands in items 2 to 4 of 'A' Scheduled (Vide P.8 and 9 of the original Will) with the original and found to agree.
Sd/-
(Not clear) 2.1.66."
From the recitals in the Will, as far as A Schedule Property is concerned, the testator has devised and bequeathed as follows:
"With regard to the house (item No. 1 of Schedule A) my wife, the abovenamed Nadiga Nanjamma and her children are entitled to live in that house during the life time of my wife and the said house shall not be partitioned during my wife Nadiga Nanjamma's fife time."
5. Items 2, 3 and 4 in A Schedule are lands situate in Kanarose and the testator has also made it clear that his wife having no powers affecting sale, gifting, mortgaging, hypothecating and executing a will whatsoever in respect of A, B, C and D Schedule Properties. Further, testator has made his intentions clear by making a devise in the following manner:
"After my sons attain the age of majority if the major son demands partition during lifetime of my wife the said Nadiga Nanjamma, he is entitled to get for his share the thrift deposit on the Bank of Mysore Ltd., Bangalore City standing in his name as mentioned in 'C' Schedule and also to get his portion in items 2, 3 and 4 of 'A' schedule and his portion in 'D' Schedule of properties with the exception of item 1 of A Schedule, the portion being determined according to the prevailing Hindu Law in force at that time. After the life time of both myself and my wife, the said Nadiga Nanjamma, all the properties mentioned in A, B and D Schedules shall be divided equally among my surviving children."
6. From the evidence on record it is to be stated that none of the sons of Dr. N.S.Nanjundiah demanded partition after they attained majority and the fact remains that Nadiga Nanjamma died on 28.3.59 whereas plaintiff's husband B.N.Subba Rao died on 21.2.54. Since there was no demand for partition the properties left behind by Dr. N.S. Nanjudiah remained in the hands of Nadiga Nanjamma without any division and the question of distribution of the estate as envisaged by the Testator did not arise to any one testators sons who attained majority and the fact remained that Nadiga Nanjamma was managing and having control over all the assets of the Testator (Schedule A, B, C & D properties) during her lifetime.
7. Main contentions advanced by the plaintiff is that immediately after the death of Dr. N.S. Nanjundiah, the right to succeed to the estate accrued subject to the demand of partition by metes and bounds to all the surviving legal heirs and since her deceased husband was surviving the testator, the intentions of the testator regarding the shares to be distributed have to be carried out and in the eventuality her husband would get 1/5 share in all the schedule properties and also having in view of the subsequent death of Nadiga Nanjamma even in respect First Item of A Schedule property.
8. The defendants have contested the case and have raised several contentions warranting plaintiffs disentitlement to her share derived through her deceased husband B.N.Subba Rao. One of the main contention raised by the defendants being that right to a share would not accrue to any of surviving legal heirs during the lifetime of Nadiga Nanjamma and it would accrue to only after the death of Nadiga Nanjamma, the surviving legatees would get a right in the Schedule properties. Moreover, the Will executed- by Dr. N.S.Nanjundiah is explicit in its terms that it is open for any surviving son to demand partition after attaining majority which is a specified event
9. Since deceased Subba Rao did not demand any partition after his attaining majority and lived with his mother and brother and got married without asserting any of his legal rights as enjoined under the Will it is not open for deceased Subba Rao's successor in interest the plaintiff to demand the share allowable to her deceased husband since Subba Rao did not carve out his rights during his lifetime and if intentions of the testator is given effect then in that event only the surviving sons of Nadiga Nanjamma would get legal rights in the A to D Schedule properties; after her demise in whose favour life interest was created.
10. The Court of the First instance framed Five issues they being:
"1. Did the plaintiff's husband became entitled to a vested right for 1/5th share in the properties of his father under the Will subject only to the rights conferred on the mother during her life, when his father died?
2. If so, is not the plaintiff entitled to the one fifth share of her husband in the properties mentioned in the Will?
3. Is the alleged 2nd Marriage of plaintiff true and even so, is she thereby disqualified to claim the share of her husband in the suit properties.
4. Is the suit barred by time?
5. To what reliefs is the plaintiff entitled?"
11. The Court of the 1st instance while assessing evidence on record decreed the suit in the following manner:
"(a) It is hereby declared that the plaintiff is entitled to a 1/5th share in the suit 'A' to 'D' schedule properties. She shall be entitled to partition and separate possession of her share in the 'A' schedule property. The partition and seperate possession in that item shall be effected by a Commissioner to be appointed by this Court.
(b) The defendants are hereby directed to pay to the plaintiff her 1/5th share in the amounts covered by the securities described in the plaint 'B' 'C' and 'D' schedules including the interest or dividend which have accrued.
(c) There shall be an enquiry for future mesne profits under Order 29 Rule 12 CPC from the date of suit till the date of delivery of possession in respect of the suit 'A' schedule property. The plaintiff is entitled to recover mesne profits so determined from the defendants.
(d) The defendants shall pay the costs of this suit to the plaintiff. Advocate fee shall be calculated as per rules of practice.
(e) A preliminary decree under Order 20 Rule 18 CPC in these terms shall be drawn up."
12. Aggrieved against the decree passed by the Court of the first instance the defendants have preferred this Appeal.
13. Number of Authorities were cited at the Bar in respect of the propositions advanced. We are of the view that ratio relied upon are not much assistance in the context of reasonings which we are proposing to take.
14. The only question which requires any notice in this Appeal is about the proper construction to be placed under circumstances on the words 'surviving children' as used by the Testator in the order to give effect to the legatees under the Will.
15. The words 'Survive', 'Survivors', 'Surviving' should be taken in their literal and ordinary import unless there is something in the context, or attending circumstances which shows that they were used in a different sense.
16. 'Survivorship' is to be referred to the time when the property or fund is divisible. If there be no previous interest given in the legacy, then the period of division is the death of the testator and the survivors will take whole legacy, but if a previous life estate be given then the period of division is the death of tenant for life and the survivors at such death will take the whole legacy. If there is life interest those who survive the tenant for life take the whole and if the tenant for life dies before the testator those who survive the testator take the whole.
17. If the gift is after a life interest to survivors to be paid at 21 or some similar direction as to attaining a given age, question is whether survivorship refers to the death of tenant for life or to the attainment of given age, prima facie it refers to the former. But the words of survivorship may be so connected with the direction for payment at 21 as to show that by survivors are meant those who attain 21 for instance, if after life interest the gift is to a class with benefit of survivorship upon their attaining 21 or to be paid upon their attaining 21 with benefit of survivorship among them in such cases a gift over, if all the beneficiaries die before tenant for life affords strong reason to suppose that survivorship refers to the death of the tenant for life, on the other hand if the gift over is upon death of all before given age, there is equally strong reason to suppose that survivorship refers to the age. The time of division on the death of tenant for life seems to be the leading idea in the testators mind and then those living take.
18. If the gift to survivors is not limited to the period of a life tenancy but it is to take effect upon the happening of some event, the survivors must be ascertained whenever that event happens.
19. Where the gift over is to take place if the event on which property is limited to the first legatees, among whom there is to be survivorship fails to happen in respect of all the legatees 'survivor' will be construed others so as not to cause any intestacy,
20. ROMILY MASTER OF ROLLS in one of his classical Judgments has observed as to the concept of the word 'survivor' in RE CLARK * 13 WR 115 which is as follows:
"My opinion is that the meaning of the word survive or survivor imports that a person who is to survive must be living at the time of the event which he is to survive.
I have consulted Johnson and Richardson and the authorities cited by them and in all instances it appears to me to mean to 'out live' that is to be alive at the time of particular event or death of particular person which event the other is to survive. It is true that Dr. Johnson puts as one of the meanings 'to live after another.'. But all the passages from English Writers cited tend to conclusion that the person who survives an event must be living at the time when that event takes place and to 'live after' is some what ambiguous in itself."
21. It is very significant to note that as far as 'B' Schedule properties are concerned testator has made it clear that:
"The properties mentioned in the 'B' Schedule stand in the name of my wife. The income from these properties as stated above shall be used for the maintenance, education, upanayam and marriage of my children during minority. After my sons attain majority, the incomes from the properties mentioned in 'B' Schedule only shall be used by my wife, the above named Nadiga Nanjamma for her own maintenance if she lives seperate from any of major sons. The properties of the said 'B' Schedule shall be liable to partition after the demise of my wife abovenamed Nadiga Nanjamma among her surviving children."
22. Even in regard to 'C' Schedule properties, the intentions are clear that if in case from other sources are found insufficient then to the extent mentioned in respect of each event, ascertained sum to be used.
23. It is also to be noted that in the absence of specified event happening namely demise of any one of the surviving sons for partition, testator has made his intentions clear as to how the properties mentioned in the schedules except 'C' Schedule have to be divided which reads:
"After life time of both myself and my wife the said Nadiga Nanjamma all the properties mentioned in A, B and D schedules shall be divided equally among my surviving children."
24. By virtue of the above clause what is to be inferred is that rights were given to the surviving children after the death of the testator to demand partition subject to the conditions imposed and in the absence of such demand, it is made clear that division to take place after the death of his wife Nadiga Nanjamma among the surviving children which is to be stated is beyond any doubt. That is if no partition has taken place, then whosoever survives Nadiga Nanjamma, properties mentioned in Schedules A, B, D would devolve on them.
25. Admittedly B.S. Subbarao did not demand partition during his life time after attaining majority and Nadiga Nanjamma continued to manage the properties, during her life time and it is also admitted that when Nadiga Nanjamma died, B.S.Subba Rao had already expired and as such under no stretch of imagination it could be stated that B.S. Subba Rao had a right title interest in the properties except to demand partition by metes and bounds which specified event did not happen during life time of Nadiga Nanjamma.
26. The reasons adapted by the Court of the First Instance do not stand to reason. But one discerning factor to be noted from the tenor of the Will is that as far 'C' Schedule properties are concerned, intentions of the Testator was clear which could be gathered by namely:
"With regard to the properties given in 'C' Schedule that is thrift deposits at the Bank of Mysore, Bangalore City they shall be the property of each of my children on whose respective names those deposits have been made after they attain their age of majority."
27. By virtue of this clause, the specified event has happened namely Subbarao attaining majority and when such is the case, the intentions of the testator if carried out in this spirit, the thrift deposit No. 8/109, the Bank of Mysore Ltd., Bangalore its standing in the name of B.N. Subba Rao for Rs. Six hundred and seventy six and annas four only became vested with B.S. Subba Rao even during the life time of Nadiga Nanjamma: As such the plaintiff would be entitled to a relief sought for only io the extent her husband's interest in 'C' Schedule property and her claim for other relief in respect of A, B & D Schedule properties have to be negatived. Regular Appeal is allowed in part.
28. It is hereby declared that the plaintiff is not entitled to 1/5th share in the A, B and D schedule properties but she is entitled only to amount (Rs. 676-4 annas) standing in the name of her husband in thrift deposit account No. 8/109 State Bank of Mysore, Bangalore City with interest accrued.
29. Parties are directed to bear their own costs, Decree to be drawn-up accordingly.