Madras High Court
R. Ramachandran vs R. Govindaraju on 6 November, 1990
Equivalent citations: (1990)2MLJ503
JUDGMENT Srinivasan, J.
1. The first defendant who has failed in the Courts below is challenging the decree granted in favour of the respondent herein in this appeal. The short facts are, the suit property belonged to one Nachiar Ammal who was the aunt of the appellant as well as the respondent. They are related to her as her brother's sons. She executed a Will on 23.11.1951 marked as Ex. B.1 bequeathing her property to the plaintiff. In the Will, it is stated expressly that even during her husband's lifetime, the plaintiff was brought up from his childhood as "Abhimanputra" (foster son). There is no dispute about the genuineness of the said Will. That Will was revoked by Nachiar Ammal by a deed dated 27.3.1962. In the revocation deed, no reason is given for cancelling the Will. It merely records that the Will is cancelled.
2. Nachiar Ammal executed another Will on 21.4.1973 which was registered on 24.4.1973. In the Will, the following recital is the relevant one for the purpose of this case:
As per the said recital, the property is given to Ramachandran who was accepted as foster son even during the lifetime of the husband of the lady. She died on 28.6.1973, i.e., about two months after the Will.
3. The plaintiff claimed that the property was bequeathed to him by Nachiar Ammal under the Will dated 21.4.1973 though the name of the legatee is wrongly mentioned as Ramachandran (first defendant). According to him, he was the foster son of Nachiar Ammal and her husband and he was brought up by them throughout from his childhood. Hence, the plaintiff claimed that he was entitled to the property and prayed for declaration of his title and recovery of possession.
4. The second defendant in the suit was added as a party as Nachiar Ammal had raised sugarcane crops in item 2 of the suit properties on getting loan from the second defendant. The second defendant had no interest in the suit as such and he raised a plea that he was an unnecessary party.
5. The first defendant/appellant contested the suit. According to the appellant, he was the foster son of Nachiar Ammal and he was staying with her during his childhood and he had his studies from 8th Standard to S.S.L.C. only at Lalgudi when he was living with Nachiar Ammal. According to him, the Will clearly mentions his name as the legatee, and it was repeated in more than three places in the Will and, therefore, there is no doubt that the property was bequeathed to him by Nachiar Ammal.
6. The Courts below have on the evidence on record came to the conclusion that though the name of the appellant was found in the Will as the legatee, the person who was intended by Nachiar Ammal to be benefitted by the Will was the plaintiff and by an error, the name of the appellant was mentioned. The Courts below have accepted the case of the plaintiff that he was the foster son of Nachiar Ammal and her husband and the appellant would not fit in with the description found in the Will.
7. In this second appeal, it is contended by learned Counsel for the appellant that the Courts below are in error in overlooking the circumstance that the property was bequeathed under the Will to the appellant is persona designata. According to learned Counsel, there is clear indication in the Will that the appellant is the beneficiary as his name is mentioned in four places in the Will. Learned Counsel also invites my attention to the evidence given by D.W.I, the attestor to the Will and places strong reliance on the version of D.W.I that Nachiar Ammal identified the appellant herein as the legatee before the Sub-Registrar at the time of registration of the Will. Learned Counsel also referred to certain authorities in support his claim.
8. Before considering the so called question of law raised by learned Counsel for the appellant, it is necessary for me to advert to the following facts which are not disputed. Ex. A.4 is an invitation for the plaintiff's marriage. That was issued by Nachiar Ammal. The plaintiff has been described as her adopted son and the natural son of R.M. Rengasamy Naidu; her brother. In the list of best compliments, the name of the 1st defendant's father is also found. The genuineness of the document is not in dispute. There was no motive for Nachiar Ammal to describe the plaintiff as adopted son in 1956. Learned Counsel makes a comment that the description found in the invitation is wrong if not false as admittedly there was no adoption of the plaintiff by Nachiar Ammal. The contention has no force as Nachiar Ammal considered the plaintiff as her adopted son even though there was no formal adoption as required by law. There is nothing wrong in people describing their foster sons as adopted sons, even if it would not confer the status of an adopted son in law on such persons. At any rate, the document shows that Nachiar Ammal was treating the plaintiff as good as her adopted son.
9. Ex. B.1 is the registered Will executed by Nachiar Ammal on 23.11.1951. The property was bequeathed under the said Will to the plaintiff who was described in unequivocal terms as the foster son (Abimanaputra) of Nachiar Ammal and her husband. The language used in the document is quite significant The relevant portion of the recital is as follows:
This language is repeated in Ex. B.6, the Will under which the appellant is claiming. When Nachiar Ammal chose to describe the legatee under Ex. B.6 as the foster son who has been brought up even from the time when her husband was alive, there is no doubt that she wanted to give the property to the same person to whom she. bequeathed the property under the earlier Will, Ex. B.1. There is nothing on record to show that after Ex. B.1, the relationship between Nachiar Ammal and the plaintiff got strained and she cancelled Ex. B.1 because of such strained relationship. As pointed out already, the cancellation deed does not make any reference whatever to the reason for cancellation. On the other hand, there is overwhelming documentary evidence to prove that the relationship between the plaintiff and Nachiar' Ammal continued to be cordial and the lady was treating the plaintiff as her son and the plaintiff was treating her as his mother. The correspondence between the plaintiff and Nachiar Ammal is marked as Exs.A.5 to A.12. It ranges from 10.2.1972 to 3.1.1973. There is no reason as to why the evidence supported by the documents referred to above should be rejected. The Courts below have rightly accepted the same and nothing warrants an interference therewith by this Court in a second appeal under Section 100 of the Civil Procedure Code.
10. In the light of the above facts, it is clear that the description found in Ex. B.6 fits in only with the plaintiff and not with the appellant though the name of the appellant is mentioned in the Will in four places. It is quite obvious that Nachiar Ammal wanted to give her property only to her foster son who was brought up by her and her husband arid she did not intend to give to any other person. Hence, on the facts I agree with the Courts below that under Ex. B.6, the legatee is the plaintiff and not the appellant.
11. Learned Counsel for the appellant invites my attention to the provisions of Section 76 of the Indian Succession Act. The Section reads as follows:
Misnomer or Misdescription of object: (1) Where the words used in a Will to designate or describe a legatee or a class of legatees sufficiently shows what is meant, an error in the name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be correct by the name.
This Section is really against the appellant and' does not support his contention. Learned Counsel places reliance on illustration (ii). In that illustration, the legatee was described as the second son of the brother of the executant of the Will. But, actually the legatee happened to be the first son. According to the illustration, the legacy will go to the person named Thomas though he was the first son and not the second son as described in the Will. That illustration will not have any bearing on the present case. Here, the description is Abimanaputra or foster son. On the facts, it is found that the plaintiff was the only person who was the foster son of the executant of the Will. Hence, it cannot be contended by the appellant that illustration (ii) to Section 76 of the Act would apply to this case and it should be held that the bequest is in his favour.
12. Learned Counsel cited the judgment of the Supreme Court in Ranganathan Chettiar and Anr. v. Periakaruppan Chettiar and Ors. (1958) 1 M.L.J. 36. The descriptive clause in the Will referred to the legatee as adopted son Ranganathan though in the other clauses, he was referred to Ranganatha. It was contended that the validity of adoption was a precondition for the disposition to take effect. The Supreme Court held that the question as to whether a disposition in such terms is to the person intended as a persona designata or by reason of his filling a particular legal status, arising individual cases, must ultimately depend on its own facts and to terms of the particular document containing the disposition. On the facts of that case, the Suprerne Court held that the property was intended to be bequeathed to Ranganathan though he 'did not fulfil the description as adopted son. I have already expressed the view on the facts of this case the doctrine of persona designata will not apply and the property was intended to be given to the plaintiff who was the foster son of Nachiar Ammal.
13. The next ruling cited by learned Counsel for the appellant is that of the Supreme Court in Yelamanchili Siva Panchaksharamma v. Yelamanchili Chinnabbayi (1967) 1 M.L.J. 1 S.C. Here again, the Supreme Court reiterated the proposition that whether a disposition of the properties contained in a Will in favour of a person as a persona designate or by reason of the beneficiary fulfilling a particular legal status is really one of intention of the testator which must be ascertained from the language of the various clauses of the Will and the surrounding circumstances of the execution of the Will. Applying the said principle to this case, it is clear that the testatrix intended the property to be given to and taken by the plaintiff and not the appellant.
14. Learned Counsel placed reliance on Banwari Lal v. Trilok Chand and Ors. . In that case, it was held that the statement made by the testator in a Will about a person being his adopted son is certainly a piece of admissible evidence, but the statement cannot be regarded as conclusive and the burden of proving his adoption lies heavily on that person. In this case, the evidence on record is overwhelming to show that the plaintiff is the foster son as described in the Will and he has discharged the burden to the satisfaction of the Courts of fact There is no fallacy in the reasoning of the Courts below or any infirmity in the discussion or appreciation of the evidence.
15. In the circumstances, the second appeal fails and it is dismissed with costs.