Siddamurthy Jayarami Reddy (D) By Lrs vs Godi Jaya Rami Reddy & Anr

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.

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.

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. 7

(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

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 15 relate to immoveable properties situate within the local limits or territories as set out in clause (a). In this view of the matter, clause

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 17 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".

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 18 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".

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.

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.

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

(R.M. Lodha) NEW DELHI, APRIL 1, 2011.