SIDDAMURTHY JAYARAMI REDDY (D) BY LRS.versusGODI JAYA RAMI REDDY & ANR.

                        [2011] 4 S.C.R. 176

A        SIDDAMURTHY JAYARAMI REDDY (D) BY LRS.
                                  v.
                 GODI JAYA RAMI REDDY & ANR.
                  (Civil Appeal No. 2916 of 2005)
                           APRIL 1, 2011
B
               [AFTAB ALAM AND R.M. LODHA, JJ.]

        WILL:

c      Construction of will - Defeasance clause in the will -
  Effect of- Testator bequeathing all his properties to his grand-
  daughter by a will - Further clause in the will that if his
  daughter did not take a son in adoption and if that son did
  not marry his grand-daughter, then he intended to give 113
D share in the property to his daughter and son-in-law together
  - Held: The will must be read and construed as a whole to
  gather the intention of th.e 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
E contained in will should be given effect to, as far as possible
  consistent with the testator's desire - The legacy vested in the
  grand-daughter, albeit, defeasibly to the extent of 113 share
  upon happening of any of the events mentioned in the will -
  The clause in the will is not a repugnant condition that
F invalidates the will, but a defeasance provision - Hindu Wills
  Act, 1870 - s. 2 - lnian Succession Act, 1865 - Indian
  Succession Act, 1925 - ss. 57(a), (b), 147 and 74 to 111.

        WILL
G
         Will in favour of minor - Obligation cast upon the
    guardian/executor - Failure to perform the obligation - Effect
    of - Explained.

        One 'BS' who had his dependents and other
H                        176
  SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.. 177
        GODI JAYA RAMI REDDY & ANR.
  relations, namely, his wife 'S', daughter 'P', son-in-law ,A
  'RR', widowed daughter-in-law, grand-daughter 'LX'
  (daughter of predeceased son) and a widowed sister,
  executed a will on 21.5.1920 bequeathing all his movable
  and immoveable properties to his grand- daughter 'LX'.
  As 'LX' was a minor, the testator appointed his son-in-law B
  (.RR) as executor of the will. As 'P' and 'RR' had no issue,
  the testator expressed his desire in the will that 'P' would
  take a son in adoption with the consent of her husband
  'RR' and that his grand -daughter 'LX' be married to such
  adopted son of·~·. It was further provided in the will that c
  'RR' and 'LX' would look after all the other female
  members in the family; that in case his daughter 'P' did
  not take any boy in adoption or if the boy so adopted did
  not accept to marry 'LX', then 1/3 share of the property
  would go to 'P' and her husband 'RR' and 2/3 to 'LX'. After D
. few years of death of 'BS', 'P' wanted to adopt a boy
  namely 'GVR' but 'RR' did not agree and left the village
  and his wife 'P', and settled in a different village where
  he performed a second marriage out of which two sons
  'JR' and 'SR' were born. In due course "LX' married 'GVR' E
  and a son 'GJR' was born to them. Soon thereafter 'GVR'
  died and with the passage of time 'RR' and 'P' also died.
  'LX', the legatee, also died in 1971.
     In 1980, the two sons of 'RR' born out of the second
marriage filed a suit for partition claiming 1/3 share in the F
property bequeathed by 'SB' as also for rent and profits.
The suit was contested by the defendants stating that
after 'RR' abandoned 'P' and his rights to the property,
'P' bequeathed her share in the property to 'LX' in 1953.
The trial court passed a preliminary decree in favour of G
the plaintiffs. On appeal by the defendants, the High Court
held that 'RR' failed to discharge both the obligations -
in maintaining the dependants of the testator and in
acting as the executor - and, therefore, he could not claim
any property under the will; and that the will executed by H
    178       SUPREME COURT REPORTS              [2011] 4 S.C.R.


A 'P' in 1953 was genuine. The High Court allowed the
  appeal and dismissed the suit. Aggrieved, the plaintiffs
  filed the appeal.
          Dismissing the appeal, the Court
B        HELD: 1.1. By the Hindu Wills Act, 1870, 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, by virtue of s. 2 thereof certain provisions of the
c   Indian Succession Act, 1865 were made applicable to all
    such wills and codicils. Clauses (a) and (b) of s.57 of the
    Indian Succession Act, 1925 are pari materia to clauses
    (a) and (b) of s. 2 of the 1870 Act. [Para 21.-22] [191-E; 193-
    D]
D       1.2. In the instant case, the will dated 21.5.1920 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
  s. 57 of the Indian Succession Act, 1925 is apparently not
E attracted. Since the subject will is not covered by any of
  the clauses of s. 57, Part VI of the 1925 Act is not
  applicable thereto. Further, the parties were ad idem that
  s .. 141 of.the 1925 Act, as it is, has also no application at
  all. Although the statutory provisions concerning
F construction of wills from ss. 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. [Para 23-25] [193-F-H; 194-B-C]
       1.3. It is well settled that the court must put itself as
G 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 consideration must very
  much depend the effect to be given to the testator's
  intention, when ascertained. The will must be read and
H construed as a whole to gather the intention of the
  SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.            179
        GODI JAYA RAMI REDDY & ANR.
testator and the endeavor of the court must be to give        A
effect to each and every disposition. In ordinary
circumstan~es, 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. [Para 26)    B
[194-D-E]
     1.4. In the instant case, the only son of the testator
had predeceased him. At the time of execution of the will,
he had his wife, widowed sister, widowed daughter-in-
law, daughter and minor granddaughter surviving; the          C
only other male member was his son-in-law - 'RR'. 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      o
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 son of his daughter.
He expressed in unequivocal terms, "after my demise,
my granddaughter 'LX' who is the daughter of my son           E
shall have absolute rights in my entire properties". [Para
27] [194-F-H; 195-A]
     1.5. The testator gave two very particular directions
in the will that until 'LX' attained the age of majority and
attained power to manage the properties: (1) 'RR' shall F
act as an executor till then and (2) the executor shall look
after the female members in the family, namely, his wife,
widowed daughter-in-law, daughter 'P', widowed sister
and granddaughter 'LX'. 'RR', thus, was obligated to carry ·
out the wishes of the testator by managing his properties G
and looking after the minor granddaughter 'LX' till she
attained majority and also to look after other female
members in the family. 'RR' neither continued as a
guardian of minor granddaughter 'LX' nor did he look
after the testator's wife, widowed daughter-in-law, H
   180      SUPREME COURT REPORTS             [2011] 4 S.C.R.


A widowed sister and daughter. The female folk were left
  in lurch with rio 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. It can not be said that abandonment was not
a voluntary and conscious. [Para 28, 35 and 36] [195-B-C;
  197-F-G]
       1.6. 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
C in the will. However, he superadded a condition that,
  should his daughter 'P' and son-in-law 'RR' 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
o 'P' and her husband 'RR'. The bequest to the extent of 1/
  3rd share in the properties of the testator in favour of 'P'
  and her husband 'RR' jointly was conditional on
  happening of an uncertain event. As a matter of fact and
  in law, immediately after the death of testator in 1920,
E what became vested in 'RR' was not legacy but power
  to manage the properties of the testator as an executor;
  the legacy vested in 'LX', albeit, defeasibly to the extent
  of 1/3rd share. The only event on which the legacy to 'LX'
  to the extent of 1/3rd share was to be defeated was upon
F happening of any of the above events. The said clause
  in the will is not a repugnant condition that invalidates the
  will but is a defeasance provision. It can not, therefore,
  be said that on the death of testator in 1920, the legacy
  came to be vested in 'RR' and once vesting took place,
G it could not have been divested. [Para 34] [196-F-H; 197-
  A-B]
       Mt. Rameshwar Kuer & Anr. v. Shio/al Upadhaya and Ors
   AIR 1935 Patna 401 -referred to.
      1.7. The conditional legacy to 'RR' (to the extent of
H 1/3rd share jointly with 'P') was not intended to be given
   SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.             181
         GODI JAYA RAMI REDDY & ANR.
 to him if he happened to be instrumental in defeating the      A
 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         B
 legacy to the extent of 1/3rd share cannot be held to have
 ever vested in 'RR' jointly with 'P' as it was he who
 defeated the adoption of son by the testator's daughter.
 As a matter of fact by his conduct, 'RR' rendered himself
 disentitled to any legacy. [Para 37] [198-B·C]                 c
       1.8. Not only that 'RR' 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        D
  came into operation when 'LX' married 'GVR' who could
  not be adopted as son by 'P', 'RR' had already left the
  testator's family for good and abandoned the legacy that
  could have come to him under that clause. [Para 38) [198-
. D·E]                                                          E
      2.1. The plea of the appellants that RR's famUy 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
                                                                F
 by the trial court as well as High Court. This Court has
 no justifiable reason to take a different view on this
 aspect. [Para 39) [199-FJ
     2.2. Importantly, 'RR' during his life time - although
 he survived for about 19 years after the death of the          G
 testator - never claimed any legacy under the subject will.
 [Para' 40] [199-G]
     2.3. All in all, on the construction of the will and, in
 the circumstances, it must be held, and this Court holds
 that no legacy came to be vested in 'RR' and he did not        H
    182      SUPREME COURT REPORTS               [2011] 4 S.C.R.


A   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 the testator. [Para 41] [190-
    H; 199-A]
      (Katreddi) Ramiah and another v. Kadiyala Venkata
8
  Subbamma and others A.l.R. 1926 Madras 434; Balmakund
  v. Ramendranath Ghosh A.LR. 1927 Allahabad 497; Ratansi
  D. Morarji v. Administrator-General of Madras A.l.R. 1928
  Madras 1279; Bhojraj v. Sita Ram and others A.l.R. 1936
  Privy Council 60; Ketaki Ranjan Bhattacharyya and others
C v. Kali Prasanna Bhattacharyya and others A.l.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.l.R. 1957 S.C.
  815; Darshan Singh and others v. Gujjar Singh (Dead) By
D LRs. and others (2002) 2 SCC 62; Govindammal v. R.
  Perumal Chettiar and others (2006) 11 sec 600 and
  Govindaraja Pillai and others v. Mangalam Pillai and another
    A.l.R. 1933 Madras 80 - cited.

E
                         Case Law Reference:
       AIR 1935 Patna 401              referred to para 31

       A.l.R. 1926 Madras 434          cited         para 43
F      A.1.R. 1927 Allahabad 497       cited         para 43
       A.1.R. 1928 Madras· 1279        cited         para 43
       A.LR. 1936 Privy Council 60 cited             para 43

G      A.l.R. 1956 Tripura 18          cited         para 43
      (1957) SCR 195                   cited         para 43
      A.l.R. 1957 S.C. 815             cited         para 43
      (2002) 2 sec 62                  cited         para 43
H
 SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.                  183
       GODI JAVA RAMI REDDY & ANR.
  (2006) 11 sec 600                cited         para 43           A
  A.l.R. 1933 Madras 80            cited         para 43

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2916 of 2005.
                                                                   B
    From the Judgment & Order dated 21.4.2003 of the High
Court of Andhra Pradesh at Hyderabad in Appeal No. 397 of
1987.

    R. Sundaravaradan, V. Sridhar Reddy, Ch. Leela
Sarveswar, Abhijit Sengupta for the Appellants.                    C

     P.S. Narasimha, K. Parameshwar (for Sudha Gupta). for
the Respondent.

    The Judgment of the Court was delivered by
                                                                   D
      R.M. LODHA, J. 1. 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 Gandia, Badwel Taluq, Cuddapah District. The
question is one of construction upon which the two courts - High   E
Court and trial court - are not in accord and, have taken
divergent view.

     2. At the time of execution of the will, Bijivemula Subba
Reddy - a Hindu - was aged about 75 years. He had his wife         F
Subbamma, daughter Pitchamma, soncin-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    G
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 U;e undisputed fact, that the testator,      H
    184       SUPREME COURT REPORTS                  [2011) 4 S.C.R.

A 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
8
  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.
         4. The will is written in vernacular (Telugu). The correctness
C 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'·
D
          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
E         is living. I had one son by name Se.sa 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
F         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
G         consent of her husband.
                As I am old I could not [si.GJ able to.run my family.
          After the death of my son, since 15 yeal'Si the above
          persons are looking after my family and my welfare .
                                                .,

H               I have also one widow sister by name Chennamma. ,
                                              -----
SIDDAMURTHY JAYf\RAMI REDDY (D) BY LRS. v.               185
GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
   She is living with me since 30 years. She is also helping    A
 . 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, B ..
  moveable and immovable properties to the said
  Lachumma and the adopted son of my daughter
  Pitchamma. But my 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 · C
  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 D
   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 haveione
   house in Katha Laxmipally village, of Kathera gandla E
   majira and in·thaf I have 1/3rd share. I' also have bonds ·
   and securities and promiss'Ofy '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 . F
   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,                   G
          Lachumanima who is the daughter of my son shall
          have absolute rights in my entire properties,
    (2)   As my grand daughter is minor, till she attafns the
          age of majority and attains power to manage the       H
    186          SUPREME COURT REPORTS                 [2011) 4 S.C.R.


A                 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
B                 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 my widow sister
                  Chennamma, the present guardian, Ramireddy
c                 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
D                 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
E
                  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
F                 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
G         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
H but her husband Rami Reddy did not agree to that adoption.
 SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.                    187
 GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
Rami Reddy left the Village Chennavanm, his wife Pitchamma           A
and settled in other village - Pappireddypally. Rami Reddy then
married with 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.
                                                                     B
    · 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;             C
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 -            D
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          E
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.

     8. The defendants traversed the claim of the plaintiffs and     F
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.                                       H
    188      SUPREME COURT REPORTS                 [2011] 4 S.C.R.

A       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
B 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.

       10. On the basis of the pleadings of the parties, the trial
C court framed diverse issues; the parties let in oral as well as
  documentary evidence and the trial court he2rd 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
o 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
E 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
F
  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
G Reddy and Pitchamma since will had come into force and was
  acted upon after the death of Bijivemula 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
H
  SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. 189
  GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
 heirs (i.e. plaintiffs) and, thus, plaintiffs were entitled to 1/3rd   A
 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         B
  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                C
  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                 D
  possession.
       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
 atscharge both obligations - in maintaining the dependants of          E
 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          F
 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.               G
 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.                                        H
    190      SUPREME COURT REPORTS                [2011] 4 S.C.R.

A       15. Mr. R. Sundaravaradan, learned senior counsel for the
  appellants argued: The importation of Section 57 and Section
  141 of 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
B 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
c 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
D 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
E 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 lands
  and, therefore, the legacy bequeathed to him was not because .
  he was to be the executor in strict sense but because he was
F 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
G required no serious consideration. He argued that the marriage
  of Rami Reddy with Subbamma was with the consent of
  Pitchamma and there was nc 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
H injunction to have progeny so that religious efficacy of satisfying
 SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.                             191
 GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
the souls of forefathers is completed. Learned senior counsel                 A
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                 B
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.

    19. Mr. P.S. Narasimha, learned senior counsel for the
respondents, on the other hand, supported the judgment of the                 C
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,                     D
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.
                                                                              E
     21. By the Hindu Wills Act, 1870 (for short, 'the 1870 Act'),
statutory provisions were made to regulate the wills of HiRdus,
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 :                                                 F

    ·s. 2. The following portions of the Indian Succession Act,
     1865, na~ely,-

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

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

         sections one hundred and six to one hundred and
    seventy-seven (both inclusive),                                           H
    192               SUPREME COURT REPORTS              [2011) 4 S.C.R.


A              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),               ·
B              so much of Parts XXX and XXXI as relates to grants
          of probate and letters of administration with the will
          annexed, and
                Parts XXXlll to XL (both inclusive), so far as they
          relate to an executor and an administrator with the will
c         annexed,
                shall, notwithstanding anything contained in section
          three hundred and thirty-one of the said Act, apply-

D                (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
E
                 (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:"

F        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
G          of Wills made by Hindus, etc. - The provisions of this Part
           which are set out in Schedule Ill shall, subject to the
           restrictions and modifications specified therein, apply-
          -....,(a)    to all Wills and codicils made by any Hindu,
H                      Buddhist, Sikh or 'Jaina on or after the first day of
  SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. 193 ·
  GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
             September, 1870, within the territories which at the A
             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
       (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, · C
              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):]
             I


          Provided that marriage· shall not revoke any such Will     o
     or codicil."
  Clauses (a} and (b), of Section 51 of the 1925 Act CJre par/
  materia to clauses (a} and (b) of Section 2 of the 1870 Act.
  Clause (c} is a new provision.
                  ,                                                   E
        23. As noticed above, present case is concerned with the
  wiU'executed in 1920. The will is admittedly a muffussil will as
  it· has not been executed within the local limits. of ordinal"/
  original civil jurisdiction of the High Court of Judica'ture at
  Madras. Clause (a} of Section 57 is apparently not attracted. F
 The subject will also does not 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.                         G
     24. Since the subject will is not covered by any ofthe
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          H
      194       SUPREME COURT REPORTS                [2011] 4 S.C.R.


  A 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.
  B
          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.
  c
         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 consideration must very much depend the effect to
  D 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
  E disp()sition 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
   F 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-
.l   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
   G 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 son of his daughter.
   H He, therefore, stated, "I intend to give all my belongings,
     SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v.                  195
     GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
moveable and immoveable properties to the said                         A
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".
                                                                       B
      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            C
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.                    D

       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 said boy will not accept to marry my granddaughter        E
  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".
                                                                       F
      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               G
and Ors.1, Courtney-Terrell, C.J., speaking for the Bench,
explained the distinction between a repugnant provision and a
defeasance provision thus :

1.    A.l.R. 1935 Patna 401                                            H
    196       SUPREME COURT REPORTS                 [2011) 4 S.C.R.


A         "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 conf~rred on the
          donee but he simply adds some restrictions in derogation
B         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
c         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."
        32. The distinction between a repugnant provision and a
  defeasance provision explained in Mt. Rameshwar Kuer1 has
D been followed subsequently. In our view, Patna High Court
  rightly explains the distinction between a repugnant provision
  and a defeasance provis!on.
       33. The question, however, upon which the fate of this
E 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
F 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
G 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 Ran:ii Reddy jointly was conditional on happening of
  an uncertain event noted above. As a matter of fact and in law,
H immediately after the death of testator in 1920, what became
 SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. 197
 GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.]
vested in Rami Reddy was not legacy but power to manage              A
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,         B
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 vestinq took place, it could not have
been divested.                   ·

     35. It has come in evidence that Pitchamma wanted to            C
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            D:
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
impe~iment for Rami Reddy to have a second wife before the
Hindu Succession Act, 1956 or Bigamy Prevention Act of 1949          E
when no child was begotten from Pitchamma yet the fact of the
matter is that he abandoned the family of the testator. There is
no merit in the submission of Mr. R. Sundaravi)radan that
abandonment was not voluntary and conscious.
                                                                     F
     36. ·Rami Reddy neither continued as a guardian. ef 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   G
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
                                                                     H
    198       SUPREME COURT REPORTS                [2011] 4 S.C.R.


A 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
B to be instrumental in defeating the testator's wish in not
  agreeing to ~he 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
c circumstances, the legacy to the 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.
D      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
E 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.

F      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
G take a different view on this aspect.

        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.

H         41. All in all, on the construction of the will and, in the
 AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 199
             DESIGNATED AUTHORITY
                                                              .

 circumstances, it must be held, and we hold that no legacy came
                                                                  .    A
 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.
                                                                       B
     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.
                                                                       c
        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.LR. 1926 Madras
   434]; Balmakund v. Ramendranath Ghosh [A.l.R. 1927 D
   Allahabad 497]; Ratansi D. Morarji v. Administrator-General
   of Madras [A.LR. 1928 Madras 1279]; Bhojraj v. Sita Ram and
   others [A.l.R. 1936 Privy Council 60]; Ketaki Ranjan
   Bhattacharyya and others v. Kali Prasanna Bhattacharyya and
   others [A.LR. 1956 Tripura 18]; P. Lakshmi Reddy v. L. E
   Lakshmi Reddy [(1957) SCR 195]; AL. PR. Ranganathan
   Chettiar and another v. A/. PR. AL. Periakaruppan Chettiar
   and others [A.LR. 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 F
   SCC 600] and Govindaraja Pillai and others v. Mangalam
·· Pillai and another (A.LR. 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   G
 as to costs.
 R.P.                                         Appeal dismissed.