Holding

The will's provision of "equal shares" requires the property to be divided equally among all thirteen great‑grandsons (per capita), not per stirpes.

Summary

The Supreme Court examined a dispute arising from a 1942 will of Smt. Rathinammal, which directed that her great‑grandsons should take possession of the property in "equal shares" after attaining majority. The plaintiffs, three great‑grandsons of the younger son, claimed a half share, while the defendants, ten great‑grandsons of the elder son, argued that the property should be divided equally among all thirteen great‑grandsons (per capita). The trial court held the 1975 partition illegal and dismissed the suit on the ground of the plaintiffs' minority; the High Court reversed the share calculation, applying a per stirpes rule and granting the plaintiffs one‑sixth each. The Supreme Court rejected the High Court’s construction, emphasizing that will interpretation must consider the testator’s intent, surrounding circumstances, and that precedents are only of general aid. It held that the phrase "equal shares" meant a per‑capita division among all thirteen great‑grandsons, rejected the rule‑against‑perpetuity plea, and declared the 1975 partition void. Consequently, the appeal was allowed in part and the suit decreed in favour of the plaintiffs, each receiving one‑thirteenth of the property.

Issues considered

The proper construction of the will clause 'SAMABHAGAMAGA ADAINTHU' – whether it mandates per capita or per stirpes distribution.
Whether the 1975 partition of the property is binding on the parties.
Whether the suit is maintainable given the plaintiffs' minority at the time of filing.
Whether the disposition under the will is barred by the rule against perpetuity.

Legislation cited

Indian Succession Act, 1925s. 174
Transfer of Property Act, 1882s. 14

Subjects

will constructionper capitaper stirpesinheritancepartitionrule against perpetuityIndian Succession ActTransfer of Property Actgreat‑grandsons

Judgment

VEERATIALINGAM AND OTIIERS
v. A
RAMESH ANQ OTIIERS
•
SEPTEMBER 18, 1990
[LAUT MOHAN SHARMA AND K. RAMASWAMY, JJ.]
Indian Succession Act, 1925: Section 174-Wi/l-Interpretation of-Factors to B
be considered apart from language of the document-Recourse to precedent~
Perrnissibility of.
Transfer of Property Act 1882: Section 14-Rule against perpetuity-
Rejection of plea-When arises.
The property in the suit belonged to the great grand-mother of the
plaintiffs and defendant Nos. 5 to 14 who executed a registered will. According c
to the terms of the·will, her two soru:, defendant No. 1 and plaintiffs' witness
No. 2 were to remain in possession of the properties without any power of
alienation, to p~y the taxes and conduct regularly certain religious festivals,
and their male issues on attaining majority were to get the property in equal
portions and enjoy it absolutely.
The main dispute in the suit was about the share which the plaintiffs are
D
entitled to under the terms of the aforesaid will. The plaintiff' claimed that they
being the only grand-sons of the younger son of the testatrix were entitled to
half-share in the properties, the remaining- half going to the grand-sons of
defendant No. 1 namely, defendant Nos. 5 to 14. The suit was contested on
behalf of the defendants, who pleaded that the suit properties have to be divided
amongst all the 13 great grand-sons of the testatrix in equal shares, and that the E
suit was fit to be dismissed as defendant No. I defendent No. 15 had finally
partitioned the _properties in 1975, and no question of further partition arises.
T·he maintainability of the suit was also challenged on the ground of minOrity of
the plaintiffs as also on the basis of the rule against perpetuity.
·The trial Court rejected the plea based on the rule against perpetuity but
having regard to the interest of defendant No. 1, his brother, and deferidant.No. F
15, it held that the alleged partition of 1975 was illegal and not binding on the •
plaintiffs and that so far as the shares of the plaintiffs and defendant Nos. S to 14
are concerned held that the parties would take the properties as per capita~ The
suit was however dismissed on the ground that the plaintiffs were still minor.

In the appeal to the High Court by the plaintiffs, the High Court con-
firmed the rmdings of the trial court that the 1975 partition was illegal, but held G
• that the division would take place as per stirpes; and taking into account the fact
that during the pendency of the appeal, two of the plaintiffs had attained major-
~ty, the High Court passed a decree in their favour for one-sixth' "'ihare each. So
far as the thi!"d plaintiff was concerned, it declared his right without pas.iing a
iiecree .for partition.
The appellants-defendants challenged the decision of the High Court in H

507
508 SUPREME COURT REPORTS [1990] Supp. I S.C.R.

this Court by special leave, contending that as per the terms of the will the great
A grand-sons of the testatrix have inherited the suit properties as ~r capita and
that the conclusion -of the High Court on this aspects was illegal, and that
reliance by the High Court, on Boddu-Venkatakrishna Rao & Ors. v.
Shrimati Boddu Satyavathi & Ors., [1968] 2 SCR 395 was inapplicable to the
facts of this case.

B Allowing the appeal in part, and decreeing the suit in favour of all the
plaintiffs, that the share of the three plaintiffs and defendant Nos. 5 to 14 shall
be one-thirteen each in the suit properties this Court,
HELD: I. A Court while construing a will should try to ascertain the
intention of the testator to be gathered primarily from the language of the
document; but while so doing the surrounding circumstances the position of the
c testator, his family relationship and the probability that he used the words in a
particular sense also must be taken into account. They lend a valuable aid in
arriving at the correct construction of the will. Since these considerations are
changing from person to person it is seldom profitable to compare the words of
one will with those of another or to try to discover which of the wills upon which
the decisions have been given in reported cases, the disputed will approximates
D closely. Rfcourse to precedents, therefore, should be confined for the purpose
of general principles of construction only.
2. There is still another reason as to why the construction put on certain
expressions in a will should not be applied to a similar expression in the will
under queStion for, a will has to be considered and construed as a whole, and
not piecemeal. It follows that a fair and reasonable construction of the same
E expression may vary from will to will.
3. Therefore, in the matter of construction of a will, authorities or prece-
dents are of no help as each will has to be construed in its own terms and in the
setting in which the clauses occur.
In the instant case, the High Court has interpreted the crucial part of the
will containing the expression 'SAMABHAGAMAGA ADAINTHU' as directing
F the plaintiffs on the one hand and the defendants'S to 14 on the other to "share
equally out of each branch". The main reason for the High Court for taking
. such a view is that the terms of a will which was the subject matter of interpreta-
tion in the case of Boddu Venkatakrishna Rao & Ors. v. Shrimati Boddu
Satyavathi & Ors., [1968[ 2 SCR 395; were more or less similar. It has also been
assumed that the properties finally descended on the two branches in equal
G shares ·and consequently parties belonging to the two ·branches inherited the
properties as per stripes. While so doing the Court failed to notice that the relevant
facts and circumstances of that case were widely different from those in the
present case. The conclusion of the High Court on the construction·of the will
was therefore not correct.
In the instant case, there is no manner of doubt, and it is not denied by any
H party that neither the sons nor the grand-sons of the testatrix got any life estate
VEERATTALINGAM v. RAMESH [SHARMA. J.] 509

in the properties ..Jt is the agreed case of the parties that as soon as plaintiffs and
defendants No. 5 to 14 become major they are entitled to get the property
A
absolutely without waiting for the death of their respective fathers or grand·
father. The will has therefore to be interpreted without being influenced by the
meaning given to the will in the reported case.
4. The devolution ~f the property under the will takes place on the
plaintiffs and defendants No. 5 to 14 for the first time 'under equal shares'. B
Since this is the first occasion for the shares in the property to be defined, the
expression ~equal shares' must refer to the entire properties left by the testatrix
which will have to be divided equally amongst all the thirteen great grand-sons
by the testatrix. In other words they take the properties as per capita, The" third
plaintiff has also· attained m.ajority during the pendency of the pl-esent appeal
and has therefore become entitled to a share in the properties. The suit is
decreed in favour of all the piaintiffs their share being one-thirteenth each. c
Rarnachandra Shenoy and Anorher v. l'vlrs. Hilda Brire and Others, [1964]
2 SCR 722, relied on.
Boddu Venkatukrishna Rao & Ors. v. Shritnati Boddu Satyavaihi & Ors.,
[1968] 2 SCR 395, distinguished.
5. The plea that disposition under the will was hit by the rule against
D
perpetuity was rightly rejected by the trial court on the ground that the sons of
the testatrix as also their respective sons were alive~

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2231
of 1988.
E
From the Judgment and Order dated 19.8. 1987 of the Madras
High Court in Appeal No. 86 of 1982.
R. Venkataramani for the Appellants.
S:Balakrishnan and M.K.D. Namboodiri for the Respondents.
F
The, Judgment of the Court was delivered by
SHARMA, J. This appeal by special leave is directed against the
decree passed by the High Court in favour of the plaintiff-respondents
in a suit for partition.
2. The property in suit belonged to Smt. Rathinammal. who
after executing a registered will died in 1942. According to the terms of G
the will, her two sons Natesan, defendant no. 1, and Subramanian.
plaintiffs' witness no. 2 (PW-2), were to remain in possession of the
properties without any power of alienation and had to pay the taxes
and conduct regularly certain religious festivals; and thereafter their
sons were to manage the properties on similar terms. The wil1 further
H
provides-that after their attaining majority the great grand-sons, i.e ..
510 SUPREME COURT REPORTS [1990) Supp. 1 S.C.R.

the son's sons' sons of the testatrix will get tile properties as absolute
A
owners.
3. Subramanian, the younger son of the testatrix, who has been
in the presentsuit examined as the second witness on behalf of the
plaintiffs, has one son Arunachalam, defendant no. 15. The three
plaintiffs, Ramesh, Ganesh and Sivalingam are the sons of the
B
defendant no. 15. The defendant No. 1 got four sons and ten sons'
sons. The main dispute in the suit is about the share which the
plaintiffs are entitled to, under the terms of the will. They claim that
they being the only grand-sons of Subramanian have half share in the
properties, the remaining half going to the grand-sons of the defendant
no. 1, namely, defendants no. 5 to 14. On behalf of the defendants it is
c pleaded that the suit properties have to be divided amongst all the 13
great grand-sons of the testatrix in equal shares. The defendants also
contended that the suit was fit to be dismissed as the defendant no. 1
and the defendant no. 15 had finally partitioned the properties in 1975,
and no question of a forther partition arises.The maintainability of the
suit was also challenged on the ground of minority of the plaintiffs as
D also on the basis of the rule against perpetuity.
4. The trial court rejected the plea based on the_ rule against
perpetuity. Having regard to the interest of the defendant no. 1, his
brother Subramanian and Arunachalam, defendant no. IS, the court
held that the alleged partition of 1975 was illegal and not binding on
E the plaintiffs. So far the shares of the plaintiffs and the defendants
no. 5 to 14 are concerned, agreeing with the defence case, the court
held that the parties would take the properties as per capita. However,
the suit was dismissed on the ground that the plaintiffs were still
minor.
'
5. On appeal by the plaintiffs, the High Court confirmed the
F
finding of the trial court that the 1975 partition was illegal. On the
question of the shares of the parties, the High Court agreed with the
plaintiffs and held that the division would take place as per stirpes.
Taking into account the fact that du~ing the pendency of the appeal
two of the plaintiffs had attained majority, the High Court passed a
decree in their favour for one-sixth share each. So far the third plaintiff
G
is concerned, the High Court declared his right without passing a
decree for partition. The defendants are challenging the decision of
the High Court by the present civil appeal.

6. The learned counsel for the appellants has contended that as
per the terms of the will the great grand-sons of the testatrix have
H
inherited the suit properties as per capita and the conclusion of the -,_
·~
-~ VEERATTALINGAM v. RAMESH [SHARMA, J.J 511

High Court on this aspect is illegal. The English version of the opera-
A
tive portion of the will has been quoted in paragraph 7 of the judgment
of the trial court and is not challenged by either party before us. After
mentioning the rights and the duties of her sons the testatrix has stated
. the position of her grand-sons and great grand-sons thus:
"They (that is, sons' .sons) have also to pay the taxes and
out of their income conduct the aforesaid festivals regu- B
larly. Then their male issues after attaining majority, have
to take possession of the said properties in equal shares and
enjoy them with all powers of alienation."
It has been stated by the learned counsel for the parties before us that
the words "the said properties in equal shares" are the English version
of the words SAMABHAGAMAGA ADAINTHU. The learned c
counsel for the appellants translated this portion of the will as stating
that,
"they (that is, the sons' sons) shall pay the taxes due to the
Governm~nt and will carry on the charitable/religious
activities without fail and their male issues would on attain- D
ing majority get the properties in equal portion (SAM-
ABHAGAMAGA ADAINTHU) and will possess. own
and enjoy it absolutely."
The crucial expression is SAMABHAGAMAGA ADAINTHU which
according to the learned counsel for the parties means in equal por- E
tions. The question is as to whether in view of this provision in the will,
the entire properties left by the testatrix are to be divided equally
amongst all her great grand-sons; or, the three plaintiffs shall amongst
themselves take half, the remaining half going to their cousins.

7. The High Court has interpreted the crucial part of the will, F
mentioned in the preceding paragraph, as directing the plaintiffs on
the one hand and the defendants 5 to 14 on the other respectively to
"share equally out of each branch". It has been assumed that the
•properties finally detcended on the two branches in equal shares. and
consequently parties belonging to the two branches inherited the pro-
perties as stirpes. The main reason for the High Court for taking such a G
view is that the terms of a will. which was the subject matter of
interpretation in the case of Boddu Venkatakrishna Rao & .Ors. v.
Shrimati Boddu Satyavathi & Ors., [1968) 2 SCR 395; were more or
-- ' less similar, which this Court construed in the manner aS: suggested by
the plaintiffs in the case before us. We are not in agreement with the
approach of the High Court. H
512 SUPREME COURT REPORTS I 1990) Supp. 1 S.C.R.

8. It is well-settled that a court while construing a will should try
A to ascertain the intention of the testator to be gathered primarily from
the language of the document; but while so doing the surrounding
circumstances, the position of the testator, his family relationship "and
the probability that he used the words in a particular sense also must
be taken into account. They lend a valuable aid in arriving at the
B couect construction of the will. Since these considerations are chang-
ing from person to person, it is seldom profitable to compare the words
of one will with those of another or to try to discover which of the wills
upon which the decisions have been given in reported cases, the dis-
puted will approximates closely. Recourse to precedents, therefore,
should be confined for the purpose of general principle of construction
only. which, by now, are well-settled. There is still another reason as
c to why the construction put on certain expressions in a will should not
be applied to a similar expression in the will under q_uestion for, a will
has to be considered and construed as a whole, and "not piecemeal. It
follows that a fair and reasonable construction of the same expression
may vary from will to will. For these reasons it has been again and
D again held that in the matter of construction of a will. authorities or
precedents are of no help as each will has to be construed in its own
te<ms and in the setting in which the clauses occur (see Ramachandra
Shenoy and Another v. Mrs. Hilda Brite and Others, [1964) 2 SCR 722
at p. 736. The risk in not appreciating this wholesome rule is demon-
strated by the case before us. ·
E
9. Assuming that the will in the case of Boddu Venkatakrishna
Rao & Ors. v. Shrimati Boddu Satyavathi & Ors., [1968) 2 SCR 395;
was somewhat similar to that in the present case, th~ High Court.
following the construction given on the will in the reported case, has
held in the judgment under appeal that the great grand-sons of the
F testatrix shall be taking the properties as per stirpes. While so doing
the Court failed to notice that the relevant facts and circumstances of
that case were wiBely different from those in the present case. There,
the testatrix who was a childless widow, had bequeathed under the will
life estates to two children who were defendants 4 and 5 in the case and
whom she had brought up from their infancy, and subject to the same,
G the property was to go to their children after their death. The conelu-
sion of the High Court on the construction of the will. with which this
Court agreed, was expressed thus,
"the bequest in favour of defendants 4 and 5 was that of a
life estate with a vested remainder in favour of their
children and that the children should take the vested
H
remainder per stirpes and not per capita".
VEERATTALINGAM c. RAMESH [SHARMA, J.[ 513

In the case before us no life estate was created in favour of
A
anybody. otherwise there would not arise any question of the plain-
tiffs' getting any share in the . property even on their attaining majority
during the lifetime of their father and uncle. The High Court has also.
under the impugned judgment. observed that a Hindu is not ordinarily
expected to create a joint tenancy but. failed to appreciate that there is
only a presumption. to this effect, which can not override the provi- B
sinns of the will, if the language is unambiguous and clear. In the
present case there is no manner of doubt. and it is not denied by any
party that neither the sons . nor the grand-sons of the testatrix got any
• life estate in the properties. It is the agreed case.of the parties that as
soon as plaintiffs and defendants no. 5 to 14 become major they are
entitled toge\ the property absolutely without waiting for the death of
their respective fathers or grand-fathers. We should, therefore. c
interpret the will without being influenced by the meaning given to the
will in the reported case.
10. The devolution of the property under the will takes place on
the plaintiffs and defendants No. 5 to 14 for the first time "under equal
D
shares". Since this is the first occasion for the shares in the property to
~e defined the expression "equal shares" must refer to the entire
properties left by the testatrix which will have to be divided equally
amongst all the thirteen great grand-sons by the testatrix. In other •
wor,ds, they take the properties as per capita.
11. Admittedly the third plaintiff has also attained majority dur- E
ing the pendency of the present appeal and has, therefore,. be,ome
entitled to a share in the properties .now. The suit, is accordingly
decreed in favour of all .the plaintiffs,-their share being one-thir-
teenth each.
12. The plea that .the disposition under the will was hit by the rule
F
against perpetuity was rejected by .the trial court in paragraph 7 of its
judgment on the ground-that the sons of the testatrix, namely. the first
defendant and the plaintiff's witness no. 2 as also their respective sons
the defendants no. 2 to 4 are alive. The point was not pressed in the
High Court. The view of the trial court appears to be correct, and does
not require reconsideration at this stage. In the result, the appeal is
allowed in part as indicated above. The suit is accordingly decreed in G
favour of all the three plaintiff. The share of the three plaintiffs and
the ten defendants, that is, defendants No. 5 to 14, shall be onc-
thirteenth each in the suit properties. There shall be no order as to
costs.
N.V.K. Appeal party,allowed.