PRASANNA KUMAR v. SUGUNA — 1970 DIGILAW 219 (KAR)

( 1 ) THIS is a Regular First Appeal by the defendant against the decree for partition passed by the Civil Judge, Mangalore, South Kanara, in OS. No. 108 of 1967. The respondents, who are the original plaintiffs brought the suit for partition and possession of plaintiffs' 25126th share in the family properties described in Schedule-A to the -plaint and for possession and future income. They also prayed for a direction to the defendant to account for the future income. It is not disputed that the suit properties were the self-acquired properties of one Guddappa, who died on the 16th of March, 1942, and that he was governed by Aliyasanthana Law. The said guddappa was married to Janamma, by whom he got a son by name Sanjiv. Janamma, the first wife had left her husband Guddappa and waa living separately. Guddappa then married the second wife, Kamala. Guddappa got 9 children by his second wife, Kamala. They are Prasanna, (defendant-1), Suguna (plaintiff-1), Varija (plaintiff'-2), Janida Suvarna (plaintiff-3), Malini (plaintiff-4), Nanda Kumar (plaintiff-5), Vasanthi since deceased), Padmakshi (plaintiff-6 ). and Malika (plaintiff-7 ). The said kamala and her children constituted a Kavaru under Aliyasanthana Law when Guddappa died. The other plaintiffs are the grand-children of Guddappa who were not born on the date of the death of Guddappa. Guddappa executed a will dt. 28-12-1941 bequeathing all his self-acquired properties. Under that will, Guddappa has bequeathed some properties to his son Sanjiv by the first wife and to his three sisters. The testator did not bequeath anything to his first wife Janamma. In this case, we are only concerned with the bequest made by Guddappa under the aforesaid will in so far as it relates to his second wife Kamala and nine children. The trial Court has construed the will as having the effect of bequeathing the suit properties to the kavaru consisting of Kamala and her nine children. Out of them Vasanthi died unmarried. As the bequest, according to the learned Judge is in favour of the kavaru,' he came to the conclusion that plaintiffs 1 to 7, the children of Guddappa, as well as the other plaintiffs who are the grand-children are all together entitled to 25/26th share in the suit properties. The result is that the defendant who is one of the sons of Guddappa is entitled to only 1/26th share in the suit properties. The result is that the defendant who is one of the sons of Guddappa is entitled to only 1/26th share in the suit properties. ( 2 ) IN this appea], the defendant questions the correctness of the finding of the learned Civil Judge that the bequest was in favour of the kavaru of the Aliyasanthana family with all its incidents. ( 3 ) THE contention of Shri U. L. Narayana Rao, learned Counsel for the appellant, is, that the bequest of the suit properties was in favour of nine named children of the testator and that therefore the said nine persons took the suit properties as tenants-in-common. ( 4 ) IT was urged that the learned Civil Judge has not properly construed the will in question. It is not disputed that if the bequest was not in favour of the kavaru but was to the nine children named in the will, then the only persons entitled to a share in the suit properties are plaintiffs 1 to 7 and the defendant, the other child of the testator by name Vasanthi having died unmarried. In that event, it is not disputed that the plaintiffs 1 to 7 together would be entitled to 7/8th share and that defendant would be entitled to 1/8th share. ( 5 ) THE learned Counsel for the appellant has not challenged the correctness of the other directions given by the learned Civil Judge. ( 6 ) THE decision of the case, therefore, entirely rests on the construction of the will, Ext. 'a-1'. The will, Ext. 'a-1' dt. 28-12-1941 is to kannada. ( 7 ) IN para-1, the testator, Guddappa has stated that the property in respect of which he is making the will are all self-acquired properties and that none else has any right or interest in them. In paragraph-2 he has stated that he is suffering from Tuberculosis and that he has no hope :of being cured of the said disease. He has further stated that he is revoking his earlier will dt. 10-6-1940 deposited by him in the District Registration office of South Kanara. In paragraph-3, he has stated that his first wife janamma having left him, is living separately since seven years and that he has a son Sanjiv by Janamma. He has further stated that he is revoking his earlier will dt. 10-6-1940 deposited by him in the District Registration office of South Kanara. In paragraph-3, he has stated that his first wife janamma having left him, is living separately since seven years and that he has a son Sanjiv by Janamma. In paragraph-4, he has stated that he subsequently married the second wife Kamala, by whom he got the children, prasanna, Suguna, Varija, Janida, Malia, Nanda Kumar, Vasanthi, padmakshi and Mailika. He has further stated that the second wife and the children named by him are all living together. In paragraph-5 he has stated that, during his life time the testator had full rights in respect of the properties to which the will pertains. He has made bequest of certain properties in favour of his sisters Sesu, Rukoo, and Dayapu. He has made it clear that in the property bequeathed to his three sisters, his wife and children have no right whatsoever. In paragraph-6, he has named his wife as the executrix of the will. He has empowered the executrix to collect all the outstanding dues including the insurance policies, the amount due under pronotes and loan transactions. He has further directed that the shares in the company should be got transferred and the income should be collected by his second wife Kamala, the executrix. In paragraph-7, he has stated that, on his death, Kamala should take possession of all his moveable and immoveable properties and that the children should be maintained and educated out of the income collected. He has directed her to maintain accounts and to deposit the surplus income in the Bank, etc. He has further stated that, after his eldest son Prasanna attains majority, she should hand over the properties to him along with the accounts. He has further stated that his eldest son Prasanna should purchase immoveable properties out of the surplus amount remaining after providing for maintenance and education of his mother, brothers and sisters. In para-9 he has stated that the daughters should be got married out of the income from his estate. In paragraph-10, he has stated that even after Prasanna attains majority, his second wife Kamala should stay in the family house during her life time. In para-9 he has stated that the daughters should be got married out of the income from his estate. In paragraph-10, he has stated that even after Prasanna attains majority, his second wife Kamala should stay in the family house during her life time. If, however, she does not desire to stay with them she may stay separately, in which case she would be entitled during her life time for a maintenance of Rs. 16 per month out of the income from his estate. In paragraph-11, he has stated that in respect of other moveable and immoveable properties of his, none else other than his children by his second wife have any right whatsoever. He has further expressed that his children by the second wife, after collecting the income from the properties, should enjoy the same with joint rights, (Samashti hakkinda anubhavisi ). In para-12, he has expressed that his sister Manyappa, who is residing in the family should continue to remain with the family and that his wife and children should look after her and perform the funeral ceremonies out of the income from the estate. In the event of the said Manyappe expressing a desire not to stay in the house, she has no right to claim any maintenance out of the income from the estate. In paragraph-13, he has stated that his sister Mavoo was looked after by him for the last 16 years and that he performed the marriage of her daughters and has thus spent considerable amount. He has therefore stated that he has not given any property to mavoo. He has further stated that under the will his sisters and Sanjiv, the son by the first wife have rights only in respect of the properties specifically bequeathed to them and that they have no right what so ever in the moveable and immoveable properties bequeathed by him to his second wife and children. In paragraph-14, he has stated that he has revoked the previous will and that the present will should come into effect only after his death. He has further stated that he has appointed his second wife kamala as the executrix of the will. He has further stated that he has reserved the right to revoke this will as well. In paragraph-14, he has stated that he has revoked the previous will and that the present will should come into effect only after his death. He has further stated that he has appointed his second wife kamala as the executrix of the will. He has further stated that he has reserved the right to revoke this will as well. ( 8 ) THE plain reading of the will does not give an impression that the testator bequeathed his self-acquired properties in favour of the kavaru consisting of his second wife and the nine children by her. The testator has not used any language to convey the idea that the properties should be enjoyed by the kavaru according to the Aliyasanthana Law. It is clear that on the date of the death of the testator, it is Kamala the eldest member that would be the yejamanathi of her kavaru. In the will the testator does not describe Kamala as yajamanathi or the head or eldest member of the kavaru. On the contrary, he has named her as the executrix of the will. On the date of the will the only members in the kavaru were kamala and the nine children of the testator by her. ( 9 ) IT was urged by Shri U. L. Narayana Rao, that it is clear from the recitals in the will that the intention of the testator was to bequeath the suit properties to his children as tenants-in-common. He contended that it is not possible to infer from the recitals in the will that the intention 'of the testator was to bequea the the suit properties to the kavaru consisting of Kamala and the nine children. ( 10 ) SHRI B. P. Holla, learned Counsel for the respondents contended that the intention of the testator as can be gathered from the recitals in the will is to make a bequest in favour of the kavaru with all the incidents of Aliyasanthana property. ( 11 ) IT is clear from paragraph-11 of the will that the testator, after making disposition of other properties in favour of other persons referred to in the previous paragraphs, made a bequest of all other moveable and immoveable properties of his in favour of his children by the second wife. ( 11 ) IT is clear from paragraph-11 of the will that the testator, after making disposition of other properties in favour of other persons referred to in the previous paragraphs, made a bequest of all other moveable and immoveable properties of his in favour of his children by the second wife. There is a positive statement in paragraph-11 to the effect that none else other than the children referred to by him in that paragraph has any rights whatsoever in the properties bequeathed to his children by the second wife. It is clear from paragraph-11 that the testator has not made any bequest of the suit properties in favour of the second wife. The bequest is confined only to the children of the second wife. It, therefore, follows that the testator really excluded his second wife Kamala from the bequest in respect of the suit properties. The fact that Kamala has thus been excluded is also clear from the limited right which has been specifically conferred on her in previous paragraph-10. ( 12 ) IN paragraph-10, the testator has expressed his hope and desire that his second wife Kamala should stay along with her children in the family house during her life time. In the event of Kamala deciding to stay separately, the testator has made a provision for a monthly fixed maintenance of Rs. 16 per month, which amount has to be given out of his estate. It is only after making the said provision in favour of his second wife that the' testator has proceeded to make a bequest of all other moveable and immoveable properties of his in favour of his children by his second wife in paragraph-11 of the will. If the bequest was in favour of the entire kavaru there was no need to make a specific provision for kamala's maintenance in paragraph-10. The specific provision made for kamala, the second wife of the testator, in paragraph-10 and the expression used in paragraph-11 that none other than his children by the second wife has any right whatsoever in the properties bequeathed to them, are sufficient to draw the inference that there was exclusion of Kamala in the be quest in respect of the properties to which paragraph-11 of the will relates. ( 13 ) THE learned Civil Judge has failed to notice the important Clauses (10) and (11) when construing the will. ( 13 ) THE learned Civil Judge has failed to notice the important Clauses (10) and (11) when construing the will. The learned Civil Judge has rested his conclusion only on what is contained in paragraph-13 of the will. In paragraph-13 the testator has given a reason for not making any bequest in favour of his sister Mavvo. He has further stated that his sisters and his son Sanjiv by the first wife have no rights in properties other than those bequeathed to them. It is in that context that the testator has stated that they have also no rights in the properties left for his second wife and his children by her. From this statement in paragraph-13, the learned Civil Judge, has drawn an inference that the second wife Kamala has not been excluded and that the suit properties have been bequeathed by the testator to the second wife Kamala and all his nine children by her. It is difficult to agree with the inference drawn by the learned Civil Judge ( 14 ) THE principal idea contained in paragraph-13 of the will is to make it clear that his sisters and his son Sanjiv by the first wife have no rights whatsoever in any of the properties other than those specifically bequeathed in their favour. Negatively, the testator has stated that they have no rights in the properties left for his second wife and his children by the second wife. Paragraph-13 is not a paragraph under which the testator has made any bequest in favour of any one. That is a paragraph intended to make it clear that one legatee cannot claim any right in respect of the properties given to another legatee. ( 15 ) SHRI Holla further placed considerable emphasis on the expression " Samashti hakkinda anubhavisi" used in para-11 and contended that the same conveys the idea that the properties should be enjoyed with all the incidents of the property of the Aliyasanthana family belonging to a kavaru. The expression " Samoshti hakkminda anubhavisi" according to kannada-English dictionary by G. Kittal (Part-II) means: " Collective pervasion, a collective aggregate or one which is viewed as consisting of one thing or as constituted of parts of which each is substantially the same with the whole, totality. The expression " Samoshti hakkminda anubhavisi" according to kannada-English dictionary by G. Kittal (Part-II) means: " Collective pervasion, a collective aggregate or one which is viewed as consisting of one thing or as constituted of parts of which each is substantially the same with the whole, totality. " the expression "samashti hakkininda anubhavisi" used in para-11 therefore conveys the idea that all the children of the testator by his second wife together should enjoy the property bequeathed. In the context, the expression, in our opinion, conveys the idea that they should enjoy the properties as tenants-in-common. The further qualification in paragraph-11 that none else other than the said children of his has any rights in the properties bequeathed in favour of the children makes it quite clear that the rights conferred by the bequest are restricted to the children of the testator by the second wife. There cannot be any doubt that Kamala who is a member of the kavaru is excluded by the testator. The limited right given to kamala is only in respact of maintenance as provided in paragraph-10. ( 16 ) SHRI Holla further urged that the clauses providing for the management of the estate by Kamala until Prasanna attains majority indicates that the intention of the testator was that the property bequeathed should be enjoyed with all the incidents of a property belonging to a kavaru of an Aliyasanthana family. The testator has made it quite clear that Kamala should function as an executrix of the will and in that capacity she should son Prasanna attains majority. The Clause requires that on Prasanna attaining majority, Kamala should handover the accounts and give possession of the properties to him. If the intention of the testator was that the properties should be enjoyed with all the incidents of property belonging to the kavaru of an Aliyasanthana family, it is difficult to understand why Kamala, the eldest member of the kavaru should be required to give accounts and deliver possession to Prasanna, the eldest son. ( 17 ) IN our opinion, the testator made provision for the management of the estate by Kamala not because the testator intended to make a bequest of the properties in favour of the kavaru but to see that the properties are properly managed during the minority of the children, as all of them were minors on the date of the will. No significance can, therefore, be attached to the Clause pertaining to the management of the properties by Kamala until Prasanna attains majority. ( 18 ) ON a consideration of all the relevant Clauses in the will, we have come to the conclusion that the testator made a bequest of the properties in favour of his nine children by the second wife, Kamala. We are also the opinion that while making a bequest of the suit properties in favour of his children by the second wife, the testator excluded Kamala. The only limited right granted under the will in favour of Kamala is the one regarding maintenance. ( 19 ) IT is now well settled by the decisions of this Court, that, if there is a gift or a bequest in favour of all the members of the kavaru of an aliyasanthana family, a presumption arises that the gift or a bequest is in favour of the kavaru. If however the gift or a bequest is in favour of some members of the kavaru, no presumption can be raised that the gift or the bequest is in favour of the kavaru. But if the gift or bequest is made to persons named therein to the exclusion of other members of the kavaru, the persons named therein take the property as tenants-in-common. ( 20 ) IN the case of Siddamma Shedthi v. Chandramathi, (1967) 1 Mys. L. J 187 this Court enunciated the aforesaid principle following the decisions of the high Court of Madras in the cases reported in AIR. 1947 Mad. 137, air. 1954 Mad. 235, AIR. 1954 Mad. 987 and AIR. 1955 Mad. 594. To the same effect is the view expressed by a Division Bench of this Court in Srinivasa Bhandary v. Hemavathi, RFA. 46 of l965. That was also a case of parties governed by Aliyasanthana Law. In that case, one Thimmappa Bhandary, governed by Aliyasanthana Law, made a will bequeathing the properties under the will in favour of his wife Manjakke and her five children. The case proceeded on the basis that his wife and the five children were the only members of the kavaru. Under the will Manjakke was entitled to enjoy the properties during her life time. The children were entitled to the properties only after the death of their mother Manjakke. The case proceeded on the basis that his wife and the five children were the only members of the kavaru. Under the will Manjakke was entitled to enjoy the properties during her life time. The children were entitled to the properties only after the death of their mother Manjakke. This Court held that there was no bequest in favour of all the members of the kavaru. It was held that there were separate bequests, one in favour of the wife and the other in favour of all the children. In view of the recitals in that will, this Court came to the conclusion that, as the bequest was not in favour of all the six members of the kavaru, no presumption could be raised that the bequest was in favour of the kavaru. It was further held that the children took the properties as tenants-in-common. The principle laid down in the aforesaid decision was reiterated in the subsequent judgment of a Division Bench of this Court in nemiraja Bonga v. Chondraja Bonga, 1967 2 Mys. L. J. 332 ( 21 ) SHRI B. P. Holla, learned Counsel for the respondents, however, relied upon the judgment of Justice Hegde (as he then was) in Nemiraja Pergade v. Kamalu Hengasu, 1963 Mys. L. j Supp 588 his Lordship Hegde held in that case that where a gift was made to all the members of a joint family, law presumed that it was a gift in favour of that joint family. His Lordship further observed that the converse was not always true. ( 22 ) IT is not possible to agree with the contention of Sri Holla that the view expressed by Justice Hegde is in conflict with the view taken in the subsequent decisions of this Court referred to above. What has been laid down by his Lordship Hegde is that if a gift is made only in favour of some members of the joint family, no presumption can be raised that the gift is not in favour of the joint family. Even though a gift is made in favour of some only of the named persons of the joint family, it does not necessarily follow that the other members of the joint family are excluded. Even though a gift is made in favour of some only of the named persons of the joint family, it does not necessarily follow that the other members of the joint family are excluded. If the other members of the joint family are not specifically excluded, the intention of the donor has to be gathered from the document to ascertain if the other members of the joint family were intended to be excluded. That is why his Lordship Hegde held that the converse is not always true. But if the gift or a bequest is in favour of some members of a kavarn and the other members of the kavaru are excluded, then it has to be presumed that the gift or the bequest is in favour of the persons named therein and that they take the property as tenants-in-common. We are, therefore of opinion that the principle enunciated by Justice Hegde (as he then was) is not in any way inconsistent with the principle enunciated in the aforesaid three Division Bench decisions of this Court. ( 23 ) ON consideration of all the recitals in the will, we have come to the conclusion that the bequest in respect of the suit properties is only in favour of the nine named children of the testator. We are, further of the opinion that Kamala, the second wife of the testator, was excluded from the bequest in respect of the suit properties. We hold that the testator did not intend to bequeath the suit properties in favour of the kavaru. We further hold that the bequest of the suit properties was only in favour of the children of the testator who take the properties as tenants-in-common. Therefore, the only persons that are entitled to claim a share in the suit properties are plaintiffs 1 to 7, and the defendant, the other child of the testator, Vasanthi having died unmarried. ( 24 ) THEREFORE, plaintiffs 1 to 7 together are entitled to 7 /8th share and the defendant is entitled to 1/8th share. The other plaintiffs are not entitled to any share. ( 25 ) FOR the reasons stated above, we allow this appeal and declare that plaintiffs 1 to 7 are entitled to 7/8th share and that the defendant is entitled to 1/8th share. The other plaintiffs are not entitled to any share. ( 25 ) FOR the reasons stated above, we allow this appeal and declare that plaintiffs 1 to 7 are entitled to 7/8th share and that the defendant is entitled to 1/8th share. Except for the modification in regard to persons who are entitled to a share in the properties and the quantum of the share, other directions in the decree passed by the learned Civil Judge are affirmed. In the circumstances of the case, parties shall bear their respective costs. --- *** --- .