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2000 DIGILAW 146 (KAR)

Susheela v. Bhaskar

2000-02-15

T.N.VALLINAYAGAM

body2000
ORDER T.N. Vallinayagam, J.—The maintainability of an execution petition in Execution Case No. 480 of 1993 (Out of O.S. 611 of 1987), on the file of the Court of Munsiff at Udupi, which has been upheld by the executing Court, is assailed by the Petitioners herein in the above revision petition. 2. One Thunga Sherigarthi, the mother of Respondents 1 to 5 (though Respondents 3 and 5 are deleted in the CRP) filed a suit for possession of the plaint A Schedule premises against her son Rayappa Sherigar, the husband of the first Petitioner and father of Petitioners 2 to 6 and 6th Respondent in O.S. 611 of 1987 on the file of the Prl. Munsiff, Udupi. Defendant Rayappa died during the pendency and his widow and children who were Respondents in the execution survived. The widow and children were brought on record as supplemental Defendants in the suit, ultimately the suit was decreed granting six months time to the supplemental defendants to vacate the plaint A Schedule premises. Though an appeal was filed, it was not pursued. Subsequently, Thunga Sherigarthi the mother died on 18.8.1992. After her death, the children of Rathna Sherigarthi who is the daughter of the decree-holder Thunga Sherigarthi, namely, Respondents 2 to 6 herein, filed the execution seeking delivery on 13.12.1993. An objection was taken by the 4th Petitioner herein on 25.6.1994 contending that after the death of Thunga Sherigarthi, the plaint property along with other properties have devolved by the intestate succession on the execution Petitioners and the opponents and one Thyampa Sherigara, the last son of Thungu Sherigarthi, as tenants in common under Section 15 read with Sections 17 and 19 of the Hindu Succession Act, 1956, and as such the decree has become infructuous. It was further contended that the Petitioners and Respondents along with Thyampa Sherigara are the co-owners in respect of A Schedule premises and the only remedy for the execution Petitioners is to file a suit for partition of the properties. It also appears a registered Will dated 26.8.1987 purported to have been executed by Thunga Sherigarthi was introduced and under the alleged Will the testatrix Thunga Sherigarti, the original deed holder, appears to have bequeathed the schedule property in favour of her daughter Rathna Sherigarthy, the mother of Respondents 2 to 6. Ratna Sherigarthy, the legatee, admittedly pre-deceased her mother. It also appears a registered Will dated 26.8.1987 purported to have been executed by Thunga Sherigarthi was introduced and under the alleged Will the testatrix Thunga Sherigarti, the original deed holder, appears to have bequeathed the schedule property in favour of her daughter Rathna Sherigarthy, the mother of Respondents 2 to 6. Ratna Sherigarthy, the legatee, admittedly pre-deceased her mother. In fact, the bequest under the Will is in favour of Ratna Sherigarthi alone. Under the circumstances, it was contended that the execution is not maintainable. The executing Court however repelling the contentions that the Will has lost its sanctity and relying upon Section 109 of the Indian Succession Act, upheld and further held that the execution petition is maintainable. It is this order that is being challenged in the above revision. 3. The contentions raised by way of objections before the trial Court was reiterated. The dictum of this Court in Saraswathi R. Rai Vs. Korapalu, ILR (1992) KAR 416, is relied upon, which is as follows: It is a settled legal position that if in the Will, the testator excludes the members of the family of Kavaru who were alive, at the time of execution of the Will or on the date of the death of the testator, the testator cannot be presumed to have bequeathed the properties in favour of the members of the family and it should be construed as bequeathed in favour of the persons who are named in the Will. If in the Will, testator describes the person in whose favour bequeath is made as 'Yajaman' of the family and 'Kavaru' and does not exclude any members of the family of Kavaru, bequest must be presumed in favour of the family and not in favour of the individual who is named in the Will. If in the Will, testator describes the person in whose favour bequeath is made as 'Yajaman' of the family and 'Kavaru' and does not exclude any members of the family of Kavaru, bequest must be presumed in favour of the family and not in favour of the individual who is named in the Will. In the instant case, the testator has made his intention very clear by excluding his three sons who were the members of the family of Muthakke on the date of the execution of the Will as well as on the date of death of the testator and has also further expressed his intention to bequeath absolutely in favour of Korapalu and Subbakke by giving life estate to Muthakke and also by further stating that Korapalu and Subbakke should enjoy the property freely with full rights as absolute owners, and further he has excluded others by stating that the other heirs have no right whatsoever in the properties. There is no scope whatsoever to hold that the testator intended to bequeath the properties in favour of Korapalu and Subbakke as Kavarus to be taken as head of the family. In the light of the absolute bequest made in favour of Korapalu and Subbakke as individuals, and not as heads of their respective families, the words "Santati Paramparya". have no meaning and they are nothing but surplusage because these words are repugnant to the absolute bequest made in favour of Korapalu and Subbakke as individuals. Therefore, these words cannot take away the true effect of the Will. The words "Santati Paramparya". are not words of limitation on the absolute interest created in the Will in favour of Korapalu and Subbakke. It is open to Korapalu and Subbakke to enjoy the bequest in any manner or leave it to their heirs.. throughout the Will the intention of the testator was to give absolute estate to Korapalu and Subbakke and he made it clear by excluding his sons and other heirs. Therefore, the testator left no room for doubt that he wanted to bequest absolute estate to Korapalu and Subbakke. 4. Heard the learned Counsel. 5. It is not in dispute that the original decree-holder was Thungu Sherigarthi who had executed a Will dated 26.8.1987 under which she had bequeathed the entire property covered by the testator in favour of her daughter Rathna Sherigarthi. 4. Heard the learned Counsel. 5. It is not in dispute that the original decree-holder was Thungu Sherigarthi who had executed a Will dated 26.8.1987 under which she had bequeathed the entire property covered by the testator in favour of her daughter Rathna Sherigarthi. Thunga Sherigarthi died on 18.8.1992 and the Petitioners herein along with Respondent-6 claim through judgment debtor Rayappa Sherigar who was the son of the decree holder. It is their case that by way of intestate succession, they are entitled to succeed to the property of their grand-mother, along with the issues of their aunt, the mother of the Petitioners. Prima facie it should be seen that even during the pendency of the suit, the son died. Notwithstanding the resistance made by the daughter-in-law and grand children, the decree was granted in favour of the original Plaintiff Thunga Sherigarthi. The decree holder was sought to be questioned in appeal, but the pursuit was left in the middle. Thus, the decree against the grand children and the daughter-in-law obtained by the mother-in-law and the grand mother had become final. 6. Therefore, the short question is: Whether the present Petitioners can represent the decree-holder for the purpose of executing the decree and take possession from the Petitioners herein? 7. Prima facie, I find no impediment for execution of the decree in the light of the above facts. Even otherwise, it is seen that there is a Will. The only objection is that when the legatee died during the life time of the testatrix, the right of dispossession under the Will gets affected. Section 109 of the Indian Succession Act reads as follows: Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the life time of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will. Illustration to this section is also like this: A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. Illustration to this section is also like this: A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B dies before A, having a son, C, who survives A, and having made his Will whereby he bequeaths all his property to his widow D. The money goes to D. 8. In fact the commentary of Sri Sanjiva Rao in his book on Indian Succession Act, 5th Edition, under Section 109, at page 439, is as follows: The daughter of a legatee who dies during the life time of the testator, succeeds to legacy when the Will gave the estate to the two legatees (daughters) equally. By virtue of this section the legacy is saved from lapse. Where bequest was in favour of two sons and one daughter only in specific shares, and one of the sons died during the life time of the testator, the heirs and lineal descendants of the deceased son take the legacy of the deceased. 9. The contention that the intention of the legislature is that the daughter alone must be enjoyed the property cannot be accepted in the light of the recitals found in the Will. The Division Bench ruling relied upon by the Petitioners has no relevance to the facts of this case. 10. In this view, finding no merit, the revision petition is dismissed.