[ Sadaram Suryanarayana & Anr. v. Kalla Surya Kanthan & Anr., AIR 2011 SC 294] The appellants (original defendants) were are the sons of late Smt. Sadaram Appalanarasamma, while the respondents (original plaintiffs) were are her daughter and son-in-law. The property in dispute was originally owned by late Smt. Kalla Jaggayyamma, who passed away leaving behind four sons besides two daughters, named : Smt. Sadaram Appalanaras-amma and Smt. Sadaram Ramanamma. It is not in dispute that in terms of a Will dated 4th September, 1976 executed by the deceased Smt. Kalla Jaggayyamma, the property mentioned in the Will was bequeathed in favour of her two daughters mentioned above with a stipulation that the same shall after their death devolve upon their female offsprings. The case of the plaintiffs is that defendants 1 to 6 i.e., sons of late Appalanarasamma took possession of suit property comprised in the Will executed by Smt. Kalla Jaggayyamma which had devolved upon plaintiff no. 1 in her capacity as the daughter of late Appalanarasamma and the stipulation contained in the Will executed by Smt. Kalla Jaggayyamma.
The defendant (appellants in the appeal) contested the suit, inter alia, taking the plea that late Smt. Sadaram Appalanarasamma had acquired absolute title in the property under the Will executed in her favour and that in terms of a Will dated 5th January, 1981, she had bequeathed the property in question to the defendant which they were entitled to retain in possession as owners thereof.
The Trial Court held that the execution of the Will by Smt. Kalla Jaggayyamma had been proved and that according to the said Will the property would devolve absolutely upon the legatee Smt. Sadaram Appalanarasamma. The plaintiffs’ claim to the property based on the stipulation that upon the death of Sadaram Appalanarasamma the property would devolve upon her female offsprings was thus negatived. Aggrieved, the plaintiffs appealed to the High Court of Andhra Pradesh who reversed the view taken by the Trial Court and decreed the suit.
The question raised for consideration before the Apex Court was whether the testatrix Smt. Kalla Jaggayyamma, had made two bequests, one that vests the property absolutely in favour of her daughters and the other that purports to vest the very same property in their female offsprings. If so whether the two bequests can be reconciled and if they cannot be, which one ought to prevail.
The Apex Court referred to the provisions of the Indian Succession Act, 1925, Chapter VI which deals with Construction of Wills and observed that where the intention of the testatrix to make an absolute bequest in favour of her daughters in earlier part of the Will was unequivocal, use of the expression ‘after demise of my daughters the retained and remaining properties shall devolve on their females children only’ in subsequent part of Will would not strictosensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression extracted above does not detract from the absolute nature of the bequest in favour of the daughters. All that the testatrix intended to achieve by the latter part was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Thus, there was no real conflict between the absolute bequest which the first part of the Will makes and the second part of the said clause which deals with devolution of what and if at all anything that remained in the hands of the legatees. The two parts operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage, etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale, thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the latter part did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix. The appeal was allowed.
