LexBODDU VENKATAKRISHNA RAO & ORS. versus SHRIMATI BODDU SATYAVATHI & ORS.
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BODDU VENKATAKRISHNA RAO & ORS.
V.
SHRIMATI BODDU SATYAVATHI & ORS.
November 23, 1967
[K. N. WANCHOO, C.J., R. S. BACHAWAT AND G. K. ·MITTER, JJ.]
Hindu
Lau·-Will hy childless testarix-Two foster
children to
have life estate and their children to inherit after them-Foster children
lvhether inherit as joint tenants
or tenant-in-conunon-Tlzeir childrtn
whether inherit per capita or per stirpes.
A childless Hindu lady bro11ght up a boy B and a girl K as foster
children. She made a will whereby after her death B and K were to get
a life estate in her property and 'after their cleath the children that may
be born to them should enjoy the same with powers of gift transfer'and
sale'. After the lady's death B and K divided the property in equal shares
by a partition deed.
B married K's daughter and had a child by her.
He then took another wife and had four children by her. The said four
children filed a suit for a declaration, inter alia, that after the death of
B and K, their children-namely, K's daughter and B's children-would
be entitled to take the property in equal shares. Tue trial court as well
as the High Court held that B and K had inherited a life
estate as
tenants in common and their descendants would inherit per stirpes and
not p!r capita.
The
plain1:iffs-apoellants came to this
Court.
It
was
urged on their behalf that B and K had inherited as joint tenants and not
as 1enants in common.
HELD :
A joint tenancy is unknown to Hindu law except in the
case of a coparcenary between members of an
undivided
family.
The
terms of the will also did not in the present case spell out a joint tenancy.
As by the will the foster children were to have a life interest with a
vested remainder to their children, the latter could only take per stirpes
and not per capita. [398 G-399 A)
Jogeswt.'r Narain Dea v. Ra111 Chund Dutt & Ors.
23
I.A.
37 and
F
Bahu Rani v. Rajendra Baksh Singh, 60 I.A. 95, relied on.
G
H
In re Hutchinson's Trusts, 21 Ch. D. 811, Errington, In re : Gibbs v.
Lamim, [1927) I Ch. D. 421 and Mcdonnel v.
Neil, [1951) A.C .. 342,
referred to.
The donees of the life estate were minors at the date of the will and
there was no knowing when thev would get married and how many child-
ren each would have.
It would therefore be reasonable to expect that
the testatrix would so arrange her affairs that each of the foster children
should get half of the income of the property for life and that their
children should succeed to the respective interests of their parents.
It
is hardly likely that the testatrix would know the difference between joint
tenants and tenants in common and she would naturally be cager to treat
the foster children as her own children so that the heirs of the foster
children would take share and share alike the properties being divided
per stirpes between them. 1398 A-BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 245 of
1965.
396
SUPREME COURT REPORTS
{1968]) S.C.R
Appeal by special leave' from the judgment and order dated
A
Octol>er 31, 1962 of the Andhra Pradesh High Court in Appeal
No. 563 of 1959.
K. R. Cha11dlz11ri, for the appellants.
A. K. Sen and T. Saryanarayana, for respondents Nos. 1 to 3.
The Judgment of the Court was delivered by
Mitter, J,
This is an appeal by spe<:ial leave from a judgment
and decree of the High Court of Andhra Pradesh confirming the
decree passed by the Subordinate Judge at Eluru in O.S. No. 112
of 1955.
The only question involved in this appeal is, 'whether.
under the terms of the will of one Boddu Adilakshmi, defendants
4 and 5 took her properties as joint tenants or tenants in common.
The facts leading to the litigation may be slated as follows.
The testatrix, Adilakshmi, who was childless herself brought up
defendants 4 and 5, Boddu Ramarao and Kosury Lakshmarnma,
from their infancy.
At the date of the will executed on June 28,
I 913 the girl (defendant 5) had been with her for 15 years and
the boy (defendant 4) for I 0 years and both were minors at the
time.
In order to provide for them after her death she executed
a will covering all her properties, movable and immovable.
The
translation of the relev:"!t portion of the will which was in verna-
cular is as follows :-
.......... my entire property should hereafter my
lifetime pass to both these minors, Lakshmamma and
Ramarao, that until their minority period is over, Banda
Ramaswamy Garu ........ shoulExcerpt shown. Read the full judgment & AI analysis in Lexace.