N. KASTURI versus D. PONNAMMAL AND OTHERS

Citation: [1961] 3 S.C.R. 955 · Decided: 23-02-1961 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR, K.N. WANCHOO · Disposal: Dismissed

Judgment (excerpt)

' 
3 S.C.R. 
SUPREME COURT REPORTS 
955 
1961 
This aspect of the matter was completely ignored 
by the trial court and the appellate court, and so the 
Jib•• C1"'ndr• 
High Court was right in correcting the error which had 
Sarma,Doloi 
crept irito the concurrent decisions of the courts below. 
. v. 
. . 
Besides, the High Court was also right in holding Anand•R••• K•l•I• 
that in a case of this kind where the appellant urged G . d-dA 1 
that the lands could be alienated only to a specified aJ•• raga "' • 
class of persons, the onus was on the appellant and 
not on the respondents to prove the contrary. Failure 
to put the onus on the appellant introduced a serious· 
infirmity in the approach adopted by the courts below 
in dealing with this question. · That . was another 
infirmity in their decision. It is also clear that the 
evidence adduced by the appellant in support of his 
case to which reference has been made by the first two 
courts is entirely unsatisfactory, and, even if it· is 
believed, in law it would be insufficient to sustain the 
plea that there was a limitation on the transferability 
of the lands in question. We are also satisfied that 
the declaration granted by the District Court was 
futile. Therefore, in our opinion, the view taken by 
the High Court is absolutely correct and the grievance 
made by the appellant against the validity of the said 
conclusion cannot be sustained. 
In the result the appeals fail and are dismissed with 
costs. 
Appeals dismissed. 
N. KASTURI 
v. 
D. PONN AM.MAL AND OTHERS. 
(P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.) 
Will-Construction-Bequest to Kin the absence of adoption-
Testator's intention to adopt K-Authority to adopt given lo widow 
-No adoption made-K's rights, whether vested interest subject to 
defeasance by subsequent adoption. 
A testator, who was childless, executed a will on April 28, 
1937, and died on March IO, 1939, leaving him surviving his 
. ·• 
widow. In cl. 6 of the will he expressed his desire to adopt a boy 
and stated that in case he did not make an adoption during his 
life-time his wife shall adopt K. He also conferred authorityQo hi~ 
~~2 
1961 
Kast1tri 
v. 
Ponnannnal 
956 
SUPREME COURT REPORTS 
[1961] 
wife to make an adoption in case K died before being adopted. 
By cl. II of the will he provided that exclusive of the properties 
that might be given for T's wives, M. A. and. K. A., and daughter 
and for his wife for being enjoyed by each during her lifetime, in 
respect of one-half of all the remaining properties of his family, 
his wife shall before making an adoption, execute in favour of 
K. S. a document under which he shall enjoy only the income 
from those properties during his lifetime and that alter his life-
time his heirs shall get them with absolute rights, and she shall 
also make an arrangement to the effect that his adopted son 
similarly got and enjoyed only the remaining half. Clause 12 
provided: 
"Should myself and my wife die without making an 
adoption or should my wife predecease me or in case I do not 
adopt any boy or in case the boy adopted by me is not alive at 
the time of my death, the above K an<l the above K. S. shall get 
·the whole of my properties in equal shares ...... Should myself 
and my wife die without making an ad0ption as stated above and 
should the above K. S, predecease us, the above M. A. and K . .-\. 
shall get all the properties ...... " 
No adoption was made either by the testator before his 
death or by his widow thereafter. K instituted a suit for a 
declaration of his rights under the will basing his claim under 
cl. r2 on the footing that under that clause when no adoption 
was made and until it was so made he had a vested interest 
in respect of half the properties subject to defeasance by subse-
quent adoption. 
Held, that on a true construction of the will dated April 28, 
r937, cl. 12 was intended to operate at the time of the death of 
the testatot and not later and that K would get an interest nnder 
that clause only if the widow of the testator pre-deceased thr 
testator and there was no adoption by the testator before his 
death. 
In the circumstances K's rights were provided for by 
cl. II only and those rights could not come into existence unless 
and until he was adopted by the widow. On this view there was 
a postponement of vesting and a possibility of intestacy, but that 
cannot be avoided. 
The rules of construction of a will against a postponement 
of vesting and 

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