N. KRISHNAMMAL versus R. EKAMBARAM & ORS.

Citation: [1979] 3 S.C.R. 700 · Decided: 16-04-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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700 
N. KRIS'HNAMMAL 
v. 
R. EKAMBARAM & ORS. 
April 16, 1979 
[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.] 
Hindu Succession Act, 1956-Ss. 8 to 10- Scope of. 
Test at or's will stated that in case his son died sonless ''my heirs s/1(lll take 
the properties" bequeathed to him-Testator's son died without leaving behind 
a male issue-Expression "my heirs'' nleaning of-Testator whether created 
an artificial class of hefrs-Term heirs used in a will-How construed-The 
point of time when heirs should be ascertained. 
By a will the testator bequeathed certain properties to each of his three 
sons. 
With regard to his third son (NP) the testator provided in Clause 5 
of the will that if he had no male issues "my heirs shall take the aforesaid 
properties" after his life time. 
NP died in 1957 without any male issue, 
His widow (plaintiff-appellant) filed a suit for declaration of her title to the 
properties on the ground that her husband got the same absolutely by way of 
partition and that she, as his heir, inherited the properties or in the alternative 
for a declaration of her right to the properties on a true construction of the 
testator's will. 
(Defendants 1 and 2 were the sons of the testator's eldest 
son while defendants 3 to 7 were the daughters and defendant 8 the widowed 
daughter-in-law of the testator's second son.) 
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The trial judge of the High Court decreed the plaintiff's suit holding that 
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on the termination of the life interest given to NP who died sonless the 
properties devolved on the heirs of the testator as if on intestacy, that the 
plaintiff was entitled to 1 /3 share of the properties, and that the remaining 
2/3 share should be shared by the defendants. 
Defendants 1 and 2 appealed to a Division Bench of the High Court, 
claiming that as the only heirs of the testator they were entitled to get the 
entire property of NP who had only a life interest in it Construing cl. 5 of 
the "ill, the Division Bench held : (1) that by his will the testator had 
made his heirs as an "artificial" class of ultimate residuary legatees; (2) that 
the mandate implicit in the words "if there are no male issues as aforesaid" 
is that such class of legatees or heirs of the testator would be ascertained 
and worked out at that point of time when NP died sonless and at no other; 
(3) that this class of heirs of the testator was to be ascertnined on the death of 
NP on the hypothesis that the testator had been upto the time of NP's death, 
but according to orthodox Hindu Law prevailing at the time of the testator's 
death in 1928; (4) that neitb:er Hindu Women's Right to Property Act, 1937, 
nor the Hindu Succession Act, 1956 was applicable because the testator actually 
died long before the coming into force of these two enactments and he did not 
die intestate; (5) that according to Hindu Law prevailing at the time of the 
testator's death in 1928, respondents 1 and 2 would be the only persons entitled 
to the property on the death of NP, to the exclusion of the latter's widowi the 
plaintiff. 
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N. KRISHANAMMAL v. R. EKAMBARAM & ORS. (Sarkaria, J.) 701 
Allowing the appeal. 
HELD : I(•) On a proper construction of the will the testator could not 
be said to have created or carved out an "artificial" class of heirs and made 
a residuary bequest in their favour. It is well established that the term "heirs" 
used in a will must be construed in a legal sense and cannot normally be 
limited to "issues" only. It must mean all persons who are entitled to the pro-
perty of another under the law of i\1heritance. [705E-F[ 
Angurbala Mullick v. Dcbabrala Mullick, [1951] 2 SCR 1125 at p. 1144; 
referred to . 
(b) The expression "my heirs" used in cl. 5 of the will must be construed 
as equivalent to "my legal heirs". The words "if there are no male issues my 
heirs shall take the aforesaid properties" are not words of gift over to any 
~rtificial class of heirs. 
[705G] 
2. Construction of clause 5 of the will brings out expressly or by inevitable 
implication, these instructions of the testator 
(a) In the event of NP's death, without male issue, the property v;.uuld 
devolve on the testator's heir. 
(b) Such heirs of the testator would be ascertained according to Hindu 
Law of intestate succession. 
(c) A!certainment of these "heirs" of the testator, is to be done at the 
time of NP's death on the hypothesis that the testator lived up to and died 
a moment after NP's deat

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