S. JHANSI LAKSHMI BAI & ORS. versus POTHANA APPARAO & ORS.

Citation: [1970] 1 S.C.R. 28 · Decided: 17-03-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Judgment (excerpt)

S. lHANSI LAKSHMI BAI &: ORS. 
v. 
PO'lllANA APPARAO A ORS. 
March 17, 1969 
[J.C. SHAH AND A. N. GllOVER, JJ.J 
Indian Succession A.ct, 1925 r. !OS-Bequest by wlll to wife absolute· 
ly and ruldue to other perrons-Legatee prtdectasu tutator-WMther 
dtvict acc.tlerattd-Bequeath by wl// for two purposu-No allocation of 
anlOllllt--On• of tht purposes fulfilltd without the amount-Effect of. 
A Hindu e.ecuted a will directing his wife to sell, Sch. C property and 
utilise the amount for celebrating the marriage of one Sitbarathnam and 
for constructing a Ramamandiram in his name, and further deviocd tlrat his 
wife shall enjoy Sch. E property ab90lutely and afler her life-time whatever 
remained out it, it will pass to two named persons. The wife predeceued 
the testator, and the marriage of 
Sitharathoam wu 
celebrated in the 
testator's life-time and 
expenses in that behalf were 
defrayed by the 
testator. The appellanll who were the testator's nearest heirs, claimed the 
properties coniending that the di!pOllition of the Sch. C a: E 
properties 
lapled, beca111C the wife who was the legatee of the properties died before 
the testator and that there was nothing in the will providing for the accele· 
rafioii of Sch. E property in case of the legatee's dying in tho testator'• 
life-time. 
HELD : (i) 
The wife had no beneficial interest in Sch. C property. 
She was merely appointed to aen the property and to utillae the pl'oceeds 
for the purposes specified in the will. 
lbcre wa no "joint beqnat" of 
Sch. C properties. 
In the absence of allocatioo of the amounll to be 
utiliaed for celebratin11 the marriaae of Sltharathnam and for comtructina 
a Ramamandiram, it moat be pre!Wlled that the fund wu to be utili,.d 
in equal moieties for the two purposca. 
Failure of one of the purpcoes 
will result in a moiety of the amoUDI deyiscd falling into thc residue. 
Since no part of the fund waa needed for the marriaae of Sitharatlmam 
the legacy failed pro tanto and fell into the residue. 
Under the will the 
wife wu made the owner of the residue, but by her death durina the 
life time of testator the reJiduary bequest lapsed and vealed aa on in· 
teatacy in the nearest heirs of the testator. 'the devise of a moiety of 
the fund to be applied for the comtruction of a Ramcmandiram ho~ver 
stood good and the truJt had to be carried out. 
The wife died d1*ina 
the life time of the t .. tator hut on that account the charitable trust w11 
DOI exlinll"ished. [31 E; 32 DJ 
Joguhwar Narain Dw v. Ram Chund Dutt and Othe,.., L.R. 23 I.A. 
37, 43. referred to. 
(ii) The wife died during the life time of the testator : thereby the 
estate in Sch. E pl"operties granted to the named persons waa accelerated. 
The nearest heirs of the testators were therefore not entitled to any share 
in Sch. E properties. 
Section IOS of the Indian Succession Act, enacu that a lepcy shall 
lapae and form part of the residue of the testator's property 
if the 
leptee does not survive the testator except where it appcara by the will 
that the testator intended that the legacy shall, on the legatee not awvi· 
ving him, ao to some other person. It could not be said that the intention 
B 
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A 
B 
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LAKSHMI BAI v. POTHANA (Shah, J.) 
29 
of the testator that a legacy shall not lapse may be given effect to only 
if the testator expressly directs that if the legatee dies durin& his life 
time the legaciY shall go to some other person, and that intention to 
exclude lapse cannot b~ inferred. Section 105 (I) does not say, nor does 
it imply, that the testafur must have expressly envisaged the possibility of 
lapse in consequence of the legatee dying during his life time and must 
have made a provision for that contingency. [33 F] 
· 
Browne v. Hope, L.R. 14 Equity Cases 343; Lowman Devenish v. 
Pest.r, (1885) 2 Cb. 348; Dunstan, Dunstan v. Dunstan, (1918) 2 Cb. 
304, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 445 of 
1966. 
Appeal by special leave from the judgment aind order dated 
March 9, 1964 of the Andhra Pradesh High Court in Letters 
Patent Appeal No. 2 of 1963. 
M. C. Chagla ·and T. Saty_anarayana, for the appellants. 
P. Ram Reddy and K. !ayaram, for the respondents. 
The Judgment of the Court was delivered by 
Shah, J. 
One Appanna died on March 12, 1953, leaving 
him surviving no wife or lineal descendant. 
Subba Rao claim-
ing to be the father's sister's son. of Appanna instituted suit • 
No. 64 of 1953 in

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