USHA SUBBARAO versus B.E. VISHVESWARIAH AND ORS.

Citation: [1996] SUPP. 3 S.C.R. 106 · Decided: 08-07-1996 · Supreme Court of India · Bench: S.C. AGRAWAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
USHA SUBBARAO 
v. 
B.E. VISHVESWAR.!AH AND ORS. 
JULY 8, 1996 
B 
[S.C. AGRAWAL AND G.T. NANA VAT!, JJ.] 
Indian Succession Act, 1925-Sections ll9, 120-Tramfer of Prope1ty 
Act, 1882--Sec. 19-Date of vesting of legacy-Detennination of-Distinction 
C between a vested interest and contingent interest. 
Wills--Constmction of---lntention to be asce1tained from words used 
keeping in view sun·ounding circunzscances, position of testator, his family 
relationship-Will must be read as a whole. 
D 
Appellant filed a suit claiming 1/5 share of her deceased husband i11 
the properties left by her father-in-law, on the basis of a Will. The testato1r 
had died in 1938 leaving behind his wife and five sons. The appellant was 
the wife of one of the testator's son who died in 1954 without leaving any 
issue an1l testator's wife died in 1959. In the Will the immovable and 
movable properties of the testator were specified in fonr groups specified 
E in Schedules 'A', 'B', 'C' and 'D' attached with the Will. At the time when 
the Will was executed all the five sons of the testator were minors and the 
eldest son, the husband of the appellant, was aged 12 years. in the Will, 
the testator's wife was vested with the management of all the properties 
specified in Schedules 'A', 'B' and 'D' but she had no power to dispose of 
F any of those properties by sale, gift, will, mortgage or hypothecation. She 
was entitled to take the produce of the land and nse the same for the 
maintenance of herself and her children, also to use the .interest, dividend 
and income of the properties for the same purpose and she could withdraw 
from the thrift deposit account of the child not more than Rs. 300 for 
Upanayanams and not more than Rs. 500 for marriage of the child where 
G upanayanams and marriages were to be performed for the children during 
their minority and income from other sources of his property was insuffi· 
cient to meet the expenses. As regards partition of the properties, it was 
provided that if any of the sons after attaining the age of majority demands 
partition during the life time of his mo1ther, he would be entitled to get his 
H share of the thrift deposit account in the Bank, standing in his name as 
106 
USl-IASUllBARAOv. B.E. VISHVESWAR!AH 
107 
mentioned in Schedule 'C' and in properties mentioned in Schedule 'A' and A 
in properties specified in Schedule 'D' and after the life time of the testator 
and his wife, all the properties mentioned in Schedules 'A' , 'B' and 'D' 
shall be divided equally among his surviving children and aller sons of the 
testator attain the age of majority, the income from the properties in the 
name of testator's wife, mentioned in Schedule 'B' only shall be used by 
her, for her maintenance and the said properties shall be liable to partition 
alter the demise of testator's wife among 'her surviving children'. 
B 
The appellant's case was that the respective shares in the various 
properties of the testator vested in the five sons of the testator as per the 
Will, on the death of the testator and that after the death of her husband, C 
the appellant was entitled to the share in the properties that had vested in 
him prior to his death in accordance llith the Will. The suit was decreed 
in full by the trial Court, holding that the succession opened on the death 
of the testator by virtue of which all the sons of the testator became entitled 
to equal shares in the properties and the recital in the Will that the D 
partition should take place amongst the snrviving children after the death 
of testator's wife was really intended to refer to the children surviving the 
testator. This finding was reversed In appeal. The High Court held that 
right was given to the children surviving the testator to demand partition 
aller the death of the testator subject to the conditions imposed in the Will 
and in the absence of such demand, the division was to take place after 
the death oftheir mother among the children surviving her and that since 
after attaining majority appellant's husband did not demand partition 
during his life and his mother continued to manage the properties during 
her life time and since appellant's husband had already expired when his 
mother died, it could not be held that he had a right, title or interest in 
E 
F 
the 1iroperties except to demand partition by metes and bounds which 
specified event did not happen during the life time of testator's mfe and, 
therefore, the ap

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