# BODDU VENKATAKRISHNA RAO & ORS v. SHRIMATI BODDU SATYAVATHI & ORS

- **Citation:** [1968] 2 S.C.R. 395
- **Court:** Supreme Court of India
- **Decided:** 1967-11-23
- **Case number:** Civil Appeal No. 245 of 1965
- **Bench:** K. N. Wanchoo, R. S. Bachawat, G. K. ·Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/boddu-venkatakrishna-rao-ors-v-shrimati-boddu-satyavathi-ors-4213
- **Pages:** 6

## Headnote

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 children 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

## Text

A
B
c
D
E
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 children 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 vernacular 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 ........ should act as their guardian and deal with all the affairs, that after their minority
period is over the entire property should be in possession of both of them, that both of them should enjoy
throughout their lifetime
the said property
without
powers
of gift transfer and sale and that after their
death the children that
may be born to them should
enjoy the same with powers of gift, transfer and sale.,"
The testatrix died within a few days after the execution of the
will.
Defendants 4 and 5 divided the properties
left
by the
testatrix by a registered partition deed dated December 27, 1929
by which those mentioned in Schedule A to the plaint fell to the
share of the 4th defendant while the others mentioned in Schedule
B fell to the share of the 5th defendant.
The 4th defendant married the I St defendant, Boddu Satyavathi who is the daughter of
the 5th defendant.
The 2nd defendant is the daughter born out
of this wedlock.
Some years thereafter, the 4th defendant married one Boddu Manikyam, the plaintiffs I to 4 being the issue'
of the marriage of the 4th defendant with her.
The 5th defendant
n
c
D
E
F
G
H
I
A
.B
c
D
VENKATAKRISHNA v. SATYAVATHI (Mitter, J.)
397
and the ·1st defendant mortgaged the B schedule properties with
the .3rd defendant who brought a suit on the mortgage and obtained a decree.
The plaintiffs filed the suit against
all
the
defendants in 1955 prayiag for a declaration that after the death
of defendants 4 and 5. the 1st defendant and the children of the
4th defendant or such of them as may be alive at the time would
be entitled to share the properties in suit equally between them
and that any alienation made by defendants 4 and. 5 or their
assignees or alienees would not bind the interests of the ultimate
reversioners beyond. their lifetime and further that the mortgage
decree mentioned above was not binding on the plaintiffs or the
ultimn.te reversioners.
In the trial court a number of issues v•ere
framed but the only question canvassed before the High Court on
appeal related to the effect of the will of Adilakshmi.
The trial
court came to the conclusion that defendants 4 and 5 were only
the holders of life estate and that they had succeeded to the estate
of Adilakshmi as tenants in common.
The High Court
held
that
"the ri~ht of the children of defendants 4 and 5 to
step into the shoes of the parents has been expressly
mentioned in the instrument.
The residuary estate has
been given to the children that may be born to the legatees who. it is provided, should enjoy the properties with
powers of gift. transfer and sale. A life estate has been
given to defendants 4 and 5 and an absolute estate to
their children.
On a fair construction of the lan~uage,
it is difficult to accede to the contention of the appellants
that the children of defendants 4 and 5 who may be
actually alive at the time of the death of defendants 4
and 5, would take the properties per capita."
F
The High Court further held that the conduct of the defendants
in partitioning the properties went to fortify the above conclusion.
The ultimate conclusion of the High Court was
"the bequest in favour of defendants 4 and 5 was
that of a life estate with a vested remainder in favour
of their children and that the children should take the
vested remainder per stirpes and not per capita."
Jn our view. the High Court came to the correct conch1sion.
Before examining the principles of Jaw involved, we may consider
the intention of the testatrix in giving her properties to defendants
4 and 5.
She brought them up like her own children but she did
not want them to have the power of sale or alienation and desired
H
that the properties be preserved for the benefit of their children.
Tt would be reasonable therefore for her to make provision in such
a way that the foster children would enjoy the income of the
properties for their lives and that their children should inherit the
15ur.C. I '68-·IO
,,
398
SUPREME COURT REPORTS
( 1968] 2 S.C.R
properties as full owners
on the
death of their parents.
The
donces of the life estate were minors at the date of the will and
there was no knowing when· they would get married
and
how
many children each would have.
It would ~herefore be reasonable to e:i;pect that the testatri:i; 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 interest of their parents.
It is hardly likely that the
testatrix would
know·-ihe difference between joint tenants and
tenants in common and she would naturally be eager 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 be in
divided ;1a stirpe.1· among them.
Let us now consider the position in law.
The law has been
summarised in Mulla's Transfer of Prope;ty Act (Fifth Edition)
at page 226. As early as 1896 it was held by the Judicial CClmmittee of the Privy Council in lo?e«>rar Narain Deo. v. Ram Chmu/
Dutr & others( 1) that
"The principle of joint tenancy appears to be un ·
known to Hindu law. except in the case of copareenary
between the members of an undivided family."
and that it wa' not
rigt.,
to
import
into the
construction
of a Hindu will an ex:rr.mely technical rule of English conveyancing.
Many years later the princirle was reiterated in the case
of Ba/111 Rani v. Rajendra Baksh Si11gh(').
It was argued before us that there were indications in -the will
that the intention of the testatrix was that the foster children should
take as joint tenants and that this was apparent from the clause
in the will which provided that
"the entire property should be in possession of both
of them and that both of them should enjoy throughout
their lifetime the said property .. , ... and
that
after
their death the children that mav he
bornto them
should enjoy the same ...... •·
..
We do not think that from this one can spell out a joint tenancy
which is unknown to ·Hindu Jaw except as above stated.
The
testatrix did not expressly mention that on the death of one all
the properties would pass to the other by ri!ffit of survivor.ship.
We have no doubt on a construction of the will that the testatrix
never intended the foster children to take the property as joint
tenants.
The foster children who became tenants
in
common
partitioned the property in c'ercise of their right.
([) 23 l.A. 37 •I 44.
(2) 6<1 I.A. 95 at IOI.
,\
c
E
F
G
II
,_
A
VENKATAKR!SHNA \'. SATYAVATH! (Mitter, J.)
:199
As by the wil! 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.. As· Halsbury points out
(Volume 39-Third Edition) at page 1106, Art. 1638 that a
stir pi ta! distribution would be adopted
,.
B
"where the gift was to a number of parents and
their children in such a manner that the children were
substituted for, or took on the death of, their respective parents; and gifts to several parents and at, or after,
their deaths to their children, or to their issue, have
received this construction as meaning at or after their
c
respective deaths."
It is not necesary to cite many instances where this construction
has been adopted. In re Hutchinson's
Trusts( 1 )
the testatrix
bequeathed personalty in trust for A. B. for life and· after his
decease for his issue, and on failure of his issue to F.H.S. and
D
R.S. share and share alike, and after the decease of the said
F.H.S. and R.S. to their children share and share alike, and to
their heirs for ever.
Kay. J. felt that he was bound by authoritv
to say that the words
" 'after the decease of the said Francis Hutchinsor:>
E
Synge .and his brother Robert Synge' mean after their
respective deaths, or after the decease of each of them,
and that there is a disposition of the share of each which
was an absolute interest in'the first instance upon his
de~th." (see at page 816),
·
F
This rule was further amplified by Romer. J. in Errington._ In re.
G
H
Gibbs V. Lassam(2 ) where he said (at p. 425)
"The rule, stated in its simplest way is this : Where
a testator gives the income of his estate to two people,
A. and B., for their Jives and follows that .gi~t by a direction that at their death, or at their deaths, or at or after
the ·death or deaths of A. and B. the property is to go
to their issue, tb.e Court does not construe the gift as a
gift o~ly to take effect on the death of both in favour
of the issue of both, but construes it ~ a gift, to take
effect on the death of each, of the share 10 the income
of which the deceased· was entitled, to the 'issue of the
deceased."
(1121 Ch. _D .. lf.
(2) 1927 I Ch. D.. 421
•
-100
SUPREME C'QURT" REPORTS
i1%SJ2 S.C.R
In Mcdo1111el/ v. Nri/1 ') the Judicial Comminee referred, to
th~
dictum of Kay, J. in re Jl11tchi11.w11's Trust.I"!') and observed :hat
the construction was borne out hy a long line of authority.
In the result, the appeal will stand dismissed :with costs. . Th~
appellant must pay the court fees.
G.C.
1t). [i9.51)A.C. J42.
t:!) 21 Ch. I> i-:11.
'
Appeal dismissed.
A
B
·,