# \'ELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU v. YALAMANCHILI CHEVA ABHAYI AND ORS

- **Citation:** [1966] 3 S.C.R. 446
- **Court:** Supreme Court of India
- **Decided:** 1966-02-04
- **Case number:** Civil Appeal No. 752 of 1963
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, J.C. SHAH B S. M. SllCRI, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/elamanchili-siva-panchakshamma-godavaru-v-yalamanchili-cheva-abhayi-and-ors-3557
- **Pages:** 5

## Headnote

Will--<:onstructlon
o/-Prop<rty
whether could
be
claimed as
~
doaignata In terms of the will.
The reopondent filed a plaint claiming properties mentioned in Schedules A and B thereof on the ground that he was adopted by the appellant
who was widow of L. Apart from adoption
the respondent•• claim was
C
hued on being mentioned
as
ptrsona desiRnata in L's will.
The re--
levant words in the will were :
"It has been settled that my wife should
take, the second son of my elder brother, ........ in adoption, celcbrata
hiJ marriage,
etc., and after he passes his minority she should deliver
pc 1 •ion of my other movable and immovable propertic'i that I have
........ ". The trial court held that the respondent
had not been
adopted hr the appellant nor W8' he entitled to any right< as persona
da/pDID m Va will.
On appeal the High Court held that while there
D
was no adoption, the respondent was entitled to the property as persona
dnignata. The appellant came to this Court. The question
presented
for determination W8' whether the High Court W8' right in holding that
upon a true construction
of the will Ex.B-1 there was
a gift of the
property to the plaintiff as persona designa/a.
HELD : The will contained no direct words of disposition in favour
of the respondent. There was no expression of devise in favour of the
E
rnpondent. There was only a direction to the widow to adopt and
the gift to the respondent was on condition of being adopted. The
respondent•s claim as persona dnignata could not therefore be accepted.
(448 0-H. 450 A]
Fanlndra Deb Raikat v. Rajeswar Dass, 12 I.A. 72 relied on.
Nldhoomoni Debya v. Saroda Pershad Mookerjee, 3 I.A. 253 distinguished.
CivtL APPELLATE
JURISDICTION : Civil Appeal No. 752
of 1963.
Appeal from the judgment and decree dated December 16
1958 of the Andhra Pradesh High Court in Appeal Suit No. 284
of 1954.
M. A. Narasayya Chaudhury, I.
Shivamurthy and K.
R.
Sarmo, for the appellant.
W. S. Barlingay and E. Udayaratnam, for the respondent.

## Text

\'ELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU
v.
YALAMANCHILI CHEVA ABHAYI AND ORS.
February 4, 1966.
(P. B. GAJENDRAGADKAR, C. ]. , K. N. WANCHOO, J.C. SHAH
B
S. M. SllCRI AND V. RAMASWAMI, JJ.]
Will--<:onstructlon
o/-Prop<rty
whether could
be
claimed as
~
doaignata In terms of the will.
The reopondent filed a plaint claiming properties mentioned in Schedules A and B thereof on the ground that he was adopted by the appellant
who was widow of L. Apart from adoption
the respondent•• claim was
C
hued on being mentioned
as
ptrsona desiRnata in L's will.
The re--
levant words in the will were :
"It has been settled that my wife should
take, the second son of my elder brother, ........ in adoption, celcbrata
hiJ marriage,
etc., and after he passes his minority she should deliver
pc 1 •ion of my other movable and immovable propertic'i that I have
........ ". The trial court held that the respondent
had not been
adopted hr the appellant nor W8' he entitled to any right< as persona
da/pDID m Va will.
On appeal the High Court held that while there
D
was no adoption, the respondent was entitled to the property as persona
dnignata. The appellant came to this Court. The question
presented
for determination W8' whether the High Court W8' right in holding that
upon a true construction
of the will Ex.B-1 there was
a gift of the
property to the plaintiff as persona designa/a.
HELD : The will contained no direct words of disposition in favour
of the respondent. There was no expression of devise in favour of the
E
rnpondent. There was only a direction to the widow to adopt and
the gift to the respondent was on condition of being adopted. The
respondent•s claim as persona dnignata could not therefore be accepted.
(448 0-H. 450 A]
Fanlndra Deb Raikat v. Rajeswar Dass, 12 I.A. 72 relied on.
Nldhoomoni Debya v. Saroda Pershad Mookerjee, 3 I.A. 253 distinguished.
CivtL APPELLATE
JURISDICTION : Civil Appeal No. 752
of 1963.
Appeal from the judgment and decree dated December 16
1958 of the Andhra Pradesh High Court in Appeal Suit No. 284
of 1954.
M. A. Narasayya Chaudhury, I.
Shivamurthy and K.
R.
Sarmo, for the appellant.
W. S. Barlingay and E. Udayaratnam, for the respondent.
The Judgment of the Court was delivered by
Ramaswami J. This appeal is brought on behalf of the defendant against the judgment and decree of the High Court of Andhra
Pr11desh dated December 16, 1958 in A. S. No. 284 of 1954 whereby
F
G
H
'
,
'
GODAVARU v. ABHAYI (Ramaswam1', !.)
447
A
it reversed the judgment and decree of the Court of Subordinate
Judge, Vijayawada in 0. S. No. 171 of 1950,
B
c
D
E
F
G
H
In the suit which is the subject-matter of this appeal the plaintiff alleged that he was duly adopted by the defendant-the widow
of Lakshmayya-and therefore entitled to properties mentioned in
Schs. A & B of the plaint. The plaintiff also asserted that, apart
from his right as an adopted son, he was entitled to the properties.
claimed as a persona designata under the will dated November 30,
1946-Ex. B-1 executed by Lakshmayya. The suit was contested
l>Y the defendant who alleged that the plaintiff was not adopted as
tlie son of Lakshmayya. The trial court rejected the case of the
plaintiff that he was adopted by the widow after the death of Lakshmayya. The trial court further held that the plaintiff was not
entitled to any rights under the will as a persona designata. The
trial court accordingly dismissed the suit. On appeal by the plaintiff the High Court confirmed the finding that no adoption had
been made. It, however, held on the construction of the will
that the plaintiff was entitled to the properties claimed as a persona
designata. The High Court allowed the appeal and granted a
decree to the plaintiff for possession of the properties subject tocertain incidental directions given in the decree.
The question presented for determination in this appeal is
whether the High Court was right in holding that upon a true
construction of the will-Ex. B-1 there was a gift of the properties
to the plaintiff as a persona designata.
· It is necessary, at this stage, to set out the material provisions
of the will Ex. B-1 executed by Lakshmayya :-
"I have no male or female issue. I have wife, by
name Sivapanchakshari, mother by name Basavamma, and
elder brother by name Somaiah. .For the last 10 days
I am suffering from a disease akin to paralysis and fearing
that I may not survive, I make the following settlement
as set down below to take place after my life.
Land called Mallukunta
Out of Raksh kunta ( ?) vadde land
Out of Maddurivari land
Out of Pooravamamvari land
TOTAL
A.C.
1---00
1-25
1-05
2-60
6-50
Six acres and (50) fifty cents seri wet land; 10 cents
in Kolli Chinna Bapaiah's (back) yard; and 300 yards of
house-site towards the west of my house (belonging to my
mother-in-law) with a tiled house thereon, have been
448
SUPREME COURT REPORTS
(1966] 3 S.C.R.
settled upon my wife to enjoy as she likes with all rights of
gift, mortgage, exchange, sale, etc.
2. Southern side garden 80 cents (eighty cents of
scri wet land) has been settled upon my mother Basa vamma
to enjoy with all rights of gift, mortgage, exchange, sale,
etc.
3. It has been seltlcd that my wife should take, the
2nd son of my elder brother, Yalamanchili Somaiah,
in adoption, celebrate his marriage, etc., and after he
passes his minority she should deliver possession of my
other movable and immovable properties that I have
and described here below. During the life-time of my wife,
if the adopted son and she live together without any trouble,
(she) is to live in my house, and if there is disagreement
between the adopted son and my wife, (she) is to live in
a room of my house.
My wife has been given power over my minor (son's)
property, to collect debts due to me and to discharge <lebt.s
due by me."
The testator then mentioned two items of debts due to him.
He
thereafter enumerated the debts due by h.im which aggregated to
Rs. 15,803/- . A description of the land is also given.
The question involved in this appeal is whether the disposition
A
B
c
D
·of the properties to the plaintiff is as a persona designata or by
E
reason of his fulfilling a particular legal status, namely, the adopted
son of the testator. "!be question in such a case is really one' of
intention of the testator which must be ascertained from the language of the various clauses of the will and the surrounding circumstances of the execution of the will.
As pointed out by the
Judicial Committee in Fanindra Deb Raikat v. Rajesll'ar Das.<(') :
F
"The distinction between what is description only and
what is the reason or motive of a gift or bequest may
often be very fine, but it is a distinction which must be drawn
from a consideration of the language and the surrounding
circumstances."
In the present case we are satisfied, on reading the various clauses
of the will, that there is no gift to the plaintiff and there was only a
direction to the defendant to adopt the plaintiff as the son of
Lakshmayya and the intention of the testator was that the plaintiff
should take as an adorted son and, therefore, the gift made to
the plaintiff was conditional on his being adopted. The reason
is that there are no direct words of disposition in favour of the
plaintiff.
In this connection the language of cl. 3 of the will is
----· ·-·· ---·
(!) 12 I. A. 72.
G
H
A
B
c
D
E
F
G
H
GODAVARU v. ABHAYI (Rama.rwait11', J.)
449
in contrast with that of els. · 1 and 2 where words of disposition
are used with regard to the gifts made to the widow-Sivapanchakshari and to the mother of the testator-Basavamma. Clause
3 of the will does not contain any expression of devise of the property in favour of the plaintiff. Clause 3 only contains a direction that the wife of the testator should take the plaintiff in adoption, celebrate his marriage etc. and "after he passes his minority
she should deliver possession of my other movable ·and immovable
properties to him". It is manifest that in the present case there
is a direction to the widow to adopt and the gift to the plaintiff
is on the condition of his being adopted. It appears to us, upon
reading the will as a whole, that tho testator had no intention to
give the property to the plaintiff irrespective of the adoption to
be made by the widow in accordance with the direction. On
behalf of the respondents reference was made to the decision
of the Judicial Committee in Nidhoomoni Debya v. Saroda Pershad
Mookerjee(1) in which it was held that there was a gift of his property by the testator to a designated person (the words being "I
declare that I give my property to Koibullo whom I have adopted"),
and this gift was not dependent on the performance of certain
ceremonies by his widows. The principle of the decision is not
applicable to the present case where the language of the testamentary instrument is materially different. We think the present
case is similar to that of Fanindra Deb Raikat v. Rajeswar Dass(')
where the Judicial Committee held on a true construction of the
angik:ar-patra by which the deceased purported to give his property to the respondent by virtue of his being the adopted son,
that the gift did not take effect inasmuch as the adoption was
invalid. At page 89 of the Report the Judicial Committee observed
"They think the question is whether the mention of
him as an adopted son is merely descriptive of the person
to take under the gift, or whether the assumed fact of his
adoption is not the reason and motive of the gift, and
indeed a condition of it. The words are,-'I authorize
you by this angikar-patra to offer oblations of water and
pinda to me and my ancestors after my death, by virtue
of your being my adopted son. Moreover, you shall
become the proprietor of all the movable and immovable
properties which I own and which I may leave behind;
you shall become entitled to my dena-pawna (debts and
dues), and you and your sons and grandsons shall enjoy
them agreeably to the custom of the family.' He is to
make the offerings by virtue of being an adopted son, and
'moreover' he is to become the proprietor. This is to be
the consequence of the adoption."
(I) 3 I. A. 253.
(2) 12 I. A. 72.
450
SUPllBMB COURT RBPORTS
(1966] 3 S.C.R.
For the reasons expressed we hold that the High Court was in
error in interpreting the will of Lakshmayya as a gift of the properties made to the plaintiff as a persona designata.
We are, therefore, of the opinion that the plaintiff is not entitled to the properties on the basis of the will executed by Lakshmayya and the suit
of the plaintiff should be dismissed. This appeal is accordingly
allowed with costs.
Apptal a//owtd.
A
•