# S. lHANSI LAKSHMI BAI &: ORS v. PO'lllANA APPARAO A ORS

- **Citation:** [1970] 1 S.C.R. 28
- **Court:** Supreme Court of India
- **Decided:** 1969-03-17
- **Case number:** Civil Appeal No. 445 of 1966
- **Bench:** J.C. Shah, A. N. GllOVER
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-lhansi-lakshmi-bai-ors-v-po-lllana-apparao-a-ors-4753
- **Pages:** 7

## Headnote

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
c
D
E
F
G
H
A
B
c
D
E
F
G
H
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.

## Text

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
c
D
E
F
G
H
A
B
c
D
E
F
G
H
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 claiming to be the father's sister's son. of Appanna instituted suit •
No. 64 of 1953 in the Court of the Subordinate Judge,
Eluru.
for partition and separate possession of his half share in the moperties described in Schs. A, B, C, D & E. The plaintiff f:laimed that Appruma died intestate, and that he and his brother
Venugopala Rao were the nearest heirs entitled to the entire estate of Appanna. To this suit were impleaded Pothana Apparao
(husband of the sister of Mangamma wife of Appanna),
his
children, certain relations of Mangamma and the tenants on the
lands in suit. Venugopala Rao was impleaded as the 24th defendant. The suit was defended by Pothana Apparao and others
contending, inter alia, that Appanna had made and executed a
will on July 14, 1948, devising his property in favour of various
legatees and the plaintiff's suit for a share in the property was on
that account not maintainable.
The Trial Court held that
Appanna of his free will and while iii. a sound state of mind had
executed the will on July 14, 1948, whereby he disposed of his
properties described in Schs. A, B, · C, D & E, but the Court
held that the disposition of the property in Schs. C & E lapsed
because Mangamma who was a legatee of the properties died before the testator, and that the direction in the will that whatever
remained out of the Sch. E property after the life time of Mangamma shall pass to Venkataswamy and Seshagirirao defendants
Nos. 3 & 2 respectively or their descendants was void and in·
capable of taking effect. The learned Judge accordingly passed
a decree in favour of the plaintiff and the 24th defendant for
possession of properties described in Schs. C & E.
30
SUPREME COURT REPORTS
[1970] I S,C.lt.
In appeal to the High Court of Andhra Pradesh, Chandra-
~
Sastry, J., allowed the appeal filed by Pothana Apparao
and h1S two sons Venkataswamy and Seshagirirao, and dismissed
the claim of the plaintiff in respect of Schs. C & E properties. An
appeal under the Letters Patent filed by the plaintiffs against the
judgment of Chandrasekhar, J. was dismissed.
8
It has been concurrently foun<i by all the Courts that when
he was in a sound and disposing state of mind Appanna executed
on July 14, 1948, the will set up by the defendants. In an appeal
with special leave this Court will not ordinarily allow a question
about due execution to be canvaased, and our attention is not
invited to any exceptional circumstances which may justify a de- c
parture from the rule.
The only question which survives for consideration relates
to the true effect of the dispositions made by the will in respect of
Sch. C and Sch. E properties. The relevant provisions of the
will may first be set out :
"I am now about forty years of age. I do not have
male or female issue. . . . My wife is alive. . . .
and with the fear that I may not survive I have made
the following provisions in respect of my immovable
and movable properties to be given effect to.
I have given power to my wife Mangarnma to sell
the immovable property mentioned in the C Schedule
hereunder and utilise the amount for celebratir;; the
marriage and other auspicious
functions of Tholeti
Narsimha Rao's daughter Seetharatnam mentioned in
the B Schedule and for constructing a Ramamandlram
in Rajavaram village in my name.
..
"The immovable property mentioned in the
E
Schedule hereunder sh411 be enjoyed by my wife Mangamma with all powers of dispo&ition by way of gift,
sale, etc.
Whatever remains out of the aaid E Schedule mentioned immovable property after her lite-time,
(the said property) shall pass either to the said Venkataswamy and Seshagiri or their descendants. • • . •
In the event of my wife taking a boy in adoption the
propeflY mentioned in the E schedule hereunder shall
pass to the said adoptee with all powers of disposition
by way of gift, sale etc. after her life-time. . • . . • . .
If, for any reason, the properties and rights do not
pass to the individuals
mentioned in
the
aforesaid
D
I'
G
H
A
B
c
D
I
E
F
G
I.
H
LAKSHMI BAI V. POTHANA (Shah, J.)
paras, such properties and rights shall be enjoyed by
my wife Mangamma with absolute rights."
31
Appanna had directed his wife Mangarnma to sell the properties described in Sch. C and to utilise the proceeds for two
purposes, "celebrating the marriage and other auspicious fll!lctions" of Seetharatnam, and "for constructing a Ramamantliram
in Rajavaram village" in his name. But the marriage of Seetharatnam was celebrated during the lifetime of
Appanna,
and
expenses in that behalf were defrayed by Appanna, and no expenses remained to be incurred after the death of Appanna.
Mangamma had no beneficial interest in Sch. C property. She
was merely appointed to sell the property and to utilise the
proceeds for the purposes specified in the will. The Trial Judge
clearly erred in holding that the estate lapsed because Mangamma
died during the lifetime of Appanna. In the view of Chandrasekhar Sastry, J., since there was a joint bequest for two purposes,
and one of the purposes for which the Sch. C properties were
c,Jevised was accomplished by Appanna the bequest in its entirety
must enure for the remaining purpose i.e. constructing a
Ramamandiram, and the plaintiffs' claim for possession of the
C Schedule properties must fail.
The learned Judges of the
High Court agreed with that view.
But there was no "joint bequest" of the properties.
In the
absence of allocation of the amounts to be utilised for "celebrating the marriage and other auspicious ~unctions" of Seetharatnam
and for constructing a Ramamandiram, it must be presumed
that the fund was to be utilised in equal moieties for the two purposes. Failure of one of the purposes will result in a moiety of
the amount devised falling into the residue.
In Jogeswar Narain Deo v. Ram Chund Dutt and Others(')
a devise under the will of a Hindu testator who had given a fouranna share of his estate to his daughter and her son for their
maintenance with power of making alienation thereof by sale or
gift £ell to be construed. The Judicial Committee held that on
a true construction of the will each took an absolute interest in
a two-anna share in the estate. In dealing with the contention
that there was a joint estate granted to the daughter and her son
the Judicial Committee observed :
" ...... Mr. Branson ...... maintained upon the
authority of Vydinada v. Nagammal (ILR 11
Mad.
258) that, by the terms of the will the Rani and the
appe!lent became, in the sense of English law, joint
tenants of the 4-annas share of Silda, and not tenants
in common; and that her alienation of her share before
it was severed, and without the consent of the other
(l) L. R. 23 I. A. 37. 43.
32
SUPREME COURT REPORTS
(1970] I S.C.R.
joint tenant, was ineffectual.
The
circumstances of
that case appear to be on all fours with the circum-
>tanccs which occur here, and, if well decided, it would
be a precedent exactly in point. There are two substantial reasons why it ought not to be
followed as
an
authority.
In the first place, it appears to their Lordships that the learned Judges of the High Court
of
Madras were not justified in importing into the construction of a Hindu will an extremely technical rule
of
English conveyancing. The principle of joint tenancy
appears to be unknown to Hindu Jaw, except in the
case of coparcenary between the memben of an undivided family."
That principle applies here.
The fund was 'devised for
the
construction of a Ramamandlram at Rajavaram village and for
"celebrating the marriage and other auspicious functions"
of
Se<:tharatnam.
Since no part of the fund was
needed for the
benefit of Seetharatnam, the legacy failed pro tanto and fell into
the r<!«idue.
Under th.~ will Mangamma was made the owner of
the residue. hut by her death during the lifetime of Appanna the
residuary bequest lapsed and vested as on intestacy in the 9laintiff and the 24th defendan!. The devise of a moiety of the fund
to be applied for the construction of a Ramamandiram however
stands good
and the trust must be carried out.
Mangamma is
dead, but on that account the charitable trust is not extinguished
The Trial Court must give appropriate directions for utilisation
of that moiety for constructing a temple according to the direction of Appanna in the will.
The testator gave to his wife Mangamma an absolute interest in the E Schedule properties, for she was invested with all
powers of disposition "by way of gift, sale etc." The·will then
proceeded to direct that whatever remained out of the E Schedule
properties after her death
shall pass to
Venkataswamy
and
Seeshagirirao. If Mangamrna had survived Appanna, probably
the devise in favour of Venkataswamy and Seshagirirao may have
failed, but that question does not arise for consideration.
Se.:tion I 05 of the Indian Succession Act, 1925, which applies
to the wills of Hindus provides :
"(I) If the le~atce does not survive the testator.
the leeacv cannot take effect, but shall lapse and form
part of the residue of the testator's property. unless it
..
E
G
appears bv the will that the testator
intended that it
ff\
should 20 -to some other person.
('.!)
"
A
B
c
D
E
F
G
H
LAKSHMI BAI v. PO THAN A (Shah, J.)
33
Mr. Chag!a for the plaintiffs contends that the estate in
the
E Schedule properties devised in favour of Mangarnrna lapsed,
for, there was nothing in the will which expressly provided that
in the event of Mangamma dying during the testator's lifetime,
the devise in favour of Venkataswamy and Seshagirirao shall be
accelerated.
Counsel relies
upon the
judgment of Wickens,
V. C., m Browne v. Hope(') and contends that a legacy does not
lapse, if the testator does two things-he, in clear words, excludes lapse; and he clearly indicates the person who is to take
the legacy in case the legatee should die in his lifetime. In
Browne's case (1) che testator gave, by his will, the residue of
his estate to trustees to pay and transfer the same to seven named
legat•,es in equal shares as tenants in common, and therr respective executors, administrators and assigns; and he declared that
such shares shall be vested interests in each legatee immediately
upon the execution thereof, and that 'the shares of the married
women shall be for their separate use.
It was held that the
share of one of the Jegatees-a married woman-who died after
the date of the will, but before the testator, did not belong to
her husband, who was. her legal personal representative, and it
lapsed.
Counsel says that the rule of interpretation as enunciated by
'Vice Chancellor Wickens is incorporated in s. 105 of the Indian
Succession Act, 1925. He submits that a legacy will not lapse
only if the testator by express direction excludes lapse, and indicates clearly. the person who shall take the legacy if the legatee
dies during his lifetime.
We are concerned to construe the provisions of s. 105 of
the Indian Succession Act. That section enacts that a legacy sha!l
lapse and form part of the residue of the testator's property if the
legatee does not survive the testator except where it appears by
the will that the testator intended that the legacy shall on the
legatee not surviving him go to some other person. We are unable to agree that the iniention 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 during his lifetime the legacy shall
go to some other person, and that intention to exclude lapse ~n
not be inferred.
Section 105(1) does not say, nor does it imply, that the testator must have expressly envisaged the possibility
of lapse in consequence of the legatee dying during his lifetime
and must have made a provision for that contingency.
In In re. Lowman Devenish v. Pester(') a testator, who under
a settlement was absolutely entitled to a moiety of the prr0,eeds
of a certain real estate under a trust for sale, by his will devised·
(I) L. R. 14 Equity Cases, 343.
(2) [1885] 2 Ch. 348.
34
j
SUPREME COURT REPORTS
[1970) I S.C.R.
that real estate. by its proper description, together with certain
real ~late of his own, to trustees, to the use of H, for life, with
remamder to trustees to preserve the contingent remainders, with
~ema~nder to th~ use of the first and other sons of H successively
In tail male, with remainder to the use of the first and
other
sons of his niece E successively in tail male, with remainder to
the use of the first and other sons of his niece M successively in
tail male, with remainder to the use of the first and other sons
of his niece F successively in tail male, with remainder over.
H survived the testator and died a bachelor. M also survived the
te;tator and died unmarried.
E was still alive but unmarried
and seventy years of age.
F had two sons, the eldest of whom
died before the testator.
It was held that when there are in a
will successive limitations of personal estate in favour of several
persons absolutely, the first of those persons who survives the testator takes absolutely, although he would have taken nothing if
any previous legatee had survived and had taken : the effect of
the failure of an earlier gift is to accelerate, not to destroy, the
later gift.
This rule was applied in In re. Dunstan, Dunstan v. D11nsta11(' ).
A testatrix by her will gave freeholds absolutely to A, subject
to the bequest that whatever out of the freeholds should remain
after A's death shall be given to a named charity. It was held
that if A had survived the testatrix the gift to the charity would
have been repugnant and void, and A would have taken the
frcchollls absolutely.
But since A died in the lifetime of the testatrix, the doctrine of repugnancy did not apply, and the gift
to charity was accelerated and took effect.
Mangarnma died during the lifetime of the testator : thereby the estate in Sch. E properties granted to Venkataswamy and
hlS brother Seshagirirao was accelerated. The plaintiffs are therefore not entitled to any share in Sch. E properties.
The decree of the High Court is modified.
It is declared that
there is intestacy in respect of a half share in the fund arising
by sale of Sch. C properties, and the plaintiff and the 24th de~n
dant are entitled to take that half share in the fund. It is directed that the Trial Court will issue appropriate directions for application of the other half of the fund arising by sale of Sch. C
properties for constructinJZ Ramamandiram at Rajavaram village
as direcred by the testator in his will.
Subject to this modifica1ion the appeal will be dismissed.
The appellant will pay 3/4th
of the costs of the contesting respondents in this Court.
Y.P.
Appeal 'dismissed.
(I) (19t8} 2 Ch. 304.
·-
A
B
c
D
E
F
G