Yellappa v. Golla Swami

Odgers J. — In this case, I have to determine the quantum of interest taken by the son's daughter of the testator by his will Ex. A. The operative words are:—

“You shall enjoy after my death all the properties moveable and immoveable”……………”You can enjoy all the said properties attending to my obsequies after my death and settling the matters of the debts etc., incurred by me.”

The testator further recites that the properties left by him are his divided properties. The District Munsif has held that the legatee took an absolute estate and the Subordinate Judge that only a life estate was taken. The reason for the latter decision are first that the word ‘enjoy’ could not confer an absolute estate, and secondly that as the legatee is a female, there is no presumption that she takes an absolute estate by the word ‘enjoy’. In the case in Gurusami Pillai v. Sivakami Ammal(1), the words were “shall enjoy for their lives” as opposed to “shall enjoy the whole property”. The expressions were applied to females and the Privy Council laid down that where the language of a will is clear and consistent, it should receive its literal construction unless there is something in the will itself to suggest a departure from it. In Kamarazu v. Venkataratnam(2), the will applied to daughters, who were directed to take possession of certain immoveable properties and “enjoy the same happily as they please.” It was held that the daughters took an absolute estate there being nothing in the instrument or surrounding circumstances to point to an intention to limit the gift to a life estate. The question is really whether the words used are in the language of the Privy Council Ramachandra Rao v. Ramachandra Rao(3) explaining Surajmani v. Rabi Nath Ojha(4) “of sufficient amplitude to convey in the terms of the gift itself the fullest rights of ownership etc.” In my opinion there are. The words are not cut down in any way and there is no disposal of the residue as would be usual if only a life estate were intended. The testator says he has no male issue and apparently there was nobody at all nearly connected with him save the legatee. The surrounding circumstances do not therefore point to any such limitation or restriction. Further there is the direction to pay the debts etc. These would probably have to be paid by realising the immoveable property or some portion of it, which the holder of a mere life estate could not do. I think there is no doubt that the words used are capable of passing an absolute estate.

The question remains whether there is anything against such a construction of the words from the fact that the legatee is a woman. It is contended that it must be presumed that the testator intended to confer a life estate as that would be consonant with his notions as to the quantum of interest a women would ordinarily take. In Ramachandra Rao v. Ramachandra Rao, which was on a different point reversed by the Privy Council, Wallis, C.J, stated that the trend of later decisions here i.e, since Sambasiva Ayyar v. Venkataswara Ayyar, is against making any assumption that only a widow's estate should pass in the absence of any indication to give a larger estate and that the rule in Mahomed Shumsool v. Shewukram, which construed the intention of the testator to have been against the gift of an absolute estate is a rule of construction only to be applied where there is some uncertainty or ambiguity in the language of the instrument. As Seshagiri Iyer, J., pointed out in the same case, the decision of the Privy Council in Surajmani v. Rabi Nath Ojha shows that their Lordships thought that no difference should be made between a male and a female provided the words of gift are sufficiently clear to convey the property. The same learned Judge in Namasivayam Pillai v. Kuthalalingam Pillai(5) held that if apt words are used no matter who the transferee is, whether male or female, the estate conveyed would be an absolute one. Further, it is to be noted that the legatee, in this case, is not an heir in the ordinary sense. In Ramasami v. Papayya(6) the presumption relied on in argument that a gift to a female is only a life estate was rejected, it not being shown that the female legatee was a widow, when her father gave his property to her. In Atul Krishna Sirkar v. Sanyasi Churn Sircar(7), a single learned Judge of the Calcutta High Court held that such a presumption did not exist in the case of a mother, but only in the case of a widow. With this I am disposed to agree, subject however to this, the presumption may even in the case of widows be rebutted by the employment of words of “sufficient amplitude” to create an absolute estate. It is, I think clear, that no such presumption exists with regard to a distant, female connexion as in the present case and if, as I hold the words are sufficient to create an absolute estate, there is no reason from the point of view of Hindu sentiment or intention why it should be cut down to a life estate.

In my opinion, the Subordinate Judge was wrong on both the grounds and the appeal must be allowed with costs here and in the Lower Appellate Court.

Phillips J:—I agree.

W. S. S.Appeal allowed.