judgement:
ON: Civil Appeal No. 786 of 1976.
From the Judgment and Order dated 12.1.
1976 of the Gujarat High Court in Special Civil Application No. 873 of 1970.
516 P.H. Parekh for the Appellant.
Krishan Kumar for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the High Court of Gujarat dismissing the appel lant 's writ petition made under Article 227 of the Constitu tion of India challenging the validity of the order of the Revenue Courts in dismissing the appellant 's suit for evic tion of respondents.
Briefly, the facts giving rise to this appeal are: the respondents are tenants of agricultural land which had been let out to them by the appellant 's predecessors in title.
The appellant made applications on behalf of minor Ashok Kumar for the eviction of the respondents on the ground that the agricultural land in dispute was bona fide required by the landlord for his personal cultivation.
The appellant pleaded that the land in dispute had been bequeathed to him by his maternal grandmother under a Will and as such he was the landlord of the disputed land entitled to maintain the applications for eviction of the respondents under Section 29 read with Section 3 IA of the Bombay Tenancy and Agricul tural Lands Act 1948 (hereinafter referred to as the Act) as applicable to the State of Gujarat.
The tenants raised a preliminary objection to the maintainability of the suit on the ground that the appellant being a transferee of the land from his maternal grandmother was not entitled to maintain the suit as a landlord under Section 31A of the Act, inas much as he had not inherited the property from his ances tors.
The Mamlatdar upheld the preliminary objection and dismissed the eviction ' suit.
On appeal the District Deputy Collector upheld the order of the Mamlatdar.
The appellant preferred revision application before the Gujarat Revenue Tribunal at Ahmedabad but the same too was dismissed uphold ing the tenants ' objection.
The appellant thereafter filed a writ petition under Article 227 of the Constitution before the High Court challenging the correctness of the view taken by the Revenue Courts.
The High Court by its order dated 12.1.
1976 dismissed the writ petition on the finding that the view taken by the Revenue Courts in upholding the ten ants ' objection to the maintainability of the eviction suit was correct.
The appellant has preferred this appeal against the aforesaid order of the High Court.
There is no dispute that under Section 31A of the Act a landlord has a right to determine tenancy of agricultural land and to evict the 517 tenant on fulfilling the conditions prescribed therein.
The conditions prescribed are that if the landlord has no other land of his own and if he has not. been cultivating person ally any other land, he is entitled to take possession of the land let out to a tenant to the extent of permissible ceiling area.
If the land cultivated by the landlord person ally is less than the ceiling area he is entitled to take possession of so much area of land as would be sufficient to make up the area in his possession to the extent of ceiling area.
further the income by the cultivation of the land of which he is entitled to take possession should be the prin cipal source of income for his maintenance.
These conditions as laid down in clauses (a), (b) and (c) of Section 31A of the Act must be satisfied for making an application for the eviction of a tenant from agricultural land.
In addition to these conditions, clause (d) further prescribes additional conditions which must also be fulfilled by the landlord.
Section 31A(d) as amended by the Gujarat Act No. XVI of 196(1 reads as under: "31.A The right of a landlord to terminate a tenancy for cultivating the land personally under Section 31 shall be subject to the following conditions.
(a) . . . . . . . . (b) . . . . . . . . (c) . . . . . . . . (d) The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January, 1952 and thereafter during the period between the said ,date and the appointed day in the name of the landlord himself.
or of any of his ancestors (but not of any person from whom title is derived, whether by assignment or Court sale or otherwise) or if the landlord is a member of a joint family, in the name of a member of such family.
" The above provision primarily requires that the name of the person applying for the eviction of the tenant or of his ancestors should be recorded as landlord in the record of rights on 1.1.
1952 and he should further be recorded as landlord on the appointed day, namely, 15.6. 1955.
Both these conditions are required to be fulfilled before a suit or an application is maintainable by a landlord for the eviction of the tenant.
If either of the two conditions are not satisfied, the application for eviction of the tenant will not be maintainable.
The provision 518 of clause (d) further provides that even if the landlord 's name is not recorded.
but if the name of his ancestor is recorded similarly if the landlord is a member of joint family, the name of any member is recorded the application would be maintainable.
This provision indicates the legisla tive intent that a person succeeding to the property from his ancestor is entitled to maintain the application for eviction of a tenant provided he fulfils other conditions.
But a person who may have obtained right to the agricultural land by assignment, transfer, or by auction sale or in any similar mode, is not included within the expression of 'landlord ' entitling him to evict the tenant.
Clause (d) of Section 31A of the Act as it stood before its amendment by the Gujarat Act XVI of 1960 reads as follows: "The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself, or of any of his ancestors, or if the landlord is a member of a joint family in the name of a member of such family.
" The above provision before its amendment was interpreted by the Bombay High Court in Waman Ganesh Joshi vs Ganu Guna Khapre, 61 Bombay L.R. 1267.
The High Court placing reliance on Khalliulla Hasmiya vs Yesu, 50 Bombay L.R. 201 held that the term 'landlord ' according to clause (d) of Section 31A of the Act included any person from or through whom he may have derived his title to the land, and therefore for proper compliance of the conditions mentioned in clause (d) of Section 3 IA it is sufficient that either the name of the claimant or his predecessors in title stands in the record of fights during the required period.
A Full Bench of the Gujarat High Court in Bhanushanker Ambalal vs Laxman Kala & Ors., [1960] 1 Gujarat Law Reporter 169 disagreed with the view taken by the Bombay High Court in Warnan Ganesh Joshi 's case (supra).
The Full Bench held that the expression "in the name of landlord himself" occurring in clause (d) of Section 3 IA must be read as the landlord individually and not any one claiming through him as a successor in interest, therefore a transferee from a landlord in whose name the land is shown to stand cannot fit into the structure of the clause.
The Full Bench judgment was rendered on 28.7.
1960 prior to the amendment of the Section by the Gujarat Act XVI of 1960.
After the amendment of Section by Gujarat Act XVI of 1960, the Legislature made it clear that transferees and assignees from persons whose name may be appearing in the record of 519 right during the relevant period were not to be treated as landlords for the purposes of the Section.
The expression 'or otherwise ' occurring in clause (d) indicates that a person claiming title by transfer, assignment.
court sale or in any other mode like gift, or will even from ancestor will not be a landlord for the purposes of the Section.
The Legislature has clearly laid down that a person inheriting property from his ancestor would be landlord provided his ancestor 's name appears in the record of right during the required period.
But a person claiming title on the basis of transfer, assignment, auction sale or otherwise including gift or will from the predecessors in title even though he may be his ancestor, and his name may be recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant.
The Legislature placed this restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws.
In the absence of any such provision a landlord could transfer land to his descendants by gift or will to evade the ceiling law and to evict tenants.
Under Section 31A(d) such a beneficiary is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a landlord within the meaning of the Section.
In Umraomiya Akbarmiya Malek vs Bhulabhai Mathurbhai Patel & Anr., [1965] 6 Gujarat Law Reporter 788 the peti tioner therein made application for eviction of tenant claiming to be landlord on the basis of a gift made in his favour by his maternal grand father who was recorded in the record of rights during the required period.
The question arose whether the once who had acquired the property under a gift made by his maternal grand father was a landlord within the meaning of clause (d) of Section 31A.
The High Court on an elaborate discussion held that the petitioner therein was not a landlord within the meaning of the Section.
A Division Bench of the High Court of Gujarat in Special Civil Appeal No. 112/63 decided on March 3, 1972 considered the question whether a person who obtained the property under a Will from his grand mother was a landlord under clause (d) of Section 31A of the Act, the Division Bench held that having regard to the context, the object and scheme of the enactment such a person was not a landlord within the meaning of clause (d) of Section 31A.
The Bench further held that the Legislature intended to restrict the right of landlord to obtain possession for bona fide cultivation purposes, and it did not intend to include the case of a landlord who derived title under a Will.
We arc in agreement with the view taken by the Division" Bench.
The learned single Judge of the High Court while rendering the, impugned judgment followed the view taken by the aforesaid Division 520 Bench.
In this view, we find no legal infirmity in the impugned judgment of the High Court.
Learned counsel for the appellant referred to certain decisions of the Bombay High Court where contrary view had been taken.
Since the interpretation of Section 31A(d) of the Act as made by the Gujarat High Court in the aforesaid decision has been the law for the last 25 years.
and as that interpretation is justified having regard to the legislative history of the Section, we do not consider it necessary to deal with those decisions.
The appeal fails and is accord ingly dismissed.
but there will be no order as to costs.
V.P.R. Appeal dismissed.

summary:
Appellant on behalf of minor landlord, who got title by will, initiated eviction proceeding against the respondent tenants under Section 29 read with section 31 A(d) of the Bombay Tenancy and Agricultural Lands Act.
1948 before the Mamlatdar on the ground of bona fide requirement of the land for his personal cultivation.
Respondent tenants raised preliminary objection on the question of maintainability of the suit on the ground that as the appellant, being a trans feree of the land and having not inherited the same was not the 'landlord ' under Section 31 A. Upholding the objection of the Respondents the Mamlatdar dismissed the application.
Appellant 's appeal before District Deputy Collector and his revision before the Revenue Tribunal were dismissed.
Chal lenging the orders of the Revenue Courts, writ application was filed in the High Court, which was also dismissed and against which the present appeal was filed.
Dismissing the appeal, this Court, HELD: 1.
Section 31(d) requires that the name of the person applying for the eviction of the tenant or of his ancestors should be recorded as landlord in the record of rights on 1.1.1952 and he should further be recorded as landlord on the appointed day, namely.
15.6.1955.
Both these conditions are required to be fulfilled before a suit or an application is maintainable by a landlord for the eviction of the tenant.
If either of the two conditions are not satisfied, the application for eviction the tenant is not maintainable.
The provisions of clause (d) further provides that even if the landlord 's name is not recorded, but if the name of his ancestor is recorded similarly if the landlord is a member of joint family, the name of any member is recorded the application would be maintainable.
This provi sion indicates the legislative intent that a person succeed ing to the property from his ancestor is 515 entitled to maintain the application for eviction of a tenant provided he fulfils other conditions.
But a person who may have obtained right to the agricultural land by assignment, transfer, or by auction sale or in any similar mode, is not included within the expression of 'landlord ' entitling him to evict the tenant.
After the amendment of Section 31A(d) the Legislature made it clear that transferees and assignees from persons whose name may be appearing in the record of rights during the relevant period are not to be treated as landlords for the purposes of the Section.
The expression 'or otherwise ' occurring in clause (d) indicates that a person claiming title by transfer, assignment, court sale or in any other mode like gift, or will even from ancestor will not be a landlord for the purposes of the Section.
A person inherit ing property from his ancestor would be landlord provided his ancestor 's name appears in the record of rights during the required period.
But a person claiming title on the basis of transfer, assignment.
auction sale or otherwise including gift or will from the predecessors in title even though he may be his ancestor, and his name may be recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant.
The Legislature placed this restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws.
In the absence of any such provision a landlord could transfer land to his descendents by gift or will to evade the ceiling law and to evict tenants.
Under Section 31 A(d) such a beneficiary is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a landlord within the meaning of the Section.
Waman Ganesh Joshi vs Ganu Guna Khapre, 61 Bombay L.R. 1267; Khalliulla Hasmiya vs Yesu, 50 Bombay L.R. 201;over ruled.
Bhanushanker Ambalal vs Laxman Kala & Ors., [1960], Gujarat Law Reporter 169, approved.
Umraomiya Akbartniya Malek vs Bhulabhai Mathurbhai Patel Appeal No. 112/63 decided on 3.3.
1972 (High Court of Guja rat) referred.


judgement:
ivil Appeal No. 2231 of 1988.
From the Judgment and Order dated 19.8.1987 of the Madras High Court in Appeal No. 86 of 1982.
R. Venkataramani for the Appellants.
section Balakrishnan and M.K.D. Namboodiri for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the decree passed by the High Court in favour of the plaintiff respondents in a suit for partition.
The property in suit belonged to Smt.
Rathinammal, who after executing a registered will died in 1942.
Accord ing to the terms of the will, her two sons Natesan.
defend ant No. 1, and Subramanian.
plaintiffs ' witness No. 2 (PW 2), were to remain in possession of the properties without any power of alienation and had to pay the taxes and conduct regularly certain religious festivals; and thereafter their sons were to manage the properties on similar terms.
The will further provides that after their attaining majority the great grand sons, i.e., 510 the son 's sons ' sons of the testatrix will get the proper ties as absolute owners.
Subramanian, the younger son of the testatrix, who has been in 'the present suit examined as the second witness on behalf of the plaintiffs, has one son Arunachalam, de fendant No. 15.
The three plaintiffs, Ramesh, Ganesh and Sivalingam are the sons of the defendant No. 15.
The defend ant No. 1 got four sons and ten sons ' sons.
The main dispute in the suit is about the share which the plaintiffs are entitled to, under the terms of the will.
They claim that they being the only grand sons of Subramanian have half share in the properties, the remaining half going to the grand sons of the defendant No. 1, namely, defendants No. 5 to 14.
On behalf of the defendants it is pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares.
The defendants also contended that the suit was fit to be dismissed as the defendant No. 1 and the defendant No. 15 had finally parti tioned the properties in 1975, and no question of a further partition arises.
The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity.
The trial court rejected the plea based on the rule against perpetuity.
Having regard to the interest of the defendant No. 1, his brother Subramanian and Arunachalam, defendant No. 15, the court held that the alleged partition of 1975 was illegal and not binding on the plaintiffs.
So far the shares of the plaintiffs and the defendants No. 5 to 14 are concerned, agreeing with the defence case, the court held that the parties would take the properties as per capita.
However, the suit was dismissed on the ground that the plaintiffs were still minor.
On appeal by the plaintiffs, the High Court confirmed the finding of the trial court that the 1975 partition was illegal.
On the question of the shares of the parties, the High Court agreed with the plaintiffs and held that the division would take place as per stirpes.
Taking into ac count the fact that during the pendency of the appeal two of the plaintiffs had attained majority, the High Court passed a decree in their favour for one sixth share each.
So far the third plaintiff is concerned, the High Court declared his right without passing a decree for partition.
The de fendants are challenging the decision of the High Court by the present civil appeal.
The learned counsel for the appellants has contended that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and the conclusion of the 511 High Court on this aspect is illegal.
The English version of the operative portion of the will has been quoted in para graph 7 of the judgment of the trial court and is not chal lenged by either party before us.
After mentioning the rights and the duties of her sons the testatrix has stated the position of her grand sons and great grand sons thus: "They (that is, sons ' sons) have also to pay the taxes and out of their income conduct the aforesaid festivals regular ly.
Then their male issues after attaining majority, have to take possession of the said properties in equal shares and enjoy them with all powers of alienation.
" It has been stated by the learned counsel for the parties before us that the words "the said properties in equal shares" are the English version of the words SAMABHAGAMAGA ADAINTHU.
The learned counsel for the appellants translated this portion of the will as stating that, "they (that is, the sons ' sons) shall pay the taxes due to the Government and will carry on the charitable/religious activities without fail and their male issues would on attaining majority get the properties in equal portion (SAMABHAGAMAGA ADAINTHU) and will possess, own and enjoy it absolutely.
" The crucial expression is SAMABHAGAMAGA ADAINTHU which according to the learned counsel for the parties means in equal portions.
The question is as to whether in view of this provision in the will, the entire properties left by the testatrix are to be divided equally amongst all her great grand sons; or, the three plaintiffs shall amongst themselves take half, the remaining half going to their cousins.
The High Court has interpreted the crucial part of the will, mentioned in the preceding paragraph, as directing the plaintiffs on the one hand and the defendants 5 to 14 on the other respectively to "share equally out of each branch".
It has been assumed that the properties finally descended on the two branches in equal shares, and conse quently parties belonging to the two branches inherited the properties as stirpes.
The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venkatakrishna Rao & Ors.
vs Shrimati Boddu Satyavathi & Ors., ; ; were more or less similar, which this Court construed in the manner as suggested by the plaintiffs in the case before us.
We are not in agreement with the.
approach of the High Court.
512 8.
It is well settled that a court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the posi tion of the testator.
his family relationship 'and the probability that he used the words in a particular sense also must be taken into account.
They lend a valuable aid in arriving at the correct construction of the will.
Since these considerations are changing from person to person.
it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases, the disputed will approximates closely.
Recourse to prece dents, therefore, should be confined for the purpose of general principle of construction only.
which, by now, are well settled.
There is still another reason as to why the construction put on certain expressions in a will should not be applied to a similar expression in the will under ques tion for, a will has to be considered and construed as a whole, and not piecemeal.
It follows that a fair and reason able construction of the same expression may vary from will to will.
For these reasons it has been again and again held that in the matter of construction of a will.
authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur (see Ramachandra Shenoy and Another vs Mrs. Hilda Brite and Others, ; at p. 736.
The risk in not appreciating this wholesome rule is demonstrated by the case before us.
Assuming that the will in the case of Boddu Venka takrishna Rao & Ors.
vs Shrimati Boddu Satyavathi & Ors., ; ; was somewhat similar to that in the present case.
the High Court.
following the construction given on the will in the reported case, has held in the judgment under appeal that the great grand sons of the testatrix shall be taking the properties as per stripes.
While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case.
There.
the testatrix who was a childless widow.
had bequeathed under the will life es tates to two children who were defendants 4 and 5 in the case and whom she had brought up from their infancy.
and subject to the same, the property was to go to their chil dren after their death.
The conclusion of the High Court on the construction of the will.
with which this Court agreed.
was expressed thus.
"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 re mainder per stripes and not per capita".
513 In the case before us no life estate was created in favour of anybody.
otherwise there would not arise any question of the plaintiffs ' getting any share in the proper ty even on their attaining majority during the lifetime of their father and uncle.
The High Court has also.
under the impugned judgment, observed that a Hindu is not ordinarily expected to create a joint tenancy but, failed to appreciate that there is only presumption.
to this effect, which can not override the provisions 'of the will, if the language is unambiguous and clear.
In the present case there is no manner of doubt, and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate in the properties.
It is the agreed case of the parties that as soon as plaintiffs and defendants No. 5 to 14 become major they are entitled to get the property abso lutely without waiting for the death of their respective fathers or grand fathers.
We should, therefore.
interpret the will without being influenced by the meaning given to the will in the reported case.
The devolution of the property under the will takes place on the plaintiffs and defendants No. 5 to 14 for the first time "under equal shares".
Since this is the first occasion for the shares in the property to be defined the expression "equal shares" must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix.
In other words.
they take the properties as per capita.
Admittedly the third plaintiff has also attained majority during the pendency of the present appeal and has, therefore.
become entitled to a share in the properties now.
The suit.
is accordingly decreed in favour of all the plain tiffs, their share being one thirteenth each.
The plea that the disposition under the will was hit by the rule against perpetuity was rejected by the trial court in paragraph 7 of judgment on the ground that the sons of the testatrix, namely, the first defendant and the plain tiff 's witness No. 2 as also their respective sons the defendants No. 2 to 4 are alive.
The point was not pressed in the High Court.
The view of the trial court appears to be correct, and does.
not require reconsideration at this stage.
In the result, the appeal is allowed in part as indicated above.
The suit is accordingly decreed in favour of all the three plaintiff.
The share of the three plain tiffs and the ten defendants, that is, defendants No. 5 to 14, shall be onethirteenth each in the suit properties.
There shall be no order as to costs.
N.V.K. Appeal party allowed.

dataset_name: IN-Abs

summary:
The property in the suit belonged to the great grand mother of the plaintiffs and defendant Nos. 5 to 14 who executed a registered will.
According to the terms of the will, her two sons, defendant No. 1 and plaintiffs ' witness No. 2 were to remain in possession of the properties without any power of alienation, to pay the taxes and conduct regu larly certain religions festivals, and their male issues on attaining majority were to get the property in equal por tions and enjoy it absolutely.
The main dispute in the suit was about the share which the plaintiffs are entitled to under the terms of the afore said will.
The plaintiffs claimed that they being the only grand sons of the younger son of the testatrix were entitled to half share in the properties, the remaining half going to the grand sons of defendant No. 1 namely, defendant Nos. 5 to 14.
The suit was contested on behalf of the defendants, who pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares, and that the suit was fit to be dismissed as defendant No. 1 defendent No. 15 had finally partitioned the properties in 1975, and no question of further partition arises.
The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity.
The trial Court rejected the plea based on the rule against perpetuity but having regard to the interest of defendant No. 1, his brother, and defendant No. 15, it held that the alleged partition of 1975 was illegal and not binding on the plaintiffs and that so far as the shares of the plaintiffs and defendant Nos. 5 to 14 are concerned held that the parties would take the properties as per capita.
The suit was however dismissed on the ground that the plain tiffs were still minor.
In the appeal to the High Court by the plaintiffs, the High Court confirmed the findings of the trial court that the 1975 partition was illegal, but held that the division would take place as per stirpes, and taking into account the fact that during the pendency of the appeal, two of the plaintiffs had attained majority, the High Court passed a decree in theft favour for one sixth share each.
So far as the third plaintiff was concerned, it declared his right without passing a decree for partition.
The appellants defendants challenged the decision of the High Court in 508 this Court by special leave, contending that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and that the conclusion of the High Court on this aspects was illegal, and that reliance by the High Court, on Boddu Venkatakrishna Rao & Ors.
vs Shrimati Boddu Satyavathi & Ors., ; was inapplicable to the facts of this case.
Allowing the appeal in part, and decreeing the suit in favour of all the plaintiffs, that the share of the three plaintiffs and defendant Nos. 5 to 14 shah be one thirteen each in the suit properties this Court, HELD: 1.
A Court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances the position of the testator, his family relationship and the probability that he used the words in a particular sense also must be taken into account.
They lend a valuable aid in arriving at the correct construction of the will.
Since these considerations are changing from person to person it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases.
the disputed will approx imates closely.
Recourse to precedents, therefore, should be confined for the purpose of general principles of construc tion only.
2.There is still another reason as to why the construc tion put on certain expressions in a will should not be applied to a similar expression in the will under question for, a will has to be considered and construed as a whole, and not piecemeal.
It follows that a fair and reasonable construction of the same expression may vary from will to will.
Therefore, in the matter of construction of a will, authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur.
In the instant case, the High Court has interpreted the crucial part of the will containing the expression 'SAMABHA GAMAGA ADAINTHU ' as directing the plaintiffs on the one hand and the defendants5 to 14 on the other to "share equally out of each branch".
The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venka takrishna Rao & Ors.
vs Shrbnati Boddu Satvavathi & Ors., ; ; were more or less similar.
It has also been assumed that the properties finally descended on the two branches in equal shares and consequently parties be longing to the two branches inherited the properties as per stripes.
While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case.
The conclusion of the High Court on the construction of the will was therefore not correct.
In the instant case, there is no manner of doubt, and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate 509 in the properties.
It is the agreed case of the parties that as soon as plaintiffs and defendants No. 5 to 14 become major they are entitled to get the property absolutely without waiting for the death of their respective fathers or grandfather.
The will has therefore to be interpreted with out being influenced by the meaning given to the will in the reported case.
The devolution of the property under the will takes place on the plaintiffs and defendants No. 5 to 14 for the first time 'under equal shares '.
Since this is the first occasion for the shares in the property to be defined, the expression 'equal shares ' must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix.
In other words they take the properties as per capita.
The third plaintiff has also attained majority during the pendency of the present appeal and has therefore become entitled to a share in the properties.
The suit is decreed in favour of all the plaintiffs their share being one thirteenth each.
Ramachandra Shenoy and Another vs Mrs.Hilda brite and Others; , , relied on.
Boddu Venkatakrishna Rao & Ors.
vs Shrimati Boddu Sat vavathi & Ors.
; , , distinguished.
The plea that disposition under the will was hit by the rule against perpetuity was rightly rejected by the trial court on the ground that the sons of the testatrix as also their respective sons were alive.