Govinda Menon, J - (1.)On 14 December, 1907, one Atchayya executed a will Exhibit D-1, by which he bequeathed his properties to his third wife Buchi Venkamma for her life and after her death to his three sons and the son of his predeceased eldest son in the following words: that after her death, my sons (1) Narasayya, (2) Chinna Venkayya, (3) Nagayya, (4) my eldest son the late Bapanna's son, Satyanarayana the male heirs surviving in their families shall divide this property in equal shares with reference to good and bad qualities and enjoy the same as of rights.... On the date of the will Narasayya's sons, the present first and second defendants were alive. Chinna Venkayya's sons, defendants 3, 4 and 5 were also alive but none of them were mentioned in the will. On the 29 December; 1943, Buchi Venkamma died and thereafter the properties should have come into the possession of the legatees under the will.
(2.)The suit out of which this second appeal arises was filed by Satyanarayana the son of the eldest son of Atchayya for partition and recovery of possession of his 1/4 share in the properties left by the grandfather under Exhibit D-1. The only question that was seriously canvassed in the courts below was with regard to the share which the plaintiff is entitled to. The contesting defendants put forward the plea that on a true and proper construction of Exhibit D-1 what was contemplated by the testator was that when his widow Buchi Venkamma died the property should be divided per capita among such of his sons,and grandsons as were alive on that date. In other words, the contention amounts to this that the will created an interest in all the grandsons in equal shares and not on a stirpital basis. Both the lower courts have repelled this contention and held that the plaintiff is entitled to 1/4 share and the present second appeal is by defendants 3 to 7, the children of Chinna Venkayya questioning the correctness of this expression of opinion by the lower courts.
(3.)It has to be remembered that the property which was the subject-matter of the bequest was not the self-acquired property of the testator Atchayya, but he earns to have absolute rights of disposition over the same as a result of a partition between himself and his sons. It is nobody's case that after the partition, all the sons and their descendants or any two or more of them and their descendants constituted the member of a joint family. In the absence of any such evidence and even contention put forward by the defendants we have to take it that the father on dividing the properties between himself and his sons divided them in such a way that each of the sons was separate from the others. If we bear in mind this aspect of the case the solution to the problem that confronts the court is made easier.