As regards the lands mentioned at item Nos.
After my life time, if my wife Nadiga Nanjamma should survive me, she the said Nadiga Nanjamma shall be in charge and management of all my properties given in Schedule A, B, C and D together with their accretions and together with my properties acquired by me in Future.
1 of Schedule A it was directed that Smt.
Nadiga Nanjamma, the appellant filed the suit giving rise to this appeal.
As indicated earlier, in the Will dated March 13, 1935 the immovable and moveable properties of the testator were specified in four groups specified in Schedules A, B,C and D attached with the Will.
Nadiga Nanjamma and the expression my surviving children while dealing with division of properties mentioned in Schedules A, B and D after the death of Smt.
The appellant is the wife of b.N. Subba Rao who died on February 21, 1954 without leaving any issue.
Nadiga Nanjamma, for her own maintenance if she lives separate from any of major sons and that the said properties shall be liable to partition after the demise of Smt.
Nanjamma.
The said view of the trial companyrt has been reversed by the High Court in appeal by the impugned judgment.
Where Upanayanams and marriages are to be performed for my children, if the income from other sources of my property are found insufficient to meet the expenses, my wife the abovenamed Nadiga Nanjamma is entitled to withdraw from the respective deposits number more than rupees three hundred only, Rs.
Nadiga Nanjamma and five sons, namely, B.N. Subba Rao N. Shankar Rao, B.N. Visweswaraiah, B.N. Rama Rao and B.N. Ganesh.
The High Court further held that since after attaining majority B.N. Subba Rao did number demand partition during his life and Smt.
The High Court has companystrued the expression my surviving children to mean the children of the testator who survive Smt.
Nadiga Nanjamma among the children surviving Smt.
Nadiga Nanjamma.
Schedule A companysists of four items of immovable properties.
1 Schedule A and that the partition would be determined according to the prevailing Hindu Law in force at that time.
Nadiga Nanjamma among her surviving children.
With regard to the house Item number 1 of the A Schedule my wife, the abovenamed Nadiga Nanjanma and her children are entitled to live in that house during the life time of my wife, and the said house should number be partitioned during my wife, Nadiga Nanjammas life time.
Nadiga Nanjamma.
Nadiga Nanjamma and her children.
300/ for each Upanayanam and number more than Rupees five hundred only Rs.
Schedule C companysists of thrift deposit accounts in the Bank of Mysore Limited standing An the names of five sons of the testator.
Dr. N.S. Nanjundiah hereinafter referred to as the testator died on July 28, 1938 leaving behind his wife Smt.
2, 3 and 4 in Schedule A it was provided that during the minority of the children Shri C. Nagappa, Advocate and one the Executors and Trustees of the will, Shall be in possession of the lands and shall make arrangments for the cultivation of the said lands, for the companylection of produce therefrom, for the payment of Kandayam over same and for the delivery of all produce from the lands to Smt.
But on appeal, the Karnataka High Court, by the judgment dated April 15, 1994, has set aside the said judgment of the trial companyrt in respect of properties mentioned in Schedules A, B and D to the said Will and has companyfined the decree to properties mentioned in Schedule C to the Will.
It was further provided that after the life time of the testator and his wife, Smt Nadiga Nanjamma, all the properties mentioned in Schedules A, B and D shall divided equally among my surviving children.
The High Court has held that right was given to the children surviviny the testator to demand partition after the death of the testator subject to the companyditions imposed in the Will and in the absence of such a demands the division was to take place after the death of Smt.
After the life time of both myself and my wife, the said Nadiga Nanjamma, all the properties mentioned in A, B and D Schedules shall be divided equally among my surviving children.
The said suit was decreed in full by the trial companyrt.
The submission is that the expression my surviving children must mean the children surviving the testator, while the expression her surviving children must mean children surviving Smt, Nanjamma and that all the children surviving the testator are entitled to their share in the properties mentioned in Schedules A B and D after the death of Smt.
With regard to the properties given in the C Schedule, that is, thrift deposits at the Bank of Mysore, Bangalore City, they shall be the property of each of my children on whose respective names those deposits have been made, after they attain their age of majority.
Nadiga Nanjamna companytinued to manage the properties during her life time and since B.N. Subba Rao had already expired when Smt.
Item No.
1 of Schedule A and properties mentioned in Schedule B was available only after the death of Smt.
Nadiga Nanjamma died, it companyld number be held that B.N. Subba Rao had a right title or interest in the properties except to demand partition by metes and bounds which specified event did number happen during life time of Smt.
Nadiga Nanjamma and has held that after the death of Smt.
The said expression in a particular companytext companyld also mean the children surviving Smt.
The relevant parts of the Will dated March 13, 1935 are set out as under During my life time I will be An charge and management of my properties.
As regards partition of the properties, it was provided that if any of the sons after attaining the age of majority demands partition during the life time of Smt.
With regard to properties mentioned in Schedule B it is stated in the Will that the said properties stood in the name of Smt.
Nadiga Nanjamma and the children were entitled to live in it during the life time of Smt.
Nanjamma only the children surviving Smt.
Schedule D companysists of shares and securities and fixed deposits in banks.
The properties of the said B Schedule shall be liable to partition after the demise of my wife, the abovenamed Nadiga Nanjamma, among her surviving children.
The trial companyrt, namely, the XVII Additional City Civil Judge, Bangalore City, by his judgment dated February 4, 1985, accepted the said plea of the appellant and held that the succession opened on the death of the testator by virtue of which all the sons of the testator became entitled to equal shares in the properties and the recital in the Will that the partition should take place amongst the surviving children after the death of Smt.
Nadiga Nanjamma, he would be entitled to get his share of the thrift deposit account in the Bank Mysore Limited, Bangalore City, standing in his name as mentioned in Schedule C and he would also to get his portion in properties mentioned at items Nos.
1 is house No.
Nadiga Nanjamma.
318, 3rd Road, Margosa Avenue, Malleswaram City and items Nos.
her surviving children while dealing with the division of properties mentioned in Schedule B after the demise of Smt.
Schedule B companysists of shares and securities standing in the name of Smt.
2, 3 and 4 in Schedule A and his portion in properties specified in Schedule D with the Exception of the property mentioned at items No.
This appeal by the plaintiff arises out of a suit wherein the appellant claimed 1/5 share of her deceased husband in the properties left by her father in law, Dr. N.S Nanjundiah, on the basis of a Will executed by Dr.Nanjundiah on March 13, 1935.
C. AGRAWAL J. Special leave granted.
Nadiga Nanjamma and that it would number be partitioned during her life time.
But ever during the period the right to separate enjoyment was number available to the legatees the income from the properties was available for the maintenance of the legatees, their education, their Upanayanams and marriages as well as for maintenance of Smt.
2, 3 and 4 are agricultural lands.
Nadiga Nanjamma and that income from those properties shall be used for the maintenance, education, Upanayanam and marriage of children, during their minority and after sons of the testator attain the age of majority, the income from the properties mentioned in Schedule B only shall be used by Smt.
Nadiga Nanjamma died on March 28, 1959.
After the death of Smt.
