CASE NO.: Appeal (civil) 3374 of 2006 PETITIONER: Bajrang Factory Ltd. & Anr RESPONDENT: University of Calcutta & Ors DATE OF JUDGMENT: 18/05/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. Construction/ interpretation of a Will executed by one Nerode
Chandra Vasu Mullick on 04.03.1932 vis-`-vis certain provisions of the
Indian Succession Act (for short “the Act”), viz., Sections 113, 116 and 129
falls for our consideration in this appeal which arises out of a judgment and
decree passed by a Division Bench of the Calcutta High Court affirming a
judgment and order dated 2.06.1992 passed by a learned Single Judge of the
said Court in Suit No. 866 of 1979 on a preliminary issue raised by the
appellants therein as to whether the respondents had any locus to file the suit
in question.
2. Before embarking on the said questions, we may notice the admitted
fact of the matter.
3. Appellant No. 1 is an existing company within the meaning of the
provisions of the Companies Act, 1956. It claims its title in respect of the
disputed premises by a lease executed by the Chamong Tea Company
Limited as also purchase of a property by a deed of sale.
4. The property in question admittedly belonged to Late Nerode Chandra
Vasu Mullick. The legatee under the Will Shri Hamir Chandra Vasu
Mullick through whom Appellant No. 1 claims its right, title and interest
was his son.
5. The relevant clauses of the said Will are as under:
“5. I give all my immovable properties and the said
debentures in the Hooghly Docking and
Engineering Co. Ltd. to my son the said Hamir
Chandra Mullick to hold and enjoy the same
during the term of his natural life without
impeachment of waste and on the determinator of
his life Estate to such one of his sons and
grandsons as he may by deed, will or otherwise in
writing appoint absolutely and in default of such
appointment to his eldest male descendants
absolutely. If my son has no male issue, the power
of appointment may be exercised by him in favour
of his daughters or daughters son.
6. My son may sell or convert into money any of
the properties mentioned in the last foregoing
clause but it will be obligatory on him to invest the
entire proceed thereof in the purchase of
immovable properties in Calcutta on the suburbs.
7. My son shall have the right and I devise that he
should settle the said immovable properties on one
of his sons for such sons life with remainder to
such son’s son.”
6. Indisputably, the testator executed a Codicil on 4.03.1932 in terms
whereof inter alia it was provided:
“12. If my son has no issue, however distant or
adopted son or any issue of such adopted son, my
estate shall go to the University of Calcutta for
advancement of learning. It is my Will and desire
that the University should in that connection
suitably perpetuate for the benefit of Hindus only
the memory of (1) my father, Hem Chandra Vasu
Mullick (2) my mother Vooban Mohini Vasu
Mullick (3) my maternal grand father Narendra
Kumar Dutt and (4) my maternal grandmother
Golap Mohini Dutt and also use my residence no.
12, Wellington Square Calcutta as a Centre of
learning to be called after my late father.”
7. We may, however, mention that the said Codicil, according to the
testator, should be read as a part of his last Will and testament dated
4.03.1932 and thereby he also confirmed the said Will and testament.
8. Soon after the execution of the Codicil, the testator died on 7.08.1942
leaving behind his widow, legatee and his daughter-in-law. The legatee
under the Will separated from his wife. His wife is said to have remarried.
Widow of the testator also passed away. Appellant No. 3 in that situation
allegedly was asked to take care of the affairs of the properties.
9. An application for grant of probate in terms of the Act was filed
before the original side of the Calcutta High Court and by an order dated
15.01.1943, the legatee was appointed as the sole executor and trustee of the
Will. Allegedly by a registered indenture dated 27.12.1966, the legatee let
out the premises in question in favour of the appellant company, a portion of
the premises No. 156, Bipin Behari Ganguly Street, Calcutta (hereinafter
referred to as ‘the immovable property’) for a period of ten years with the
option to renew the same for further four consecutive periods of 10 years
each in all for fifty years from the said date on the terms and conditions
mentioned therein.
10. It is not in dispute that Appellant No. 1 paid unto the legatee the
agreed rent till 14.07.1973. The legatee, however, purported to have
conveyed a portion of the said leasehold by a registered deed of sale in
favour of one Chamong Tea Company Limited, subject to the said lease
granted in favour of the appellants herein.
11. Indisputably, the legatee died on 18.11.1976 without any issue. He
had not adopted any son also. He had also not made any appointment in
terms of the said Will.
12. Respondent University claiming its right in terms of Clause 12 of the
aforementioned Codicil filed an application for grant of a Letters of
Administration and by reason of a judgment and order dated 22.08.1977, the
said application was allowed. It is stated that pursuant to or in furtherance of
the said order dated 22.08.1977 the Registrar of the Calcutta University took
over possession of the said property.
13. Three suits came to be filed thereafter. One of the suit was filed by
the appellants herein which was marked as Suit No. 390 of 1978 praying for
the following reliefs:
“a) A declaration that the plaintiff is entitled to
possession and/ or to remain in possession and
enjoyment of the portions of Baithakhana Bazar
being premises Nos. 155, 156, Bepin Behari
Ganguly Street and 167 Baithakhana Road
Calcutta both within the aforesaid jurisdiction and
described in the sketch plan annexed hereto and
marked with the letter “C” and delineated in red
and yellow including the right to collect rents
issues and profits thereof;
b) Perpetual injunction restraining the defendants
Nos. 1 and 2 their servants and agents from
interfering with or further interfering with or
continuing to interfere with or disputing or
denying the plaintiff’s right to remain in
possession and/ or right to possess and enjoy the
portions of the said Baithakhana Bazar being
premises Nos. 155, 155/1, 155/2, 156, Bepin
Behari Ganguly Street, and 167, Baithakhana
Road, Calcutta more fully described in the sketch
plan annexed hereto and marked with the letter
“C” and delineated in red and yellow including the
right to collect rests issues and profits from the
occupants of such areas in any manner whatsoever.
c) Perpetual injunction restraining the defendants
Nos. 1 and 2 from collecting or attempting to
collect the rents issues and profits from the
aforesaid portions of the Baithakhana Market of
which the plaintiff is the lessee.
d) If necessary, possession of the said portions of
the Baithakhana Bazar being premises Nos. 155,
155/1, 155/2, 156, Bepin Behari Ganguly Street,
and 167, Baithakhana Road, Calcutta more fully
described in the letter “C” and delineated in colour
red and yellow”
14. Respondent No. 1 herein also filed a suit in the original side of the
Calcutta High Court on or about 15.11.1979 which was marked as Suit No.
864 of 1979 praying for the following reliefs:
“a) A declaration that the sale purported to have
been effected in respect of premises Nos.
155,155/1,155/2, Bepin Behari Ganguly Street,
Calcutta by the Deed of sale dated 29th May 1971
executed by Hamir Chandra Vasu Mullick in
favour of the Chamong Tea Company Ltd. The
defendant No. 1 is void or voidable and of no
effect as stated in paragraph 25 of the plaint.
b) That the aforesaid Deed of Sale deed 29th May
1971 executed by Hamir Chandra Vasu Mallick in
favour of the Chamong Tea Company Ltd. The
defendant No. 1 delivered up and cancelled and/ or
adjudged void as stated in paragraph 25 of the
plaint.
c) A declaration that the deed of lease dated 24th
July 1972 in respect of premises No. 155, 155/1,
155/2, Bepin Behari Ganguly Street, Calcutta
executed by the Chamong Tea Company Ltd. the
defendant No. 1 in favour of Bajrang Factory Ltd.
the defendant no. 2 is void or voidable and of no
effect as stated in paragraph 26 of this plaint.
d) That the aforesaid deed of lease dated 24th July
1972 executed by the Chamong Tea Company Ltd.
The defendant No. 1 in favour of Bajrang Factory
Ltd. The defendant No. 2 be delivered up as stated
in paragraph 26 of this plaint.
e) In the alternative a declaration that the said sale
and said lease dated 29th May 1971 and 24th July
1972 respectively as referred to in prayers (a),
(b)(c) and (d) are not valid beyond the life time of
the said Hamir Chandra Vasu Mallick, deceased as
stated in paragraph 25 and 26 of this plaint.
f) A decree for declaration that the University of
Calcutta is the absolute owner of the said
premises
g) Perpetual injunction restraining the defendants
Nos. 1 and 2 from collecting rents, issue and
profits from the tenants in occupation of the said
premises
h) perpetual injunction restraining the defendants
Nos. 1 and 2 and their servants agents and assigns
from transferring assigning or otherwise dealing
with or taking any or any further steps or action for
enforcement of the said deed of sale and deed of
lease dated 29th May 1971 and 24th July 1972
respectively or any alleged right thereunder as
against the plaintiff No. 1″
15. It appears that the aforementioned Chamong Tea Company Limited
had also filed a suit.
16. In the suit filed by Respondent University, the appellants raised two
issues in regard to the validity of the Will, which are as under:
“(a) Whether the dispositions in regard to the
residuary estate made by the said Will are void
save and except the life interests given thereby to
the plaintiffs and the defendant Susan Sopher.
(b) Whether subject to the life interests given in
the residuary estate to the plaintiff and the
defendants Susan Sopher the said Plaintiffs and the
defendant Susan Sopher have succeeded to the
residuary estate of the testator as on a intestacy.”
17. The said issues were taken as preliminary issues. According to the
appellants, the bequeath of the property in terms of Clauses 5, 6 and 7 of the
original Will, as amended by the Codicil dated 4.03.1932 was void in terms
of Section 113 of the Act. The learned Judge opined:
“The right created in favour of Hamir Chandra
Basu Mallick was only a life estate and his power
or appointing certain specified person was in
respect of the entire estate absolutely. Under the
circumstances the provision of Section 113 had no
application in as much as Hamir had no choice of
curtailing the interest from the remaining of the
testator’s interest. Hamir had no right to cut down
the absolute estate as such neither the provisions of
Section 113 nor Section 114 are attracted. Section
116 had no application. The right created in
favour of the University of Calcutta could only be
defeated, if Hamir had any issue either natural
born or adopted. Clause 12 of the Codicil should
override clause 5 of the Will. The question of
appointment by Hamir Chandra Basu Mallick
could only arise provided he had issues either
natural born or adopted. The clause 7 in the Will
is only directory and not imperative. Under the
circumstances there is no clause of defeasance and
the legatee as contemplated would take the entire
estate of the testator is an unfetter form.
In view of the facts and circumstances of
this case and in view of the various principles of
law as laid down in the cases discussed above this
Court is of the view that the preliminary point
raised by the defendants in the suit must be
answered in the negative in as much as this Court
is of the view that the University of Calcutta is
entitled to file the suits and proceed with the
same”
18. Aggrieved by and dissatisfied therewith, the appellants preferred an
intra-court appeal before the Division Bench of the Calcutta High Court. By
reason of the impugned judgment dated 14.02.2003, the said appeal has been
dismissed holding:
“After considering the respective submissions of
the parties and the entire materials on record we do
not find any reason to interfere with the impugned
judgment and order of the Trial Court as we agree
with the view of the Trial Court that the bequest of
the property in favour of the University of Calcutta
is not void and therefore the University is entitled
to file the suit.
It has been rightly contended by the learned
counsel appearing on behalf of the respondent,
University of Calcutta, that in the matter of
interpretation of the Will, the Court is required to
ascertain the dominant intention of the testator on a
plain reading of the will and it will also be the duty
of the Court to implement such intention of the
testator and if there are two clauses which might
appear to be inconsistent to each other it will be
the duty of the Court to reconcile the aforesaid two
Clauses.
Keeping such principle of law, if we now
examine the aforesaid three Clauses of the Will,
Clauses 5, 6 and 7, we are of the view that Clause
5 and
Clause 7 of the Will are not inconsistent with each
other.
In Clause 6 of the Will the son of the testator
who was given life estate of the property was
given right to sell or convert into money the
property was given right to sell or convert into
money the aforesaid immovable properties
bequeathed to him for life but subject to the
condition contained in Clause that in such event he
has to invest for purchase of another immovable
properties which has to be settled by the son of the
testator to one of the sons of Hamir. The reference
to immovable properties in Clause 7, which
follows Clause 6 obviously is to the properties
which Hamir was required to purchase, if he
transferred the immovable properties bequeathed
to him by investing the sale proceeds thereof.
We are therefore unable to accept the
submission of the learned counsel appearing on
behalf of the appellant that there was inconsistency
between Clauses 5 & 7 and because of the same,
the alter Clause will prevail.”
It was furthermore observed:
“Clause 5 of the Will therefore stood modified by
Clause 6 of the Codicil. On the death of the
testator therefore as Hamir did not beget or adopt
any son, the property will validly go to the
University of Calcutta.
We are unable to accept the contention of
the learned Counsel appearing for the appellant
that bequests of the property by the testator to the
unborn son of Hamir subject to his life interest was
void under the provisions of Section 113 of the
Indian Succession Act and consequently the
bequests in favour of the University of Calcutta is
also void under Section 116 of the Indian
Succession Act.
It appears to us that the bequests in favour of
the unborn son of Hamir by the testator of the
immovable properties was absolute and the same
comprised of the whole of the interest of the
testator in the property bequeathed having been
devised and bequeathed absolutely in favour of
them. Since the bequests therefore comprised of
the whole of the interest of the testator in the said
property, such bequests will not be void.
Consequently, not the provision of Section 116 of
the Indian Succession Act but the provision of
Section 129 of the said Act will apply and the
bequests made in favour of the University of
Calcutta shall take effect upon failure of the
bequest made in favour of the unborn son of
Hamir.”
19. Mr. C.S. Sundaram, learned senior counsel appearing on behalf of the
appellants in assailing the judgment and order passed by the Calcutta High
Court would inter alia submit:
(i) Clause 7 of the Will being inconsistent with the stipulations
contained in Clause 5 thereof would prevail thereover in view of
the provisions contained in Section 88 of the Act.
(ii) Clause 7 of the Will providing for a bequest in favour of an unborn
person is clearly violative of Section 113 of the Act and in that
view of the matter, the bequest which was to take effect on the
failure of the prior bequest in terms of Section 129 thereof would
also be void under Section 116 of the Act.
(iii) Assuming that the High Court judgment is correct, Clause 5 of the
Will would be defeated by the contingencies contained therein or
by Clause 6 thereof inasmuch as in such an event, the
consequences provided for under Clause 7 of the Will would take
over; as a consequence whereof, Clause 5 of the Will would also
be void under Section 113 of the Act.
(iv) If Clauses 5 and 7 of the Will were void, the consequences thereof
would be that the bequest under Clause 12, being dependant on the
failure of the aforesaid bequest, would also be rendered void in
view of Section 129 of the Act.
20. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of
the respondents, on the other hand, would submit:
(i) The principles of interpretation of the Will being to ascertain the
intention of the testator are:
(a) the court will sit on the arm-chair of the testator so as to give
effect to his intention; and
(b) would implement that intention of the testator and in that
process an endeavour would be made to clear the
inconsistencies if any so as to see that the intention of the
testator is not defeated.
(ii) Having regard to the definition of Codicil contained in Section 2(b)
of the Act, the latter will prevail and if the Codicil is read in its
entirety, it would be evident that the testator clearly provided for
gift to the respondent University if the legatee Hamir Chandra
Mullick did not leave behind any son or had not adopted any. As
admittedly, the legatee died in the year 1977 without any issue or
without adopting any son or without appointing any person, Clause
12 of the Codicil would come into effect.
(iii) Clause 6 of the Will clearly shows that merely a life interest was
conveyed to the legatee inasmuch as even had he transferred the
property, the same would be subject to investment of the sale
proceeds in acquiring one or the other property.
(iv) Clause 7 of the Will merely provides for an enabling clause in the
hands of the legatee in terms whereof he may or may not appoint
any person and only in the event such appointment is made, the
desire of the legatee was to see that the same may be made in
favour of his male issue.
(v) Clauses 5 and 7 of the Will, therefore, would not be hit by Section
113 of the Act.
(vi) Clause 7 of the Will furthermore would not operate qua the
property but qua the option of the legatee. The Will so read, it was
urged, that both clauses 5 and 7 can be given effect to as it merely
provided for a just pious hope or wishful thinking on the part of the
testator.
21. The Act was enacted to consolidate the law applicable to intestate and
testamentary succession.
22. “Codicil’ has been defined to Section 2(b) of the Act to mean ‘an
instrument made in relation to a will, and explaining, altering or addition to
its dispositions, and shall be deemed to form part thereof’.
23. Section 82 of the Act reads as under:
“82. Meaning or clause to be collected from entire
Will The meaning of any clause in a will is to be
collected from the entire instrument, and all its
parts are to be construed with reference to each
other.”
24. Section 88 of the Act provides for a rule of construction of the Will
stating that where two clauses of gifts in a Will are irreconcileable so that
they cannot possibly stand together, the last shall prevail. This provision is
itself a pointer to the fact that once it is possible to give effect to both the
clauses which although apparently appears to be irreconcileable the court
should take recourse thereto.
25. It is admitted that there are certain typographical errors in the said
Will. While construing the said Will, therefore, we will have to take note
thereof.
26. In construction of the Will for the purpose of considering the validity
thereof, we must see as the things were at the relevant time and not what
they are today.
27. By reason of Clause 5, the testator bequeathed his right, title and
interest in favour of his son Hamir Chandra Vasu Mullick inter alia of the
immovable properties during the term of his natural life. The bequest was,
therefore, not absolute. Only upon determination of his life estate, the same
is to vest absolutely on such one of his sons and grandsons as he may by
deed, Will or otherwise in writing appoint. The said Clause is also not void
inasmuch as the bequest to the sons or the grandsons of the testator is not for
a life time but it vests in them absolutely. The intention of the testator
becomes clear in reading the next sentence which again provides that in
default of such appointment to his eldest male descendants absolutely, if
Hamir Chandra Vasu Mullick has no male issue, the power of appointment
may be exercised by him in favour of his daughters or daughters’ sons.
28. While making the bequest on the aforementioned terms, the limited
power to transfer the said bequeathed property had also been conferred upon
him. For all intent and purport it did not confer any power of absolute
transfer. It, in effect and substance, merely provided for conversion of the
property. Such conversion of the property was to be made strictly in the
manner as laid down therein. As regard the purported transfer of the
properties in suit by the legatee, two questions would arise:
(a) What would be the effect of non-conversion of such
properties by purchase of immovable properties in Calcutta
or the suburbs.
(b) Whether Clause 7 of the Will only refers to the properties so
transferred only on one of the appointees of the testator.
29. It is one thing to say that non-compliance of conditions contained in
Clause 6 of the Will would not invalidate the transfer, but it is another thing
to say that the said provision contemplated illegality in the transaction. If
the transaction is void or voidable at the instance of the beneficiary to the
Will, no further question need be asked. Courts in the event of its findings
that the transactions are illegal, would have to proceed on the basis that the
same had not taken place at all.
30. At this juncture, this Court is not concerned with the other allegations
made by the University as to whether the deed of sale executed by the
legatee was invalid or not, inasmuch as the preliminary issue raised is
confined to the question of validity of the will.
31. What would be the effect of a sale if the sale proceeds have not been
applied for purchase of immovable property is also a question which would
fall for consideration of the High Court at an appropriate stage. It goes
without saying that it would be open to the High Court to consider as to
whether a suo motu action or at the instance of the University can be taken
as the conditions for grant of probate have been violated. We, however,
need not apply our mind to the said question.
32. We may, furthermore, notice that the word ‘devise’ in the context of
Clause 7 does not appear to be appropriate. The word ‘devise’ would inter
alia mean a ‘plan’ or a ‘scheme’. What probably the testator meant was to
use the word ‘desire’ and not ‘devise’. Clause 7 on a plain reading does not
appear to be a clause, in terms whereof, the testator was bequeathing any
property in favour of any person. It thereby merely conferred a right upon
the legatee and only a desire was expressed by the testator in regard to the
legatee’s exercise of power of option.
33. Clause 7, therefore, may not have any application for the purpose of
construction of the Will..
34. However, it is not in dispute that Clause 12 contained in the Codicil
shall prevail over the Will. Clause 12 of the Codicil did not substitute
Clauses 5, 6 and 7. As indicated hereinbefore, the Codicil was to be read as
a part of the Will and by reason of the said Codicil, the said Clauses of the
Will were confirmed by the testator. In our opinion, by reason of the
Codicil, the testator expressed his intention clearly to the effect that in the
event the legatee does not have any issue or he does not adopt anybody as
his son or otherwise appoint a person provided for in Clause 5, the bequest
would be in favour of the Calcutta University. The desire of the testator
apparently was to perpetuate the memory of his ancestors. Bequest in favour
of the Calcutta University was meant to achieve a particular purpose which
has clearly been stated in Clause 12 of the Codicil.
35. The principles of construction of Will are well known.
36. Lord Russell in Margaret Goonewardens v. Eva Moonemale
Goonewardene and others [AIR 1931 PC 307] was considering a bequest
made by the testator which was in the following terms:
“(g) The rest and residue of my cash found in my
possession at the time of my demise and also the
money in deposit to my credit in my No. 1 account
in the Mercantile Bank of India Limited Galle, in
the Bank of Madras Colombo, in the Government
Savings Bank and in the Post Office Savings Bank
and the amount of my Policy of Insurance together
with the profit thereof and all other moveable
property absolutely to my said wife Margaret.”
37. The testator, thereafter, made a Codicil in terms whereof the
pecuniary legacy to a servant in respect of certain house was made which
contained these words: “Save as hereby altered or modified I hereby confirm
the said Will”.
38. A question arose therein as to whether a sum of Rs. 2,14,200/- to
which amount the testator became entitled to from the moneys invested on
mortgage bonds or promissory notes passed under the bequest of the legacy
or under the gift of all other immovable property. The Judicial Committee
opined:
“It is well settled in England that by virtue of
S.34, English Wills Act, the effect of confirming a
Will by codicil is to be bring the Will down to the
date of the codicil and to effect the same
disposition of the testator’s property as would have
been effected if the testator had at the date of the
codicil made a new will containing the same
disposition as in the original will but with the
alterations introduced by the codicil”
39. In Pearley Lal v. Rameshwar Das [(1963) Supp 2 SCR 834], Subba
Rao, J. opined:
“Where apparently conflicting disposition can
be reconciled by giving full effect to every word
used in a document, such a construction should be
accepted instead of a construction which would
have the effect of cutting down the clear meaning
of the words used by the testator. Further, where
one of the two reasonable constructions would lead
to intestacy, that should be discarded in favour of a
construction which does not create any such hiatus.
If the construction suggested by learned counsel be
adopted, in the event of his son predeceasing the
testator, there would be intestacy after the death of
the wife. If the construction suggested by the
respondent be adopted; in the event that happened
it would not bring about intestacy, as the
defeasance clause would not come into operation.
That was the intention of the testator is also clear
from the fact that he mentioned in the will that no
other relation except his wife and son should take
his property and also from the fact that though he
lived for about a quarter of a century after the
execution of the will, he never thought of changing
the will, though his son had predeceased his wife.”
40. In Navneet Lal Alias Rangi v. Gokul and Others [(1976) 1 SCC 630],
this Court held:
“8. From the earlier decisions of this Court the
following principles, inter alia, are well
established:
“(1) In construing a document whether in English
or in vernacular the fundamental rule is to
ascertain the intention from the words used; the
surrounding circumstances are to be considered;
but that is only for the purpose of finding out the
intended meaning of the words which have
actually been employed. ( Ram Gopal v. Nand Lal)
(2) In construing the language of the will the court
is entitled to put itself into the testator’s armchair (
Venkata Narasimha v. Parthasarathy) and is
bound to bear in mind also other matters than
merely the words used. It must consider the
surrounding circumstances, the position of the
testator, his family relationship, the probability that
he would use words in a particular sense… But all
this is solely as an aid to arriving at a right
construction of the will, and to ascertain the
meaning of its language when used by that
particular testator in that document. ( Venkata
Narasimha case and Gnanambal Ammal v. T. Raju
Ayyar)
(3) The true intention of the testator has to be
gathered not by attaching importance to isolated
expressions but by reading the will as a whole with
all its provisions and ignoring none of them as
redundant or contradictory. ( Raj Bajrang Bahadur
Singh v. Thakurain Bakhtraj Kuer)
(4) The court must accept, if possible, such
construction as would give to every expression
some effect rather than that which would render
any of the expressions inoperative. The court will
look at the circumstances under which the testator
makes his will, such as the state of his property, of
his family and the like. Where apparently
conflicting dispositions can be reconciled by
giving full effect to every word used in a
document, such a construction should be accepted
instead of a construction which would have the
effect of cutting down the clear meaning of the
words used by the testator. Further, where one of
the two reasonable constructions would lead to
intestacy, that should be discarded in favour of a
construction which does not create any such hiatus.
( Pearey Lal v. Rameshwar Das)
(5) It is one of the cardinal principles of
construction of wills that to the extent that it is
legally possible effect should be given to every
disposition contained in the will unless the law
prevents effect being given to it. Of course, if there
are two repugnant provisions conferring successive
interests, if the first interest created is valid the
subsequent interest cannot take effect but a Court
of construction will proceed to the farthest extent
to avoid repugnancy, so that effect could be given
as far as possible to every testamentary intention
contained in the will. ( Ramachandra Shenoy v.
Hilda Brite Mrs )”
41. To the same effect are the judgments of this Court in Arunkumar and
Another v. Shriniwas and Others [(2003) 6 SCC 98], Uma Devi Nambiar
and Others v. T.C. Sidhan (Dead) [(2004) 2 SCC 321], Sadhu Singh v.
Gurdwara Sahib Narike and Others [(2006) 8 SCC 75] and Gurdev Kaur and
Others v. Kaki and Others [(2007) 1 SCC 546].
42. In Halsbury’s Law of England, 4th Edition,, Vol. 50, at pg 332, it was
stated::
“The only principle of construction which is
applicable without qualification to all wills and
overrides every other rule of construction is that
the testator’s intention is collected from a
consideration of the whole will taken in connection
with any evidence properly admissible, and the
meaning of the will and of every part of it is
determined according to that intention. For this
purpose, the will and all the codicils to it are
construed together as one testamentary disposition,
but not as one document, and the testator’s
intention is gathered from the whole disposition.”
43. With a view to ascertain the intention of the maker of the Will, not
only the terms thereof are required to be taken into consideration but all also
circumstances attending thereto. The Will as a whole must, thus, be
considered for the said purpose and not merely the particular part thereof.
As the Will if read in its entirety, can be given effect to, it is imperative that
nothing should be read therein to invalidate the same.
44. In construing a will, no doubt, all possible contingencies are required
to be taken into consideration; but it is also a well-settled principle of law
that only because a part of a document is invalid, the entire document need
not be invalidated, if the former forms a severable part. The legatee
admittedly did not have any issue, nor did he adopt or appoint any person.
In a situation of this nature, effect can be given to clause 12 of the will, if it
is read as occurring immediately after Clause 5 of the original will. As the
said clause stands on its own footing, its effect must be considered vis-`-vis
clause 6, but the court may not start with construction of clauses 6 and 7,
which may lead to a conclusion that clause 5 is also invalid. The
contingencies contemplated by clause 6 may not have any effect on clause 7,
if it does not take place at all. The property which should have been
purchased with the sale proceeds could have been the subject-matter of the
bequest and in terms thereof the University of Calcutta became the
beneficiary on the death of the original legatee. We do not find any reason
as to why the same cannot be given effect to. We have indicated
hereinbefore that it is possible to construe clause 7 of the will and in fact a
plain reading thereof would, thus, lead to the conclusion that it merely
provides for an option given to the legatee to take recourse thereto. We have
also indicated hereinbefore that the term ‘device’ in the context of clause 7
does not carry any meaning and, therefore, the same for all intent and
purport should be substituted by the word ‘desire’. As a matter of fact, the
appellant in the copy of the will supplied to us had also used the word
‘desire’ in place of the word ‘device’, which would also go to show that
even the appellant understood clause 7 in that fashion. Clause 7, if so read,
will have no application to the properties which were to be substituted in
place of the immovable properties belonging to the testator. The benefit of
the sale proceeds, thus, in absence of any action on the part of the legatee in
terms of clause 7 shall also vest in the University. Moreover, the question as
to whether the deed of sale purported to have been executed by the legatee in
favour of Chamong Tea Co. Ltd.. or other instruments executed by him in
favour of the appellants herein are pending consideration before the High
Court which may have to be determined on its own merit. In the event, the
said transactions are held to be void, the question of giving any other or
further effect to clause 6 of the Will may not arise.
45. In view of the findings aforementioned, we are of the opinion that the
decision relied upon by Mr. Sundaram on Margaret Goonewardens (supra)
cannot be said to have any application in the instant case, as in view of our
findings aforementioned, clause 5 of the will is not hit by Section 113 of the
Indian Succession Act.
46. The submission (iv) of the appellant fails in view of the matter that
Clause 12 does not attract Section 129 of the Act since both the clauses, i.e.,
5 and 7 are valid as observed hereinbefore.
47. For the reasons aforementioned, there is no merit in this appeal which
is accordingly dismissed with costs. Counsel’s fee is quantified at
Rs.50,000/-
48. We would request the High Court to consider the desirability of
disposing of the suits filed by the parties hereto, as expeditiously as possible,
keeping in view the fact that they are pending for more than 28 years from
now.
