{"id":173875,"date":"1963-04-01T00:00:00","date_gmt":"1963-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramachandra-shenoy-and-another-vs-mrs-hilda-brite-and-others-on-1-april-1963"},"modified":"2017-09-06T13:56:44","modified_gmt":"2017-09-06T08:26:44","slug":"ramachandra-shenoy-and-another-vs-mrs-hilda-brite-and-others-on-1-april-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramachandra-shenoy-and-another-vs-mrs-hilda-brite-and-others-on-1-april-1963","title":{"rendered":"Ramachandra Shenoy And Another vs Mrs. Hilda Brite And Others on 1 April, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramachandra Shenoy And Another vs Mrs. Hilda Brite And Others on 1 April, 1963<\/div>\n
Equivalent citations: 1964 AIR 1323, \t\t 1964 SCR (2) 722<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Ayyangar, N. Rajagopala<\/div>\n
           PETITIONER:\nRAMACHANDRA SHENOY AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nMRS.  HILDA BRITE AND OTHERS\n\nDATE OF JUDGMENT:\n01\/04\/1963\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nDAS, S.K.\nSARKAR, A.K.\n\nCITATION:\n 1964 AIR 1323\t\t  1964 SCR  (2) 722\n CITATOR INFO :\n R\t    1976 SC 794\t (8)\n R\t    1985 SC1359\t (5)\n\n\nACT:\n   Will-Construction-\"Shall   enjoy  permanently  and\twith\nabsolute   right\",  \"After  her\t life-time,\"   Meaning\t of-\nPrinciples of construction.\n\n\n\nHEADNOTE:\n  Mrs.\tMary Magdelene Coelho executed on July 25,  1907,  a\nwill, cl. 3 (c) of which provided that \"all kinds of movable\nproperties  that shall be in my possession and authority  at\nthe time of my death, i. e., all kinds of movable properties\ninclusive  of the amounts that shall be got from others\t and\nthe  cash  ; all these my eldest  daughter  Severina  Sobina\nCoelho,\t shall,\t after my death, enjoy and after  her  life-\ntime,  her  male children shall enjoy permanently  and\twith\nabsolute right.\"\nMrs. Coelho died in February, 1946, and in September,  1946,\na  suit was filed for partition and separate  possession  by\nthe widow and daughter of Denis-one of the sons of Severina.\nThe  contention\t of plaintiffs was  that  Severina  acquired\nunder  the  terms of cl. 3 (c) only a life-interest  in\t the\nproperty  and the remainder in absolute was  conferred\tupon\nher  male issues.  The defendants maintained that cl. 3\t (c)\nconferred  on Severina an absolute interest in the  property\nas a result of which the entire interest in the property and\nnot merely her life interest passed under the Court  auction\nand  consequently  the claim for partition must\t fail.\t The\ncontention of the defendants was accepted by the trial court\nand  the District judge.  However, the High Court held\tthat\nSeverina  obtained  only  a life interest  in  the  property\ncovered by cl. 3 (c).\nThe  appellants\t came to this Court by special\tleave.\t The\nonly point Urged before this Court was that under cl. 3 (c),\nSeverina  got an absolute interest in the property  and\t not\nmerely a life interest.\nHeld that the only reasonable construction of cl. 3 (c)\t was\nthat the interest created in favour of Severina was merely a\nlife interest and the remainder in absolute was conferred\n 723\non  her\t male, children.  The use of the  words\t \"after\t her\nlifetime\" was intended to show that the interest referred to\nwas a life interest.\nOne of the cardinal principles of. construction of wills  is\nthat,  to  the extent that it is  legally  possible,  effect\nshould\tbe given to every disposition contained in the\twill\nunless the law prevents effect being given to it.  Moreover,\neach  will has to be construed on its own terms and  in\t the\nsetting in which the clauses occur.\n\n\n\nJUDGMENT:\n<\/pre>\n
  CIVIL\t APPELLATE  JURISDICTION : Civil Appeal No.  452  of
\n1959.\n<\/p>\n
Appeal\tby special leave from the judgment and decree  dated
\nAugust 25, 1959, of the Madras High Court in S. C. No.\t2371
\nof 1950.\n<\/p>\n
S.N. Andley and A. G. Ratnaparkhi, for the appellants.
\nA.V.   Viswanatha  Sastri,  G.\tGopalakrishnan\t and   R.
\nGanapathy Iyer, for respondents Nos. 1 and 19.
\nM.V. Goswami and B. C. Misra, for respondents Nos. 8-14.
\n1963.  April 1. The judgment of the Court was delivered by
\nAYYANGAR J. -This  appeal   by special leave raisesfor
\nconsideration a very short but by no means   an\t\teasy
\nquestion regarding the proper construction of a will.
\nThe  testatrix\twas an Indian Christian lady of\t the-  Roman
\nCatholic faith-Mrs.  Mary Magdelene Coelho.  She was a widow
\nand  was possessed of considerable properties in respect  of
\nwhich  she had previously executed settlements in favour  of
\nher  children.\t The  will  whose  construction\t falls\t for
\ndetermination  was executed on July 25, 1907 and related  to
\nthe   properties  still\t remaining  with  her  after   these
\nsettlements.  She had originally four
\n724<\/span>
\ndaughters, but by the date of the will only two of them were
\nalive-her  eldest Severina Sabina Brito and her second\tMary
\nMatilda Coelho.\t The other members of her family then  alive
\nand to whom it is necessary to refer were a  grand-daughter-
\nJuli  Mary Margaret Fernandez by her deceased  4th  daughter
\nand  four sons of the eldest daughter Severina.\t It  may  be
\nadded  that the third daughter who died before 1907 left  no
\nissue.\tWe might now proceed to the terms of the will.\t The
\nrelevant  clause  whose\t interpretation is  the\t subject  of
\ndebate in this appeal is its cl. 3 (c).\n<\/p>\n
Clauses\t 1  and\t 2 are in the  nature  of  an  introduction,
\ncontain\t no disposition but are merely a narration of  facts
\netc.  and  therefore  not  material  to\t be  set  out.\t The
\ndispositive  portion  of the will starts with  cl.  3.\tThis
\nconsists of 3 sub-clauses.  Sub clauses (a) and (b) describe
\ncertain immovable properties which not having been  included
\nin the previous settlements, remained at the disposal of the
\ntestatrix   and\t sub-cl.  (c)  proceeds\t to   effectuate   a
\ndisposition  of\t these\titems  and  of\tall  other   movable
\nproperties that she might die possessed of.
\nWe  ought  to  mention\tthat the original  will\t is  in\t the
\nCanarese language and there has been some dispute as regards
\nthe  correct translation of this relevant clause.  We  shall
\nnow  set out the official translation. which is included  in
\nthe printed record and refer later to the other translations
\nsubmitted  to  us  and to the  arguments  based\t upon  them.
\nClause\t3  (c)\twhich  effects the  disposition\t now  to  be
\nconstrued reads:\n<\/p>\n
\t      “3.  (c) All kinds of movable properties\tthat
\n\t      shall be in my possession and authority at the
\n\t      time  of my death, i.e., all kinds of  movable
\n\t      properties inclusive of the amounts that shall
\n\t      be got from others and the cash;-all these  my
\n\t      eldest daughter Severina Sobina Coelho, shall
\n 725<\/span>
\n\t      after my death, enjoy and after her  lifetime,
\n\t      her male children also shall enjoy permanently
\n\t      and with absolute right……”\n<\/p><\/blockquote>\n
The  rest of it is not very material and is omitted.   There
\nare  a\tfew  other  clauses in this  will  which  have\tbeen
\nreferred to by learned counsel in their arguments before  us
\nand  also  in  the Courts below as furnishing  aids  to\t the
\nconstruction  of the disposition in cl.3(c). These  are\t the
\ncls. 4 and 5 and they run:\n<\/p>\n
\t      “4.  The\tbagaitu hithlu land  and  the  house
\n\t      situated\ttherein ..and the buildings,  shops,
\n\t      etc.   attached\tthereto:-these\t my   second
\n\t      daughter, Mary Matilda Coelho should enjoy  up
\n\t      to her death only; and further, she should not
\n\t      alienate\tthem in any manner by way  of  gift,
\n\t      sale,  mortgage, etc.  After the\tlifetime  of
\n\t      the said daughter of mine, viz., Mary  Matilda
\n\t      Coelho, the property should be enjoyed by\t the
\n\t      daughter of my fourth daughter, Mary Margaret,
\n\t      i.e.   of\t  juila\t Mary\tMargenta   Fernandez
\n\t      hereditarily and with permanent right.  In the
\n\t      said property, the said julia’s father and his
\n\t      heirs have no manner of right whatsoever.\t ”
\n\t      “5. If the said Julia does not marry or if she
\n\t      has no issues, the said Julia should enjoy the
\n\t      said  property up to her death and  thereafter
\n\t      this property of mine should be enjoyed by  my
\n\t      eldest  daughter, Severina Sobina\t Coelho\t and
\n\t      after   her  by  her  male  descendants\twith
\n\t      permanent rights”.\n<\/p><\/blockquote>\n
The  short  question for decision in the appeal\t is  whether
\nunder  cl.  3  (c) extracted above the\tinterest  which\t the
\neldest\tdaughter’  Severina  took  under  the  bequest\t was
\nabsolute or whether she had merely :a life interest with the
\nabsolute remainder vesting in ,her male issues,
\n726<\/span>
\nBefore\tproceeding  to deal with this matter,  it  would  be
\nconvenient  to\tset out how the question  comes\t before\t us.
\nThis appeal arises out of a suit for partition and  separate
\npossession  filed  in  September,  1946\t by  the  widow\t and
\ndaughter  of Denis–one of the sons of Mrs. Severina  Sabina
\nand  relates to the property measuring 1 acre 37 cents\twith
\nhouses and structures thereon which is part of the  property
\ncovered by cl. 3. We ought to mention that Severina died  on
\nFebruary  14, 1946.  It is the case of the  plaintiffs\tthat
\nSeverina  acquired under the terms of cl. 3 (c)only  a\tlife
\ninterest in that property and that the remainder in absolute
\nwas conferred upon her male issues.  On the other hand,\t the
\nconstruction  put forward by the contesting  defendants\t who
\nclaim  under a purchaser in a Court sale in execution  of  a
\ndecree against Severina is, that on a proper  interpretation
\nof the clause what was conferred on Severina was an absolute
\ninterest  in the property as a result of which the  interest
\nin  the\t property and not merely her  life  interest  passed
\nunder the Court auction, and that consequently the claim for
\npartition had to fail – Both the learned Trial judge as well
\nas  the\t District judge on appeal  upheld  the\tconstruction
\ncontended for by the defendants and dismissed the suit.\t  On
\nfurther\t appeal to the High Court the learned  Single  judge
\nreversed  this decree and decreed the suit holding that\t the
\ndaughter  Severina  obtained  only a life  interest  in\t the
\nproperty  covered  by cl. 3. It is the correctness  of\tthis
\nconstruction   that   is  challenged   by   the\t  contesting
\ndefendants-the appellants before us.\n<\/p>\n
Pausing\t here,\twe  ought to mention that  there  have\tbeen
\nnumerous  proceedings  between the parties before  the\tsuit
\ngiving\trise  to the appeal but that it\t is  unnecessary  to
\nrefer to them and that besides, several of the parties\thave
\ndied during the pendency of the proceedings and their  legal
\nrepresentatives\t have  beep added to the record.   To  these
\nalso
\n 727<\/span>
\nreference  is unnecessary as nothing turns on them.   As  we
\nstated\tearlier, the sole point for consideration  on  which
\nthe decision in the appeal turns is whether under cl. 3\t (c)
\nSeverina,  the eldest daughter of the testatrix acquired  an
\nabsolute interest or was her interest merely limited to\t one
\nfor her life, the absolute remainder being bequeathed to her
\nmale issues.\n<\/p>\n
The  testatrix being an Indian Christian, the rules  of\t law
\nand  the principles of construction laid down in the  Indian
\nSuccession  Act X of 1865 which was in force in 1907  govern
\nthe  interpretation of this will.  It should be\t added\tthat
\nthe  Act  of 1865 has been repealed, but every\tone  of\t its
\nrelevant provisions has been re-enacted in exactly the\tsame
\nterms  in the Succession Act of 1925.  As, however, the\t Act
\nof 1865 was the statute in operation at the relevant time we
\nshall  refer to its provisions and to that enactment as\t the
\nAct.   We  might premise the discussion by stating  that  we
\nare,  in the case before us, concerned not with any  special
\nrule  of law but only with the rules laid down by  the\tAct’
\nfor  the  construction of wills.  Some of  these  rules\t are
\nmerely\tthe  embodiment in statutory form  of  the  ordinary
\nrules  governing the construction of all  documents  whether
\nthey  are  dispositions testamentary or inter vivos  or\t are
\nnon-dispositive, rules which would have been applicable even
\napart  from  specific  provision  in  the  Act.,  Such,\t for
\ninstance are :\n<\/p>\n
\t      “69.   The meaning of any clause in a Will  is
\n\t      to  be collected from the\t entire\t instrument,
\n\t      and  all\tits arts are to\t be  construed\twith
\n\t      reference to each other…………. ”
\n\t      “72.   No part of a Will is to be rejected  as
\n\t      destitute of meaning if it is possible to\t put
\n\t      a reasonable construction upon it.”
\n\t      “73.   If\t the same words occur  in  different
\n\t      part  of the same Will, they must be taken  to
\n\t      have
\n728<\/span>
\n\t      been used everywhere in the same sense, unless
\n\t      there appears an intention to the contrary.”\n<\/p><\/blockquote>\n
Next there are a group of provisions with which we are\tmore
\nintimately  concerned.\tOf these reference was made to’\t and
\nreliance placed only on two sections which we shall  proceed
\nto read:\n<\/p>\n
\t      “82.   Where  property is\t bequeathed  to\t any
\n\t      person,  he is entitled to the whole  interest
\n\t      of  the  testator therein, unless\t it  appears
\n\t      from the Will that only a restricted  interest
\n\t      was intended for him.”\n<\/p><\/blockquote>\n
\t\t\t\t   and
\n\t      “84.   Where  property  is  bequeathed  to   a
\n\t      person,  and words arc added which describe  a
\n\t      class  of persons, but do not denote  them  as
\n\t      direct  objects of a distinct and\t independent
\n\t      gift,  such  person is entitled to  the  whole
\n\t      interest\tof  the testator therein,  unless  a
\n\t      contrary intention appears by the Will.”\n<\/p><\/blockquote>\n
It was this last provision (s. 84) that was very much relied
\non  by learned Counsel for the appellants and in  particular
\nto the illustrations appended to it and we shall, therefore,
\nrefer to some of these illustrations
\n“(a) A bequest is made-\n<\/p>\n
to A and his children, .\n<\/p>\n
to A and the heirs male of his body,
\n 729<\/span>
\n\t      In each of these cases, A takes the whole\t in-
\n\t      terest   which   the  testator  had   in\t the
\n\t      property.,\n<\/p>\n
\t      (b)   A bequest is made to A and his brothers.\n<\/p>\n
\t      A and his brothers are jointly entitled to the
\n\t      legacy.”\n<\/p>\n
\t      (c)   A  bequest\tis made to A for  life,\t and
\n\t      after his death to his issue.  At the death of
\n\t      A the property belongs in equal shares to\t all
\n\t      persons who shall then answer the\t desoription
\n\t      of issue of A.”\n<\/p>\n
Put  shortly’,\tthe submission of learned  Counsel  for\t the
\nappellants was this : There could be no doubt that by cl.  3\n<\/p>\n
(c) the testatrix intended a bequest to her eldest daughter-
\nSeverina-of the properties referred to in cl. (3).  The only
\npoint  in  controversy is whether the interest\tConveyed  to
\nSeverina was limited in duration to her life, or whether  it
\nwas  absolute.\t Under s. 82 of the Act, when a\t bequest  is
\nmade the presumption is in favour of its being absolute\t and
\nthe  point  urged was that there was no\t contrary  intention
\nmanifested  to displace this statutory presumption,  for  if
\nthe  bequest  in  her  favour  was  absolute  there  was  no
\npossibility   in  law  of  a  gift  over  and  any   further
\ndispositions  of  the  property\t would\tnaturally  be  void.
\nLearned\t Counsel  pointed  out\tthat  for  the\tpurposes  of
\nconferring an absolute interest the law did not require\t any
\nparticular  form  of  words  to be used.   The\tuse  of\t the
\nexpression  “enjoy”  ,\twhich is employed  in  the  relevant
\ndispositive  clause  ever,.  if it  stood  alone,  would  be
\nsufficient  for\t the purpose.  The testatrix,  however,\t not
\ncontent\t  with\tthat  had  added  the  words  “shall   enjoy
\npermanently and with absolute rights”-to make her  intention
\neven  more clear.  There are, no doubt, words which  purport
\nto confer an interest on her male children
\n730<\/span>
\nafter  her life-time and, no doubt, also it is\tstated\tthat
\nthey shall enjoy “permanently and with absolute right,”\t but
\nif  the\t daughter  Severina had\t been  granted\tan  absolute
\ninterest   in  the  property  by  the  words   “enjoy”\t and
\n“permanently  and  with\t absolute  rights”  the\t  subsequent
\ndisposition must necessarily fail.  Learned Counsel  further
\nsubmitted that light was thrown on the absolute\t disposition
\nin favour of Severina by cl. 3 (c) by contrasting its  terms
\nwith  the  vocabulary  employed by the\ttestatrix  when\t she
\nintended to create a limited interest for life in cl. 4.  In
\nthe  latter clause, apart from the specific  condition\tthat
\nthe  second daugbter-Matilda Coclho was to enjoy up  to\t her
\ndeath  only,  the testatrix had gone further and  imposed  a
\ncondition  forbidding  alienations.  The  absence  of  these
\nfeatures  in  the  disposition\tin  favour  of\tthe   eldest
\ndaughter-Severina-under\t cl. 3 (c) were\t clear\tindications,
\naccording  to learned Counsel, that the legate\ttherein\t was
\nintended  to  be  granted an  absolute\tinterest.   In\tthis
\nconnection  it was pointed out that the bequest in  question
\nfell  within the class of dispositions referred to in s.  84
\nextracted earlier and particularly to the bequest  specified
\nin  illustration  (a) to that section.\tWe might  point\t oat
\nthat  these submissions were, in fact, the reasoning on\t the
\nbasis  of which both the learned trial judge as well as\t the
\nDistrict judge on appeal upheld the construction put forward
\nby the appellants.\n<\/p>\n
It  would  be seen that in ultimate  analysis  the  question
\narising\t on the construction of cl. 3 (c) would\t be  whether
\nthe words “shall enjoy permanently and with absolute  right”
\napply  to the interest of Severina or are they\tconfined  to
\ndesignate exclusively the interest of her male-children\t who
\nare  to take after her life-time.  It is with  reference  to
\nthis point that learned Counsel for the appellants  disputed
\nthe correcsness of the translation of the clause as found in
\nthe Paper-book.\t We were referred
\n 731<\/span>
\nto the words in Canarese in the document and it was  pointed
\nout  that the word enjoy’ occurred in the clause  only\tonce
\nreferring to the interest both of the daughter as well as of
\nher  male-children  and\t that the  words  “permanently\twith
\nabsolute  rights” qualified and indicated the nature of\t the
\nenjoyment  by  both.   We shall be referring  to  the  other
\ntranslations  of the relevant words but by doing so  we\t are
\nnot to be understood as disposed to encourage any laxity  in
\nor departure from the salutary rule that save in exceptional
\ncases  if  the\tcorrectness of an  official  translation  is
\ndisputed by any party steps must be taken to have a retrans-
\nlation\tmade  by  the  officers\t of  the  Court\t on   proper
\napplication  made in time therefore.  In the present  case..
\nhowever,  we have permitted learned Counsel to place  before
\nus   the   other  translations\tparticularly   because\t the
\ntranslation  now  found\t in the\t paper-book  which  we\thave
\nextracted earlier was, though it was the translation on\t the
\nrecord\tof the High Court, not adopted by the learned  judge
\nin  the High Court who had a fresh translation made  by\t the
\nOfficial translator of the High Court which is found in\t the
\njudgment now under appeal.  Besides this translation in\t the
\nHigh  Court the learned trial judge had also included in  Ms
\njudgment  a translation which he had himself made of  –\t the
\npassage.   The\tlearned trial judge after  setting  out\t the
\nwords  in  the original translated the\tpassage\t as  reading
\n“after\tme  my eldest daughter S. S. Coelho  and  after\t her
\nlifetime  her  male children also with\tpermanent  and\tfull
\nrights\tshall enjoy.” The learned Single judge in  the\tHigh
\nCourt accepted the following as the correct translation :\n<\/p>\n
\t      ,,All  these  (properties) shall after  me  be
\n\t      enjoyed by my eldest daughter Severina  Sabina
\n\t      and  after her lifetime by her  male  children
\n\t      too as permanent and absolute hukdars.”\n<\/p><\/blockquote>\n
It would be seen that there is not much difference
\n732<\/span>
\nbetween\t these\ttranslations,  but that\t compared  with\t the
\ntranslation  from  the\tPaper -book which we  have  set\t out
\nearlier, it is found that the verb “enjoy” occurs only once-
\nnot  twice-as  in the paper book where it  occurs  first  in
\nrelation  to  the  daughter and again with  respect  to\t the
\nbequest to the daughter’s male issue.\n<\/p>\n
Based  on these translations learned Counsel submitted\tthat
\nas  the word “‘enjoy” occurs only once, the nature  of\tthat
\nenjoyment  indicated  by the later words “as  permanent\t and
\nabsolute  hukdars”  must  govern  both\tthe  dispositions-in
\nfavour of the daughter and in favour of her male issue.\t  In
\nour  opinion this does not necessarily follow.\tWe  consider
\nthat  the translation which was got prepared by the  learned
\njudge  in the High Court is nearer the original\t in  spirit,
\nfor we have been furnished by Mr. Viswanatha Sastri with the
\noriginal  text\ttogether with a literal translation  of\t the
\nCanarese words.\n<\/p>\n
If the bequest to Severina was “to enjoy” and the  testatrix
\nproceeds  to  add that after the lifetime of  Severina,\t her
\nmale  issue were “to have permanent and absolute  rights  in
\nthe  same” the very contrast in the phraseology should\tlead
\none  irresistibly  to  the conclusion  that  the  nature  or
\nquantum\t of Severina’s interest was different from  that  of
\nthose  who  took  after\t “her  lifetime.”  Learned  Counsel,
\nhowever, laid special stress on the use of the word “too” or
\n“also”\toccurring towards the end of the clause as  pointing
\nto the “enjoyment” of Severina being also “‘permanent”\twith
\nabsolute  right.  We are however unable to read the word  as
\nhaving such a significance and as referring to the nature of
\nSeverina’s enjoyment as well, and in this conclusion we\t are
\nsupported  by  the text and the literal translation  of\t the
\nword  used.   In  our opinion, the only\t relevant  words  in
\nrelation  to  the bequest to Severina arc  that\t “she  shall
\nafter my death enjoy,”and the rest of the clause deals with
\n 733<\/span>
\nwhat  is  to  happen  after  her  lifetime.   The   dominant
\nintention  of  the testatrix was to confer a  permanent\t and
\nabsolute  remainder on the male issue of her daughter  after
\nthe  lifetime of the first done and the words used  are\t apt
\nand capable of supporting such a construction.
\nLearned\t Counsel  next\trelied on the terms of\ts.  84,\t his
\nsubmission  being that the male issues of Severina were\t not
\n‘direct\t objects  of  a\t distinct  and\tindependent   gift.”
\nApplying  the terms of s. 84 to the present case,  no  doubt
\n“‘property is bequeathed to a person” viz, the daughter, but
\nthe question is whether the words that follow which refer to
\nthe  male children enjoying “permanently and  with  absolute
\nrights,” for there is no doubt that on any interpretation of
\nthe document those words do apply to them, designate them as
\ndirect\tobjects of a distinct arid independent gift, or\t are
\nthey added merely to denote the nature of the interest which
\nthe  first taker-Severina was to obtain?  Put  in  technical
\nlanguage are the words referring to the male children, words
\nof  purchase or are they words of limitation indicating\t the
\nnature\tof  the interest conveyed to the  first\t taker.\t  It
\nwould  be  observed that in illustration (a) to\t s.  84\t the
\nbequest\t is  made to the first taker  and  his\tdescendants.
\nWhere  they  are  the descendants of the  first\t taker,\t the
\npresumption is that the reference to the persons to take the
\ngift  over, is intended to denote the quality of  the  first
\ntaker’s\t estate\t and not for the purpose of  the  subsequent
\ntakers\thaving\tindependent  gifts.   Where  the  subsequent
\nlegatees are intended to be themselves direct  beneficiaries
\nand they are directed to take along with the first taker the
\ninterest of the first taker is cut down to a joint  interest
\nin  the property so as to enable the subsequently  named  to
\npartake\t the  legacy.\tThat  is  illustration\t(b)  to\t the
\nsection.  There the second named is a collateral and by\t the
\nuse of the conjunction ‘and’ a joint interest is presumed to
\nbe created in favour of all the
\n734<\/span>
\nlegatees.  Where the subsequent taker is a descendant of the
\nfirst  taker, as in illustration (a), but the testator\tdoes
\nnot provide for his taking it along with the first named, it
\nis  a  case falling under illustration\t(c)where  successive
\ninterests are created by the use of the words\t“after\t the
\nfirst  taker’s\tdeath”.\t In such a case even if\t the  second
\ntaker were the issue of the first the first taker’s interest
\nis for life since by the use of the words “after his or\t her
\nlifetime’  successive interests are intended to be  created.
\nIn   our  opinion  the\tcase  on  hand\twould  fall   within
\nillustration (c) and the bequest to Severina is only of life
\ninterest,  this\t being made clear by the use  of  the  words
\nafter her lifetime’.\n<\/p>\n
It  was\t next said that cl. 4 of the will  furnished  cogent
\nevidence  of  what  might be called the\t vocabulary  of\t the
\ntextatrix  which she employed when she intended to create  a
\nlife interest.\tThis intention it was urged, was  manifested
\nin  that clause by two provisions, first by  providing\tthat
\nthe legatee-the second daughter “should enjoy upto her death
\nonly” and then as if to emphasise the limited nature of\t the
\ninterest conferred, by expressly prohibiting all alienations
\nby  way\t of  gift, sale, mortgage etc.\tWe  however  see  no
\ndistinction between the phrase “enjoy up to her death” and a
\nprovision  which  directs  an enjoyment by a  legatee  by  a
\nclause\twhich proceeds to make a gift over of  the  absolute
\ninterest “after the death” of the first legatee.  Nor do  we
\nconsider  that\tthe emphasis contained\tin  the\t prohibition
\nagainst alienation in cl. 4 as of any decisive importance in
\nunderstanding  the phraseology employed by the testatrix  in
\nthis  will.   For when one turns to cl. 5 we find  there  is
\nwhat without doubt is a life interest in favour of her grand
\ndaughter-julia-created\tby the use of the words\t “enjoy\t the
\nproperty  up  to  her death” without  the  addition  of\t the
\nprohibition  against alienation which is found in cl. 4.  It
\nis therefore manifest that expressions ‘after the  lifetime’
\nand
\n\t\t\t    735<\/span>
\n‘after the death’ were words understood by the draftsman  of
\nthe  will  to indicate that the interest referred to  was  a
\nterminable  one-a  life\t interest and we  have\tthese  words
\n‘after her lifetime’ in cl. 3 (c).\n<\/p>\n
There  is  also one other consideration which  supports\t the
\nabove  construction.  It was common ground that under cl.  3\n<\/p>\n
(c),  the  testatrix  intended to  confer  an  absolute\t and
\npermanent  interest  on the male children of  her  daughter,
\nthough\tif  the\t contentions urged by  the  appellants\twere
\naccepted  the legacy in their favour would be  void  because
\nthere  could  legally  be no gift  over\t after\tan  absolute
\ninterest  in  favour  of  their\t mother.   This\t is  on\t the
\nprinciple that where property is given to A absolutely, then
\nwhatever  remains  on A’s death must pass to  his  heirs  or
\nunder  his will and any attempt to sever the incidents\tfrom
\nthe absolute interest by prescribing a different destination
\nmust  fail as being repugnant to the interest created.\t But
\nthe  initial  question\tfor consideration is  whether  on  a
\nproper\tconstruction  of the will an  absolute\tinterest  in
\nfavour\tof  Severina  is  established.\tIt  is\tone  of\t the
\ncardinal  principles  of construction of wills that  to\t the
\nextent that it is legally possible effect should be given to
\nevery  disposition  contained  in the will  unless  the\t law
\nprevents  effect being given to it.  Ofcourse, if there\t are
\ntwo repugnant provisions conferring successive interests, if
\nthe first interest created is valid the subsequent  interest
\ncannot take effect but a Court of construction will  proceed
\nto  the farthest extent to avoid repugnancy, so that  effect
\ncould  be  given as far as possible  to\t every\ttestamentary
\nintention contained in the will.  It is for this reason that
\nwhere  there  is a bequest to A even though it be  in  terms
\napparently  absolute  followed by a gift of the\t same  to  B
\nabsolutely  “on” or “‘after” or “at” A’s death, A  is  prima
\nfacie  held  to take a life interest and B  an\tinterest  in
\nremainder, the apparently absolute interest
\n736<\/span>
\nof  A being cut down to accommodate the interest created  in
\nfavour of B. In the present case if, as has to be  admitted,
\nthe  testatrix did intend to confer an absolute interest  in
\nthe male children of Severina the question is whether effect
\ncan  or cannot be given to it.\tIf the interest of  Severina
\nwere held to be absolute no dobut effect could not be  given
\nto  the said intention.\t But if there are words in the\twill
\nwhich  on  a reasonable construction would denote  that\t the
\ninterest of Severina was not intended to be absolute but was
\nlimited\t to her life only, it would be proper for the  Court
\nto adopt such a construction, for that would give’ effect to
\nevery testamentary disposition contained in the will.  It is
\nin  that  context  that\t the  words  ‘after  her   lifetime’
\noccurring  in  cl. 3 (c) assume crucial\t importance.   These
\nwords  do indicate that the persons designated by the  words
\nthat  follow were to take an interest after her, i.  e.,  in
\nsuccession  and not jointly with her.  And unless  therefore
\nthe  words referring to the interest conferred on  the\tmale
\nchildren were held to be words of limitation merely, i.\t e.,
\nas denoting the quality of the interest Severina herself was
\nto  take  and  not words of purchase,  the  only  reasonable
\nconstruction  possible of the clause would be to  hold\tthat
\nthe interest created in favour of Severina was merely a life
\ninterest and that the remainder in absolute was conferred on
\nher  male children.  This was the interpretation  which\t the
\nlearned\t Single\t judge\tof the High  Court  adopted  and  we
\nconsider the same is correct.\n<\/p>\n
Quite a number of authorities were cited by learned  Counsel
\non  either side but in each one of these we find  it  stated
\nthat in the matter of the construction of a will authorities
\nor  precedents\twere  of  no help as each  will\t has  to  be
\nconstrued  in its own terms and in the setting in which\t the
\nclauses\t occur.\t We have therefore not thought it  necessary
\nto refer to these decisions.\n<\/p>\n
 737<\/span><\/p>\n
The  result is that the appeal fails and is  dismissed\twith
\ncosts.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramachandra Shenoy And Another vs Mrs. Hilda Brite And Others on 1 April, 1963 Equivalent citations: 1964 AIR 1323, 1964 SCR (2) 722 Author: N R Ayyangar Bench: Ayyangar, N. Rajagopala PETITIONER: RAMACHANDRA SHENOY AND ANOTHER Vs. RESPONDENT: MRS. HILDA BRITE AND OTHERS DATE OF JUDGMENT: 01\/04\/1963 BENCH: AYYANGAR, N. RAJAGOPALA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-173875","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamachandra Shenoy And Another vs Mrs. Hilda Brite And Others on 1 April, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramachandra-shenoy-and-another-vs-mrs-hilda-brite-and-others-on-1-april-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramachandra Shenoy And Another vs Mrs. Hilda Brite And Others on 1 April, 1963 - 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