{"id":2159,"date":"2007-05-18T00:00:00","date_gmt":"2007-05-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bajrang-factory-ltd-anr-vs-university-of-calcutta-ors-on-18-may-2007"},"modified":"2015-06-18T11:33:37","modified_gmt":"2015-06-18T06:03:37","slug":"bajrang-factory-ltd-anr-vs-university-of-calcutta-ors-on-18-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bajrang-factory-ltd-anr-vs-university-of-calcutta-ors-on-18-may-2007","title":{"rendered":"Bajrang Factory Ltd. & Anr vs University Of Calcutta & Ors on 18 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bajrang Factory Ltd. & Anr vs University Of Calcutta & Ors on 18 May, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  3374 of 2006\n\nPETITIONER:\nBajrang Factory Ltd. & Anr\n\nRESPONDENT:\nUniversity of Calcutta & Ors\n\nDATE OF JUDGMENT: 18\/05\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
S.B. SINHA,  J :\n<\/p>\n
1.\tConstruction\/ interpretation of a Will executed by one Nerode
\nChandra Vasu Mullick on 04.03.1932 vis-`-vis certain provisions of the
\nIndian Succession Act (for short “the Act”), viz., Sections 113, 116 and 129
\nfalls for our consideration in this appeal which arises out of a judgment and
\ndecree passed by a Division Bench of the Calcutta High Court affirming a
\njudgment and order dated 2.06.1992 passed by a learned Single Judge of the
\nsaid Court in Suit No. 866 of 1979 on a preliminary issue raised by the
\nappellants therein as to whether the respondents had any locus to file the suit
\nin question.\n<\/p>\n
2. \tBefore embarking on the said questions, we may notice the admitted
\nfact of the matter.\n<\/p>\n
 3.\tAppellant No. 1 is an existing company within the meaning of the
\nprovisions of the Companies Act, 1956.  It claims its title in respect of the
\ndisputed premises by a lease executed by the Chamong Tea Company
\nLimited as also purchase of a property by a deed of sale.\n<\/p>\n
4. \tThe property in question admittedly belonged to Late Nerode Chandra
\nVasu Mullick.  The legatee under the Will Shri Hamir Chandra Vasu
\nMullick through whom Appellant No. 1 claims its right, title and interest
\nwas his son.\n<\/p>\n
5. \tThe relevant clauses of the said Will are as under:\n<\/p>\n
“5. I give all my immovable properties and the said
\ndebentures in the Hooghly Docking and
\nEngineering Co. Ltd. to my son the said Hamir
\nChandra Mullick to hold and enjoy the same
\nduring the term of his natural life without
\nimpeachment of waste and on the determinator of
\nhis life Estate to such one of his sons and
\ngrandsons as he may by deed, will or otherwise in
\nwriting appoint absolutely and in default of such
\nappointment to his eldest male descendants
\nabsolutely.  If my son has no male issue, the power
\nof appointment may be exercised by him in favour
\nof his daughters or daughters son.\n<\/p>\n
6. My son may sell or convert into money any of
\nthe properties mentioned in the last foregoing
\nclause but it will be obligatory on him to invest the
\nentire proceed thereof in the purchase of
\nimmovable properties in Calcutta on the suburbs.\n<\/p>\n
7. My son shall have the right and I devise that he
\nshould settle the said immovable properties on one
\nof his sons for such sons life with remainder to
\nsuch son’s son.”\n<\/p>\n
6. \tIndisputably, the testator executed a Codicil on 4.03.1932 in terms
\nwhereof inter alia it was provided:\n<\/p>\n
“12. If my son has no issue, however distant or
\nadopted son or any issue of such adopted son, my
\nestate shall go to the University of Calcutta for
\nadvancement of learning.  It is my Will and desire
\nthat the University should in that connection
\nsuitably perpetuate for the benefit of Hindus only
\nthe memory of (1) my father, Hem Chandra Vasu
\nMullick (2) my mother Vooban Mohini Vasu
\nMullick (3) my maternal grand father Narendra
\nKumar Dutt and (4) my maternal grandmother
\nGolap Mohini Dutt and also use my residence no.
\n12, Wellington Square Calcutta as a Centre of
\nlearning to be called after my late father.”\n<\/p>\n
7. \tWe may, however, mention that the said Codicil, according to the
\ntestator, should be read as a part of his last Will and testament dated
\n4.03.1932 and thereby he also confirmed the said Will and testament.\n<\/p>\n
8. \tSoon after the execution of the Codicil, the testator died on 7.08.1942
\nleaving behind his widow, legatee and his daughter-in-law.  The legatee
\nunder the Will separated from his wife.  His wife is said to have remarried.
\nWidow of the testator also passed away.  Appellant No. 3 in that situation
\nallegedly was asked to take care of the affairs of the properties.\n<\/p>\n
9. \tAn application for grant of probate in terms of the Act was filed
\nbefore the original side of the Calcutta High Court and by an order dated
\n15.01.1943, the legatee was appointed as the sole executor and trustee of the
\nWill.  Allegedly by a registered indenture dated 27.12.1966, the legatee let
\nout the premises in question in favour of the appellant company, a portion of
\nthe premises No. 156, Bipin Behari Ganguly Street, Calcutta (hereinafter
\nreferred to as ‘the immovable property’) for a period of ten years with the
\noption to renew the same for further four consecutive periods of 10 years
\neach in all for fifty years from the said date on the terms and conditions
\nmentioned therein.\n<\/p>\n
10. \tIt is not in dispute that Appellant No. 1 paid unto the legatee the
\nagreed rent till 14.07.1973.  The legatee, however, purported to have
\nconveyed a portion of the said leasehold by a registered deed of sale in
\nfavour of one Chamong Tea Company Limited, subject to the said lease
\ngranted in favour of the appellants herein.\n<\/p>\n
11. \tIndisputably, the legatee died on 18.11.1976 without any issue.  He
\nhad not adopted any son also.  He had also not made any appointment in
\nterms of the said Will.\n<\/p>\n
12.\tRespondent University claiming its right in terms of Clause 12 of the
\naforementioned Codicil filed an application for grant of a Letters of
\nAdministration and by reason of a judgment and order dated 22.08.1977, the
\nsaid application was allowed.  It is stated that pursuant to or in furtherance of
\nthe said order dated 22.08.1977 the Registrar of the Calcutta University took
\nover possession of the said property.\n<\/p>\n
13. \tThree suits came to be filed thereafter.  One of the suit was filed by
\nthe appellants herein which was marked as Suit No. 390 of 1978 praying for
\nthe following reliefs:\n<\/p>\n
“a) A declaration that the plaintiff is entitled to
\npossession and\/ or to remain in possession and
\nenjoyment of the portions of Baithakhana Bazar
\nbeing premises Nos. 155, 156, Bepin Behari
\nGanguly Street and 167 Baithakhana Road
\nCalcutta both within the aforesaid jurisdiction and
\ndescribed in the sketch plan annexed hereto and
\nmarked with the letter “C” and delineated in red
\nand yellow including the right to collect rents
\nissues and profits thereof;\n<\/p>\n
b) Perpetual injunction restraining the defendants
\nNos. 1 and 2 their servants and agents from
\ninterfering with or further interfering with or
\ncontinuing to interfere with or disputing or
\ndenying the plaintiff’s right to remain in
\npossession and\/ or right to possess and enjoy the
\nportions of the said Baithakhana Bazar being
\npremises Nos. 155, 155\/1, 155\/2, 156, Bepin
\nBehari Ganguly Street, and 167, Baithakhana
\nRoad, Calcutta more fully described in the sketch
\nplan annexed hereto and marked with the letter
\n“C” and delineated in red and yellow including the
\nright to collect rests issues and profits from the
\noccupants of such areas in any manner whatsoever.\n<\/p>\n
c) Perpetual injunction restraining the defendants
\nNos. 1 and 2 from collecting or attempting to
\ncollect the rents issues and profits from the
\naforesaid portions of the Baithakhana Market of
\nwhich the plaintiff is the lessee.\n<\/p>\n
d) If necessary, possession of the said portions of
\nthe Baithakhana Bazar being premises Nos. 155,
\n155\/1, 155\/2, 156, Bepin Behari Ganguly Street,
\nand 167, Baithakhana Road, Calcutta more fully
\ndescribed in the letter “C” and delineated in colour
\nred and yellow”\n<\/p>\n
14. \tRespondent No. 1 herein also filed a suit in the original side of the
\nCalcutta High Court on or about 15.11.1979 which was marked as Suit No.
\n864 of 1979 praying for the following reliefs:\n<\/p>\n
“a) A declaration that the sale purported to have
\nbeen effected in respect of premises Nos.\n<\/p>\n
155,155\/1,155\/2, Bepin Behari Ganguly Street,
\nCalcutta by the Deed of sale dated 29th May 1971
\nexecuted by Hamir Chandra Vasu Mullick in
\nfavour of the Chamong Tea Company Ltd.  The
\ndefendant No. 1 is void or voidable and of no
\neffect as stated in paragraph 25 of the plaint.\n<\/p>\n
b) That the aforesaid Deed of Sale deed 29th May
\n1971 executed by Hamir Chandra Vasu Mallick in
\nfavour of the Chamong Tea Company Ltd. The
\ndefendant No. 1 delivered up and cancelled and\/ or
\nadjudged void as stated in paragraph 25 of the
\nplaint.\n<\/p>\n
c) A declaration that the deed of lease dated 24th
\nJuly 1972 in respect of premises No. 155, 155\/1,
\n155\/2, Bepin Behari Ganguly Street, Calcutta
\nexecuted by the Chamong Tea Company Ltd. the
\ndefendant No. 1 in favour of Bajrang Factory Ltd.
\nthe defendant no. 2 is void or voidable and of no
\neffect as stated in paragraph 26 of this plaint.\n<\/p>\n
d) That the aforesaid deed of lease dated 24th July
\n1972 executed by the Chamong Tea Company Ltd.
\nThe defendant No. 1 in favour of Bajrang Factory
\nLtd. The defendant No. 2 be delivered up as stated
\nin paragraph 26 of this plaint.\n<\/p>\n
e) In the alternative a declaration that the said sale
\nand said lease dated 29th May 1971 and 24th July
\n1972 respectively as referred to in prayers (a),\n<\/p>\n
(b)(c) and (d) are not valid beyond the life time of
\nthe said Hamir Chandra Vasu Mallick, deceased as
\nstated in paragraph 25 and 26 of this plaint.\n<\/p>\n
f) A decree for declaration that the University of
\nCalcutta is the absolute owner of the said
\npremises\n<\/p>\n
g) Perpetual injunction restraining the defendants
\nNos. 1 and 2 from collecting rents, issue and
\nprofits from the tenants in occupation of the said
\npremises\n<\/p>\n
h) perpetual injunction restraining the defendants
\nNos. 1 and 2 and their servants agents and assigns
\nfrom transferring assigning or otherwise dealing
\nwith or taking any or any further steps or action for
\nenforcement of the said deed of sale and deed of
\nlease dated 29th May 1971 and 24th July 1972
\nrespectively or any alleged right thereunder as
\nagainst the plaintiff No. 1″\n<\/p>\n
 15.\tIt appears that the aforementioned Chamong Tea Company Limited
\nhad also filed a suit.\n<\/p>\n
16. \tIn the suit filed by Respondent University, the appellants raised two
\nissues in regard to the validity of the Will, which are as under:\n<\/p>\n
“(a) Whether the dispositions in regard to the
\nresiduary estate made by the said Will are void
\nsave and except the life interests given thereby to
\nthe plaintiffs and the defendant Susan Sopher.\n<\/p>\n
(b) Whether subject to the life interests given in
\nthe residuary estate to the plaintiff and the
\ndefendants Susan Sopher the said Plaintiffs and the
\ndefendant Susan Sopher have succeeded to the
\nresiduary estate of the testator as on a intestacy.”\n<\/p>\n
17. \tThe said issues were taken as preliminary issues.  According to the
\nappellants, the bequeath of the property in terms of Clauses 5, 6 and 7 of the
\noriginal Will, as amended by the Codicil dated 4.03.1932 was void in terms
\nof Section 113 of the Act.  The learned Judge opined:\n<\/p>\n
“The right created in favour of Hamir Chandra
\nBasu Mallick was only a life estate and his power
\nor appointing certain specified person was in
\nrespect of the entire estate absolutely.  Under the
\ncircumstances the provision of Section 113 had no
\napplication in as much as Hamir had no choice of
\ncurtailing the interest from the remaining of the
\ntestator’s interest.  Hamir had no right to cut down
\nthe absolute estate as such neither the provisions of
\nSection 113 nor Section 114 are attracted.  Section
\n116 had no application.  The right created in
\nfavour of the University of Calcutta could only be
\ndefeated, if Hamir had any issue either natural
\nborn or adopted.  Clause 12 of the Codicil should
\noverride clause 5 of the Will.  The question of
\nappointment by Hamir Chandra Basu Mallick
\ncould only arise provided he had issues either
\nnatural born or adopted.  The clause 7 in the Will
\nis only directory and not imperative.  Under the
\ncircumstances there is no clause of defeasance and
\nthe legatee as contemplated would take the entire
\nestate of the testator is an unfetter form.\n<\/p>\n
 \tIn view of the facts and circumstances of
\nthis case and in view of the various principles of
\nlaw as laid down in the cases discussed above this
\nCourt is of the view that the preliminary point
\nraised by the defendants in the suit must be
\nanswered in the negative in as much as this Court
\nis of the view that the University of Calcutta is
\nentitled to file the suits and proceed with the
\nsame”\n<\/p>\n
18. \tAggrieved by and dissatisfied therewith, the appellants preferred an
\nintra-court appeal before the Division Bench of the Calcutta High Court.  By
\nreason of the impugned judgment dated 14.02.2003, the said appeal has been
\ndismissed holding:\n<\/p>\n
“After considering the respective submissions of
\nthe parties and the entire materials on record we do
\nnot find any reason to interfere with the impugned
\njudgment and order of the Trial Court as we agree
\nwith the view of the Trial Court that the bequest of
\nthe property in favour of the University of Calcutta
\nis not void and therefore the University is entitled
\nto file the suit.\n<\/p>\n
 \tIt has been rightly contended by the learned
\ncounsel appearing on behalf of the respondent,
\nUniversity of Calcutta, that in the matter of
\ninterpretation of the Will, the Court is required to
\nascertain the dominant intention of the testator on a
\nplain reading of the will and it will also be the duty
\nof the Court to implement such intention of the
\ntestator and if there are two clauses which might
\nappear to be inconsistent to each other it will be
\nthe duty of the Court to reconcile the aforesaid two
\nClauses.\n<\/p>\n
 \tKeeping such principle of law, if we now
\nexamine the aforesaid three Clauses of the Will,
\nClauses 5, 6 and 7, we are of the view that Clause
\n5 and
\nClause 7 of the Will are not inconsistent with each
\nother.\n<\/p>\n
 \tIn Clause 6 of the Will the son of the testator
\nwho was given life estate of the property was
\ngiven right to sell or convert into money the
\nproperty was given right to sell or convert into
\nmoney the aforesaid immovable properties
\nbequeathed to him for life but subject to the
\ncondition contained in Clause that in such event he
\nhas to invest for purchase of another immovable
\nproperties which has to be settled by the son of the
\ntestator to one of the sons of Hamir.  The reference
\nto immovable properties in Clause 7, which
\nfollows Clause 6 obviously is to the properties
\nwhich Hamir was required to purchase, if he
\ntransferred the immovable properties bequeathed
\nto him by investing the sale proceeds thereof.\n<\/p>\n
 \tWe are therefore unable to accept the
\nsubmission of the learned counsel appearing on
\nbehalf of the appellant that there was inconsistency
\nbetween Clauses 5 & 7 and because of the same,
\nthe alter Clause will prevail.”\n<\/p>\n
 \tIt was furthermore observed:\n<\/p>\n
“Clause 5 of the Will therefore stood modified by
\nClause 6 of the Codicil.  On the death of the
\ntestator therefore as Hamir did not beget or adopt
\nany son, the property will validly go to the
\nUniversity of Calcutta.\n<\/p>\n
 \tWe are unable to accept the contention of
\nthe learned Counsel appearing for the appellant
\nthat bequests of the property by the testator to the
\nunborn son of Hamir subject to his life interest was
\nvoid under the provisions of Section 113 of the
\nIndian Succession Act and consequently the
\nbequests in favour of the University of Calcutta is
\nalso void under Section 116 of the Indian
\nSuccession Act.\n<\/p>\n
 \tIt appears to us that the bequests in favour of
\nthe unborn son of Hamir by the testator of the
\nimmovable properties was absolute and the same
\ncomprised of the whole of the interest of the
\ntestator in the property bequeathed having been
\ndevised and bequeathed absolutely in favour of
\nthem.  Since the bequests therefore comprised of
\nthe whole of the interest of the testator in the said
\nproperty, such bequests will not be void.\n<\/p>\n
Consequently, not the provision of Section 116 of
\nthe Indian Succession Act but the provision of
\nSection 129 of the said Act will apply and the
\nbequests made in favour of the University of
\nCalcutta shall take effect upon failure of the
\nbequest made in favour of the unborn son of
\nHamir.”\n<\/p>\n
19. \tMr. C.S. Sundaram, learned senior counsel appearing on behalf of the
\nappellants in assailing the judgment and order passed by the Calcutta High
\nCourt would inter alia submit:\n<\/p>\n
(i)\tClause 7 of the Will being inconsistent with the stipulations
\ncontained in Clause 5 thereof would prevail thereover in view of
\nthe provisions contained in Section 88 of the Act.\n<\/p>\n
(ii)\tClause 7 of the Will providing for a bequest in favour of an unborn
\nperson is clearly violative of Section 113 of the Act and in that
\nview of the matter, the bequest which was to take effect on the
\nfailure of the prior bequest in terms of Section 129 thereof would
\nalso be void under Section 116 of the Act.\n<\/p>\n
(iii)\tAssuming that the High Court judgment is correct, Clause 5 of the
\nWill would be defeated by the contingencies contained therein or
\nby Clause 6 thereof inasmuch as in such an event, the
\nconsequences provided for under Clause 7 of the Will would take
\nover; as a consequence whereof, Clause 5 of the Will would also
\nbe void under Section 113 of the Act.\n<\/p>\n
(iv)\tIf Clauses 5 and 7 of the Will were void, the consequences thereof
\nwould be that the bequest under Clause 12, being dependant on the
\nfailure of the aforesaid bequest, would also be rendered void in
\nview of Section 129 of the Act.\n<\/p>\n
20. \tMr. K.K. Venugopal, learned senior counsel appearing on behalf of
\nthe respondents, on the other hand, would submit:\n<\/p>\n
(i)\tThe principles of interpretation of the Will being to ascertain the
\nintention of the testator are:\n<\/p>\n
(a)\tthe court will sit on the arm-chair of the testator so as to give
\neffect to his intention; and\n<\/p>\n
(b)\twould implement that intention of the testator and in that
\nprocess an endeavour would be made to clear the
\ninconsistencies if any so as to see that the intention of the
\ntestator is not defeated.\n<\/p>\n
(ii)\tHaving regard to the definition of Codicil contained in Section 2(b)
\nof the Act, the latter will prevail and if the Codicil is read in its
\nentirety, it would be evident that the testator clearly provided for
\ngift to the respondent University if the legatee Hamir Chandra
\nMullick did not leave behind any son or had not adopted any.  As
\nadmittedly, the legatee died in the year 1977 without any issue or
\nwithout adopting any son or without appointing any person, Clause
\n12 of the Codicil would come into effect.\n<\/p>\n
(iii)\tClause 6 of the Will clearly shows that merely a life interest was
\nconveyed to the legatee inasmuch as even had he transferred the
\nproperty, the same would be subject to investment of the sale
\nproceeds in acquiring one or the other property.\n<\/p>\n
(iv)\tClause 7 of the Will merely provides for an enabling clause in the
\nhands of the legatee in terms whereof he may or may not appoint
\nany person and only in the event such appointment is made, the
\ndesire of the legatee was to see that the same may be made in
\nfavour of his male issue.\n<\/p>\n
(v)\tClauses 5 and 7 of the Will, therefore, would not be hit by Section
\n113 of the Act.\n<\/p>\n
(vi)\tClause 7 of the Will furthermore would not operate qua the
\nproperty but qua the option of the legatee.  The Will so read, it was
\nurged, that both clauses 5 and 7 can be given effect to as it merely
\nprovided for a just pious hope or wishful thinking on the part of the
\ntestator.\n<\/p>\n
21.  \tThe Act was enacted to consolidate the law applicable to intestate and
\ntestamentary succession.\n<\/p>\n
22. \t“Codicil’ has been defined to Section 2(b) of the Act to mean ‘an
\ninstrument made in relation to a will, and explaining, altering or addition to
\nits dispositions, and shall be deemed to form part thereof’.\n<\/p>\n
23. \tSection 82 of the Act reads as under:\n<\/p>\n
“82. Meaning or clause to be collected from entire
\nWill  The meaning of any clause in a will is to be
\ncollected from the entire instrument, and all its
\nparts are to be construed with reference to each
\nother.”\n<\/p>\n
 24.\tSection 88 of the Act provides for a rule of construction of the Will
\nstating that where two clauses of gifts in a Will are irreconcileable so that
\nthey cannot possibly stand together, the last shall prevail.  This provision is
\nitself a pointer to the fact that once it is possible to give effect to both the
\nclauses which although apparently appears to be irreconcileable the court
\nshould take recourse thereto.\n<\/p>\n
25.\tIt is admitted that there are certain typographical errors in the said
\nWill.  While construing the said Will, therefore, we will have to take note
\nthereof.\n<\/p>\n
26. \tIn construction of the Will for the purpose of considering the validity
\nthereof, we must see as the things were at the relevant time and not what
\nthey are today.\n<\/p>\n
27. \tBy reason of Clause 5, the testator bequeathed his right, title and
\ninterest in favour of his son Hamir Chandra Vasu Mullick inter alia of the
\nimmovable properties during the term of his natural life.  The bequest was,
\ntherefore, not absolute.  Only upon determination of his life estate, the same
\nis to vest absolutely on such one of his sons and grandsons as he may by
\ndeed, Will or otherwise in writing appoint.  The said Clause is also not void
\ninasmuch as the bequest to the sons or the grandsons of the testator is not for
\na life time but it vests in them absolutely.  The intention of the testator
\nbecomes clear in reading the next sentence which again provides that in
\ndefault of such appointment to his eldest male descendants absolutely, if
\nHamir Chandra Vasu Mullick has no male issue, the power of appointment
\nmay be exercised by him in favour of his daughters or daughters’ sons.\n<\/p>\n
28. \tWhile making the bequest on the aforementioned terms, the limited
\npower to transfer the said bequeathed property had also been conferred upon
\nhim. For all intent and purport it did not confer any power of absolute
\ntransfer.  It, in effect and substance, merely provided for conversion of the
\nproperty.  Such conversion of the property was to be made strictly in the
\nmanner as laid down therein.  As regard the purported transfer of the
\nproperties in suit by the legatee, two questions would arise:\n<\/p>\n
(a)\tWhat would be the effect of non-conversion of such
\nproperties by purchase of immovable properties in Calcutta
\nor the suburbs.\n<\/p>\n
(b)\tWhether Clause 7 of the Will only refers to the properties so
\ntransferred only on one of the appointees of the testator.\n<\/p>\n
29. \tIt is one thing to say that non-compliance of conditions contained in
\nClause 6 of the Will would not invalidate the transfer, but it is another thing
\nto say that the said provision contemplated illegality in the transaction.  If
\nthe transaction is void or voidable at the instance of the beneficiary to the
\nWill, no further question need be asked.  Courts in the event of its findings
\nthat the transactions are illegal, would have to proceed on the basis that the
\nsame had not taken place at all.\n<\/p>\n
30. \tAt this juncture, this Court is not concerned with the other allegations
\nmade by the University as to whether the deed of sale executed by the
\nlegatee was invalid or not, inasmuch as the preliminary issue raised is
\nconfined to the question of validity of the will.\n<\/p>\n
31.\tWhat would be the effect of a sale if the sale proceeds have not been
\napplied for purchase of immovable property is also a question which would
\nfall for consideration of the High Court at an appropriate stage.  It goes
\nwithout saying that it would be open to the High Court to consider as to
\nwhether a suo motu action or at the instance of the University can be taken
\nas the conditions for grant of probate have been violated.  We, however,
\nneed not apply our mind to the said question.\n<\/p>\n
32. \tWe may, furthermore, notice that the word ‘devise’ in the context of
\nClause 7 does not appear to be appropriate.  The word ‘devise’ would inter
\nalia mean a ‘plan’ or a ‘scheme’.  What probably the testator meant was to
\nuse the word ‘desire’ and not ‘devise’.  Clause 7 on a plain reading does not
\nappear to be a clause, in terms whereof, the testator was bequeathing any
\nproperty in favour of any person.  It thereby merely conferred a right upon
\nthe legatee and only a desire was expressed by the testator in regard to the
\nlegatee’s exercise of power of option.\n<\/p>\n
33. \tClause 7, therefore, may not have any application for the purpose of
\nconstruction of the Will..\n<\/p>\n
34. \tHowever, it is not in dispute that Clause 12 contained in the Codicil
\nshall prevail over the Will.  Clause 12 of the Codicil did not substitute
\nClauses 5, 6 and 7.  As indicated hereinbefore, the Codicil was to be read as
\na part of the Will and by reason of the said Codicil, the said Clauses of the
\nWill were confirmed by the testator.  In our opinion, by reason of the
\nCodicil, the testator expressed his intention clearly to the effect that in the
\nevent the legatee does not have any issue or he does not adopt anybody as
\nhis son or otherwise appoint a person provided for in Clause 5, the bequest
\nwould be in favour of the Calcutta University.  The desire of the testator
\napparently was to perpetuate the memory of his ancestors.  Bequest in favour
\nof the Calcutta University was meant to achieve a particular purpose which
\nhas clearly been stated in Clause 12 of the Codicil.\n<\/p>\n
35.\tThe principles of construction of Will are well known.\n<\/p>\n
36. \tLord Russell in Margaret Goonewardens v. Eva Moonemale
\nGoonewardene and others [AIR 1931 PC 307] was considering a bequest
\nmade by the testator which was in the following terms:\n<\/p>\n
“(g) The rest and residue of my cash found in my
\npossession at the time of my demise and also the
\nmoney in deposit to my credit in my No. 1 account
\nin the Mercantile Bank of India Limited Galle, in
\nthe Bank of Madras Colombo, in the Government
\nSavings Bank and in the Post Office Savings Bank
\nand the amount of my Policy of Insurance together
\nwith the profit thereof and all other moveable
\nproperty absolutely to my said wife Margaret.”\n<\/p>\n
37. \tThe testator, thereafter, made a Codicil in terms whereof the
\npecuniary legacy to a servant in respect of certain house was made which
\ncontained these words: “Save as hereby altered or modified I hereby confirm
\nthe said Will”.\n<\/p>\n
38. \tA question arose therein as to whether a sum of Rs. 2,14,200\/- to
\nwhich amount the testator became entitled to from the moneys invested on
\nmortgage bonds or promissory notes passed under the bequest of the legacy
\nor under the gift of all other immovable property.  The Judicial Committee
\nopined:\n<\/p>\n
“It is well settled in England that by virtue of
\nS.34, English Wills Act, the effect of confirming a
\nWill by codicil is to be bring the Will down to the
\ndate of the codicil and to effect the same
\ndisposition of the testator’s property as would have
\nbeen effected if the testator had at the date of the
\ncodicil made a new will containing the same
\ndisposition as in the original will but with the
\nalterations introduced by the codicil”\n<\/p>\n
39. \tIn Pearley Lal v. Rameshwar Das<\/a> [(1963) Supp 2 SCR 834], Subba
\nRao, J. opined:\n<\/p>\n
“Where apparently conflicting disposition can
\nbe reconciled by giving full effect to every word
\nused in a document, such a construction should be
\naccepted instead of a construction which would
\nhave the effect of cutting down the clear meaning
\nof the words used by the testator. Further, where
\none of the two reasonable constructions would lead
\nto intestacy, that should be discarded in favour of a
\nconstruction which does not create any such hiatus.
\nIf the construction suggested by learned counsel be
\nadopted, in the event of his son predeceasing the
\ntestator, there would be intestacy after the death of
\nthe wife. If the construction suggested by the
\nrespondent be adopted; in the event that happened
\nit would not bring about intestacy, as the
\ndefeasance clause would not come into operation.
\nThat was the intention of the testator is also clear
\nfrom the fact that he mentioned in the will that no
\nother relation except his wife and son should take
\nhis property and also from the fact that though he
\nlived for about a quarter of a century after the
\nexecution of the will, he never thought of changing
\nthe will, though his son had predeceased his wife.”\n<\/p>\n
40. \tIn Navneet Lal Alias Rangi v. Gokul and Others<\/a> [(1976) 1 SCC 630],
\nthis Court held:\n<\/p>\n
“8. From the earlier decisions of this Court the
\nfollowing principles, inter alia, are well
\nestablished:\n<\/p>\n
“(1) In construing a document whether in English
\nor in vernacular the fundamental rule is to
\nascertain the intention from the words used; the
\nsurrounding circumstances are to be considered;
\nbut that is only for the purpose of finding out the
\nintended meaning of the words which have
\nactually been employed. ( Ram Gopal v. Nand Lal)<\/a>
\n(2) In construing the language of the will the court
\nis entitled to put itself into the testator’s armchair (
\nVenkata Narasimha v. Parthasarathy) and is
\nbound to bear in mind also other matters than
\nmerely the words used. It must consider the
\nsurrounding circumstances, the position of the
\ntestator, his family relationship, the probability that
\nhe would use words in a particular sense… But all
\nthis is solely as an aid to arriving at a right
\nconstruction of the will, and to ascertain the
\nmeaning of its language when used by that
\nparticular testator in that document. ( Venkata
\nNarasimha case and Gnanambal Ammal v. T. Raju
\nAyyar)<\/a>
\n(3) The true intention of the testator has to be
\ngathered not by attaching importance to isolated
\nexpressions but by reading the will as a whole with
\nall its provisions and ignoring none of them as
\nredundant or contradictory. ( Raj Bajrang Bahadur
\nSingh v. Thakurain Bakhtraj Kuer)<\/a>
\n(4) The court must accept, if possible, such
\nconstruction as would give to every expression
\nsome effect rather than that which would render
\nany of the expressions inoperative. The court will
\nlook at the circumstances under which the testator
\nmakes his will, such as the state of his property, of
\nhis family and the like. Where apparently
\nconflicting dispositions can be reconciled by
\ngiving full effect to every word used in a
\ndocument, such a construction should be accepted
\ninstead of a construction which would have the
\neffect of cutting down the clear meaning of the
\nwords used by the testator. Further, where one of
\nthe two reasonable constructions would lead to
\nintestacy, that should be discarded in favour of a
\nconstruction which does not create any such hiatus.
\n( Pearey Lal v. Rameshwar Das)<\/a>
\n(5) It is one of the cardinal principles of
\nconstruction of wills that to the extent that it is
\nlegally possible effect should be given to every
\ndisposition contained in the will unless the law
\nprevents effect being given to it. Of course, if there
\nare two repugnant provisions conferring successive
\ninterests, if the first interest created is valid the
\nsubsequent interest cannot take effect but a Court
\nof construction will proceed to the farthest extent
\nto avoid repugnancy, so that effect could be given
\nas far as possible to every testamentary intention
\ncontained in the will. ( Ramachandra Shenoy v.
\nHilda Brite Mrs<\/a> )”\n<\/p>\n
41.\t To the same effect are the judgments of this Court in Arunkumar and
\nAnother v. Shriniwas and Others<\/a> [(2003) 6 SCC 98], Uma Devi Nambiar
\nand Others v. T.C. Sidhan (Dead)<\/a> [(2004) 2 SCC 321], Sadhu Singh v.
\nGurdwara Sahib Narike and Others<\/a> [(2006) 8 SCC 75] and Gurdev Kaur and
\nOthers v. Kaki and Others<\/a> [(2007) 1 SCC 546].\n<\/p>\n
42. \tIn Halsbury’s Law of England, 4th Edition,, Vol. 50, at pg 332, it was
\nstated::\n<\/p>\n
“The only principle of construction which is
\napplicable without qualification to all wills and
\noverrides every other rule of construction is that
\nthe testator’s intention is collected from a
\nconsideration of the whole will taken in connection
\nwith any evidence properly admissible, and the
\nmeaning of the will and of every part of it is
\ndetermined according to that intention. For this
\npurpose, the will and all the codicils to it are
\nconstrued together as one testamentary disposition,
\nbut not as one document, and the testator’s
\nintention is gathered from the whole disposition.”\n<\/p>\n
43. \tWith a view to ascertain the intention of the maker of the Will, not
\nonly the terms thereof are required to be taken into consideration but all also
\ncircumstances attending thereto.  The Will as a whole must, thus, be
\nconsidered for the said purpose and not merely the particular part thereof.
\nAs the Will if read in its entirety, can be given effect to, it is imperative that
\nnothing should be read therein to invalidate the same.\n<\/p>\n
44.\tIn construing a will, no doubt, all possible contingencies are required
\nto be taken into consideration;  but it is also a well-settled principle of law
\nthat only because a part of a document is invalid, the entire document need
\nnot be invalidated, if the former forms a severable part.  The legatee
\nadmittedly did not have any issue, nor did he adopt or appoint any person.
\nIn a situation of this nature, effect can be given to clause 12 of the will, if it
\nis read as occurring immediately after Clause 5 of the original will.  As the
\nsaid clause stands on its own footing, its effect must be considered vis-`-vis
\nclause 6, but the court may not start with construction of clauses 6 and 7,
\nwhich may lead to a conclusion that clause 5 is also invalid.  The
\ncontingencies contemplated by clause 6 may not have any effect on clause 7,
\nif it does not take place at all.  The property which should have been
\npurchased with the sale proceeds could have been the subject-matter of  the
\nbequest and in terms thereof the University of Calcutta became the
\nbeneficiary on the death of the original legatee.  We do not find any reason
\nas to why the same cannot be given effect to.  We have indicated
\nhereinbefore that it is possible to construe clause 7 of the will and in fact a
\nplain reading thereof would, thus, lead to the conclusion that it merely
\nprovides for an option given to the legatee to take recourse thereto.  We have
\nalso indicated hereinbefore that the term ‘device’ in the context of clause 7
\ndoes not carry any meaning and, therefore, the same for all intent and
\npurport should be substituted by the word ‘desire’.  As a matter of fact, the
\nappellant in the copy of the will supplied to us had also used the word
\n‘desire’ in place of the word ‘device’, which would also go to show that
\neven the appellant understood clause 7 in that fashion.  Clause 7, if so read,
\nwill have no application to the properties which were to be substituted in
\nplace of the immovable properties belonging to the testator.  The benefit of
\nthe sale proceeds, thus, in absence of any action on the part of the legatee in
\nterms of clause 7 shall also vest in the University.  Moreover, the question as
\nto whether the deed of sale purported to have been executed by the legatee in
\nfavour of Chamong Tea Co. Ltd.. or other instruments executed by him in
\nfavour of the appellants herein are pending consideration before the High
\nCourt which may have to be determined on its own merit.  In the event, the
\nsaid transactions are held to be void, the question of giving any other or
\nfurther effect to clause 6 of the Will may not arise.\n<\/p>\n
45.\tIn view of the findings aforementioned, we are of the opinion that the
\ndecision relied upon by Mr. Sundaram on Margaret Goonewardens (supra)
\ncannot be said to have any application in the instant case, as in view of our
\nfindings aforementioned, clause 5 of the will is not hit by Section 113 of the
\nIndian Succession Act.\n<\/p>\n
46.\tThe submission (iv) of the appellant fails in view of the matter that
\nClause 12 does not attract Section 129 of the Act since both the clauses, i.e.,
\n5 and 7 are valid as observed hereinbefore.\n<\/p>\n
47.\tFor the reasons aforementioned, there is no merit in this appeal which
\nis accordingly dismissed with costs.  Counsel’s fee is quantified at
\nRs.50,000\/-\n<\/p>\n
48.\tWe would request the High Court to consider the desirability of
\ndisposing of the suits filed by the parties hereto, as expeditiously as possible,
\nkeeping in view the fact that they are pending for more than 28 years from
\nnow.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bajrang Factory Ltd. & Anr vs University Of Calcutta & Ors on 18 May, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju 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 […]<\/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-2159","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBajrang Factory Ltd. & Anr vs University Of Calcutta & Ors on 18 May, 2007 - 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\/bajrang-factory-ltd-anr-vs-university-of-calcutta-ors-on-18-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bajrang Factory Ltd. & Anr vs University Of Calcutta & Ors on 18 May, 2007 - 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