Kerala High Court
Narikalathil Lekshmi vs Palakeel Suneethi on 28 March, 2008
Bench: P.R.Raman, V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 504 of 1999(A)
1. NARIKALATHIL LEKSHMI
... Petitioner
Vs
1. PALAKEEL SUNEETHI
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.T.P.KELU NAMBIAR (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :28/03/2008
O R D E R
P.R. RAMAN & V. K. MOHANAN, JJ.
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A.S. NO. 504 OF 1999
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DATED THIS, THE 28TH DAY OF MARCH, 2008.
J U D G M E N T
Raman, J.
The only dispute in this appeal is in respect of the construction of a registered Will Ext.A1 executed by one Bappu on 19th February, 1950, who died in 1955 - nearly five years after the execution of the Will. Bappu had two daughters - Janaki and Mathu and two sons - Krishnan and Balaraman. The plaintiff, in the suit is the daughter of Janaki. The first defendant is the daughter of Mathu. Second defendant is the wife of Krishnan and Defendants 3 to 8 are his children. The 9th defendant is the widow of Balaraman who filed this appeal. Defendants 10 to 23 are the tenants occupying the building situated in the suit property, which are items 4 and 5. Plaintiff contended that as per the Will, items 15 to 24 and 29 in the margin of the Will were bequeathed to Balaraman with certain conditions which inter alia stipulates that the legatee should enjoy the property, that he shall not encumber or alienate them and any such alienation would be void, that on the death of Balaraman, the properties are to be enjoyed by his brother and if Balaraman dies issueless item 24 with A.S. 504/1999 :2:
the house therein will devolve on Krishnan. According to the plaintiff, the remaining properties as per the Will will devolve on Krishnan, the plaintiff and first defendant. Balaraman died on 5.2.1988 without any issues. Hence Balaraman had only limited interest bequeathed to him. According to the plaintiff, the properties vested on the plaintiff, first defendant and the heirs of Krishnan who are defendants 2 to 8 since Krishnan died on 21.4. 1981. The plaint schedule properties are Items 17,19,20, 21 and 22 in the Will. Item 16 was sold during the life time of Balaraman and there was no challenge since according to the plaintiff, the said property was sold with the concurrence of the first defendant, plaintiff and Krishnan. Items 2 to 24 devolve on defendants 2 to 8 and Items 15,16,18,24 and 29 in the Will are in the possession of tenants and they obtained fixity of tenure and hence these properties are not included in the suit. Item No. 17 is not correctly described in the Will. The correct description is in plaint item 1. On the death of Balaraman, the 9th defendant who is in possession of the properties have no right or interest. The building in the plaint schedule are commercial buildings occupied by tenants.
2. The 9th defendant, in her written statement, contended that the testator had not fixed any time for the contingent event to happen, but Balaraman died without any issue, that he died after the death of the testator surviving him and so the whole of the property bequeathed in A.S. 504/1999 :3:
favour of Balaraman vested on him absolutely and the other conditions bequeathing the properties to Krishnan and others are invalid, that even if the plaintiff had any right, the same is lost by adverse possession and limitation, that long after the death of the testator, while Balaraman was holding the properties, he sold one item of property as per Ext. B1 claiming himself to be absolutely entitled thereto, that the first defendant and the plaintiff also executed documents admitting the right of Balaraman.
3. During the pendency of the appeal, the appellant/9th defendant died and additional appellants are impleaded who are the legatees under the Will executed by the 9th defendant. That Will was also marked as Ext.A1 in the incidental proceedings in I.A. 2231/2004 and found to be genuine. I.A. 2231/2004 is an impleading petition filed by the additional appellants 2 to 15 for getting themselves impleaded and also to record Respondents 4 to 9, 2 and 20 as the legal representatives of the original appellant on the strength of a Will executed by her, which is dated 31.8.1998. Since there was dispute regarding the Will so executed by the appellant/9th defendant, the matter was remitted to the court below for entering a finding regarding its genuineness. Accordingly, the court below by its order dated 9th June, 2005, found that there is no glaring circumstances to disbelieve the testimony of PWs 1 to 3 and all the formalities under Section 63 of the Succession Act and Sections 58 to 61 of A.S. 504/1999 :4:
the Registration Act have been complied with. Accordingly, it was held that the Will is genuine and it was executed by the appellant/9th defendant with her sound state of mind. This finding has been accepted by the parties, as no arguments were raised disputing the correctness of the said finding.
4. As we have already indicated, the whole question depends on the interpretation and construction of the Will executed by the testator Bappu which is marked as Ext.A1 in the suit. The validity of the execution of Ext. A1 Will by Bappu, the genealogy of the parties and the date of death of some of the parties as referred to above were found to be beyond dispute as neither side adduced any evidence disputing the same. The prayer in the suit is for recovery of plaint schedule properties from the 9th defendant on the strength of title of the plaintiff and defendants 1 to 8 and to pass a preliminary decree for partition of the plaint schedule properties into three equal shares and allotment of one such share to the plaintiff and to direct the 9th defendant to pay the share of profits due to the plaintiff from 5.2.1988 till the date of suit and also future profits from the date of suit till delivery of possession of the properties alloted to her share as determined by the court. She also sought for a direction to the 9th defendant to pay her costs in the suit. The right, if any, of the plaintiff to recover the plaint schedule property from the 9th defendant on the strength of her title and that of A.S. 504/1999 :5:
defendants 1 to 9 therefore depends on the effect of the stipulation contained in Ext.A1 Will.
5. Issue Nos. 1 and 2 framed by the court below are as follows:
1. Whether the plaintiff has any title to enforce partition?
2. Whether the right of the plaintiff, if any, is barred by adverse possession and limitation?
6. Now let us refer to the documentary evidence let in by the parties. Ext.B1 is a sale deed dated 23.12.1977 executed by Balaraman. Ext. B2 is another document executed by Balaraman in favour of one Palakkul Remesh Babu. Item 29 in the Will is in the name of Balaraman, purchased by the testator as is referred to in the Will. Balaraman traces his title to the deed of purchase standing in his name. Ext. B3 dated 11.6.1984 is the document executed by the first defendant which is item No.2 forming part of the Will. The executant described himself as an absolute owner as per the Will. Ext. B4 is the rent deed executed by Balan in favour of Lakshmi. Ext. B5 dated 16.8.1994 is the copy of kachit executed by one Vipin Kumar in favour of Lakshmi. Ext. B6 is the copy of the jenmam assignment deed executed by Kamala in favour of Lakshmi. Ext.B7 dated 10.8.1988 is the copy of the kachit executed by Chandran in favour of Narikalathil Lakshmi. Ext. B8 dated 23.6.1993 is the assignment deed executed by Lakshmi in favour of Narayanan. Ext. B9 is the certified copy of the assignment deed executed by Suneethi and Prasanna in favour A.S. 504/1999 :6:
of Remesh Babu. The plaintiff produced Ext.A1 which is the registration copy of the Will dated 27.2.1950 executed by Manaprath Bappu. The court below, on an interpretation of Ext.A1 Will and placing reliance on some of the decisions on the point, found that on a reading of Ext.A1 Will, as a whole, it can be noted that the testator Bappu wanted to provide that in case Balaraman died issueless, the properties bequeathed in his favour should devolve on Krishnan, the plaintiff and the first defendant and evidently, the intention is to deprive the widow of any right to claim the property. It was held that on a true construction of the Will, the contention of the 9th defendant to the effect that Ext.A1 Will is hit by Section 124 of the Indian Succession Act and hence the gift over to plaintiff, Krishnan and the first defendant has failed for the reason that Balaraman survived the testator, is not acceptable and held that the plaintiff and defendants 1 to 8 are entitled to get a decree for partition. The plea of adverse possession and limitation was also found against. Accordingly, a preliminary decree for possession and mesne profits for three years prior to the date of suit and future mesne profits from the date of suit till date of delivery of possession was passed against the 9th defendant, the quantum of which has to be decided in the final decree stage. A preliminary decree for partition directing the plaint schedule property to be divided into three equal shares and allotment of one such share to the A.S. 504/1999 :7:
plaintiff, one share to the first defendant and one share to Defendants 1 to 8 together with cost was passed and ordered to be paid from out of the estate. The sharers who had paid court fee were declared to be entitled to apply for final decree.
7. According to the learned counsel Mr. G.S. Raghunath, appearing on behalf of the appellant and Mr. Krishnan, appearing on behalf of the supporting defendants, as per Section 124 of the Indian Succession Act, the legacy to others in case of Balaraman dying without children cannot take effect since it is specified upon an uncertain event and that no time limit is mentioned for its occurrence. According to them, the latter part of the Will bequeathing the properties in favour of the children also will not take effect. According to them, the bequest in favour of the legatees become absolute on the death of Balaraman and cannot be postponed in perpetuity awaiting for any of the contingencies to happen as stipulated in the Will. It is contended that after the death of the testator, the legatees become absolutely entitled to the property bequeathed in their favour and the latter part as to what would happened in case the legatee died with or without children, are invalid in law. So the whole argument stems from an assumption that there is already an absolute legacy in favour of Balaraman which itself is a mooted question to be decided in this case.
8. Before we may refer to the case law on the subject, it will be A.S. 504/1999 :8:
useful to refer to Section 124 of the Indian Succession Act which provides that where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable. As per Illustration No.(ii) thereunder a legacy is bequeathed to A and in case of his death without children, to B. If A survives the testator or dies in his life-time leaving a child, the legacy to B does not take effect. It is therefore contended that Balaraman having survived the testator, the latter part contained in the Will as to what will happen in case Balaraman dies issueless cannot take effect. It is also contended that Section 10 of the Transfer of Property Act is in principle similar to the provisions contained in the Indian Succession Act which provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. As per Section 11 of the Transfer of Property Act, where on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and A.S. 504/1999 :9:
dispose of such interest as if there were no such direction.
9. It is contended that Section 131 of the Indian Succession Act though provides that bequest may be made to any person with the condition super added that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person, however is subject to the rules contained in Sections 120 to 130 vide subsection (2) thereof. Therefore, it is contended that Section 131 is only an enabling provision; so however, subjected to the rule stipulated in the other provisions contained in Sections 120 to 130. Thus Section 131 is to be read subject to the provisions contained in Section 124 and once it is found that the latter part of the Will, for the reasons stated, is hit by Section 124, that part of the Will has to be held as invalid.
10. We may also refer to Section 138 of the Indian Succession Act which provides that where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.
11. The question therefore is, whether as per the Will there is an absolute bequest in favour of Balaraman and the latter part contained in the Will is a gift over after the death of the testator as contended by the A.S. 504/1999 :10:
appellant or not. Both sides placed reliance on various authorities.
11(A). Now we shall refer to the various authorities cited before us, which have bearing in the matter of construction of a will. In Sasiman v. Shib Narain (AIR 1922 Privy Council 63), a Four Bench decision of the Privy Council, Sir Joghn Edge, speaking for the court held as follows:
"It is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in another case.
The term "malik", when used in a will or other documents as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning. "
12. In Gauri Shanker Sah v. Ramchander Sah (AIR 1970 PATNA
144) the question as to whether the interest created as per the Will was absolute or limited one, came up for consideration and it was held as follows: "The recitals in a Will in each case has to be considered in order to determine as to whether the interest created in favour of one person or the other was absolute one a or limited one. The will has to be read as a whole, meaning thereby that the true intention of the testator has to be A.S. 504/1999 :11:
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. Effect should be given to every disposition contained in the will as far as it is legally possible unless the law prevents effect being given to it. But if there were two repugnant provisions conferring successive interests, a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given to every testamentary intention contained in the will. Reference was also made to the decision of the apex court in Bajrang Bahadur Singh v. Bakhtral Kuer (AIR 1953 SC 7), Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703) and Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323). With reference to the provisions contained in Sections 131 and 124 of the Indian Succession Act, 1925, in paragraphs 14 and 22 it was held as follows:
Turning once again to the facts of the present case, it appears undoubtedly by the will in question that a bequest was made in favour of Bhagwan Lall, but a condition was super added that if he as well as his male issue would die without leaving behind any legitimate male issue, then the agnates of the testator would get the properties as absolute owners. An estate was no doubt conferred on Bhagwan Lal but it was subjected by the said condition. The event of his death or that of his son, if any, was undoubtedly specified, but the happenings thereof were uncertain. On the happening of the said event or A.S. 504/1999 :12:
events, the properties bequeathed were to go to the agnates.
These aspects of the will in question attract the provisions of Section 131(1) of the Indian Succession Act and, according to sub-section (2) of that section the ulterior bequest (in this case, to the agnates) would be subject to the rules contained in Section 124. The latter section definitely provides that the legacy cannot take effect unless the specified uncertain event would happen before the period when the fund bequeathed became payable or distributable. Applying that section to the facts of the present case, the position is that unless Bhagwan Lal died during the lifetime of Janki Kuer (which was the specified uncertain event), the legacy in favour of the defendants (agnates) cannot take effect. The bequest to the agnates was a contingent one, and there is no escape from the conclusion that the provisions of Section 124 are fully attracted in respect of the present will (Ext.9)."
In para 22 it was held thus:
"On a careful consideration of the points urged by the learned counsel for the parties I am of the view that there is no escape from the conclusion that the terms of the will in question do attract the provisions of Sections 124 and 131 of the Succession Act and Bhagwan Lal, not having died during the lifetime of Janki Kuer, the ultimate bequest in favour of the agnates (defendants) cannot take effect. The position thus is that Bhagwan Lal got an absolute interest by the said will and after the death of Bhagwan and his wife, the plaintiffs (who are the heirs of Bhagwan) are entitled to the properties mentioned in the will. ..............."
13. It may be noticed that the Will which was the subject matter of A.S. 504/1999 :13:
interpretation in that case provided that the testator would remain the absolute owner of the property till his death, but after his death, his wife Janki Kuer would remain in possession of those properties; but she would have no right to transfer them. There was a further provision that after the death of Janki Kuer, Bhagwan Lal would become the absolute owner in respect of those properties and after the death of Bhagwan and his wife, the son of Bhagwan would be the absolute owner of those properties. But if Bhagwan as well as his male issue would die without leaving behind any male issue, then the agnates of Bisheshwar Sah would be the absolute owners of those properties. It was the case of the plaintiff that the last clause of the will giving the properties to the agnates was repugnant and void and it would not curtail in any manner the absolute interest given to Bhagwan Lal in clear and unambiguous terms. The plea of the defendant was that as per the Will of Bisheshwar Sah, Janki Kuer got a life estate only and similarly on her death, Bhagwan Lal as well got a life estate and on his death, Ramrati Kuer also got a similar estate. Bhagwan had left no male issue and, even if he would have any, he also would have got a limited interest till his life, but that contingency did not arise at all and as such, after the death of Bhagwan Lal without a male issue, the defendants (agnates) were entitled to all the properties as absolute owners thereof. In order to appreciate the contention so raised by the parties, the court referred A.S. 504/1999 :14:
to the various terms of the will executed by the testator. The relevant terms as translated are referred to in para 8 of the judgment. As per clause
(c) and (d) referred to in para 8, after the death of the testator, the wife of the testator shall remain in possession and occupation of the properties mentioned therein and appropriation of the produce thereof without the right of transfer thereof and after her death, Bhagwan Lal shall enter into possession, occupation and appropriation thereof as son, the legal heir and an absolute owner. In the remaining clauses also use the term "absolute owner". As respect the right of the wife of the testator is concerned there was a clear stipulation that she will have no right to transfer and the court observed that there is no controversy that the testator was the absolute owner till his death and thereafter, Janki Kuer got only a limited interest.
The controversy was as to what will happen when after the death of the wife of the testator the property is bequeathed in favour of Bhagwan Lal as the absolute owner. In that context, it was held that the estate shall no doubt, conferred on Bhagwan Lal which was subjected to certain conditions, the validity of which were considered and held as invalid. The Court, in the course of its discussion referred to its earlier decision in Talkeshwari Devi v. Ram Ran Bikat Prasad Singh (AIR 1966 Patna 40) and the legal principal stated therein was quoted, which is as follows:
"If the interest created in favour of a person should take effect on the happening of an event A.S. 504/1999 :15:
which must happen, it is a vested interest; but if it is to take effect on the happening of a specified uncertain event which may or may not happen, the interest is a contingent one. The death of a life tenant is an event not contingent but certain, still it is by no means certain that the subsequent legatees will survive the life tenant. Hence, where the legacy is to go subsequently to those persons who survive the life tenant, the interest vests in the survivors only after the death of the life tenant. If thereafter the will contains a defeasance clause for divesting of the interest of one of those subsequent legatees on the happening of any specified uncertain event, the defeasance clause would be valid on the basis of the provision contained in sub-section (1) of Section 131 of the Succession Act. But this sub-section is subject to the rule contained in Section 124 (see sub-section (2) of Section 131) and Section 124 applies when no time is mentioned for the occurrence of the specified uncertain event or contingency. The position with regard to a gift is similar in the Transfer of Property Act. Section 28 of this Act which corresponds to section 131 of the Succession Act, is subject to the rule contained in Section 23 (corresponding to Section 124 of the Succession Act). The true test, therefore, is whether any time is mentioned or not for the occurrence of the specified uncertain event."
14. As per the dictum laid down in the above decision, once an absolute estate is created in favour of the legatee, the defeasance clause or divesting of the property thereafter based on an uncertain event in the absence of any time limit prescribed cannot be effective beyond the death of the testator and will be hit by Section 124 of the Indian Succession Act.
A.S. 504/1999 :16:
But as we have already indicated, the right in favour of the wife of the testator was admittedly life estate without right to transfer and the right created in favour of Bhagwan Lal after the death of the wife of the testator in unambiguous terms use the expression "absolute owner" which is used in the case of the other legatees also. In that context, once it absolutely vests in favour of a legatee, it was held that the subsequent part contained in the will as noticed was hit by Section 124 of the Indian Succession Act. In Talkeshwari v. Ram Ran Bikat (AIR 1966 Patna 40) it was held that a will must be construed as a whole, giving attention to every provision therein; intention of the person making the grant must be gathered from the language employed by the granter, the plain and natural meaning is to be given to the words used; and if there is any doubt, the document is to be construed as to lean to vesting. It was held that where a legacy was bequeathed to A for life and after A's death to B and C in equal shares and with condition that in case B or C dies issueless survivor would get entire property absolutely, in the event of death of B issueless after A's death the subsequent legacy in favour of C does not take effect. In that case, it was held that the property was vested in equal shares in B and C after A's death. As the will did not mention the time for the occurrence of the subsequent uncertain event, namely, the death of either B or C without any issue, S.124 applied and the subsequent legacy in favour of C after B's death issueless A.S. 504/1999 :17:
and could not take effect. (see para 14 of the judgment).
16. In order to appreciate the facts of that case, the relevant clause contained in the Will was reproduced in para 1 of the judgment. The relevant clause reads that after the death of the executor, the share in Mauzas Khutauli and Kharagu Bigha and ijaredari jagir interest at Dosannuwa will absolutely belong to Shrimati Jagawar Kuer, his wife who shall have the full right and power to make transfer etc. and the remaining property will remain in possession and occupation of Shrimati Jageshwar Kuer for her life time with limited power and appropriate the income thereof. The properties, subsequent to the death of the testator, as per the Will, came in possession in the hands of Jageshwar Kuer and she continued possession thereof till her death. Thereafter, certain shares of the property devolved on her heirs while the remaining shares devolved on Talkeshwari and Sivrani in equal shares. There was a private partition between the two and the property in the suit set out in the schedule to the plaint was allotted to Shivrani. Shortly after her death, a dispute arose as the plaintiff claimed to have become the owner of the property allotted to Shivrani and a proceeding under Section 145 of the Code of Criminal Procedure, to which the parties were the plaintiff on the one side and the defendants on the other, was instituted on 17.12.1953 by the Sub Divisional Magistrate of Aurangabad. It was the case of the plaintiff that in view of sub-clause 5 of A.S. 504/1999 :18:
the Will she became entitled to the suit property on the death of Shivrani or in the alternative, a decree for the value of the said property and for a declaration that she is entitled to withdraw a sum of Rs. 12,100/- being the income from the produce of land deposited with the court. The only question that arose for consideration was the nature of the estate vesting in the testator's grand-daughters namely, Talkeshwari and Shivrani, after the death of Jageshar. It was contended that reading sub-clauses (4) and (5) of clause 5 of the will together, and on a correct interpretation of the will, it was a joint life estate created in favour of the two grand daughters and in the event of the one surviving the other dying issueless, an absolute estate in the survivor. It was conceded that before examining the matter in the light of Sections 124 and 131 of the Indian Succession Act, the intention of the testator had to be gathered from the contents of the Will. It was noticed, after referring to the relevant provisions of the Will, that in sub-clause 4 of Clause 5 the testator stated that the remaining share would pass absolutely in equal shares to his two grand daughters and again in sub-clause 5 of the said clause that the entire share would go absolutely to the surviving grand daughter if the other grand daughter died issueless. It was held as follows:
"In the instant case therefore, 10 annas 8 pies share of the property vested in Talkeshwari and Shivrani, in equal shares after the death of the life tenant, Jageshar Kuer. Then, the question is whether the interest which vested in Shivrani could be divested on account of her death without A.S. 504/1999 :19:
any issue. In other words, was the grant of the absolute estate to Shivrani subject to defeasance on the happening of the contingency, namely, her death without issue?
17. Here also the wife of the testator had absolute right over certain properties and in the remaining property, she had only a life estate. After the death of the wife of the executant, the entire property will be treated as 16 annas property out of which 5 annas 4 pies share constituting proprietary interest will pass to Shrimati Satrupa Kuer alias Nan, the daughter of the executant and her heirs as absolute owners and the remaining 10 annas 8 pies share will pass to both the minor grand-daughters Shrimati Talkeshwari Kuer and Srimati Sheorani Kuer in equal shares as absolute proprietary interest. The condition thereafter that "if one of the two grand daughters died issueless, then the other living grand daughter will enter into possession and occupation of the entire 10Annas as 8 pies and become the absolute owner thereof" was the subject matter of consideration regarding its validity or otherwise.
18. The above decision was appealed before the apex court and the apex court in its decision in Talkeshwari Devi v. Ram Ran Bikat Prasad Singh (AIR 1972 SC 639) in para 6, while affirming the view of the Patna High Court, referred to supra, held as follows:
A.S. 504/1999 :20:
"It is undisputed that the duty of the court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. (emphasis supplied) It is clear from clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer.
The estate bequeathed under clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr. M.C. Chagla, learned counsel for the appellant that there is any conflict between clause 4 and clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will."
A.S. 504/1999 :21:
19. In Navneet Lal v. Gokul (AIR 1976 SC 794) after referring to the earlier decisions, court summed up the principles emerging therefrom as follows:
(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.
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair 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.
(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.
(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 A.S. 504/1999 :22:
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.
(5). 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."
20. In that case, in the will, the word "malik" was used, the meaning of which was held as qualified by circumstances and other words in the will. It was held that only life estate passed though the word "malik" was used in the will. It was stated that the transfer of absolute estate to the legatee 'J' was however inconsistent with some other terms used in the will. Thus under the will, in the event of J predeceasing the testator, a relative 'G' was to be the absolute owner and have the "power of making all sorts of transfers". In contrast to this, though J was made malik after the testator's death nothing was stated about her "power of making all sorts of transfers". The transfer of only the life estate was also consistent with the description of G, in the will, as testator's heir (waris) after his death. In the light of entire tenor of the will and accompanying circumstances it was held that the intention of the testator would best be achieved by holding that there was a devise of a life estate to his wife and an absolute estate thereafter to G. A.S. 504/1999 :23:
21. The expression used in the will can be clarified by either words or circumstances appearing in the same document. The main argument was based on the expression "malik" and it was noticed that in the decision in Krishna Biharilal v. Gulabchand (AIR 1971 SC 1041) the apex court ruled that the words 'malik mustakil' are strong, clear and unambiguous and if those words are not qualified by other words and circumstances appearing in the same document, the courts must hold that the estate given is an absolute one." After referring to the decision of the Supreme Court in Krishna Biharilal's case (supra) and the contents therein, it was held that it is not required to consider the words 'malik mustakil' in this case; but it is clear that even those words can be qualified by other words and circumstances appearing in the same document. Therefore, it is abundantly clear that the intention of the testator will have to be gathered from all the relevant and material contents in the entire will made in the situation in which the testator was placed in life in the background of his property, his inclinations, wishes, desires and attitudes as can be clearly and unambiguously found either from the recitals from the instrument or from absolutely undoubted contemporaneous legally admissible evidence. Reading the present will as a whole and if every disposition has to be rationally harmonized, we find that the testator intended a life estate for his wife so long as she lived.
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22. Usha Subbarao v. B.E. Vishveswariah (AIR 1996 SC 2260) was a case where under the will the right to separate enjoyment of the share in respect of some of the properties bequeathed was available to each of the sons of the testator on his attaining the age of majority. The right to separate enjoyment of the bequest relating to share in the residential house and properties standing in the name of the testator's wife was available only after death of testator's wife. But even during the period the right to separate enjoyment was not available to the legatees. The income from the properties was available for the maintenance of the legatees, their education, their upanayanams etc. It was held that the bequest in favour of the legatees, therefore, is a vested interest. The testator, after making the bequest in favour of the legatees has given the direction that a son on attaining majority could demand partition according to the prevailing Hindu Law in force at that time to get his portion. This is a case where the testator has made a distinction between the gift itself and the event denoting the time of payment, division or transfer, viz. attaining the age of majority. In the circumstances, it was held that it falls under Illustration (ii) to Section 119 of the Indian Succession Act and is therefore a bequest of vested interest in respect of these properties.
23. In Balwant Kaur v. Chanan Singh (AIR 2000 SC 1908) it was held that where the legatee is described as full owner of the A.S. 504/1999 :25:
bequeathed property in earlier part of the will and later showing him to be only a limited owner, the later part prevails and the legatee gets only limited ownership. Referring to Section 88, it was held thus:
"S. 88 provides that where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. This is obviously on the principle that the last clause represents the latest intention of the testator. Thus where in the earlier part of the will the testator has stated that his daughter shall be the heir owner and title-holder of his entire remaining moveable and immovable property but in the later part of the same Will he has clearly stated that on the death of the daughter, the brothers of the testator shall be the heirs of the property of the two inconsistent clauses the recitals in the later part of the Will would operate and make his daughter only a limited estate holder in the property bequeathed to her."
24. Sadhu Singh v. Gurdwara Sahib Narike ((2006) 8 SCC 75) was a case where one R held some self-acquired properties. He had no progeny and only his wife and his two nephews were alive and he wanted to dispose of the property during his life time. He was the absolute owner of the property and wanted to provide management of the properties in such a manner that after his death his wife so long as she remains alive will be the absolute owner and party in possession of all the properties and after her death rights over the properties would be inherited by his two nephews. During her lifetime, his wife, however, would not be entitled either to transfer the properties by way of any will or to mortgage or sell them to A.S. 504/1999 :26:
anyone else. After the death of R, his widow purported to gift the property in favour of a Gurdwara. The appellant being one of the two nephews, filed a suit challenging the deed of gift and praying for recovery of possession after death of the testator's wife. The appellant contended that as per the will of the testator, his wife took only a life estate and the properties were to vest in the appellant and his brother. On the terms of the will, she had no right to gift the property to the Gurdwara and she was bound by the terms of the bequest. The trial court dismissed the suit; but the appellate court reversed the same. But in the second appeal, the High Court reversed the decision of the lower appellate court and dismissed the suit. Allowing the appeal, the apex court held that while first making an attempt to reconcile all the clauses of the will and give effect to all of them, it is found that the apparent absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after the death of the wife, that the wife cannot testamentarily dispose of the property in favour of anyone else and the further interdict in the note that the wife during her lifetime would not be entitled to mortgage or sell the properties. Thus on reconciling the various clauses in the will and the destination for the properties that the testator had in mind, it is clear that the apparent absolute estate in favour of I has to be cut down to a life estate so as to accommodate the estate conferred on the nephews.
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25. What the court has to attempt is a harmonious construction so as to give effect to all the terms of the will if it is in any manner possible.
While attempting such a construction, the rules are settled. Unlike in the case of a transfer in praesenti wherein the first clause of the conveyance would prevail over anything that may be found to be repugnant to it later, in the case of a will, every effort must be made to harmonise the various clauses and if that is not possible, it will be the last clause that will prevail over the former and giving way to the intention expressed therein."
26. In Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323) the apex court held as follows:
"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. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B."
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In that case, the testatrix was an Indian Christian lady of Roman Catholic faith. She was a widow and possessed with considerable properties. The will whose construction falls for determination was executed on 25th July, 1907 and related to the properties still remaining with her after some settlements. Clause 3(c) of the will whose interpretation was the subject of debate was referred to in para 3 as per which all kinds of moveable properties inclusive of the amounts that shall be got from others and the cash, shall after her be enjoyed by her eldest daughter and after her lifetime by her male children as permanent and absolute right.
27. The question arose was as to whether under Clause 3(c) the interest which the eldest daughter Severina took under the bequest was absolute or whether she had merely a life interest with the absolute remainder vesting in her male issues. The answer turned on the construction of Cl.3(c) and whether the words "shall enjoy permanently and with absolute right " apply to the interest of Severina or are they confined to designate exclusively the interest of her male children who are to take after her life-time. It was held that the dominant intention of the testatrix was to confer a permanent and absolute remainder on the male issue of her daughter after the lifetime of the first donee and the words used are apt and capable of supporting such a construction. Though there was an argument that Severina was also to enjoy the property in like manner A.S. 504/1999 :29:
because of the use of the words "too" or "also" occurring towards the end of the clause as pointing to the "enjoyment" of Severina being also "permanent" with absolute right, the court did not accept the said contention and it was held that in the case of bequest to Severina she shall after the death of the testator enjoy alone are the relevant words.
28. In Prasanth v. Kalliani (2007(2) KLT 992) a learned Judge of this Court held that in the case of wills when there is any inconsistency between earlier or subsequent part or specific clauses interse contained therein the subsequent part, clause or portion prevails over the earlier part because testator is competent to change his mind and create another bequest in the place of bequest already made. In Narayanan Anandan v. Rakesh (1994 (1) KLT 475) this Court held that where a testator bequeaths a property to another without mentioning what interest he intends to confer on the legatee the latter gets absolute interests of the former. But when the testator has manifested in the will to give the legatee only a limited interest in the property, he cannot claim any right more than what the testator had intended. In a case where the legatee was given only a restricted interest, S.95 makes the position clear that he will not get the whole interests of the testator. The presumption always is that where a testator bequeaths a property to another without mentioning what interest he intends to confer on the legatee the latter gets absolute interests of the former. Once absolute A.S. 504/1999 :30:
interest is created under a will and then it contains clauses restraining alienation or enjoyment such clauses will be invalid and only because of such restrictive clauses the bequest does not become bad. Though such repugnant conditions in a will have to be ignored a condition subsequent or a condition precedent added to a bequest cannot be ignored.
29. In Choyi v. Peravankutty (1995(2) KLT 678) a learned Judge of this court held as follows:
"The court will proceed to the farthest extent to avoid repugnancy in a Will, so that effect could be given as far as possible to every testamentary intention contained in the Will and it is for this reason that where there is a bequest even though it be in terms apparently absolute followed by a gift of the same absolutely to another on or after the death of the first, the first is prima facie held to take a life interest and the second an interest in remainder, thus the apparent absolute interest of the first being cut down to accommodate the interest created in favour of the second. It is clear from the terms of the Will that what Raru intended was to confer an interest on the defendant with the intention to benefit the children of the defendant absolutely and in the absence of the children, the defendant should hold the property during his life time followed by his widow who also was entitled to hold the properties during her life time with a subsequent bequest in favour of the plaintiffs herein. In other words, the testator wanted to provide that in case the defendant died without issues, the properties should go to his other children rather than to the wife of the defendant or her relatives. Gathering the intention thus expressed and reading the Will as a whole, I have no hesitation in coming to the conclusion that the apparent absolute estate in favour of the first A.S. 504/1999 :31:
defendant must be cut down to a limited interest to accommodate the interest created in favour of the plaintiffs in view of the fact that the defendant died without issues. In construing a Will the attempt must be to reconcile the various dispositions and not to search for repugnancies."
30. Based on the foregoing discussion, we may summarise the principles as follows:
1. If the interest created in favour of a person should take effect on the happening of an event which must happen, it is a vested interest; but if it is to take effect on the happening of a specified uncertain event which may or may not happen, the interest is a contingent one. The death of a life tenant is an event not contingent but certain still it is by no means certain that the subsequent legatees will survive the life tenant. Hence where the legacy is to go subsequently to those persons who survive the life tenant, the interest vests in the survivors only after the death of the life tenant. If thereafter the will contains a defeasance clause for divesting of the interest of one of those subsequent legatees on the happening of any specified uncertain event, the defeasance clause would be valid on the basis of the provision contained in sub-section (1) of Section 131 of the Succession Act. But this sub-section is subject to the rule contained in Section 124 and Section 124 applies when no time is mentioned for the occurrence of the specified uncertain event or contingency.
2. Thus, once an absolute estate is created in favour of the legatee the defeasance clause or divesting of the property thereafter based on an uncertain event in the absence of any time limit prescribed cannot be effective beyond the A.S. 504/1999 :32:
death of the testator and will be hit by Section 124 of the Indian Succession Act.
3. It is the duty of the court to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. In construing the language of the Will the court is entitled to put itself into the testator's armchair 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 arrive at a right construction of the will and to ascertain the meaning of its language when used by that particular testator in that document.
4. One of the cardinal principles of construction of wills is 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. 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.
It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut A.S. 504/1999 :33:
down to accommodate the interest created in favour of B."
5. The meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the testator from which it may receive its true shade of meaning. The will has to be read as a whole, meaning thereby that 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.
31. Bearing in mind the above principles, we shall now consider the relevant clause contained in Ext.A1 having a bearing on the issue under consideration. In the Will Ext.A1, items 15 to 24 and 29 along with the movables existing in the house in item No.25 in the margin of the Will were bequeathed to the share of Bappu's son Balaraman subject to the conditions mentioned therein. Ext. A1 dated 27.2.1950 is a registered Will. As per para 2 of the said Will, the property described in its margin as item No.1, over which the testator had kanam, kuzhikanam and possessary right were bequeathed in favour of Suneethi, who is one of the grand-daughters of the testator and daughter of Janaki, who pre-deceased the testator. Item Nos. 2 and 3 were similarly bequeathed in favour of Kamala, who is another grand daughter of the testator and daughter of deceased daughter Mathu. The right over items 5, 10, 25 , 28 and 4, 6, 7, 8, 12 were similarly bequeathed A.S. 504/1999 :34:
to Krishnan, and items 17,21, 22, 24, 29, 15, 16, 18,19, 23, 24 and the movables in Item No. 24 were bequeathed in favour of Balaraman, the other son of the testator. The right over item 14 was bequeathed in favour of Sreedharan, son of Janaki, the pre-deceased. The right over item 26 was bequeathed in favour of Valsan, son of Mathu, the pre-deceased daughter of the testator, to be enjoyed separately in ownership. The expression used at the end of the paragraph reads thus:
"" 1-
2-0 3-0
5,10 25,28
4,6,7,8,12,27
17, 21, 22, 24, 29
15, 16, 18, 19,
23,
A.S. 504/1999 :35:
20-
24-
14-
26- 0
''
31. We have given emphasis to the last line in para 2 for the reason that the appellant had got a case that the words expressed as above is an indication of vesting of an absolute right in favour of the legatees which contention we will consider later. In para 3 of the Will it states that the entire property in the margin of the Will are properties acquired by the testator with his own funds, items 1 to 26 were acquired by him in his name, items 27 and 28 were acquired by him in the name of Krishnan referred to above, and item 29 was acquired by him in the name of Balaraman. Paragraph 4 states that the properties shown in the margin of the Will and item No. 24 and the movables in the house in item No.4 and whatever remaining properties belonging to the testator or in his name will A.S. 504/1999 :36:
devolve on Krishnan and Balaraman on his death. Para 5 provides that all the properties in the margin of the Will will continue to be enjoyed by the testator during his life time in his ownership and after his death the properties allotted to each persons has to be enjoyed by them after paying rent, revenue etc. and they are entitled to take profits from their respective properties; but they shall not create any encumbrance thereon or alienate the properties and if they do so, such act will be invalid. The said para reads as follows:
'
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. . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .
.. . . . . . '"
32. It is further recited that the properties given to Krishnan, Suneethi and Kamala, as per the Will will devolve upon their children after their death and in case Balaraman dies issueless, item No. 24 house property and the movables thereon allotted to Balaraman will devolve on Krishnan separately and the remaining properties allotted to Balaraman will devolve on Krishnan, Suneethi and Kamala and in case Krishnan is not alive, then to his children and in case Suneethi and Kamala are not alive to their female children.
33. The learned counsel Mr. Krishnan also emphasized that the earlier part of the Will contains the expression "Udamavakasam"
(ownership) and it further provides that after the death of the testator each of the legatees has to enjoy the properties allotted to them separately, as an expression absolutely bequeathing the properties in favour of the legatees. It is the very same word "Udama" (Owner) is used throughout even with reference to the right of last of such person mentioned in the Will in whose A.S. 504/1999 :38:
favour the right is vested in case of death of the original legatees. Thus according to him, the word has to be understood giving the same meaning through out. Further, the final destination itself is not clear as per the Will at the time of death of testator and as to who will be the ultimate beneficiary is also uncertain on the date of death of the testator. In other words, it would bring a situation as though the intention of the testator is to keep the property in limbo without destination and ultimately to vest the same on unknown grandchildren to be born or not to be born. Such a situation can not be assumed and once the testator dies, as per the stipulations contained in the Will, on true interpretation, there can not be any doubt that the right vests absolutely in favour of the legatees and Balaraman gets the property absolutely and not to be divested thereafter on the basis of the uncertain events made mention of in the latter part of the Will. But according to us, the contentions as raised are not supported by the clauses contained in the Will.
34. On a reading of the Will as a whole, the intention of the testator was not to confer any absolute title or interest in favour of Balaraman or any of the testator's children. The words used in the Will cannot be considered in isolation. If the testator had intended to convey absolute right to Balaraman, then there arise no occasion to add clause 5 in the will, which in clear and unambiguous terms, convey that the ultimate beneficiaries are A.S. 504/1999 :39:
the grand children of the testator. The stipulation in Clause 5 that the properties are to remain with the testator till his death and thereafter those entitled to the properties shall manage and get managed the same after paying tax etc. and carry out repairs etc. in the building and get possession thereof ; but none of the above said person shall charge any debt on the said properties, sell transfer or alienate the properties and if anything of the like is done, it shall be void.
35. Thus, by express words, right of alienation and creation of encumbrance on the properties is specifically prohibited which is a strong circumstance that the properties were not intended to be conveyed in absolute terms to the legatees but only conveys a life estate. The further clause also makes it clear that children of Krishnan to be entitled to the properties assigned to him on his death. Likewise children of Balaraman will be entitled to the properties allotted to him. The daughters of Suneethi is entitled to the properties allotted to her on her death and daughters of Kamala will be entitled to the properties allotted to her on her death. It is then said that if Balaraman dies without children, properties allotted to him
- Sl. No. 24 property and the usufructus and improvements therein and movables to vest in Krishnan and the remaining to vest in Krishnan, Suneethi and Kamala and if Krishnan is not alive to his children and if Suneethi and Kamala are not alive, to their daughters. Thus, the testator did A.S. 504/1999 :40:
not intend the properties to go outside the tarwad and the testator really wanted as a grandfather that ultimate beneficiary shall be his grandchildren. Therefore, by interpreting certain expressions in isolation without considering the will as a whole, will defeat the very intention of the testator. This is not a case where the properties are bequeathed absolutely and thereafter divested. So the provisions contained in Section 124 of the Indian Succession Act or other provisions relied on by the appellant has no application. Those provisions would apply only when there is absolute vesting and divesting by other clauses. We have given our anxious consideration to the Will as a whole and what we could gather therefrom is that, the testator did not intend to convey any absolute right over the properties in question in favour of Balaraman; but has only a life interest and since the contingency of his death without issues having arisen the properties will vest in favour of Krishnan as regards item 24 and the remaining on Krishnan, Suneethi and Kamala as provided in the Will. The right to alienate the property is a valuable right and a sure test to see whether the intention of the testator was to confer absolute right to the legatee. Here by a specific clause such a right of alienation is in unambiguous term prohibited thereby the intention is made clear and Balaraman had no absolute right over the properties.
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36. Nextly it is contended that the suit is barred by adverse possession and limitation. Admittedly, the plaintiff's cause arises only after the death of Balaraman and admittedly Balaraman was put in possession even as per the Will and the suit filed well within twelve years after the cause arose. As rightly held by the court below, hence this issue is also decided against the appellant.
In the result, we find no merit in this appeal and accordingly, it is dismissed. No costs.
P.R. RAMAN, (JUDGE) V.K. MOHANAN, (JUDGE) knc/-