Bombay High Court
Bandopant Sitaram Bapat By His Heirs ... vs Shankar Sitaram Bapat And Ors. on 4 October, 2001
Equivalent citations: 2002(1)BOMCR96, (2002)1BOMLR256, (2002)ILLJ436BOM
Author: R.M. Lodha
Bench: R.M. Lodha, Nishita Mhatre
JUDGMENT R.M. Lodha, J.
1. The fate of this Letters Patent Appeal is dependent on the answer to the question whether under the Will dated 2-12-1944 executed by Sitaram Sadashiv Bapat in respect of the immovable properties owned and held by him, his wife Bhagirathibai became the absolute owner or only got limited interest.
2. The testator Sitaram Sadashiv Bapat who died on 24-12-1944 during his life-time executed Will on 2-12-1944. As the principal question involved is in respect of the construction of said Clauses of Will, we deem it proper to reproduce the English translation of the relevant clauses of the said Will but before we do that we may note that the original Will executed by Sitaram Sadashiv Bapat is in Modi script. The Marathi version thereof was got duly registered from the District Registrar of Sangli which is on the file 'D' in the Special Civil Suit No. 39 of 1973. As there was some disagreement amongst the learned counsel for parties about the English translation of the said Will, by order dated 8-9-2001 we directed the Chief Translator and Interpreter of this Court to place on record true and exact English translation of the said Will. In compliance of the aforesaid direction, the Translator has placed before us English translation of the said Will which for the sake of convenience we marked "Y". English translation of paragraphs 1 to 8 of the said Will read thus:--
"(1) Presently my family consists following members :
(1) Sau. Bhagirathibai wife of Sitaram Bapat, aged about 46 years.
(2) Chi. Bando Sitaram Bapat, aged about 30 years.
(3) Chi. Shankar Sitaram Bapat, aged about 23 years.
(4) Chi. Bhaskar Sitaram Bapat, aged about 21 years.
(2) All gold-ornaments on the person of my wife Sau. Bhagirathibai Sr. No. 1, are as follows :--
"Sari (a kind of ornament to be worn around the neck), "Patlya" (type of bangles) 'Goth' (wristlet), 'Tode' (type of bangles), 'Bilwar' (bangles). All these articles are of her absolute ownership being her 'Stridhan'. Therefore, she shall make disposition of the same as per her wish.
(3) Silver utensils viz. 'Taat' (i.e. a plate) -1, 'Tambya' (i.e. water container)-1, 'Tamhan' (i.e. a circular metal platter)-1, 'phoolpatra' (i.e. a small pot to drink water from)-6, 'Watya' (i.e. small bowls)-10, 'Attardani' (i.e. a container for perfumed essences) 'Gulabdani' (i.e. a rose-water container) as well as domestic utensils made of copper and brass, clothes and valuable articles shall be got distributed by three sons in consultation with Sau. Bhagirathibai, without causing any inconvenience to each other.-
(4) Chi. Bandopant is my eldest son and his studies are over and he is married. Therefore, after my death, he shall make all dispositions entirely in consultation with his mother.
(5) Sr. No. 1 Sau. Bhagirathibai shall carry out Vahiwat in my immovable property i.e. houses and land, by way of absolute ownership and in consultation with her my three sons at Sr. Nos. 2/3/4 shall enjoy the same on her behalf after winning her confidence. After her death, my three sons shall reside together and if it is not possible then the land from Adtura, bearing R. S. No. 2013, admeasuring 5 Acre 6 gunthas, assessed at Rs. 23-14, situated at Sub-division Ashte, Division Satara, shall be given separately to my son Chi. Shankar at Sr. No. 3, because I could not spend money for his education.
(6) All my three sons shall get distributed among them equitably, the properties described hereunder : i.e. the lands bearing R.S. No. 691/1A admeasuring 6 acre -31 gunthas, assessed at Rs. 30-13, R.S. No. 694/1A/1 admeasuring 0 acre -37 gunthas, assessed at Rs. 3-11. R.S. No. 596/3B+4+5A, admeasuring 4 acres - 32 gunthas assessed at Rs. 22, R.S. No. 596/3+4+5+6/3A admeasuring 2 acre -38 gunthas, assessed at Rs. 13-7 'Rozevat'(?) R.S. No. 33/1, admeasuring 1 acre 23 gunthas, assessed at Rs. 6-4, R.S. No. 32, admeasuring 4 acres 17 gunthas, assessed at Rs. 16, situated at Nagthanvatdale Undeghol, sub-division 'Ashte', Division Satara.
(7) There are houses in 'gaothan' area, - sub-division Ashte, Division Satara, out of which the 'the Nandate-ghat' i.e. the house wherein we are presently residing i.e. the house bearing Municipal No. 3044 shall be given to my son Chi. Bandopant at Sr. No. 2 and a house purchased about two years back from Shankar Ganesh Mahajan and an open land bearing No. 3059 near outside well shall be given to Shankar, my son at Sr. No. 3. As there is no house to give for the residence of Sr. No. 4 i.e. Bhaskar, the Sr. No. 2 i.e. Bandopant shall give Rs. 1,500/- in words rupees fifteen hundred to him after his studies and marriage.
(8) Whatever immovable properties that will come to the share of Sr. No. 4 Bhaskar alias Bapu shall be used by himself only. If the land is to be given for tilling, then the same shall be given to No. 2 and 3 as per the rate prevailing at the relevant time. The same shall not be given to anybody else or if the same are to be sold, due to circumstances, then the same shall be given to No. 2 and 3 only at the then prevalent appropriate rate and the same shall not be given to anybody else. Sr. Nos. 3 and 4 are yet to marry. Therefore, the said expenses shall be incurred by the joint family after consulting with No. 1."
3. It would be seen from the said Will that at the time the Will was executed by the testator, his family consisted of his wife Bhagirathibai and three sons viz. Bandopant Sitaram Bapat (original appellant No. 1, since deceased and now represented by his legal heirs-the appellants), Shankar Sitaram Bapat (respondent No. 1), and Bhaskar Sitaram Bapat (respondent No. 2). Para 2 of the said Will provided that all gold ornaments on the person of his wife Bhagirathibai were her absolute ownership being her Stridhan and she was entitled to make disposition of the same as per her wish. Silver utensils as well as domestic utensils made of copper and brass, clothes, and valuable articles were to be got distributed amongst three sons in consultation with their mother (testator's wife). Para 5 in the said Will provided that Bhagirathibai shall carry out Vahiwat in testator's houses and land by way of absolute ownership and in consultation with her, three sons shall enjoy the same. After the death of Bhagirathibai, the testator's three sons shall reside togedier and if it was not possible then provision has been made in respect of the land bearing Revenue Survey No. 2013 admeasuring 5 acres 64 gunthas, situated at Ashte sub-division, Satara to be given separately to his son Shankar. It is provided in para 6 of the said Will that testator's all three sons will get distributed amongst themselves equitably the properties described therein viz. lands bearing R. S. No. 691/1 A, admeasuring 6 acre 31 gunthas, R.S. No. 694/1 A/1, admeasuring 37 gunthas, R.S. No. 59673B + 4 + 5A, admeasuring 4 acres 32 gunthas, R. S. No. 596/3 + 4 + 5 + 6/3A, admeasuring 2 acres 38 gunthas, R.S. No. 33/1, admeasuring 1 acre 23 gunthas and R.S. No. 32, admeasuring 4 acres 17 gunthas. In para 7 of the said Will it is provided that the house bearing Municipal House No. 3044 where testator and other members of his family^ have been residing shall be given to Bandopant and the house purchased from Shankar Ganesh Mahajan and open land bearing No. 3059 shall be given to his son Shankar. It further provides that Bandopant shall give Rs. 1500/- to Bhaskar as no residence has been given to Bhaskar. The said Will in para 8 provides that whatever immovable properties come to the share of Bhaskar shall be used by him only.
4. It appears that after the death of the testator Sitaram on 24-12-1944, die original appellant Bandopant acted as Karta and his name was entered in die revenue record in respect of house property in city survey. Bhagirathibai on 8-5-1970 executed a Will (Exhibit 46). By this Will she bequeathed all properties to respondent Nos. 2 and 3 herein. Bhagiradiibai died on 12th July, 1970. After the death of Bhagirathibai the dispute arose between Bandopant and his two brothers Shankar and Bhaskar. On 16-4-1973 Bandopant filed Special Civil Suit No. 39 of 1973 for partition and separate possession of the property mentioned in Schedule "A" of the plaint which was bequeathed by Sitaram by Will Exhibit 47. Respondent Nos. 1 and 2 herein who are original defendant Nos. 1 and 2 filed written statement and set up die defence that they have become owners of the entire property by virtue of Will (Exhibit-46) executed by Bhagirathibai and that Bhagirathibai was full owner of the said properties left by Sitaram on the basis-of the Will Exhibit-47 dated 2-12-1944. The Trial Court framed issues and after recording the evidence dismissed the suit holding that by virtue of the Will of Sitaram Bapat (Exhibit 47) Bhagirathibai had become absolute owner. The trial Court further held the Will executed by Bhagirathibai on 8-5-1970 (Exhibit 46) was genuine and consequently, plaintiff-original appellant was not entitled to decree. Aggrieved by the judgment and decree dated 21-8-1975 passed by Civil Judge, Senior Division, Sangli, the original appellant preferred first appeal No. 684 of 1975. The said first appeal came to be dismissed on 20th July, 1995 giving rise to the present Letters Patent Appeal. The original appellant died during the pendency of Letters Patent Appeal and his legal heirs have been brought on record pursuant to the order dated 10th January, 2001.
5. Mr. R. V. More, learned counsel appearing for the appellants submitted that by the Will dated 2-12-1944 (Exhibit-47) Bhagirathibai got only life interest in the immovable properties held and owned by Sitaram and she did not become absolute owner as has been held by the trial Court as well as the learned Single Judge of this Court. He invited our attention particularly to paras 5,6 and 7 of the said Will and submitted that the said clauses if read as a whole clearly show the intention of the testator that he wanted to give limited interest in the immovable properties to Bhagirathibai. Referring to Sections 82, 83, 85 and 88 of Indian Succession Act, 1925, the learned counsel for appellants submitted that the meaning of the Will needs to be collected from the entire instrument and no part of Will should be rejected if it is possible to put reasonable construction upon it. The learned counsel also submitted that where two clauses in a Will are irreconcilable then the last clause should prevail. Mr. More, thus, submitted that finding recorded by the learned trial Court as well as learned Single Judge that Bhagirathibai became absolute owner under the Will dated 2-12-1944 (Exhibit-47) is unsustainable. In support of his contention, the learned counsel relied upon judgments of the Apex Court in Ramchandra Shenoy and Anr. v. Hilda Brite and Ors., , Navneet Lal alias Rangi v. Gokul and Ors., and Pramod Kumari Bhatia v. Om Prakash Bhatia and Ors. .
6. The learned counsel appearing for respondents Nos. 1 and 2 on the other hand supported the judgment of the learned Single Judge as well as the trial Court and submitted that Clause 5 of the said Will leaves no manner of doubt that the testator bequeathed immovable properties of houses and land in absolute ownership to Bhagirathibai. The learned counsel for respondents Nos. 1 and 2 placed heavy reliance on the expression "Sampurna Malkiche" ('absolute ownership') occurring in Clause 5 and submitted that intention of the testator is clear therefrom that under the Will, on the death of testator, Bhagirathibai was to become absolute owner, Mr. Apte, learned counsel for respondent Noa. 1 and 2 relied upon the judgment of this Court in Bai Kevli w/o Popatlal Sakhalchand v. Dalsukhram Sakarchand and Ors. AIR 1945 Bombay 178, Tiruchendur Shri Subramaniaswami Temple v. P. Ramaswamla Pillai and Ors. AIR 1950 Privy Council 32, Ram Gopal v. Nand Lal and Ors., , Paikabai v. Anyabai w/o Balkrishna and Ors., 1953 NU 22 = AIR 1952 Nagpur 327, Ram Bharosey and others v. Lachmandas and Ors., and Shantilal Babubhcti and Ors. v. Bai Chhani and Ors., . The learned counsel also submitted that the expression "Vahiwat" has been used by the testator in Clause 5 of the Will in the sense of user and enjoyment of the property by way of absolute ownership.
7. Chapter VI of Indian Succession Act, 1925 deals with construction of Wills. Section 82 provides that the meaning of any clause in a Will is to be collected from the entire instrument and all its parts are to be construed with reference to each other. Section 83 makes a provision as to when words to be understood in restricted sense and when in sense wider than usual. Section 83 reads thus:--
"83. When words may be understood in restricted sense, and when in sense wider than usual. -- General words may be understood in a restricted sense where it may be collected from the Will that the testator meant to use them in a restricted sense; and words may be understood in a wider sense than that which they usually bear, where it may be collected from the other words of the Will that the testator meant to use them in such wider sense."
Sections 85 and 88 which are relevant for the present purposes read as follows;--
"85. No part rejected, if it can be reasonably construed. -- No part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.
88. The last of two inconsistent clauses prevails. -- Where two clauses or gifts in a- Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail."
8. Keeping the aforesaid and other legal provisions relating to construction of Wills in mind, we need not overemphasize that each Will is required to be construed as and when occasion arises by the Court in the manner intended by the testator/testatrix. The predominant intention of the testator/testatrix has to be gathered from reading the Will as a whole and all clauses of the Will are to be construed with reference to each other. It should be Court's endeavour that no part of the Will is rejected as destitute of meaning and efforts should be made to put reasonable construction on each and every part and clause of the Will. As observed by the judicial committee of the Privy Council in Sasiman Chowdhurain and ors. v. Shib Narain Chowdhury and Ors. AIR 1922 Privy Council 63, it is dangerous to construe the words by one Will by the construction of more or less similar words in a different Will which was adopted by a Court in another case. Though conscience of this legal position it is instructive to refer to some of the decisions cited at Bar for the purpose of ascertaining whether there is any principle of construction on which they are based. In this background, before we embark upon to gather the intention of the testator under the Will dated 2-12-1944 (Exhibit 47) we may refer to the decisions cited at Bar by the learned counsel appearing for the parties.
9. In Bai Kevli (supra), the learned Single Judge of this Court was seized of the Will, the relevant portion of which read as follows :--
"I am the owner (malik) of the said properties so long as I live. But in case of my death, I appoint or nominate my wife as full and absolute owner (kul swatantra malik} of all my movable and immovable properties after my death. So that after my death my wife should take possession of all movable and immovable properties under her full and absolute right therein and manage the same."
The Will contained further direction.
"My wife should use and enjoy the above-mentioned house during her lifetime and after her death my wife may give that house to any one of the three sons of my brother and if my wife has not given that house to any one of the sons of my brother then after my wife's death the three sons of my brother should be owners thereof in equal shares."
It was further provided, "My wife should realise or recover all my dues or outstandings as absolute owner and she may do whatever she pleases with all die movable properties, including dues, ornaments etc., i.e. and should dispose of the same in any manner she likes :"
The learned Judge while construing the aforesaid clauses in the Will held thus:--
"It is difficult for me to give in this case a greater emphasis on a Hindu testator's desire that his estate should remain in the hands of his own relations than to the intention clearly expressed by him in the operative clauses of his Will which, in my opinion, must be regarded as the dominant intention, viz., to confer an absolute right to property on his wife. As remarked in 36 Bom. LR. 399, in each case the Court must ascertain the dominant intention of the testator, reading the Will as a whole, in order to see what is the vocabulary of the testator and how he expresses himself with regard to other matters. The language in Clause (2) is less emphatic than in para 5 where he speaks on his wife's "full and absolute' right at two places. As I have pointed out, the first passage in Clause (2) "my wife, Bai Kevli, should use and enjoy and above-mentioned house during her life' is not incompatible with that right. The next passage 'after her death my wife Kevli may give that house to any one of the three sons of my brother Sakarchand" is not mandatory in form but appears to be nothing more than the expression of a pious hope."
10. The Privy Council in Tiruchendur Shri Subramaniaswami Temple (supra) was concerned with the Will of Hindu testator which read as follows;--
"....... I have bequeathed to my son P the right to all my properties and moneys, etc., and he shall solely enjoy them. If he or his son has no child, the said properties shall pass to "Subramaniaswami" at Tiruchendur."
Construing the said Will and taking into consideration Section 95 of Indian Succession Act, Privy Council held thus :--
"12. Section 95, Succession Act, says that where property is bequeathed to a person he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him. It follows from what has already been said that their Lordships consider that a restricted interest was not intended here. They agree with the opinion of the High Court that the testator, as an after-thought, wanted to determine the devolution of the property in case his son should die without issue, but not in any way to limit either the character of the estate that was given by the earlier bequest in favour of the son, or to make it conditional and liable to be divested at his death without issue. The testator had only one son and it was natural that he should desire that his estate should devolve upon him unconditionally."
11. In Ram Gopal (supra), the three Judge Bench of Apex Court observed that 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. While construing the word 'Malik' appearing in the deed, the Apex Court followed the judgment of Privy Council in Sasiman Chowdhurain and Ors., (supra) to the effect that the term 'Malik' when used in other document is descriptive of the position which a devisee or donee is intended to hold; it 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 are not intended to confer.
12. The Division Bench of Nagpur High Court in Paikabai (supra) while construing the words used by testator in the Will viz., 'Hi Majhi sarva sthawar wa jangam jaydad majhe marananter Majhi waris stri name Sita ichi malki rahun ti jaydadi cha upbhog gheyil" held thus:--
"At the outset, it must be borne in mind that it is a well-established rale of interpretation that the terms of one Will should not be interpreted in the light of the terms of another Will unless they are exactly similar. Since Balirampant intended that Sitabai should become the "malik" that is the owner, of his estate after his death, it must be held following the decision of their Lordships of the Privy Council in Sarjubala Debi v. Jyotumayee Debi, 59 Cal 142 at p. 148 (PC), that he intended to confer upon her full proprietary rights. No doubt, these words have to be taken in their context. Here, we find that Balirampant has given her full power to alienate including the power to dispose of the property in any way. Conferral of such a power on a person who would, according to the law of inheritance, have no such power is a strong circumstance indicative of the intention of the testator to confer an absolute estate."
13. The learned Single Judge of Allahabad High Court in Ram Bharosey and Ors., (supra) construing the Will wherein it was stated, "Bad mere musammat Gopi..... Malik howe, aur usko harek tarah ka ikhtiyar hogaki jo chahe so khairat den wa dan waghirah karen. Koi uska Mazahim na howe......," held thus :--
"5(a). It is true that the intention of the testator appears to have been that after the death of Smt. Gopi, the daughters would get his estate. However where the dispositive words are clear and they indicate the creation of an absolute estate in the first devisee, all subsequent devisees must fail whatever the intention of the testator may have been. The fact that Smt. Gopi was a female and the testator must have known what kind of estate a Hindu female inherits, has no doubt to be kept in view, but when the word 'Malik' is used without any clear qualifying words showing that the power of alienation has been cut down, there is no reason why the female should not be considered to have been granted full proprietary rights. Accordingly, in my view, Smt. Gopi acquired an absolute estate under the Will of her husband, Nanak Chand."
14. The Full Bench of Gujarat High Court in Shantilal Babubhai (supra) gave its opinion to the question referred as to whether under the Will Laxmi got the life estate of the property of husband Zaverbhai or it was a bequeath of an absolute estate to her with all powers of dispossession thus :--"15. We are, therefore, of the view that the present case falls within the first category of decisions to which we have referred. There is in fact one decision amongst those referred to by us as falling within the first category, which comes very near the present case. That is the decision of the Privy Council in (supra). The question which arose in that case related to the construction of a Will made by one Ishar Singh. The Will provided that after the death of the testator his widow would be exclusive owner of certain properties with all kinds of power to deal with those properties and after her death, whatever property remained would be owned by the son's of Sunder Singh, the testator's nephew. Both the widow and the sons of Sunder Singh were prohibited from selling any immovable property. On the death of the widow, competing claims were put forward by the heirs of the widow and the sons of Sunder Singh. The question arose as to what was the nature of the interest granted to the widow under the Will of Isher Singh. The Judicial Committee of the Privy Council held that the true effect of the Will was to make the widow an absolute owner of the property. Sir George Rankin delivering the opinion of the Privy Council said:
"On the question as to the true construction of the Will of Isher Singh the trial Court and the High Court were agreed in holding that its effect was to make Bishan Devi absolute owner of the Lyallpur property. Their Lordships are of the same opinion. The prohibition against selling the immovables is not addressed to the widow only but is extended to the sons of Sunder Singh under Clause 7 and is not in their Lordships view to be regarded as showing an intention to give to the widow an interest for fife or the estate of a Hindu woman, but as a condition which the testator was proposing to attach to an absolute interest. Clause 4 is in clear and emphatic language, consistent only with the gift of an absolute interest, and the phrase 'whatever property remains' in the first part of Clause 7 of the Will is in keeping with this intention. The prohibition against selling must be disregarded as repugnant to the absolute gift to Bishan Devi."
It was held that absolute estate was granted to the widow because she was made the exclusive owner of the properties and the words "Whatever property remains" were construed as consistent only with the gift of an absolute interest. The same position obtains in the case before us and for the same reasons we would hold that the interest granted to Laxmi under Clause (4) was an absolute interest and the words "baki raheli" that is "remaining property" in Clause (6) were consistent only with the gift of an absolute interest in the gift over of the property remaining at the death of Laxmi in favour of Shantilal and his sons under Clause (6) was, therefore, void as being repugnant to the absolute interest granted to Laxmi."
15. The Apex Court in Ramchandra Shenoy (supra) was dealing with the Will executed by testatrix-an Indian Christian widow of Roman Catholic faith. The relevant clauses of which read thus :--
"3(c) All kinds of movable properties that shall be in my possession and authority at the time of my death, i.e., all kinds of movable properties inclusive of the amounts that shall be got from others and the cash -- all these my eldest daughter Severina Sobina Coelho shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right........" The rest of it is not very material and is omitted. There are a few other clauses in this Will which have been referred to by learned counsel in their arguments before us and also in the Courts below as furnishing aids to the construction of the disposition in Clause 3(c). These are the Clauses 4 and 5 and they run :--
"4. The bagaitu hithulau land........ and the house situated therein... and the buildings, shops, etc., attached thereto : these my second daughter, Mary Matilda Coelho should enjoy up to her death only; and further, she should not alienate them in any manner by way of gift, sale, mortgage, etc. After the lifetime of the said daughter of mine, viz., Mary Matilda Coelho, the property should be enjoyed by the daughter of my fourth daughter, Mary Margaret, i.e. of Julia Mary Margenta Femandaz hereditarily and with permanent right. In the said property, the said Julia's father and his heirs have no manner of right whatsoever."
"5. If the said Julia does not many or if she has no issues, the said Julia should enjoy the said property up to her death and thereafter this property of mine should be enjoyed by my eldest daughter, Severina Sobina Coelho and after her by her male descendants with permanent rights."
Dealing with the question whether Clause 3(c) extracted above, 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 Apex Court in paras II and 12 of the report ruled thus:--
"11. If the bequest to Severina was "to enjoy" and the testatrix proceeds to add that after the lifetime of Severina, her male issue were "to have permanent and absolute rights in the same" the very contrast in the phraseology should lead one irresistibly to the conclusion that the nature or quantum of Severina's interest was different from that of those who took after "her lifetime". Learned Counsel, however, laid special stress on the use of the word "too" or "also" occurring towards the end of the clause as pointing to the "enjoyment" of Severina being also "permanent" with absolute right. We are however unable to read the word as having such a significance and as referring to the nature of Severina's enjoyment as well, and in this conclusion we are supported by the text and the literal translation of the words used. In our opinion, the only relevant words in relation to the bequest to Severina are that "she shall after my death enjoy", and the rest of the clause deals with what is to happen after her lifetime. 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.
12. Learned counsel next relied on the terms of Section 84, his submission being that the male issues of Severina were not "direct objects of a distinct and independent gift". Applying the terms of Section 84 to the present case, no doubt "property is bequeathed to a person" viz., the daughter, but the question is whether the words that follow which refer to the male children enjoying "permanently and with absolute rights", for there is no doubt that on any interpretation of the document those words do apply to them, designate them as direct objects of a distinct and independent gift, or are they added merely to denote the nature of the interest which the first taker Severina was to obtain? Put in technical language are the words referring to the male children, words of purchase or are they words of limitation indicating the nature of the interest conveyed to the first taker. It would be observed that in illustration (a) to Section 84 the bequest is made to the first taker and his descendants. Where they are the descendants of the first taker, the presumption is that the reference to the persons to take the gift over, is intended to denote the quality of the first taker's estate and not for the purpose of the subsequent takers having independent gifts. Where the subsequent legatees are intended to be themselves direct beneficiaries and they are directed to take along with the first taker the interest of the first taker is cut down to a joint interest in the property so as to enable the subsequently named to partake the legacy. That is illustration (b) to the section. There the second named is a collateral and by the use of the conjunction and a joint interest is presumed to be created in favour of all the legatees. Where the subsequent taker is a descendant of the first taker, as in illustration (a), but the testator does not provide for his taking it along with the first named, it is a case falling under illustration (c) where successive interests are created by the use of the words after the first taker's death". In such a case even if the second taker were die issue of die first the first taker's interest is for life since by the use of the words 'after his or her lifetime' successive interests are intended to be created. In our opinion, the case on hand would fall within illustration (c) and the bequest to Severina is only of life interest, this being made clear by the use of the words after her lifetime."
16. In Navneet Lal alias Rangi (supra) the Apex Court culled out the following principles in construing the Will whether in English or in vernacular:
"8. From the earlier decisions of this Court the following principles, inter alia, are well established:--
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. Ram Gopal v. Nand Lal, .
(2) In construing the language of the Will the Court is entitled to put itself into the testator's armchair, Venkata Narasimha v. Parthasarathy, (1913) 41 Ind App 51 at p. 73 (PC) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense...... But all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document. Venkata Narasimha's case (supra) and Gnanambal Ammal v. T. Raju Ayyar, .
(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory, Raj Bajrang Bahadur Singh v. Bakhtraj Kuar, .
(4) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. Pearey Lal v. Rameshwar Das, .
(5) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will. Ramachandra Shenoy v. Hilda Brite . The relevant recital of the Will before the Apex Court was as under:--"
11. After the above revelation of his mental attitude in the Will there follows the following recitals :--
"So long as I, the executant, am alive, I myself shall remain the owner in possession (malik wa qabiz) of my entire movable and immovable property and of the income from Birt Jijmani. After my death Mst. Jarian, the wedded wife of me, the executant, shall be the owner (malik) of my entire estate, movable and immovable, and of the income from Birt Jijmani and shall have all the proprietary powers (aur usko jamiya akhtiyarat malikana hasil honge). After the death of Mst. Jarian, Gokul, aforesaid shall be the owner of the entire estate left by me (malik kemil juidad matruka meri ka hoga), and he shall have all the proprietary powers and the power of making transfer of all sorts (aur usko jamiya akshtiyarat malikana was intekalat har qism hasil honge). If per chance, Mst. Jarian dies in my lifetime, then Gokul aforesaid will be the absolute owner (malik kamil) of the estate left by me (matruka meri) and he shall have power of making all sorts of transfers (aur usko har qism ke akhtiyarat intekalat hasil honge). Gokul aforesaid should go to Jijmans and should continue to give to Mst. Jarian during her lifetime the charitable gifts (dann dakshina) which he brings from there. After her death he might continue to be benefited thereby. Mst. Jarian should get my obsequies, Barsi (annual death ceremony), Chhamchhi etc. performed through Gokul aforesaid according to the custom prevalent in the brotherhood. It will be the duty of Gokul aforesaid to obey and serve my wife Mst. Jarian. It will be necessary for Mst. Jarian to keep my heir (waris) Gokul aforesaid and to act in consultation with him. At present I have the following immovable properties and the Birt Jijmani. If in addition to these I purchase or get any property the aforesaid persons shall be the owners of that also according to the aforesaid conditions."
The Apex Court on construction of the said Will held that testator has made a definite distinction between mere ownership of property and ownership of the same coupled with powers of transfer in every way and the intention of the testator was to create a devise of a life estate to his wife and an absolute estate thereafter to Gokul indicating a different line of inheritance in the Will. In para 23 of the report, the Apex Court held thus :--
"23. All the above features run counter to the theory of an absolute estate in favour of Smt. Jarian. There is still another clinching factor. It is clear from the Will that the testator had misunderstanding and quarrels with his brother regarding ancestral property and the matter had to be settled by arbitration leading to partition and separate enjoyment of property as far back as 1889. It also appears from the recitals in die Will that he had grave apprehension that after his death his only reversioners, his brother and nephew, "might trouble and harass my wife Mst. Jarian and my sister's son Gokul". One thing was, therefore, clear that the testator never intended that his property should pass to his brother and nephew. This 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 Gokul indicating a different line of inheritance in the Will. On the other hand, if any absolute estate would have been conferred on the widow, then on her death the property would have passed on by inheritance to her husband's heirs who were none else than the brother and the nephew of the testator. There was no other heir of Mst. Jarian to inherit the property after her death."
17. In Smt. Pramod Kumari Bhatia (supra) the Apex Court observed that where it was clear on the face of the Will that the testator has not accurately or completely expressed his meaning by the words he has used and it was also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention as collected from the context.
18. Now we reflect over the Will before us. In Clause 5 which is most crucial, the testator has recited that his wife Bhagirathibai shall carry out vahiwat in his immovable properties, houses and land by way of absolute ownership and in consultation with her, his three sons shall enjoy the same on her behalf. It is further provided that after the death of Bhagirathibai, his three sons shall reside together and if it is not possible then the land bearing survey No. 2013 shall go to his son Shankar. By the use of expression "Sarvapuma Malkiche Vahivatavyat" (carry out wahivat by way of absolute ownership) the intention of testator was to enable his wife Bhagirathibai to take possession of and use, enjoy and manage the immovable properties and land during his lifetime. It is so because while providing that Bhagirathibai shall carry out vahiwat in the immovable properties owned and held by him by way of absolute ownership it is recited in same breath the testator that his three sons shall enjoy the said properties though on behalf of Bhagirathibai after gaining her confidence. The expression 'vahiwat' ordinarily means : to make use of ; to enjoy; an administration; and occupy. Clause 5 read as a whole indicates that testator intended that his wife Bhagirathibai should manage and administer the houses and land by way of absolute ownership during her lifetime and his sons enjoy these properties on her behalf during her lifetime. In Clause 6, the testator has provided that all his three sons shall get distributed among them equally the lands described in the said clause. If the intention of the testator was to make Bhagirathibai absolute owner after his death, there was no question of reciting in the Will that all his three sons shall get among themselves distributed equitably the properties described in the said clause. Even in Clause 7 as regards the houses, it is provided that house bearing Municipal No. 3044 shall be given to son Bandopant while house bearing No. 3059 shall be given to Shankar. As no house was given to third son Bhaskar, Bandopant was required to give Rs. 1500/- to Bhaskar after his studies and marriage and which he in fact did. The testator is emphatic in Clause 6 about equitable distribution of properties mentioned therein. Even in Clause 7 the testator has left no ambiguity about the two houses which were to go in share of Bandopant and Shankar. The provisions made in Clauses 6 and 7 cannot be said to be only disclosing pious wish of testator. If the construction suggested by Mr. Apte with regard to Clause 5 that by the said clause, absolute ownership in immovable properties and land has been conferred on Bhagirathibai is accepted, obviously, Clauses 6 and 7 have to be rejected as destitute of meaning which does not appeal to us in view of provisions contained in Section 85 of the Indian Succession Act. Each part of the Will has to be given its due meaning and the intention of testator/testatrix has to be gathered from the entire instrument and no part of the Will is to be read in a manner which renders the other parts meaningless. In this view of the legal position, obviously, Clauses 5, 6 and 7 of the Will read together leaves no manner of doubt that the intention of the testator was to bequeath life interest of the immovable properties held and owned by him in Bhagirathibai. If the bequest to Bhagirathibai was absolute in the immovable properties held and owned by the testator, the testator could never have intended to provide for that after the death of Bhagirathibai all his three sons reside together and if it was not possible then the properties as mentioned in Clause 6 shall be got distributed equitably between three brothers and houses to be given to his sons as per Clause 7. In our view, the word Sarvapurna malkiche Vahivatavyat (carry out vahiwat by way of absolute ownership) in Clause 5 of the Will has to be read in full context and also in conjunction with other clauses in the Will particularly Clauses 6 and 7. The expression "Sarvapurna malkiche" cannot be given undue meaning literally in isolation and out of context and has to be read as referring to the nature of Bhagirathibai's user and enjoyment in the immovable properties viz. houses and land during her lifetime. The dominant intention of the testator particularly reading Clauses 6 and 7 along with Clause 5 of the Will was to confer a permanent and absolute remainder on his three sons after the lifetime of his wife and the words used in Clauses 5, 6 and 7 in the collective context are unambiguous and support the construction which we have put. Of course as observed by the Apex Court in Ramchandra's case that if there are two repugnant provisions conferring successive interest, if the first interest created is valid the subsequent interest cannot take effect but the 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 and it is for this reason we have sought to avoid repugnancy, if any, in Clauses 5, 6 and 7 and after giving reasonable construction to these clauses have no hesitation in gathering dominant intention of testator and in holding that Bhagirathibai acquired life interest in the immovable properties and land left by testator.
19. We, therefore, are constrained to reverse the finding recorded by the learned Single Judge as well as the trial Court. As Bhagirathibai had only life interest in the immovable properties, she could not have bequeathed the said properties to respondent Nos. 1 and 2. On the basis of what has been held by us, the findings recorded by trial Court on issue Nos. 1, 2, 3, 4 and 6 have to be set aside which we hereby order.
20. The Letters Patent Appeal is, accordingly, allowed. The judgment and order passed by the learned Single Judge dated 20-7-1995 and the judgment and decree dated 21-8-1975 passed by Civil Judge, Senior Division, Sangli are set aside.
21. The plaintiffs suit is decreed accordingly holding that he is entitled to seek partition of the suit property as he has 1/3rd share therein and he is further entitled to separate possession of his share.
22. No costs.
23. Appeal allowed.