Bombay High Court
Manoharlal Lalchand Nagpal vs Madan Tikamdas Dembla on 27 August, 2018
Author: G.S. Patel
Bench: G.S. Patel
29-TS82-08.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 82 OF 2008
IN
TESTAMENTARY PETITION NO. 548 OF 2008
Manoharlal Lalchand Nagpal ...Plaintif
Versus
Madan Tikamdas Dembla ...Defendant
WITH
SUIT NO. 2286 OF 2008
WITH
CHAMBER SUMMONS (L) NO. 1214 OF 2018
AND
CHAMBER SUMMONS (L) NO. 1176 OF 2018
IN
SUIT NO. 2286 OF 2008
Shyam Tikamdas Dembla & Ors ...Plaintifs
Versus
Madan Tikamdas Dembla ...Defendant
Mrs Indrayani Koparkar, I/b Ankita P Naik, for the Plaintiffs in
both suits, and the applicants in Chamber Summons (L) No. 1214
of 2018.
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29-TS82-08.DOC
Mr HS Shreepad Murthy, for the Defendant in both Suits, being the
applicant in Chamber Summons (L) No. 1176 of 2018.
CORAM: G.S. PATEL, J
DATED: 27th August 2018
PC:-
1.There is a Testamentary Suit No. 82 of 2008 along with Suit No. 2286 of 2008.
2. Testamentary Suit No. 82 of 2008 seeks probate to the last Will and testament dated 19th March 2008 of one Rajkumari T Dembla ("Rajkumari") who died in Mumbai on 22nd March 2008. The Testamentary Suit is filed by one Manoharlal Lalchand Nagpal, one of the two executors named in the Will. The other executor is his wife, Rani Nagpal ("Rani"). She is also one of the attesting witnesses.
3. As it currently stand, the Petition is materially defective. The Will says that Rani "and/or" Manoharlal were appointed executors. This is a classic instance of the utter redundancy of this pestilential expression, one that always only serves to introduce ambiguities where there should be none. There is not a single conceivable situation where it is ever necessary in accurate legal writing. 1 Here is Bryan Garner, the renowned legal editor and legal language expert, and (but not and/or) the editor of Black's Law Dictionary. He says:2 1 I will not even venture into that even greater abomination, or/and. 2 Bryan Garner, LawProse Lesson #209: Ban "and/or". Accessed on 27th August 2018 at http://www.lawprose.org/lawprose-lesson-209-ban- andor/. See also Bryan Garner, Ax These Terms From Your Legal Writing, Page 2 of 8 27th August 2018 ::: Uploaded on - 28/08/2018 ::: Downloaded on - 30/08/2018 21:49:30 ::: 29-TS82-08.DOC LawProse Lesson #209: Ban "and/or"
Ban and/or.
And/or dates from the mid-19th century. Although lawyers and courts have vilified and/or for most of its life, this bit of legalese continues to infest legal writing and create ambiguity.
The literal sense of and/or is "both or either," so that A and/or B means (1) "A," (2) "B," or (3) "both A and B." Since and/or has a literal sense, what's the problem? "Both or either" suggests a choice, but and/or is often used in contexts where logically there is no real choice. This makes the drafter's intent hard to discern.
Courts are often asked to decide the intended effect of and/or. For example, if a provision states "Robert and/or Jane must sign to make this agreement valid," will the agreement be valid if only Robert or only Jane signs -- can they really bind each other without the other's consent? Or is it valid only if both Robert and Jane sign?
About half the time, and/or means or:
Ex.: A sign: "No food and/or drink allowed." [It says that each is disallowed. Read: "No food or drink allowed."] Ex.: Language in a rental agreement: "Williams must give the owner prompt notice of noise, traffic, and/or pet violations observed on the property." [What is Williams required to give notice of: all three violations occurring at once, or in some combination, or individually? Read: "Williams must give the owner prompt notice of all noise, American Bar Association Journal website, April 2014, accessed on 27th August 2018 at http://www.abajournal.com/magazine/article/ax_these_terms_from_ your_legal_writing/ Page 3 of 8 27th August 2018 ::: Uploaded on - 28/08/2018 ::: Downloaded on - 30/08/2018 21:49:30 ::: 29-TS82-08.DOC traffic, or pet violations observed on the property." (If Williams must give notice of each type individually, it follows that he must also give notice of any combination of them.)] And about half the time, and/or means and:
Ex.: A provision in a statute: "All applicable state and/or federal regulations apply to the transfer of goods." [Or falsely suggests a choice between regulations. Read: "All applicable state and federal regulations apply to the transfer of goods."] Ex.: A statement in a report: "The team of lawyers, paralegals, and/or mediators resolved the case quickly for their client." [Who was on the team? Did they all contribute to the resolution or not? Read: "The team of lawyers, paralegals, and mediators resolved the case quickly for their clients."] In most legal drafting -- when linguistic precision is essential -- it's best to add the words or both or either:
Ex.: A provision in a statute: "Violation of this provision is punishable by imprisonment of up to 5 years and/or a $10,000 fine." [If the violator can be both imprisoned and fined, read: "Violation of this provision is punishable by imprisonment of up to 5 years, a $10,000 fine, or both." If only one punishment can be levied, read: "Violation of this provision is punishable by either imprisonment of up to 5 years or a $10,000 fine."] If the document lists several items, and not all are required, introduce the list with any of the following:
Ex.: A provision in a regulation: "To prove residency, please provide (1) a valid, unexpired driver's license; (2) a valid, unexpired voter-registration card; and/or (3) a W-2 or 1099 Page 4 of 8 27th August 2018 ::: Uploaded on - 28/08/2018 ::: Downloaded on - 30/08/2018 21:49:30 ::: 29-TS82-08.DOC from the current tax year." [Does the applicant need to provide just one or all of the documents? Read: "Any of the following documents will be accepted to verify a person's residency: (1) a valid, unexpired driver's license; (2) a valid, unexpired voter-registration card; or (3) a W-2 or 1099 from the current tax year."] Small wonder that and/or has been held to invalidate provisions in affidavits, wills, indictments, judgments, contracts, statutes, and findings of fact.
Although using and/or seems like a quick and easy drafting tool, it's more of a quick and dirty one: it too often reflects a failure to think something through or to understand what the parties intend. It creates room for disagreement and litigation. After some practice, you'll find it surprisingly easy and workable to avoid the phrase. In the long run, the extra effort you make to choose between and and or will save you much effort, money, or both.
(Emphasis added) As Garner notes, there is much more material in this vein.3
4. The "Robert and/or Jane" example Garner cites is exactly our issue of a needless ambiguity today. When the Will says "Rani and/or Manoharlal" are executors, does this mean that either Rani or Manoharlal is the sole executor, or does it mean that both Rani and
3 Garner's Dictionary of Legal Usage 57-58 (3d ed. 2011); Garner's Modern American Usage 45-46 (3d ed. 2009); Garner, Legal Writing in Plain English 133-34 (2d ed. 2013); RW Burchfield, The New Fowler's Modern English Usage 53 (3d ed. 1996); Antonin Scalia & Bryan A Garner, Reading Law: The Interpretation of Legal Texts 116-25 (2012); David Mellinkof, The Language of the Law 147-52, 306-10 (1963) Page 5 of 8 27th August 2018 ::: Uploaded on - 28/08/2018 ::: Downloaded on - 30/08/2018 21:49:30 ::: 29-TS82-08.DOC Manoharlal are executors together? This is, incidentally, not the same as "jointly and severally". That usage would mean that both are to serve as executors, and, further that each of them is bound to so serve. The expression is usually used in the context of a liability. In the present case, had the Will said Rani and Manoharlal were to serve as executors "jointly and/or severally", that would have been confusion worse confounded. Now the Will in question does not tell us of the circumstances in which Rani could legitimately not serve as an executor. Therefore, the and/or in the Will must be read as and; and this means that Rani and Manoharlal are both executors. As a named executor, Rani must either accept executorship and (but not and/or) join in the Petition for probate, or (but not and/or) she must renounce executorship, or (but not and/or) Manoharlal must reserve her right to come in later and seek probate. But she must do any one of these three things. Doing nothing is not an option. She may have filed an Affidavit of Evidence as attesting witness, but that is in a wholly diferent capacity.
5. Rani Nagpal is present in Court. She renounces executorship in a statement that she instructs Mrs Koparkar in my presence to make. Her renunciation is in accordance with Section 230 of the Indian Succession Act, 1925, and is accepted. The Suit will proceed accordingly, with Manoharlal as the sole executor of the Will.
6. The evidence of the attesting witness(es) in the Testamentary Suit will be led first. This is necessary to have the Will proved in evidence. This will be followed by the evidence of the Plaintif in the Testamentary Suit filed by Manoharlal Lalchand Nagpal.
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7. Suit No. 2286 of 2008 challenges a Deed of Gift said to have been made on 30th October 2004 by Rajkumari in favour of Madan Dembla, the Defendant to both suits. The Plaintifs' evidence in that Suit has already been filed.
8. The evidence of Shyam Tikamdas Dembla, the 1st Plaintif in Suit No. 2286 of 2008, will be taken immediately after the cross- examination of Manoharlal, the Plaintif in the Testamentary Suit.
9. The 5th Plaintif in Suit No. 2286 of 2008, Maya Gulshan Makhija, died earlier this year. Chamber Summons (L) No. 1214 of 2018 is filed by the Plaintif to bring on record the heirs of Maya Gulshan Makhija. The Chamber Summons is taken up immediately, by consent. Leave to Mrs Koparkar to bring on record, without need of reverification, the heirs of Maya Makhija. The Chamber Summons is disposed of in these terms with no order as to costs.
10. There is a Chamber Summons (L) No. 1176 of 2018 filed by Madan Dembla, the Defendant in Suit No. 2286 of 2008, which ostensibly seeks to administer interrogatories. The Chamber Summons has been served. The schedule of interrogatories makes it clear that not a single one of these 14 interrogatories are relevant to the issues at hand. They seem to arise from and only from the 1st Plaintif's Evidence Affidavit. This is not the purpose of interrogatories. The Chamber Summons is dismissed. However, liberty is reserved to the Defendant to place these interrogatories as questions in cross-examination of the 1st Plaintif at the appropriate time.
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11. Liberty to apply.
(G. S. PATEL, J) Page 8 of 8 27th August 2018 ::: Uploaded on - 28/08/2018 ::: Downloaded on - 30/08/2018 21:49:30 :::