Punjab-Haryana High Court
Balbir Singh Wasu vs General Public And Others on 1 August, 2008
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL REVISION NO.1839 OF 2008 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 01 , 2008
Balbir Singh Wasu
.....Petitioner
VERSUS
General Public and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. J. S. Wasu, Advocate,
for the petitioner.
Mr. Puneet Jindal, advocate &
Mr. Jaswinder Singh, Advocate,
for the respondents.
****
RANJIT SINGH, J.
This order will dispose of Civil Revision Nos.1839 and 1840 of 2008 (Balbir Singh Wasu Vs. General Public and others). The order under challenge in the revision petition is dated 10.3.2008 passed by Additional District Judge, Chandigarh, whereby he has declared respondent No.2 as Executor of the will with the further direction to implead her as petitioner in the probate case. This is alleged to be in violation of the provisions contained in Section 222 of the Indian Succession Act, 1925 (for short, "the Act") and also the CIVIL REVISION NO.1839 OF 2008 :{ 2 }:
law laid down in the case of Ram Gopal Vs. Nand Lal, AIR 1951 Supreme Court 139.
The order impugned and referred to above is filed in a Probate Case No.2 of 1993 filed by Lakhbir Singh Wasu, since deceased. Petitioner, Balbir Singh Wasu is the eldest surviving son of late Harnam Singh Wasu, a counsel of this Court. Late Lakbir Singh Wasu was the younger son of the testator, Harnam Singh Wasu. The Probate Case titled Lakhbir Singh Vs. General Public was pending but was later ordered to be clubbed with Civil Suit No.179 of 26.5.1993, which was filed by the petitioner in his capacity as the elder son of the testator. Both the cases were ordered to be clubbed under the orders of Hon'ble Supreme Court and were transferred to the Court of District Judge, Chandigarh, to be tried together.
Lakhbir Singh expired on 21.12.2007 during the pendency of the probate case. Upon his death, two applications were filed before the Trial Court, one by his widow, Malwinder Kaur for being brought on record as the executor of the will/petitioner in the probate case. Another application was filed by the petitioner for dismissal of the probate case in view of specific bar contain in Section 222 of the Act. The plea of the petitioner is that the probate case filed by late Lakhbir Singh Wasu would not survive in view of the bar contained in Section 222 of the Act. The case set up by the petitioner is that Late Lakhbir Singh Wasu was appointed as the executor of the will and hence none else can be appointed as executor of the will at this point of time.
This plea, however, is countered by the respondent-
CIVIL REVISION NO.1839 OF 2008 :{ 3 }:
Malwinder Kaur widow of Lakhbir Singh Wasu. It is urged that Malwinder Kaur was expressly appointed as Executor of the will and even if it is held to be not so, then also she clearly was so appointed by necessary implication.
Both these applications were taken up for hearing by the learned Trial Court. The Court allowed the application filed by Malwinder Kaur by holding that she was appointed as Executor of the will by implication and dismissed the application filed by the petitioner for dismissal of the probate case. That is how, the two revision petitions have been filed to challenge the common order passed in these separate applications filed by the petitioner and Malwinder Kaur.
Mr.J.S.Wasu, appearing for the petitioner, in both the revision petitions, would refer to the relevant part of the will, to urge that respondent Malwinder Kaur by no stretch of imagination can be taken to have been appointed as Executor of the will in view of the clear intention expressed by the testator to appoint Lakhbir Singh as the Executor. The counsel has referred to Para 14 of the will dated 5.7.1992 and this reads as under:-
"I hereby appoint Lakhbir Singh Wasu Advocate, my youngest son, as the executor of this WILL and he will be entitled to meet all the legitimate expenses incurred in implementation and in the execution of this WILL out of my assets as in main Para 7 above. God forbid, if Lakhbir Singh is no more at the time of my death, his wife Malwinder Kaur will act as executor of the Will."
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Mr.J.S.Wasu would highlight part of the contents of Para 14 of the will starting from `God forbid, if Lakhbir Singh is no more at the time of my death, his wife Malwinder Kaur will act as executor of the Will' to say that the intention is clearly made out to appoint Lakhbir Singh Wasu as the Executor of the will. He would then highlight the fact that Malwinder Kaur could act as an Executor of the will only in a situation if Lakhbir Singh was no more alive at the time of the death of testator. The counsel would then refer to the date of death of Lakhbir Singh Wasu to say that he was alive when the testator died and as such, the situation which was visualized by the testator to appoint Malwinder as Executor of the will would not arise in this case. He then relies on the provisions of Section 222 of the Act to say that probate can only be granted to an executor appointed by the will. Malwinder Kaur could have taken over as executor of the will only if Lakhbir Singh had died prior to the death of the testator and hence, it can not be said that she is appointed as executor of the will by implication.
There is not much dispute that as per Para 14 of the will, Lakhbir Singh Wasu, the youngest son of the testator, was appointed as Executor of the will and was also held entitled to all the legitimate expenses incurred in implementation and in execution of the will out of the assets of the testator. However an alternative arrangement is mentioned in this para in case Lakhbir Singh Wasu is no more on the scene. Restricting this only to one eventuality which could lead to appointment of Malwinder Kaur as Executor of the will and that is if Lakhbir Singh Wasu has pre-deceased the testator, the counsel CIVIL REVISION NO.1839 OF 2008 :{ 5 }:
would say that the action of the Court in appointing Malwinder Kaur as Executor of the will by implication can not be sustained. The learned counsel would further say that the contents of the document are certain and not ambiguous in any manner and so should be given its literal meaning. He would refer to the observations made in M/s Bay Berry Apartments Pvt. Ltd. & Anr. Vs. Shobha & Ors., AIR 2007 Supreme Court 226 to say that when a document is not uncertain or does not contain an ambiguous expression, it should be given its literal meaning. It is further observed in this case that only when the contents are not clear, the question of taking recourse to the application of principles of construction of a document may have to be applied. Reference is also made to observations made in the case of Veerattalingam and others Vs. Ramesh and others, AIR 1990 Supreme Court 2201. The Hon'ble Supreme Court has observed that a Court while constructing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document and that while doing so the surrounded circumstances, the position of the testator, his family relationship and the probabilities that he used, the words in a particular sense also must be taken into count as they lend a valuable aid in arriving at the correct construction of the will. It is further observed that since these considerations are changing from person to person, it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases, the disputed will approximates closely. Recourse to precedents, therefore, should be CIVIL REVISION NO.1839 OF 2008 :{ 6 }:
confined for the purpose of general principle of construction only, which, by now, are well settled. In this regard, reference has also been made to Ram Gopal's case (supra). It is observed in this case 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 words, which have actually been employed.
During the course of arguments, learned counsel has also highlighted the illustration under this Section to make good his submissions.
On the other hand, Mr.Puneet Jindal would urge that the wording of the will is very clear and Malwinder Kaur was definitely appointed as Executor of the will in case Lakhbir Singh Wasu was no more in this world. According to the counsel, this is the intention of the testator and the same is clearly made out or can be inferred from the surrounding circumstances by perusing the entire will. The counsel has made reference to Gnambal Ammal Vs. T.Raju Ayyar and others, AIR (38) 1951 Supreme Court 103. He has also drawn my attention to Treatise on the Law of Executors and Administrators by the Right Hon'ble Sir Edward Vaughan Williams, in support of his contention, especially in regard to manner of construing the contents of the will.
There does not seem to be any ambiguity or dispute that probate can be granted to an executor appointed by the will and that such appointment may be expressed or by necessary implication. There CIVIL REVISION NO.1839 OF 2008 :{ 7 }:
is further no dispute that late Lakhbir Singh was appointed as Executor of the will. The counsel for the petitioner can also not dispute that the testator had in mind to appoint Malwinder Kaur as an Executor of the will but on happening of an event i.e. the death of Lakhbir Singh Wasu. According to the counsel for the petitioner, Malwinder Kaur could be appointed as executor of the will only in the event of Lakhbir Singh Wasu having pre-deceased the testator. His submission is that the language of the will is clear and hence, there is no need for any interpretation of the words used to assign any different meaning or that there is no need to look for intention from the wording of the will. On the other hand, learned counsel for the respondent would say that the intention of the testator is clear to appoint Malwinder Kaur as executor in the event of the death of Lakhbir Singh who was appointed as an Executor of the will.
There is no need to stretch the debate much. There is no dispute that the executor could be specifically appointed or it could be by necessary implication. To my mind, Malwinder Kaur seems to have been appointed as an executor of a will in express terms and was to so take over as an executor on the death of Lakhbir Singh Wasu. The intention of the testator gathered from surrounding circumstances appears to be to appoint Malwinder Kaur as executor of the will in case Lakhbir Singh was no more available on the scene on account of his death. No meaningful purpose can be assigned to the line of submissions made by learned counsel for the petitioner when he says that such an intention was only to make Malwinder Kaur as executor of the will if Lakhbir Singh had pre-deceased the CIVIL REVISION NO.1839 OF 2008 :{ 8 }:
testator. It may be a worth consideration that if Lakhbir Singh had in fact died during life time of Testator, he even would have been available to change the will, what to talk of executor. The testator had recorded his intention by expressing his clear intention, when he says that God forbid if Lakhbir Singh Wasu is no more then his wife Malwinder Kaur would act as executor of the will. The words at the time of my death would not convey this intention that Malwinder Kaur was to act as an executor only if Lakhbir Singh had pre-deceased the testator. In that eventuality the testator would have otherwise handled. The intention of the testator as can be gathered is to appoint Malwinder Kaur as executor of the will in the event of the death of Lakhbir Singh.
The judgments relied upon by counsel for the petitioner really would not strictly apply to the facts of the case. As per Veerattalingam's case (supra), it is held that the Court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing, the surrounding circumstances, the position of the testator, his family relationship and probabilities that he used the words in a particular sense can also be taken into account. Even in the case of Ram Gopal, (supra), the Court had only emphasized the fundamental rule to ascertain the intention from the words used and for taking into consideration the surrounding circumstances for the purpose of finding out intended meaning of words. The observations referred to and relied upon by counsel for the petitioner in the case of M/s Bay Berry Apartments Pvt. Ltd.
CIVIL REVISION NO.1839 OF 2008 :{ 9 }:
(supra) apparently does not seem to be applicable as there is no ambiguity in the expression or no word is to be assigned any meaning other than the literal meaning. In fact, the observations made in the case of Gnambal Ammal (supra) may sound relevant for deciding the issue. It is held that the cardinal maxim to be observed by the Courts in construing a will is to endevour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will, the Courts are entitled and bound to bear in mind other matters than merely the words used.
They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure. `The court is entitled to put itself into the testator's armchair.' Reference here may also be made to the relevant part of Chapter 2 regarding the appointment of executor or by what words the executor may be appointed in the Book titled `A treatise on the law of Executors and Administrators'. While dealing with the subject of substituting executor, it is observed that where testator appoints as executor and provide that in case of his death another should be substituted, on the death of the original executor, although he has proved the will, the executor so substituted may be admitted to the office, if it appears to have been the testator's intention that the substitution CIVIL REVISION NO.1839 OF 2008 :{ 10 }:
should take place on the death of the original executor, whether happening in the testator's lifetime or afterwards. Reference is also made to the case in the goods of Foster, L.R. 2 P. & D. 304, where the deceased appointed his wife as sole executrix and in her default, he appointed two nephews as executors. Lord Penzance had held that on death of the wife, who had taken probate, the two nephews were entitled to a grant of probate as substituted executors. His Lordship said that it was a question of construction as to what the testator meant and whether the substitution was to take place only in the event of the wife not acting at all, or as had happened, in the case of her death after taking probate; that the Court would endevour rather to carry out the real object of the testator; and that he thought it reasonable to hold that the testator intended that his wife should administer as long as she could, and that in the event of her death, either before or after taking probate, he substituted other persons. Grant was made to two nephews accordingly.
The intention as can be gathered from the words and contents of the will appear to be that the testator wanted Malwinder Kaur to act as executor in the event of death of Lakhbir Singh and in that regard he could not have entertained this intention to appoint Malwinder Kaur as executor only if Lakhbir Singh Wasu had pre- deceased him. In Para 7(vi), the testator has mentioned that after his death, it will be for Lakhbir Singh or Malvinder Kaur to permit Seh Dev Mali, who was living in 15, Sector 9, Chandigarh to continue residing in the house or not. Thus, the intention to appoint Smt.Malvinder Kaur or to act as executor can be gathered from these CIVIL REVISION NO.1839 OF 2008 :{ 11 }:
recitals in the will. Sub Clause (VII) the intention of testator is clear that he wanted Malvinder Kaur to act as executor in the absence of Lakhbir Singh. Even the illustration under Section 222 of the Act highlighted by counsel for the petitioner would lend support to the contention of counsel for the respondents. Intention to appoint Malwinder Kaur as Executor of the will by implication is clearly not made out and she was to so act in the event of death of Lakhbir Singh. His pre-deceasing the testator is not an essential condition which can be inferred from the wording to say that she could act as executor only if Lakhbir Singh had pre-deceased the testator. It can reasonably be construed that the testator meant to substitute Malwinder Kaur as executor in the event of death of his son as he has very aptly described by words `if God forbid Lakhbir Singh is no more', then Malwinder Kaur is to act as executor. The words are not required to be construed in a technical spirit but is to see what was the real object of the testator. It can reasonably be assumed that testator has intended his son Lakhbir Singh to act as executor as long as he could and in the event of his death he substituted Malwinder Kaur as an executor. The action of the Trial Court in dismissing the application of the petitioner and allowing the prayer made on behalf of the respondents, thus, is sound and reasonable.
Both the revision petitions, thus, deserves to be dismissed and it is so ordered.
August 01,2008 ( RANJIT SINGH ) khurmi JUDGE