Madras High Court
Susila Ammal vs Indiraniammal on 10 February, 1999
Equivalent citations: 2000(4)CTC78
ORDER
1. The defendant is the appellant. The respondent filed a suit in O.S.No.329 of 1994 before the District Munsif Court, Nagapattinam, for recovery of possession of the suit properties on the following averments.
2. The suit properties along with other properties belonged to one Krishnammal. She executed a will under Ex.A.1 on 9.5.1952 bequeathing her properties to her sister Govindammal till her life time and after her life time the A, B and C schedule properties would respectively devolve on Rajamanickam Naidu, Packirisamy Naidu and Rajamani Ammal and their heirs. There was a further clause that the properties should not be alienated. In case Packirisamy Naidu died issueless, the properties bequeathed to him would revert to the heirs of the other two legatees. The appellant was the wife of Packirisamy and the respondent was the daughter of Rajamanickam, Packirisamy having died issueless on 16.10.1993, the appellant had not surrendered possession of the property bequeathed to Packirisamy to the respondent and other heirs. The suit was therefore necessitated.
3. The appellant resisted the suit contending Inter alia as follows:
The appellant was the only heir of Packirisamy Naidu o The Will made It clear that Packirisamy Naidu should enjoy the properties during his life time and thereafter his heirs should take them. Only thereafter the question of the heirs of Rajamanickam and Rajamani Ammal would arise. The suit was bad for non-joinder of necessary and proper parties. There was an oral arrangement as per which the legatees had to take the properties bequeathed to them absolutely and as such Rajamanickam sold away the properties given to him under the Will. Rajamani Ammal had leased out the properties given to her. In as much as Packirisamy also got absolute rights, he had also executed a Will on 4.10.1989 giving the properties he got under the Will to his sister's son Kuppusamy, as per the terms of which after the life time of the appellant. Kuppusamy would have to take the properties absolutely. Only in those circumstances, the appellant was in possession and enjoyment of the suit properties. The suit was liable to be dismissed.
4. The Trial Court framed the necessary issues and on an appreciation of oral and documentary evidence held that the appellant was in possession and enjoyment in her own right as the heir to Packirisamy Naidu and therefore, the suit was liable to be dismissed, as the possession of the appellant was legally valid. By its judgment and Decree dated 4.3.1996, the trial Court dismissed the suit. However, on appeal, the lower Appellate Court relied on the decision of this Court in Vadivel Mooppan v. Ramasami Goundan, 1984 (II) M.L.J. 1 and held that the suit was maintainable, that there was a distinction between the words 'varisu' and 'santati' and that the Will Ex. A-1 was very clear that the testatrix meant only the children born to the respective legatees and not the heirs. In the opinion of the Lower Appellate Court, the appellant was not a 'santati' o In that view, by its Judgment and Decree dated 6.2.1997 the Lower Appellate Court reversed the decision of the Trial Court, set aside the dismissal of the suit, allowed the appeal and decreed the suit as prayed for. Aggrieved, the present second appeal has been filed. At the time of admission, the following substantial questions of law were framed for decision in the second appeal "(I) Whether the interpretation of the material, document namely the Will of Krishnammal by the Lower Appellate Court is in accordance with law and is correct?
(2) Whether the non-impleading of the other heirs of the reversioner renders the suit defective?"
5. Mr.S.Sampathkumar, learned counsel appearing for the appellant submitted as follows:
There was no distinction in the context that the words 'varisu' and 'santati' mentioned in Ex.A-1 meant one and the same and the appellant was entitled to be in possession as heir to Packirisamy Naidu and the suit was liable to be dismissed. The recitals in Ex.A.1 will were incongrous and offended the rule against perpetuity as set out in Section- 114 of the Indian Succession Act, 1925.
6. Per contra, Mrs.Prabha Sridevan submitted that the concept of rule against perpetuity could not be brought in or imported into Ex.A-1 wherein the recitals were unambiguous and clear as to succession in the event of failure of any particular line of the legatees. Learned counsel also relied oh the provisions of Sections 87, 88 and 113 of the Indian Succession Act and also the decision of the Supreme Court in N.Krishnaammal v. R.Ekambaram, . The duty of the court is only to ascertain the intentions of the testator. The guide to interpret the Will is the Will itself and his intentions have to be ' gathered from the language of the Will. Bower v. Louis, 1884 (9) AC 890.
8. In Subbaryar v. Subbammal, 27 IA 162 : 24 Mad. 214 Lord Macnagten observed that the language of one instrument does not afford much assistance in the construction of another.
9. In Kasturi v. Ponnammal, the Supreme Court observed as follows:
"In dealing with the principle that intestacy should be avoided Mukerji, J said Gnambal v. T.Raju Iyer, , that the desire to avoid Intestacy was based on English habits of thought which should not necessarily bind an Indian Court. Therefore, there can be little doubt that what Mr. Visvanatha Sastry formulates as a rule of construction against the avoidance of intestacy cannot be treated as an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy, while the other involves intestacy, the court would certainly be justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly in regard to the rule that vesting should not be postponed the position is exactly the same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together. In construing a will it is generally not profitable or useful to refer to the construction of the other wills because the construction of each will must necessarily depend upon the terms used by the will considered as a whole and the result which follows as a fair and reasonable construction of the said words must vary from will to will. Therefore we must look at the relevant clauses carefully and decide which of the two rival construction should be accepted"
10 . It has been held in Narayana v. Arumugathammal, that the proper approach in cases of this kind must, therefore, be to form an opinion about the construction of the will apart from the decided cases and then to see whether those decisions require any modification of that opinion; not to begin by considering how far the will in question resembles other wills upon which decisions have been given.
11. Rules of construction are rules designed to assist in ascertaining intention, and the applicability of any such rules depends upon the habits of thought and mode of expression prevalent among those to whose language they are applied
12. To appreciate the facts in proper light, it would be useful to have a genealogy which is as under"
Srinivasanaidu |
----------------------------------------
| | |
Seethalakshmi Govindammal Krishnammal
|
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| | | |
Rajamanickam Packirisamy Rajamani Backiam
(son) (son) (daughter) (daughter)
| |
| |
Indrani Susila
(daughter) (wife)
(plaintiff) (defendant)
It would be also worthwhile to refer to the relevant portion in the Will Ex.A-1.
The material portion which Mr.SampathKumar, learned counsel for the appellant stresses In Ex.A-1 is as follows:
From this we are asked to Infer that there was a total restraint on alienation which would bring in the rule against perpetituty and the whole will should go and when once the Will is held to be invalid, then having regard to the recitals contained earlier that the testatrix had got properties from her father, by virtue of the provisions of Section 15 of the Hindu Succession Act, the properties should go to the father's heirs.
13. The learned counsel for the contesting respondent has relied on the provisions of Sections 87, 88 and 113 of the Indian Succession Act. 1925. Let us examine how far those sections are relevant for the purpose of the present discussion.
Section- 87 runs as follows;
"Sec- 87: Testator's intention to be effectuated as far as possible;-, The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.
ILLUSTRATION;
The testator by a Will made on his death-bed bequeathed all his property to CD for life and after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent, because the gift to the hospital is void under Sec. 118 but it will take effect so far as regards the gift to CD."
14. As stated in Section 87 of the Indian Succession Act, if the testators intention cannot operate to its full extent it shall atleast take effect to the extent possible"
15. This is a rule of commonsense and justice. It often happens that an entire will or an entire provision therein could not be given effect to. A portion of the Will may be void for uncertainity or as offending any rule of law or of public policy. Still the rest of the Will could be easily separated from the void portion without violating the intentions of the testator. In those circumstances, the portion not objectionable may be given effect to.
16. In Tagore v. Tagore, 1874 (1) IA 307 18 WR 359 (PC)) the devise was to A for life, remainder to his eldest son for life, then to the eldest son of the eldest son for life and so on. It was held that it could not be given effect in full, as the remaining provisions were unknown to Hindu Law and were bad. The life interest to A was upheld.
17. Sec- 88 runs as follows:
"Sec- 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."
ILLUSTRATION "(i) The testator by the first clause of his Will leaves his estate of' Ramnagar "to A", and by the last clause of his Will leaves it "to B" and "not to A" B will have it.
(ii) If a man at the commencement of his Will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for benefit of B, the latter' disposition will prevail."
This section, in my view, will not apply to the facts of the present case as there are no two irreconcilable clauses in the subject Will.
18. Let us see Sec. 113, which runs as follows:
"Section 113:- Bequest to person not in existence at testator's death subject to prior bequest:-
Where a bequest is made to a person not In existence at the lime of the testator's death, subject to a prior bequest contained in the Will, -the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed,"
19. What the testatrix in the present case has said is
20.The recitals cover all the second set of legatees at a single stroke. What they say is that the legatees and their heirs have to take the respective properties and enjoy them and they are not to create any encumbrance like Othi, mortgage, sale, charge at any point of time. They are given only a right to enjoyments. As already pointed out no successive life interests are created, so far as the second line is concerned
21. In G.Narayanan v. R. N. Rajagopalan, the testator bequeathed the property which was the subject matter of the dispute, in Favour of his grandson, one G, the legatee and his heirs, to be enjoyed by them from generation to generation 'without any power of alienation with a direction that they should feed Brahmins on a particular ' day. Two sons were born in 1945 and 1947. There was alienation, and partition of suit properties in 1950. 'Sons of 'G' filed a suit for declaration that their ' father 'G' was entitled to a life estate and the 'various alienations would not hold good beyond the life time of 'G'. It was held by the learned Judge that 'G'. who was alive at the testator's death in 1928 was conferred only life estate, which was valid and the subsequent life estates in favour of his sons void. Creation of successive life interests in not permissible in law and therefore the sons of 'G' took the remainder absolutely free from the restrictions imposed on the nature of the estate .
22. Having regard to the specific recitals contained in the Will under scrutiny before him the learned Judge held that there could not be successive life interests and what the remainder people took was an absolute estate.
22 (a). The nearest provision of law applicable to the present case would be Sec. 97 of the Indian Succession Act 1925 which runs as follows:
" Sec 97: Effect of words describing a class added to bequest to person: -
where property is bequeathed to a person and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift such person is entitled to the whole interest of the testator therein, unless a contrary intention appear by the Will."
ILLUSTRATIONS "(i) A bequest is made -
to A and his children.
to A and his children by his present wife, to A and his heirs to A and the heirs of his body, to A and the heirs male of his body, to A and the heirs female of his body, to A and his issue, to A and his family, to A and his descendants to A and his representatives, to A and his personal representatives, to A, his executors and administrators.
In each of these cases, A takes the whole interest which the testator had in the property.
(ii) A bequest is made to A and his brothers, A and his brothers are jointly entitled to the legacy,
(iii) A bequest is made to A for life and after his death to his issue. At the death of A the property belongs in equal shares to all persons who then answer the description of issue of A,
23. Though Sec. 97 of the Act is not expressly stated to apply directly to Hindu Wills it lays down a general principle of interpretation which could be equally applied to a will by a Hindu. As has been pointed out in Lalitha Kumari v. Raja of Vizianagaram, the principles laid down in the Succession Act are all of them based on common sense, logic and a spirit of beneficient construction,
24. In Administrator of Madras v. Money, 15 Mad. 448 a testator executed a Will bequething some properties to the legatees and added that 'the same shall be inherited by any child or children'. It was held that this was In effect a gift to the legatees and their children as heirs. It was a bequest to a person with the addition of words which describe a class of persons but do not denote them as direct objects of a distinct and Independent gift and by operation of the principle of sec 97 of the Indian Succession Act, 1925 the legatee took the entire interest of the testator therein.
25. In Agnes Harriet v. Murray, AIR 1925 Oudh 24 and Dadabhai v. Cowasji, AIR 1923 Bom. 177 it was held that a bequest to certain legatees and their children from generation to generation conferred absolute interest on the legatees.
26. I have already referred to the terms of the Will and having regard to the fact that there could not be tying up of the property for eternity. It must be held that after the life estate in favour of Govindammal the legatees following took the properties absolutely and the legatees themselves had understood the terms of the Will only in such a way as would be evident from their dealing with the properties as absolute owners, which aspect has already been referred to.
27. The learned counsel for the- respondent pointed out that the testatrix was fully conscious of which file was doing and that she had clearly drawn a distinction between 'Varisu' and 'Santati' and when she referred to varisu of Packirisamy Naidu, She meant only Packirisamy Naidu's children and not his wife the appellant herein. In view of what has already been stated as regards Ex A-1, it would not be necessary to give a finding as to whether 'Varisu' and santati' in the context in which they had been used in Ex.A-1 would mean one and the same. In Sivaprakasam Pillai v. Sadasivam and others, 1997 (1) L.W. 738 M.Srinivasan, J., as the learned Judge then was, hold, no doubt having regard to the facts of that case that Santati' used in the trust deed in that case included the wife of the legatee also.
28. The first substantial question of law is answered in favour of the appellant. It is unnecessary to answer the second substantial question of law. The second appeal will stand allowed. The judgment and the decree of the lower appellate court are set aside and those of the trial court restored. No costs.