Madras High Court
Ratnasami Pillai vs Kathija Bivi Ammal on 26 April, 1950
Equivalent citations: (1950)2MLJ496
JUDGMENT Somasundaram, J.
1. The plaintiff is the appellant in the above second appeal. The question involved in the appeal is one of construction of the will, Ex. P-1, in the case. It was executed by one Vithilingam Pillai on 5th May, 1915. The donee under the will was his daughter, Kathayi, and the plaintiff is the grandson of the said Kathayi. The will, after setting out the properties he had and the debts, proceeds to state as follows:
It may be mentioned here that the testator signed the will on the first page which ends with the portion relating to description of properties, and after the signature of the testator, the following recital:
If there be any debt after my lifetime Kathayi shall sell the land only for the discharge of that debt and she should not alienate the same for any other purpose was added. Similarly, the recital already mentioned, viz.:
my daughter Kathayi shall get these properties after my lifetime with absolute rights. After her lifetime her grandsoh Ratnaswami shall get the properties, was added on the next page after the will was signed and attested. The question now is what was the estate that was conferred on Kathayi, whether it was only a life estate or an absolute one. Both the Courts below have held that it was an absolute estate that was conferred on Kathayi and dismissed the plaintiff's suit.
3. It is a well settled principle that in the matter of construction of a will, the will of one testator cannot be construed by reference to that of another. As observed by Joyce, J., in Sanford v. Sanford (1901) 1 Ch. 939, the true way to construe a will is to form an opinion apart from the decided cases and then to see whether these decisions require any modification of that opinion; nor to begin by considering how far the will in question resembles other wills upon which decision has been given.
4. As pointed out by Venkataramana Rao, J., in Ananthasayanam Naidu v. Kondappa Naidu (1940) 1 M.L.J. 212 at 215:
It is better to remember the rule so often laid down that each will must be construed by itself and all the light that can be got from the decisions serves only to show in what manner the principle of reasonable construction have by Judges of high authority been applied to cases more or less similar--vide the observations of Lord Charcellor Selborne in Waite v. Littlewood (1872) 8 Ch. Ap. 70 at 73. Therefore without reference to cases it is the duty of the Court to ascertain what is the expressed intention of the testator and whether there is anything in law to preclude effect being given to the said intention. The intention has to be collected from the words used in the will having regard to the (acts and circumstances respecting persons to which the will relates.
It has also been held by the Privy Council in Raghunath Prasad Singh v. The Deputy Commissioner, Partabgark (1929) 58 M.L.J. 1 : L.R. 56 I.A. 372 I.L.R. 4 Luck. 483 (P.C.):
Attempts on the part of the testator in India to restrict devolution of properties which he bequeaths to a legatee absolutely and to prevent alienations of such properties are quite common, and wills containing such provisions have often come up for decision before the Board. The question for determination has always been whether there are dispositive words creating an estate of inheritance, in the first instance; and if so, whether the subsequent restrictive clauses are sufficient to displace the effect of such dispositive words or whether such subsequent clauses are merely repugnant to the absolute estate.
Their Lordships quote the following observations of the Board in Mussammat Sasiman Chowdhurain v. Shibnarain Chowdry (1922) 42 M.L.J. 492 : L.R. 49 I.A. 25 : I.L.R. 1 Pat. 305 (P.C.):
It is always dangerous to construe 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.
5. As regards the recital that after her lifetime, her grandson should get the properties, it is at best a provision for devolution of the property after her death and is not intended to limit the character of the estate given by the earlier bequest in favour of his daughter. On a reading of the will as a whole I hold that the intention of the testator was to give an absolute estate to his daughter and the recital regarding the restriction on alienation is invalid and it does not cut the absolute estate given to her earlier.
6. From the facts set out in the judgments of the Courts below it is clear that the appellant participated in transactions with regard to the property involved in the suit and an issue was raised whether the plaintiff was estopped from claiming this property. The first Court held against the defendant that there was no estoppel and the respondent argued the point before me. But in the view I have taken, I consider it unnecessary to deal with that question.
7. I agree with the conclusions arrived at by the Courts below and dismiss the second appeal with costs.