Supreme Court of India
SHYAMAL KANTI GUHA (D) THROUGH LRS & ORS.versusMEENA BOSE
- Citation
- 2008 INSC 665
- Decided
- 14 May 2008
- Disposal
- Case Partly allowed
- Bench
- S B SINHA
Holding
The testator intended only a life interest for the sister; therefore her bequest is not absolute and the suit for partition is maintainable subject to that limitation.
Summary
The case concerned the construction of a 1985 Will of Hillol Kanti Guha, who bequeathed his dwelling house in equal shares to his brother Shyamalkanti Guha and sister Meena Bose, with a clause that the brother could occupy the premises absolutely after the sister's death. The sister filed a suit for partition seeking a declaration of title to 50% of the property, asserting that the bequest to her was absolute. The trial court and the Calcutta High Court held that the bequest was absolute, but on appeal the Supreme Court examined the language of clauses 6, 10 and 11, the meaning of "occupy" and the testator's intention. The Court concluded that the testator intended only a life interest for the sister, with the brother's absolute right to occupy after her death, and that a partition suit could proceed subject to that limitation. Accordingly, the appeal was partly allowed, declaring the sister's interest to be a life interest and the suit for partition maintainable on that basis.
Issues considered
- The nature of the sister's interest under clause 6 of the Will: absolute or life interest?
- Whether clauses 6, 10 and 11 of the Will can be reconciled or are inconsistent.
- The applicability of Section 88 of the Indian Succession Act in case of inconsistent provisions.
- The relevance of Section 119 of the Indian Succession Act to postponement of vesting of legacy.
- Whether a suit for partition is maintainable when the claimant's interest is limited to a life estate.
Legislation cited
- Indian Succession Act, 1925s. 119, s. 88
Subjects
Will constructionlife interestabsolute interestpartition suitIndian Succession ActSection 88Section 119interpretation of occupybequeathdevise
Judgment
[2008] 8 S.C.R. 639
,A
SHYAMAL KANT! GUHA (D) THROUGH LRS & ORS. A
V.
MEENA BOSE
(Civil Appeal No.3571 Of 2008)
MAY 14, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]
Will:
.... Interpretation of - Suit for partition filed by sister of the
testator for declaration of title in respect of 50% of the property c
in question and for partition - Construing the Will particularly
clauses (10) and (11) thereof, Courts below held that bequeath
in favour of Respondent-plaintiff (the sister) was absolute and .
thus the suit should be decreed - On appeal, held: The testa-
tor was of the opinion that the life interest should only be ere- D
ated in favour of his sister-respondent - This, however, would
not mean that the suit for partition was not maintainable - A
suit for partition could be maintainable subject, of course, to
the declaration that the interest of the Respondent-plaintiff is
confined to life interest only - Indian Succession Act, 1925 - E
s.119.
Inconsistency between two parts of the Will - Held: The
I..
last part shall prevail, but, once it is possible to give effect to
~ both the parts which although apparently appears to be irrec-
oncilable, the Court should take recourse thereto - Indian Sue- F
cession Act, 1925 - s. 88.
Words and Phrases - "bequeath", "devise" and "occupy"
- Meaning of - Discussed.
The right, title and interest of the parties to the suit in G
question arise out of a Will. The properties involved in the
suit belonged to the testator. The parties hereto are a
brother, sister and the heirs and legal representatives of
the testator. A suit for partition was filed by the sister of
639 H
640 SUPREME COURT REPORTS [2008] 8 S.C.R.
A the testator for declaration of title in respect of 50% of the
property in question and for partition.·
Construing the Will particularly clauses (10) and (11)
thereof, the Courts below held that bequeath in favour of
the respondent-plaintiff (the sister) was absolute and thus
B the suit should be decreed.
·~
In appeal to this Court, it was contended by the ap-
pellant thatthe intention of the testator was to confer only
a life interest upon the plaintiff - respondent. It was urged
c that the very fact that in the event of the death of the sis-
ter, the appellant's predecessor-in-title (the brother) was
to occupy the said premises absolutely and furthermore
in view of the fact that clause (10) applied only in the event
that both the brothers or the sister died during his life time,
the question of the sister's acquiring a permanent inter-
D
est in the suit property did not and could not arise.
Respondent, however, submitted that the words
'give, bequeath and devise' on the one hand and the word
'occupy' on the other, ought to be assigned different mean-
E ings and so done the bequeath under the Will in her favour
must be held to be absolute.
Partly allowing the appeal, the Court
HE:L0:1.1. Although construction of clause (6) of the
F Will is in question, indisputably the said clause for the
purpose of ascertaining the intention of the testator must
be interpreted having regard to other terms of the said
Will. A bare perusal of the entire Will goes to show that
the testator was aware of the nature of the bequest. He
wanted to give much more to his brother than others.
G
[Para 4] [646-B,C]
1.2. Intentionally different words like 'give', 'bequeath'
and 'devise' had been used in all the relevant clauses,
namely, clauses (6) to (11). Even the word 'absolutely' has
H been freely used. The testator envisioned two situations.
SHYAMAL KANT! GUHA & ORS. v. MEENA 641
BOSE
Death of his sister-Respondent and his own death. Given A
a plain meaning; whereas clause (6) was to apply in the
case of Respondent, clause (10) applied if he expired.
Clause (10)cannot be read in isolation. It must be read
subject to the other terms contained in clauses (6) to (9)
as the words 'as per above terms' have been used therein. B
[Para 5) [646-C,D,E]
1.3. A Will should be construed by a Court indisputably
placing itself on the arm-chair of the testator. The endeav-
our of the Court should be to give effect to his intention.
The intention of the testator can be culled out not only upon C
reading the Will in its entirety, but also the background facts
and circumstances of the case. [Para 6) [646-G,H, 647-A]
1.4. In the present case, both the Courts below pro-
ceeded on the basis that the word 'occupy' would mean
0
physical possession only. 'Occupy' sometimes indicates
legal possession in the technical sense; at other times
mere physical presence at a place for a substantial pe-
riod of time. Ordinarily, the word 'occupy' does not de-
note 'vest'. [Paras 8, 9) [649-C,D]
E
1.5. In the context of the construction of Will, how-
ever, the meaning of the word as defined in dictionary may
not be insisted upon. If the construction of the Will as
advanced by the Trial Judge as also the High Court,
namely, reading of clauses (6) and (10) together is correct F
then after the death of 'S' (Appellant's predecessor-in-title),
his heirs and legal representatives inherited their father's
right so far as the dwelling house is concerned. Thus,
they have a right to occupy the premises in question af-
ter the death of Respondent. If the intention of the testa- G
tor was that heirs and legal representatives of 'S' would
have no right in respect of the 50% of the share of Re-
spondent, it could have been stated expressly. If clauses
(6) and (10) are to be construed together, it would take
into account not only the death of Respondent during the H
642 SUPREME COURT REPORTS [2008] 8 S.C.R.
A lifetime of 'S' but also any of them. Indisputably, the heirs
and legal representatives of 'S' would have a right to oc-
cupy the premises after the death of Respondent. But,
clause (10) would apply in the event, brothers and sisters
or both of them died during the testator's lifetime. The
B word 'then' plays an important role. It, therefore, does riot
take into consideration any other contingency. Even if
that be so, clause (10) of the Will was to be subject to
clause (6) as the words 'as per above terms' have been
used. But then the testator did not intend to give the dwell-
C ing house in terms of clause (6) to a third party. Evidently,
the brothers and sister were residing in the said house.
They were given equal shares. But the share bequeathed
to Respondent was given as after her demise, the brother
was entitled to occupy the entire premises. The meaning
of the. word 'occupy' should not be read in isolation. The
0
right to occupy is the subject matter of devise. It must be
read with the word 'ab~olutely'. Right to occupy as a lim-
ited owner and a right to occupy absolutely could not have
different meanings. The heirs and legal representatives
of 'S' and Respondent were to get the interest in the dwell-
E ing house absolutely. •f the intention e>f the testator was
otherwise, the question of 'S' occupying the said premises
after the demise of his sister would not have specifically
been mentioned. [Para 9) [649-E-H, 650-A-E]
F 1.6. If this Court is to put itself into the testator's arm-
chair to ascertain his intention from the words used in
the Will; it must take into consideration the surrounding
circumstances, the position of the testator, his family re-
lationships, and attach importance to isolated expres-
G sions so as to give effect to all the clauses in the Will rather
than making some of it inoperative. [P.ara 10] [655-A,B]
Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer
(1953) SCR 232; Ra,machandra Shenoy & anr v. Mrs. Hilda
Brite & Ors. (1964) 2 SCR 722; Navneet Lal alias Rangi v.
H Gokul & ors. (1976) 1 SCC 630; Bajrang Factory Ltd. & Anr v.
SHYAMAL KANTI GUHA & ORS. v. MEENA 643
BOSE [S.B. SINHA, J.]
University of Calcutta & ors., (2007) 7 SCALE 496 and Anil A
Kak v. Kumari Sharda Raje 2008(6) SCALE 597 - relied on.
Advanced Law Lexicon by P Ramanatha Aiyar, 3rd Edn.
2005 and Black's Law Dictionary, 5th Edition - referred to.
2. There cannot be any doubt whatsoever that in the B
event of inconsistency between two parts in the Will, the last
shall prevail having regard to s.88 of the Indian Succession
Act, but, once it is possible to give effect to both the clauses
which although apparently appears to be irreconcilable, the
Court should take recourse thereto. [Para 1OJ [655-D,EJ c
3. S.119 of the Indian Succession Act also speaks
about postponement of the date of vesting of legacy when
one of the brothers after the death of his sister became
entitled to possess a dwelling house absolutely. The tes-
tator was of the opinion that the life interest should only D
be created in favour of his sister-respondent. This, how-
ever, would not mean that the suit for partition was not
maintainable. A suit for partition could be maintainable
subject, of course, to the declaration that the interest of
the respondent - plaintiff is confined to life interest only. E
[Para 1OJ [655-F,G, 656-AJ
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3571
of 2008
From the final Judgment and Order dated 13.11.2006 of F
the Hig_h Court of Calcutta in P.A. No. 155 of 2002
Dushyant Dave, Shibshankar Sarkar, Pradyot Kumar
Chakravarty for the Appellants.
Dharmendra Kumar Sinha for the Respondent. G
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. Interpretation of a Will executed by one Hillol Kanti Gu ha
is in question in this appeal which arises out of a judgment and H
644 SUPREME COURT REPORTS [2008] 8 S.C.R.
A order dated 13.11.2006 passed by a Division Bench of the
Calcutta High Court in First Appeal No. 155 of 2002 affirming a
judgment and order dated 24.5.2001 passed by Civil Judge
Senior Division, Alipore in Title Suit No. 57 of2000. The prop-
erties in suit belonged to the testator. The parties hereto are a
B brother, sister and the heirs and legal representatives of the
testator. A suit for partition was filed by Meena, the sister of the
testator for declaration of title in respect of 50% of the property
·~
in question and for partition. The right, title and interest of the
parties to the suit indisputably arise for the Will in question.
C The said Will was executed by Hillol Kanti Guha on
3.4.1985. Hillol Kanti Guha was a bachelor. He had two broth-
ers; Shyamal Kanti Guha and Ujjal Kanti Ciuha and one sister
Smt. Meena Bose, the original plaintiff. He was owner of a
dwelling house No. 5/1 A, Moore Avenue, Calcutta-40. He had
D also a bank account as well as shares in·the Company.
Shyamal Kanti Guha died during the pendency of the ap-
peal in the High Court. His heirs and legal representatives had
been brought on record in his place.
E For the sake of convenience, we heretobelow re-produce
the relevant clauses of the Will, being:
"6. Subject as aforesaid, I give, bequeath and devise my
50% dwelling house of No. 5/1A, Moor Avenue, Calcutta
to my brother Sri Shyamal Kanti Guha and 50% to my
F sister Mrs. Meena Bose and after her demise the said
brother is entitled to occupy the said premises absolutely.
7. I give, bequest and devise, my fixed deposit A/c in my
Bank or banks to my brother Mr: Shyamal Kanti Guha
50% and to my other brother Mr. Ujjal Kanti Guha 25%
G
and also to my nephew Sri Jaydeep Basu 25% in total
account absolutely.
8. I also give bequeath and devise my company's shares
in my any company to my brother Mr. Shyamal Kanti Guha
H 50% and to my sister Meena Basu 25% and also to my
SHYAMAL KANT! GUHA & ORS. v. MEENA 645
BOSE [S.B. SINHA, J]
> A
other brother Mr. Ujjal Kanti Guha.
9. I also give, bequest and devise my Bank Deposit in the
Allahabad Bank to my brother Mr. Shyamal Kanti Guha
50% and to my other brother Mr. Ujjal Kanti Guha 25%
and to my sister Mrs. Meena Bose 25%.
B
10. If any of my brothers or sister or both of them die
• during my life time then in such case the heirs of the
deceased brothers or sister shall get their respective
shares of the deceased absolutely as per above terms.
11. Subject as aforesaid, I give, bequeath and devise the C
rest and residue of my estate to my brother and sisters
and nephews absolutely."
Construing the Will and in particularly clauses (10) and (11)
_. thereof, both the courts held that bequeath in favour of the re- D
spondent - plaintiff was absolute and thus the suit should be
decreed.
3. Mr. Dushyant Dave, learned Senior Counsel appearing
on behalf of the appellant in support of this appeal contends
that in view of the well-settled principles of law, a Will must be E
read in its entirety and so read there cannot be any doubt what-
soever that the intention of the testator was to confer only a life
interest upon the plaintiff - respondent. It was urged that the
_. very fact that in the event of the death of the sister, Shyamal
Kanti Guha, the appellant's predecessor-in-title was to occupy F
the said premises absolutely and furthermore in view of the fact
that clause (10) applies only in the event that both the brothers
or the sister died during his life time, the question of the sister's
acquiring a permanent interest in the suit property did not and
could not arise. In support of the said contention, strong reli- G
ance were placed on Raj Bajrang Bahadur Singh v. Thakurain
Bakhtraj Kuer [(1953) SCR 232], Ramachandra Shenoy & anr.
v. Mrs. Hilda Brite & ors. [(1964) 2 SCR 722], Navneet Lal
alias Rangi v. Gokul & ors. [(1976) 1 SCC 630].
4. Mr. Dharmendra Kumar Sinha, learned counsel appear- H
646 SUPREME COURT REPORTS (2008) 8 S.C.R.
A ing on behalf of the respondent, however, submits that the words
'give, bequeath and devise' on the one hand and that the word
'occupy' on the other, ought to be assigned different meanings
and so done the bequeath under the Will in terms of the plaintiff
must be held to be absolute. ·
B Although construction of clause (6) of the Will is in ques-
tion, indisputably the said clause for the purpose of ascertain-
ing the intention of the testator must be interpreted having re-
gard to other terms of the said Will. A bare perusal of the entire
Will goes to show that the testator was ·aware of the nature of
C the bequest. He wanted to give much more to his brother
Shyamal Kanti Guha than others.
5. Intentionally different words like 'give', 'bequeath' and
'devise' had been used in all the relevant clauses, namely,
clauses (6) to (11). Even the word 'absolutely' has biien freely
0
used.
He envisioned two situations. Death of his sister Meena
Bose and his own death. Given a plain meaning; whereas
clause (6) was to apply in the case of Meiena Bose, clause (10)
E applied if he expired. Clause (10) cannot be read in isolation. It
must be read subject to the other terms contained in clauses
(6) to (9) as the words 'as per above terms' have been used
therein.
We have noticed clauses (7), (8) and (9) only for the pur-
F pose of showing that he gave something also to Jaydeep Basu,
son of his sister Mrs. Meena Bose. The bequeath in favour of
another brother Ujjal Kanti Guha was only to take 25% in the
Company shares as also Bank deposits in Allahabad Bank.
He made a distinction between grant in favour of his sister and
G the one in favour of his nephew Sri Jaydeep Basu.
6. Keeping in mind the aforementioned backdrop, the Will
should be construed. It should be done by a Court indisputably
placing itself on the arm-chair of the testator. The endeavour of
H the Court should be to give effect to his intention. The intention
SHYAMAL KANTI GUHA & ORS. v. MEENA 647
BOSE [S.B. SINHA, J.)
> of the testator can be culled out not only upon reading the Will in A
its entirety, but also the background facts and circumstances of
the case. Genuineness of the Will dated 3.4.1984 is not in ques-
tion. The fact that the testator was the owner of the properties
is also not in question.
7. Before, however, referring to some precedents operat- B
• ing in the field, we may notice the dictionary meaning of the
words 'bequeath', 'devise' and 'occupy', which are as under:
"Bequeath. o give by will; assign as a legacy. This word
is properly applied only to personalty, but in a will it avails c
to transmit real property also; "devise," however is the
proper word.
To leave property by will to a person.
"Devise. (Primarily, a dividing or division) In the law of
0
wills as a noun a gift of real property by will; a disposition
by will; an instrument by which lands are conveyed by will,
the direction of a testator of sound mind as to the
disposition of his property after his death. As a verb to
give or dispose of land or hereditaments by will; sometimes
as a verb, to draw an instrument. A 'devise' is where a E
man in his testament giveth or bequeatheth his goods or
his lands to another after his deceased. (Terms de la Ley).
The word was formerly particularly applied to bequests of
land; but is now generally used for the gift of any legacies
whatever. (Tomlin) F
"Occupy. To take possession of, seize, employ, to take
possession of and retain or keep. "To occupy" property
denotes a physical possession; but "occupy" is a word
. which in one form and another is not infrequently used of G
an incorporeal hereditament."
(See Advanced Law Lexicon by P. Ramanatha Aiyar, 3rct
Edn. 2005)
We may also notice the meaning of the word "subject to". H
648 SUPREME COURT REPORTS [2008] 8 S. C.R.
A It means:
"Liable, subordinate, subservient, inferior, obedient to;
governed or affected by; provided that; provided,
answerable for. Homan v. Employers Ri;insurance
Corporation, 345 Mo. 650, 136 S.W. 2d 289, 302"
B
(See Black's Law Dictionary, Fifth Edition at page 1278)
8. The Will was a registered one. The said Will was pro-
bated by the executors thereof. The suit was filed as the plaintiff
found that joint enjoyment and possession of the suit property
C to be inconvenient. The learned trial judge opined:
"Considering the above facts and circumstances, I am of
the view that the clause-6 does not create any impediment
for the plaintiff to get partition of the suit property because
clause-10 of the said Will clears the intention of the testator
D
that in case of death of both parties, their heirs will enjoy ·~
the possession of the suit house absolutely."
The Division Bench of the High Court also held:
"We have heard respective contentions of learned counsel
E
for the parties and we have read clause 6 of the Will. In
our view, as rightly contended by learned Counsel for the
· respondent, the expression "occupy the ......... premises
absolutely" implies that Shyamal would have the right to
occupy the said premises in its entirety had Meena .._
F predeceased him. Meena is still alive. A right to occupy
is not the right to own the property. The words "give,
bequeath and devise" indicate vesting of title in the property
absolutely in favour of the persons mentioned in the
aforesaid clause. The property had been given to the
G brother and sister in equal share. However, on the death
of Meena, the right of possession was intended to be' ··.;
suspended, as far as the heirs and legal representatives
of Meeha were concerned, till the death of Shyamal. Had
Shyamal been alive, we would have had to examine how
H far such clause could be 'l(alid in the context of Section
SHYAMAL KANTI GUHA & 9RS. v. MEENA 649
BOSE [S.B. SINHA, J.]
119 of the India Succession Act, 1925. A
Fortunately or unfortunately, we need not undertqke the
said exercise in view of the death of Shyamal. We,
therefore, cannot accept the contention of Mr.
Bhattacharyya. Accordingly, we do not find any reason to
interfere with the order, decree and findings of the learned B
trial judge. However, we merely supplement the reasoning
given by the learned trial judge. We do not approve of the
reasoning given by the learned trial judge to the extent
inconsistent with our reasoning."
c
Both the courts below proceeded on the basis that the word
'occupy' would mean physical possession only. 'Occupy' some-
times indicates legal possession in the technical sense; at other
times mere physical presence at a place for a substantial pe-
riod of time. (See Advance Law Lexicon page 3297)
D
9. Would it not include within its fold the vesting of a prop-
erty, is the question.
Ordinarily, the word 'occupy' does not denote 'vest'.
In the context of the construction of Will, however, the mean- E
ing of the word as defined in dictionary may not be insisted
upon. If the construction of the Will as advanced by the learned
trial judge as also the High Court, namely, reading of clauses
(6) and (10) together is correct then after the death of Shyamal
Kanti Guha, his heirs and legal representatives inherited their F
father's right so far as the dwelling house is concerned. Thus,
they have a right to occupy the premises in question after the
death of Mrs. Meena Bose. If the intention of the testator was
that heirs and legal representatives of Shyamal Kanti Guha would
. have no right in respect of the 50% of the share of Mrs. Meena G
Bose, it could have been stated expressly. If clauses (6) and
(10) are to be construed together, it would take into account not
only the death of Mrs. Meena Bose during the lifetime of Shyamal
Kanti Guha but also any of them. Indisputably, the heirs and
legal representatives of Shyamal Kanti Guha would have a right H
650 SUPREME COURT REPORTS [2008] 8 S.C.R.
A to occupy the premises after the death of Mrs. Meena Bose.
But, clause (10) would apply in the event, brothers and sisters
or both of them died during the testator's lifetime. The word
'then' plays an important role. It, therefore, does not take into
consideration any other contingency. Even ifthat be so, clause
B (10) of the Will was to be subject to clause (6) as the words 'as
per above terms' have been used. But how then should the
intention of the testator be ascertained in respect of his bequeath
of the dwelling house in terms of clause (6). He did not intend to
give it to a third party. Evidently, the brothers and sister were
C residing in the said house. They were given equal shares. But
the share bequeathed to Meena Bose was given as after her
demise, the brother was e.1titled to occupy the entire premises.
The meaning of the word 'occupy' should not be read in isola-
tion. The right to occupy is the subject matter of devise. It must
be read with the word 'absolutely'. Right to occupy as a limited
0
owner and a right to occupy absolutely could not have different
meanir:gs. The heirs and legal representatives of Shyamal Kanti
Gu ha and Mrs. Meena Bose were to get the interest in the dwell-
ing house absolutely. If the intention of the testator was other-
wise, the question of Shyamal Kanti Guha occupying the said.
E · premises after the demise of his sister would not have specifi-
cally been mentioned.
In the aforementioned situation, we may notice the deci-
sion of this Court in Raj Bajrang Bahadur Sif)gh (supra).
F In that case, the testator had two sons Bajrang Bahadur
and Dhuj Singh. The estate was to vest in the elder son. It is
with that view, a Will was executed to bequeath some proper-
ties in favour of his younger son in the following terms:
"2. I have decided after a full consideration that I should
G
execute a Will in favour of Dhuj Singh with respect to the
villages detailed below.
3. So that after my death Dhuj Singh may remain in
possession of those villages as an absolute owner with
H the reservation that he will have no right of transfer.
SHYAMAL KANT! GUHA & ORS. v. MEENA 651
BOSE [S.B. SINHA, J.]
4. If, God forbid, Dhuj Singh may not be living at the time A
of my death, his son or whoever may be his male heir or
widow may remain in possession of the said villages on
payment of the Government revenue as an absolute owner.
5. The liability for the land revenue of the said villages will
be with Dhuj Singh and his heirs and successors; the B
estate will have no concern with it.
6. Although Dhuj Singh and his heirs are not given the power
of transfer, they will exercise all other rights of absolute
ownership that is to say, the result isi that the proprietor of c
the estate or my other heirs and successors will not eject
Dhuj Singh or his heirs or successors in any way.
7. Of course if Dhuj Singh or his heirs become ever heirless
then the said villages will not escheat to the Government
but will revert and form part of the estate." D
Construing the aforementioned terms vis-a-vis, the right
of the respondent under the said Will, it was held by this Court
that he merely acquired a life interest and not an absolute inter-
est stating:
E
''Thus the beneficiaries under the will are Dhuj Singh himself
and his heirs in succession and to each such heir or set
of heirs the rights of malik are given but without any power
... of alienation. On the total extinction of this line of heirs the
properties affected by the will are to revert to the estate. F
As it was the intention of the testator that the properties
should remain intact till the line of Dhuj Singh was
exhausted and each successor was to enjoy and hold the
properties without any power of alienation, obviously what
the testator wanted was to create a series of life estates G
t .one after another, the ultimate reversion being given to the
parent estate when there was a complete failure of heirs.
To what extent such intention could be given effect to by
law is another matter and that we shall consider presently.
But it can be said without hesitation that it was not the
H
652 SUPREME COURT REPORTS [2008] 8 S.C.R.
1
A intention of the testator to confer anything but a life estate
upon Dhuj Singh in respect of the properties covered by
the will. The clause in the will imposing total restraint on
alienation is also a pointer in the same direction. In cases
where the intention of the testator is to grant an absolute
B estate, an attempt to reduce the powers of the owner by
imposing restraint on alienation would certainly be repelled
on the ground of repugnancy; but where the restrictions
are the primary things which the testator desires and they
are consistent with the whole tenor of thE~ will, it is a material
c circumstance to be relied upon for displacing the
presumption of absolute ownership implied in the use of
the word "malik". We hold, therefore, that the courts below
were right in holding that Dhuj Singh had only a life interest
in the properties under the terms of his father's will.
D 10. In Ramachandra Shenoy & anr. v. Mrs. Hilda Brite &
ors. [(1964) 2 SCR 722], clause 3(c} of the Will of an Indian
Christian Lady - Mrs. Mary Magdelene Coelho fell for consid-
eration. Noticing the provisions of the ll)dian Succession Act
10 of 1865, this Court held:
E
.
"It was common ground that under clause 3(c) the testatrix
intended to confer an absolute and permanent interest on
the male children of her daughter, though if the contentions
urged by the appellants were accepted the legacy in their
~-
favour would be void because there could legally be no
F gift over after an absolute interest in favour of their mother.
This is on the principle that where property is given to A
absolutely, then whatever remains of A's death must pass
to his heirs or under his will and any attempt to sever the
incidents from the absolute interest by prescribing a
G different destination must fail as being repugnant to the
interest created. But the initial question for consideration
is whether on a proper construction of the will an absolute
interest in favour Severina is established. It is one of the
cardinal principles of construction ofwil!s that to the extent
H that it is legally possible effect should be given to every
SHYAMAL KANTI GUHA & ORS. v. MEENA 653
BOSE [S.S. SINHA, J.]
disposition contained in the will unless the law prevents A
effect being given to it."
The said principle was reiterated in Navneet Lal alias
Rangi v. Gokul &ors. [(1976) 1 SCC 630] in the following words:
"8. From the earlier decisions of this Court the following 8
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 c
out the intended meaning of the words which have actually .
been employed. {Ram Gopal v. Nand Lal [1950 SCR
·166]}
(2) In construing the language of the will the court is entitled
~ D
to put itself into the testator's armchair [Venkata
Narasimha v. Parthasarathy (1913) 41 Ind App 51 at p.
72] 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
E
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 (1950 F
~
SCR 949, 955)]
(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
G
• ignoring none of them as redundant or contradictory [Raj
Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (1953
SCR 232, 240]
(4) The court must accept, if possible, such construction
as would give to every expression some effect rather than H
654 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
B 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
c discarded in favour of a construction which does not create
any such hiatus. [Pearey Lal v. Rameshwar Das (1963
Supp. 2 SCR 834, 839, 842].
(5) It is one of the cardinal principles of construction of
wills that to the extent that it is leg?llY possible effect should
D 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
E 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. Mrs. Hilda Brite [(1964) 2 SCR
• 722, 735]}
F Recently, this Court in Bajrang Factory Ltd. & Anr. v. Uni-
versity of Calcutta & ors. [(2007) 7 SCALE 496) held:
"43. With a view to ascertain the intention of the maker of
the Will, not only the terms thereof are required to be taken
into consideration but all also circumstances attending
G
thereto. The Will as a whole must, thus, be con.sidered for
the !:iaid purpose and not merely the particular part thereof.
As the Will if read iQ its entirety, can be given effect to, it
is imperative that nothing should be read therein to
invalidate the same."
H
SHYAMAL KANTI GUHA & ORS. v. MEENA 655
BOSE [S.B. SINHA, J.]
Therein the word 'devise' was read as 'desire'. If this Court A
is to put itself into the testator's armchair to ascertain his inten-
tion from the words used in the Will; it must take into consider-
ation the surrounding circumstances, the position of the testa-
tor, his family relationships, and attach importance to isolated
expressions so as to give effect to all the clauses in the Will B
rather than making some of it inoperative.
This Court again in Anif Kak v. Kumari Sharda Raje re-
ported in 2008(6) SCALE 597 held:
"The testator's intention is collected from a consideration c
of the whole Will and not from a part of it. If two parts of
the same Will are wholly irreconcilable, the court of law
would not be in a position to come to a finding that the Will
dated 4.11.1992 could be given effect to irrespeetive of
the appendices. In construing a Will, no doubt all possible
0
contingencies are required to be taken into consideration.
Even if a part is invalid, the entire document need not be
invalidated, only if it forms a severable part."
There cannot be any doubt whatsoever that in the event of
inconsistency between two parts in the Will, the last shall pre- E
vail having regard to Section 88 of the Act, but, once it is pos-
sible to give effect to both the clauses which although appar-
ently appears to be irreconcileable, the court should take re-
course thereto.
Section 119 of the Indian Succession Act also speaks F
about postponement of the date of vesting of legacy when one
of the brothers after the death of his sister became entitled to
possess a dwelling house absolutely. In our opinion, the testa-
tor was of the opinion that the life interested should only be cre-
ated in favour of his sister Meena Bose. This, however, would G
not mean as has been contended by Mr. Dave that the suit for
partition was not maintainable.
A suit for partition could be maintainable subject, of course,
to the declaration that the interest of the respondent- plaintiff is H
656 SUPREME COURT REPORTS [2008] 8 S.C.R.
A confined to life interest only. To the aforementioned extent only
this Appeal succeeds.
11. The appeal is allowed to the aforementioned extent. '
'lm
There shall be no order as to costs.
B B.B.B. Appeal partly allowed.
t-
'
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