Amy Rusi Bhesania vs Framroz Ardeshir Irani

Desai, J.—This is an originating summons taken out by the plaintiffs for the construction of certain clauses in the will of one Amiroon Jehangir Irani, of Poona, who died on December 23, 1945, having prior thereto made a will in the Gujarat! language and character on May 28, 1945. By her will she appointed defendants Nos, 1 and 2 and one Ilustomji as executors and trustees. The executors applied for and obtained probate of that will from the Court of the Civil Judge, Senior Division, Poona, in September 1947. Rustomji died after probate was obtained.

The deceased died leaving her surviving as her heir and next of kin a daughter, Piroja, children and widow of a predeceased son Jehangir, who are defendants Nos. 3 to 9 before me, and the widow of a predeceased son Mcherwan, Maneekbai, who is defendant No. 1,0. Piroja died intestate on June 28, 1049, leaving her surviving as her only heirs plaintiffs Nos. 1 and 2, who are the daughters of Dowlat, a -predeceased daughter of Piroja, Plaintiffs Nos. 1 and 2, and defendants Nos. 3 to 8 and defendant No. 10, as I shall point out later on, are amongst the legatees under the will. Defendant No. 11 is the Charity Commissioner, who has been made a party to this suit as certain religious and charitable bequests have been made in the will.

The will which I am called upon to construe is in the Gujarat! language and character, which was a language understood by the testatrix. It is common ground that the only property which the deceased had, and which she left, was a house at Poona, and a balance of five rupees in a Savings Bank account. After appointing executors and trustees the testatrix starts the will by stating that her foremost desire was that her daughter-in-law, Maneekbai, who was living in that house, should continue to do so and that the property was not to be sold during Maneck-bai''s lifetime. Then in the next sentence in the commencement of the will she says that if Maneckbai, of her own free will and pleasure, desires that the property should be sold, then, and then only, the property is to be sold during her lifetime. Then she goes on to dispose of the income of the property during the period that it was not sold. After providing for Maneckbai''s residence as long as she would be alive, and making provision for an allowance of Rs. 50 per month for Maneckbai, ,she gives certain directions which need not be discussed at this stage. A sum of Rs. 100 was directed to be sent every year to the Kuchbiyogi in Iran for a Ghambar to commemorate her son-in-law Nariman; and a further sum of 11s. 60 was similarly to he sent every year to one Khodadad at Taft in Iran for a Ghambar to commemorate her son Meherwan. Then she goes on to state in her will that the balance of the income that may remain after defraying the expenses on the property and all these items shall be divided equally between the six children of her son Jehangir, whose names are mentioned, and her daughter, Piroja. It is in terms stated that the surplus income is to be divided in seven equal shares amongst these persons.

Then comes a separate paragraph which raises the live issues before me. The paragraph begins as follows :-

If the house is sold on my daughter-in-law Maneckbai agreeing to that of her own free will and pleasure the amount realised shall be (dealt with) disposed of as under :

After these words follow eleven sub-paragraphs, but before I discuss the same it is necessary to state that the house at Poona which was admittedly the only property owned by the testatrix and was the subject-matter of the will was sold by the executors with the consent of Maneckbai on June 6, 1950. Dowlat died on October 15, 1945, i.e. before the death of the testatrix. Dowlat left surviving as her heirs, her two minor daughters, plaintiffs Nos. 1 and 2, and her husband plaintiff No. 8. The construction of some of the eleven sub-paragraphs of this paragraph under consideration has been the subject-matter of some interesting arguments before me. The first sub-paragraph says that "a sum of Rs. 12,000 in cash shall be paid to my daughter-in-law, Maneckbai." On this there is no dispute.

Sub-paragraph 2 states that a sum of Rs. 12,000 shall be paid "to my daughter Piroja (if she be alive)". On behalf of the plaintiffs who are the minor daughters of Dowlat, the predeceased daughter of Piroja, their learned Counsel, Mr. Banaji, has contended before me that the words "if she be alive" mean, "if she be alive at the time of the death of the testatrix" and not "at the time of the sale of the property" as might seem from the opening words of the paragraph. In my opinion sub-paragraph 2 is governed by the words at the beginning of this particular paragraph and the only meaning that it is possible for me to attribute to sub-paragraph 2 is that Piroja was to be paid the sum of Rs. 12,000 if she was alive at the time of the sale of the property. The contention that the plaintiffs should get this amount as heirs of Piroja must, therefore, fail.

Then sub-paragraph 3 states that "a sum of Rs. 12,000 shall be paid to Dowlat my daughter''s daughter." Now, as I have already stated Dowlat died on October 13, 1945, and the property was sold by the executors with Maneckbai''s consent on June 6, 1950. The contention urged on behalf of the plaintiffs, who are supported in this by defendant No. 10 was that the fact that Dowlat died before the property was sold does not make the slightest difference so far as this legacy is concerned. The argument proceeded that, Dowlat took a vested interest in this sum of Rs. 12,000, and u/s 109 of the Indian Succession Act, the bequest being one made to a lineal descendant of the testatrix took effect as if Dowlat had died immediately after the death of the testatrix and not during her lifetime. On the other hand it was contended by Mr. S. V. Gupte, learned Counsel for defendants Nos. 8, 4, 5 and 7, who are some of the children of Jehangir, that although the ease was covered by Section 109 of the Succession Act this bequest would yet be affected because there is, in the present case, a contrary intention expressed by the testatrix in her will. Section 109 of the Indian Succession Act reads as follows :-

Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will.

The only question, therefore, that arises for my determination in respect of the bequest in favour of Dowlat is, whether there is any contrary intention expressed by the testatrix herself in any part of her will as contended on behalf of defendants Nos. 8, 4, 5 and 7. It was stated that there is a remarkable paucity of judicial opinion on the meaning, and effect of this expression "contrary intention". The argument was that very little is required to show a contrary intention requisite for affecting bequests under this section. My attention has not been drawn to any principle or any statement from any leading treatise in support of this argument. On a plain reading of the section it appears that the only possible construction of the words "unless a contrary intention appears by the will" would be that there must be a clear, unambiguous and unequivocal intention by the testator in the will itself before a bequest in favour of a lineal descendant, should he unfortunately die before the testator, can be defeated. One does not elaborate on a question of this nature when it appears that this must be the only reasonable construction of the words at the end of the section. Then it was submitted by Mr. Gupte that there is in the will itself overwhelming evidence of the intention of the testatrix to provide separately for Piroja, Piroja''s daughter Dowlat, and Dowlat''s daughters plaintiffs Nos. 1 and 2, who have been given bequests of Rs. 1,000 each in the subsequent paragraphs and this shows a contrary intention. I do not find myself able to accept this submission. The will read as a whole furnishes sufficient indication that the property was to be sold but not in the lifetime of Maneckbai unless she consented to the same. The words used in sub-paragraph 3 are referable only to an absolute bequest of that amount to Dowlat and only the time of payment was deferred. I do not read any words in the will which can be said to defeat the general provision contained in Section 109 which is an exception to the doctrine of lapse. These considerations are sufficient to dispose of the question of construction of sub-paragraph 8 in favour of the plaintiffs. But in my judgment there is some further intrinsic indication appearing by the will which materially supports the construction I am inclined to put on the words in sub-paragraph 3. Whilst making a bequest in favour of her daughter Piroja the testatrix has in terms stated that Piroja would become entitled to this bequest "if she be alive" at the time of the sale of the property. It is significant that no such condition is attached to the bequest made in sub-paragraph 3, and in my judgment I am bound to take notice of the absence of this condition in sub-paragraph 3 and particularly so when sub-paragraph 8 immediately follows that which contains the bequest in favour of Piroja,

Then follow sub-paragraphs 4 and 5 whereby two bequests of Rs. 1,000 each are given to plaintiffs Nos. 1 and 2 respectively.

Sub-paragraph 6 states that a sum of Rs. 1,000 should be given in a fund for the poor. It is common ground that the will was not deposited by the testatrix as required by Section 118 of the Succession Act and it was conceded on behalf of all the contesting parties that this bequest is not supportable in law. Nor have the executors and defendant No. 11 made any attempt to support this bequest. They have merely submitted to the orders of the Court.

Sub-paragraph 7 states that a sum of Rs. 5,000 has to be spent for the obsequial ceremonies of Meherwanji, a predeceased son of the testatrix; the word used is

(which would mean baj rojgar).

Sub-paragraphs 8 and 9 deal with bequests for ghambar and baj of the son-in-law of the testatrix and the testatrix herself.

It is common ground that the bequests mentioned in sub-paragraphs 6, 7, 8 and 9 are not supportable in law; nor was any attempt made by the executors and defendant No. 11 to urge any argument in support of the validity of these bequests. In her affidavit Maneckbai, defendant No. 10, had raised a certain contention upholding the bequests in sub-paragraphs 6 to 9, but Mr. Mistree, learned Counsel for defendant No. 10, gave up that contention.

Sub-paragraph 10 deals with a small bequest of Rs. 101. There is no dispute about the same.

Then follows sub-paragraph 11 which is as follows:-

The remaining amount shall be distributed in equal shares amongst my son Jehangir''s six children, sons and daughters.

It was contended by Mr. Banaji that the heirs mentioned in this sub-paragraph take the "remaining amount"

(which would mean baj rojgar). but they are not heirs who are to take the residue of the estate. These words, so it was argued, can only apply to the remaining part of the sale proceeds of the house and only in the event of the house being sold in Maneckbai''s lifetime with her consent. It was argued that this cannot in any sense be regarded as a residuary bequest in favour of the six children of Jehangir. In this contention Mr. Banaji''s clients were supported by defendant No. 10, Maneekbai. The argument advanced before me by Mr. Murz-ban Mistree on her behalf was that the words "remaining amount" can only be regarded as a particular residue, i.e. residue of the sale proceeds and not the residue of the entire estate. It was further said that a careful reading of the will showed that the testatrix has, perhaps inadvertently, but nevertheless in effect, not made complete disposition of her property. The only disposition, so it was suggested, was of the income of the property till it was sold and the manner in which the sale proceeds were to be dealt with in the event of the property being sold during the lifetime of Maneckbai with her consent. It was then stated that if that be the true construction, the bequests in sub-paragraphs 2, 6, 7, 8 and 9 which, if held to lapse for reasons urged before me, would form part of the estate of the deceased, that is, would be undisposed of residue, and would not be regarded as the balance of the sale proceeds distributable under sub-para. 11 between the six children of Jehangir. There is, in my opinion, some scope for the argument that the deceased has not disposed of her entire property. On the other hand it was urged by Mr. Gupte that there are words at the very commencement of the will which suggest that the testatrix who owned only this one property at Poona and had no other estate, had the intention of fully disposing of the property amongst her heirs or lineal descendants and of making some provision for charity. Now, primarily, the Court does not lean one way or the other but has to read the plain words of the will in their proper context. It has to collect the intention of the testator from a consideration of the whole will. But when it is suggested that the testator created some interests in the property she was disposing of and yet failed to fully dispose of it, the Court will, if there arc two possible constructions, prefer the one that results in favour of that which does not leave a hiatus. The presumption in such a case is in favour of complete disposition. I have read and re-read the whole will and the meaning that I prefer to attribute to it is that the entire residue of the sale proceeds of what was the only property of the testatrix was to go to the children of Jehangir. In this connection it is to be remembered that the testatrix is speaking about her entire property and that before this sub-paragraph the testatrix had already made what she thought to be sufficient provision for her daughter-in-law Maneckbai, her daughter Piroja, grand-daughter Dowlat, and also for the children of her grand-daughter, the minor plaintiffs Nos. 1 and 2. That being so, it seems to me that it would not be a proper construction to put on sub-paragraph 11 to take the view that by that provision only a particular residue was to go to the children of Jehangir as contended on behalf of the plaintiffs and defendant No. 10. The view I take of the matter is that since Piroja was not alive at the date of the sale no question arose of making any payment to her, the bequest in her favour being strictly conditional on her being alive at the time of the sale of the property. There is no question here of a bequest lapsing and forming part of an undisposed of residue and no question of the nature suggested by learned Counsel on behalf of the plaintiffs. The amount of her legacy would go to augment the balance. As to the bequests in sub-paragraphs 6 to 9 also the view I take of the matter is that these bequests were bad in law at the very outset, i.e. on the date on which the will began to speak, and the balance of the sale proceeds would be all that amount that would remain after the bequests that took effect in law were paid off. Both as a matter of construction and on the principle that there is always a strong disposition in the Court in matters of uncertainty to presume in favour of complete disposition, I am of the view that the six children of the predeceased son of the testatrix were to get the residue of the sale proceeds of the property at Poona. In my judgment, there was no partial intestacy as urged on behalf of the plaintiffs and defendant No. 10.

One more question argued before me was as to the construction of the direction in the will relating to the division of the income of the house at Poona in seven equal shares to which direction I have already made reference. The construction I am inclined to put on this clause is that on the death of Piroja her heirs did not become entitled to any share in the income and the amount of the income thereafter became divisible amongst the six children of Jehangir.

It appears that during the years 1946 and the four subsequent years the executors have spent certain amounts in pursuance of the directions given by the testatrix in the will. These are stated in exh. C to the plaint being the statement of account by the executors of the property left by the deceased. In the year 1946 a sum of Rs. 749-8-9 was spent by the executors. This amount was in respect of the funeral ceremony of the testatrix and other incidental expenses. That amount also includes the sum of Rs. 160 mentioned in the will for the two ghambars and to which I have already made reference. In the subsequent years an aggregate amount of Rs. 1,750 appears to have been spent by the executors and I am asked to condone these expenses. This is because I have held that the bequests in respect of the religious ceremonies were not valid in law. Apart from defendants Nos. 3, 4, 5 and 7 there is no opposition from any party to this being done. Taking an over-all view of the whole matter I am of the opinion that though the trustees were not entitled to spend this amount, they did so in accordance with the express directions in that behalf given by the testatrix herself and it seems to me to be only fair that these expenses should be condoned.

Costs of all the parties as between attorney and client will come out of the sale proceeds of the Poona property.