AI Structured Summary
Not yet generated for this judgment
Judgment
Wadsworth, J.—This appeal relates to the interpretation of a will dated 11th September, 1920. The testator at the time of his death left a
widow an unmarried daughter who is now the plaintiff and two married daughters by another wife who are defendants 1 and 2. The will is an
unprofessional document written in Tamil and its important provisions are as follows. It starts with a preamble in which the testator says:
After my death my properties and debts should, after considering the details mentioned hereunder, be enjoyed.
Then he goes on to specify his properties and his debts. Thereafter he makes a legacy to his sister and a small legacy to each of his married
daughters, and then he makes provision for the payment of his funeral expenses. Finally there is the last clause which says:
As per the above directions my wife Thulasi Bai should do all acts aforesaid with full rights,
the words in Tamil being Both the Courts below reading the preamble along with the final clause have held that the testator by directing that the
properties ""should be enjoyed"" as subsequently recited and by directing his wife to ""do all acts aforesaid with full rights"" intended to direct that his
wife should enjoy all the residue with full powers of ownership. The effect of the interpretation is that, as the widow has now died, the whole of the
residue will go to her daughter the plaintiff and not to her step-daughters defendants 1 and 2. Certain principles upon which a will should be
construed are ""welt settled. The first principle is that the Court should give effect to the plain meaning of the words used. Secondly if there is any
ambiguity, the Court should in interpreting the anguage lean towards carrying out the known intentions of the testator as far as they cart be
ascertained from the recitals and from the surrounding circumstances. ""Thirdly in interpreting ambiguous,words the Court; should bear in mind the
presumption that the testator was not likely to intend to create an intestacy regarding the residue of the estate. Fourthly the Court should not strain
the language of the will either in order to give effect to the apparent intention of the testator or in order to prevent an intestacy. Finally, the Court
has no power to insert in the will a disposition, which is missing, however desirable that disposition may be. Bearing these principles in mind, I shall
endeavour to construe this will. The final clause isolated from its context would naturally be interpreted as doing nothing more than making the
widow the executrix of the will with full powers to carry out the directions therein. The preamble taken alone cannot be held to indicate in any way
who should enjoy any of the properties. These two clauses were not juxtaposed but are separated by recitals of some length. Even if we read them
together I find it very difficult to read into the preamble a disposition in favour of the widow merely by virtue of the direction in the final clause that
she should do all acts aforesaid with full rights"". Granted that the words ""sarva swathanrathndan"" taken in conjunction with a verb indicating
ownership would have the effect of making that ownership absolute, when taken in conjunction with a verb indicating merely management or
administration, I do not think they could have the effect of converting that management into ownership. After all the preamble about the enjoyment
of the property is couched in the vaguest possible terms and does not convey to my mind the impression that it was intended to be a disposing
clause. Moreover its very position before the recitals of the extent of the estate and before the specific legacies is inconsistent with the theory that
it, was intended to make a disposition in the preamble in favour of the person specified in the final clause, I have very little doubt that what has
happened has been that owing to the unskilled draftsmanship of this will, there was a complete omission to dispose of the residue. Conceivably that
omission might have been intentional, for the widow even in an intestacy has the right to enjoy and has in fact enjoyed the residue for the whole of
her lifetime and the only practical effect of the omission has been not to create a preference in favour of the minor daughter as compared with the
married daughters. More probably as the lower Courts have inferred, the omission was due to inadvertence. But I am learly: of opinion that there is
no disposition of the residue in. favour of the widow and the result must therefore be an intestacy with the consequence that the plaintiff cannot
claim to be solely entitled to the property which her mother enjoyed during her life. The residue will be divisible between the three daughters in
equal shares. In this view, I allow the appeal with costs throughout and dismiss the plaintiff''s suit.
Leave to appeal is refused.