Mrs. Vyjayanthimala and Mr. K. Bhaskaran vs Mr. Srinivasa Reddy and Others

R.S. Ramanathan, J.—The plaintiffs 4 and 5, are the appellants herein. The suit was filed by the appellants along with three other plaintiffs

for the relief of declaration that they are the owners of the suit properties and for recovery of possession.

The case of the plaintiffs was that the suit property originally belonged to one Munusamy Mandiri and on 17.9.1924, he executed a Will, while

he was in a sound and dispossessing state of mind and under the Will, his daughters viz., Kuppammal @ Pattammal and Saradammal @

Muniammal were given life estate and their progenies will get absolute right over the properties. While so, the first plaintiff viz., the daughter of the

said Munusamy Mandiri, purported to have executed a sale deed in favour of her sister Kuppammal @ Pattammal but, she never executed the sale

deed and she intended to execute only a lease deed and by practicing fraud and trickery, the mother of the first defendant obtained the sale deed

from the first plaintiff and the first plaintiff had only life estate over the property and therefore, the sale is not binding on the plaintiffs, as the plaintiffs

2 to 5, who are the children of the first plaintiff are the absolute owners of the property under the Will and hence, the suit was filed for declaration

and recovery of possession.

The second defendant contested the suit stating that under the Will, executed by Munumsamy Mandiri, his daughters were given absolute right

over the properties and in that capacity, the first plaintiff executed a sale deed in favour of her sister, the mother of the first defendant and it was a

valid sale deed and no fraud was practiced and she was also aware about the contents of the documents and she was entitled to execute the sale

deed and the sale deed was dated 26.3.1971. Therefore, the first defendant has also prescribed title to the suit property by way of adverse

possession and after having executed the sale deed, it is not open to the first plaintiff to challenge the sale deed and hence, the plaintiffs are not

entitled to the relief prayed for.

Both the Courts below have concurrently held that under Ex.A2-Will executed by Munumsamy Mandiri, his two daughters were given absolute

right over the properties and under the said Will, ''A'' Schedule property was given to his daughter Kuppammal @ Pattammal and ''B'' schedule

property was given to the first plaintiff viz., Saradammal @ Muniammal. As the absolute owner, first plaintiff executed the sale deed in favour of

her sister in the year 1971, and hence, the sale is valid and the same cannot be questioned by the plaintiffs. Hence, this Second Appeal.

Mr. P.B. Balaji, the learned counsel for the appellants submitted that both the Courts below without properly appreciating the nature of interest

given to the first plaintiff, erred in holding that the first plaintiff-Saradammal @ Muniammal, was given absolute estate over the property. He further

submitted that a careful reading of the entire clauses in the Will would make it patently clear that the daughters were given only life estate and the

vested remainders were given to their children and the various clauses in the Will must be read together as a whole in order to ascertain the

intention of the Testator. Therefore, having regard to the recitals in Ex.A2-Will, it cannot be stated that the daughters were given absolute estate

over the properties and they were given only life estate. Hence, the sale deed executed by the first plaintiff is not a valid one and the same is not

binding on the plaintiffs 2 to 5. The learned counsel also relied upon the following reported judgments in support of his contention:-

i) (1953) I M.L.J. 108 in the case of [Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer] and

ii) (1962) I M.L.J. 401 in the case of [S. Narayana Doss (Dead) Vs. Arumugathammal]

Per contra, the learned counsel appearing for the respondents submitted that both the Courts below have rightly interpreted various clauses in

the Will and it has been made clear that the daughters were given absolute estate and there is no bequest in favour of the grand children. Merely

because, it was stated that in the event of any daughter died without leaving any issue, her share would go to another daughter, it cannot be

presumed that the daughters were given only life estate and not absolute estate. Therefore, the sale executed by the first plaintiff in favour of her

sister is valid and the same cannot be questioned. The learned counsel further submitted that the concurrent findings of the Courts below need not

be interfered with in the Second Appeal in exercise of jurisdiction u/s 100 of the CPC and relied upon the following judgments in support of his

contention:-

i) Ramanuja Naidu Vs. V. Kanniah Naidu and anothers,

ii) (1989) 3 S.C.C. 268 in the case of [Maniar Ismail Sab and others Vs. Maniar Fakruddin and others]

iii) Durga Pada Mukherjee and another Vs. Ambujakshya Ganguli, and

iv) 1950 U.J. S.C. 51 in the case of [Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia and others ]

On the basis of the above submissions, the following substantial question of law arises for consideration in the Second Appeal:-

What was the estate given to the daughters under Ex.A2-Will, whether the daughters got absolute estate or life estate?

To appreciate the contention of both the parties, the contents of Ex.A2-Will has to be looked into and it reads as follows:- ''''

VERNACULAR (TAMIL) PORTION DELETED

A careful reading of the Will would make it clear that the Testator had two wives viz., Angammal and Deivanaiammal and under the Will ''A''

schedule property was given to the daughter-Kuppammal @ Pattammal and her minor son Narasimman and ''B'' schedule property was given to

Saradammal @ Muniammal. It was further stated that ''A'' schedule property shall be taken by Kuppammal @ Pattammal and her minor son

Narasimman and ''B'' schedule property shall be taken by Saradammal @ Muniammal. Subsequently, it was stated that ''A'' schedule and ''B''

schedule properties shall be enjoyed by the daughters and if any of the daughters died without leaving any issue, the daughter having issues shall

take property of the other daughter, who does have a child. Therefore, we will have to see what was the interest taken by the daughters.

According to the learned counsel appearing for the appellants the intention of the Testator was to give entire estate to the benefit of the grand

children and that was also made clear in the first part of the Will stating that the bequest was given to Kuppammal @ Pattammal and her minor son

Narasimman and Saradammal @ Muniammal. Though, it was stated that the daughters shall take the property, in the concluding paragraph it was

stated that they shall enjoy the property during their life time and if any one of them died without leaving any issues, the daughter with issue shall

take the entire property. The learned counsel therefore contended that a reading of the various clauses in the Will would make it clear that the

intention of the Testator was to benefit his grand children and therefore, the daughters did not get absolute estate and they got only life estate.

Hence, the sale deed executed by the first plaintiff in favour of the first defendant is not valid.

In the judgment reported in (1953) I M.L.J. 108 (cited supra) the Hon''ble Supreme Court has held that, in all cases, the true intentions of the

Testator has to be gathered, not by attaching importance to isolated expressions, but, by reading the Will as a whole, with all provisions, and

ignoring none of them, as redundant or contradictory.

In the judgment reported in (1962) I M.L.J. 401 (cited supra) similar Will was interpreted by their Lordship and the material portion of the

document in that case is extracted hereunder:-

In order that no dispute, whatever may arise amongst my three daughters after my life time and the life time of Chellathayammal, my first wife, I

have made the following arrangements in respect of the above said properties as per my intention to make a proper arrangement for the matters

that shall come into force.... The following are the arrangements that I have made in respect of the said properties. My first daughter,

Arumugathammal, the wife of Arumugadoss, residing at Vellathangi Paillaikoil Street... and the issue born of her womb shall, after my lifetime hold

and enjoy the house and nanjai land mentioned in the first schedule and the debts mentioned therein with absolute rights. My second daughter,

Subbammal, the wife of Suddalaimuthu Konar, residing at the said Vellamthangi Pillaiyarkoil Street and the issue born of her womb shall after my

lifetime hold and enjoy the house and nanja land mentioned in the third schedule hereunder and the moveable properties in my possession

absolutely with powers of alienation.

If any one of my said three daughters has no issue, she shall till her lifetime enjoy the same without subjecting the same to any encumbrance and

without making any distribution, whatever thereof and after her lifetime, the same shall pass on to my other daughters having heirs. If anyone

without issue as mentioned above affects any alienation that will not be valid. This will should come into force after my lifetime and the lifetime of

my first wife Chellathammal.

The Learned Judge, after quoting the judgment reported in AIR 1922 P.C. 63 in the case of [Sasiman Chowdhurain Vs. Shib Narain Chowdhury]

relied upon the judgment reported in Govindaraja Pillai and Others Vs. Mangalam Pillai and Another, and held that under the Will, the daughters

got only life estate and not absolute estate.

In the judgment reported in Tata Press Ltd. Vs. Mahanagar Telephone Nigam Limited and Others, the Hon''ble Supreme Court has held as

follows:-

A will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the

testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known

maxim ""cum duo inter se pugantia reperiuntur in testament ultimum return est"" which means that if in a Will there are two inconsistent provisions, the

latter shall prevail over the earlier.

The Hon''ble Supreme Court relied upon the provisions of Section 88 of the Indian Succession Act, 1925, which reads as follows:-

The last of two inconsistent clauses prevails - Where two clauses or gifts in a willare irreconcilable, so that they cannot possibly stand together, the

last shall prevail.

Illustrations

(i) The testator by the first clause of his will leaves his estate of Ramnagar ""to A"", and by the last clause to 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.

In the judgment reported in Balwant Kaur and Another Vs. Chanan Singh and Others, the Hon''ble Supreme Court relied upon Section 88 of

the Indian Succession Act and held that latter clause will prevail.

Further, the Constitution Bench of the Hon''ble Supreme Court in the judgment reported in (1963) Supp 2 S.C.R. 417, in the case of

[Ramkishore Lal Vs. Kamal Narain] has held as follows:-

The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in

their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take

into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words

have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in

different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure

about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word

when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of

properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the

document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but

later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion.

What is to be done where this happens ? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the

later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohammad

Kamgar Shah Vs. Jagdish Chandra Deo Dhabal Deo and Others, . It is clear, however, that an attempt should always be made to read the two

parts of the documents harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given is in clear and

unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.

In the judgment reported in (1963) Sup 2 S.C.R. 834 in the case of [Pearey Lal Vs. Rameshwar Das] the Hon''ble Supreme Court recognized

the following guidelines in the matter of interpretation of Wills:-

the intention of the testator by reading the will as a whole. We must accept, if possible, such construction as would give to every expression some

effect rather than that which would render any of the expression inoperative must be accepted ii) another rule which may also be useful in the

context of the present will is that the words occurring more than once in a will shall be presumed to be used always in the same sense unless a

contrary intention appears from the will iii)all parts of a will should be construed in relation to each other : vide s. 82 of the said Act. It is also a well

recognized rule of construction that 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 iv) 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 v) Where apparently conflicting dispositions can be reconciled by giving full effect to every 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. Vi)where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a

construction which does not create any such hiatus.

In the judgment reported in Ramachandra Shenoy and Another Vs. Mrs. Hilda Brite and Others, , the relevant portion of the Will was as

follows:-

All these (properties) shall after me be enjoyed by my eldest daughter Severina Sabina and after her lifetime by her male children too as

permanent and absolute hukdars. "" While interpreting the said clause, the Hon''ble Supreme Court held that on a interpretation of the bequest, what

was created in favour of the daughter was only a life estate and that the intention of the Testator was to make the absolute bequest in favour of the

grand son through her daughter. The following passage from that decision is apposite for this case:-

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 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

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 of wills that to the

extent that it is legally possible effect should be given to every dispostition 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 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. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute

followed by a gift of the same to B absolutely ""on"" or ""after"" or ""at"" A''s death, A is prima facie held to take a life interest and B an interest in

remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has

to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be

given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the

will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only,

it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is

in that context that the words ''after her lifetime'' occurring in clause 3(c) assume crucial importance. These words do indicate that the persons

designated by the words that follow were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words

referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest

Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest

created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her.

Therefore, as per the judgments of the Hon''ble Supreme Court, we will have to see the intention of the Testator from the various clauses in the

stated in the Will and if the Testator wanted to give only life estate to his two daughters and vested remainders to his grand children, even though in

the earlier part of the Will the absolute right was given in favour of the daughters, that can be construed as life estate having regard to the latter part

of the Will.

In this case, as stated supra, in the first part of the Will, it was stated that his daughters shall take ''A'' schedule property and ''B'' schedule

property respectively. It was further stated that they shall take the property absolutely and shall enjoy the same generation after generation and in

the last clause, it was specifically stated that the daughters shall enjoy the property and if any one of them died without leaving issue, the property

shall go the other daughter, who is having issue. Therefore, the latter clause of the Will makes it clear that the Testator intended to benefit only his

grand children and hence, he made it clear that if any of the daughters did not have any issue, the property shall go back to the other daughter, who

is having issues. If the daughters were given absolute estate, then, there is no necessity for him to say that if any of the daughters died without

leaving any issue, then the property shall go to the other daughter having issue.

In my opinion, the clause in the present Will is similar to the clause in the Will that was decided in the judgment reported in (1962) I M.L.J.

401 (cited supra) wherein, after quoting various judgments, it was held that the daughters did not get any absolute estate and the grand children

alone get the absolute estate.

Further, the judgments referred to above would also make it clear that Section 88 of the Indian Succession Act clearly recognized the above

rule of interpretation and considering all these aspects, I am of the opinion that both the Courts below have not properly interpreted the clause in

the Will and erred in holding that the Saradammal @ Muniammal, got absolute estate and therefore, the sale deed executed by her in favour of the

first defendant is valid.

According to me, the daughters viz., Saradammal @ Muniammal and Kuppammal @ Pattammal got only life estate and the vested remainders

were given to the grand children and that was made clear in the last clause in the Will and therefore, the sale executed by Saradammal @

Muniammal is valid during her life time only and after her death, the first defendant will not get any right over the property. Therefore, the appellants

are entitled to the decree prayed for.

Though both the Courts concurrently held that the appellants are not entitled to the relief prayed for, it is not a settled rule that the concurrent

judgments cannot be interfered with in the Second Appeal. When the Courts below have wrongly interpreted the Will or omitted to take into

consideration any evidence or when the findings of the Lower Appellate Court are perverse, the same can be interfered with in the Second

Appeal, even in case of concurrent findings. Therefore, the arguments of the learned counsel for the respondents that the concurrent findings cannot

be interfered with cannot be accepted, having regard to the facts of this case.

In the result, the substantial question of law is answered against the respondents, the judgment and decree of the Courts below are set aside

and the Second Appeal is allowed and the suit is decreed. In the circumstances of the case, there shall be no order as to costs.