Bajrang Factory Ltd. &Amp; Anr Vs. University of Calcutta &Amp; Ors 
Insc 624 (18 May 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
1. Construction/ interpretation of a Will executed by one Nerode Chandra
Vasu Mullick on 04.03.1932 vis-`-vis certain provisions of the Indian
Succession Act (for short "the Act"), viz., Sections 113, 116 and 129
falls for our consideration in this appeal which arises out of a judgment and
decree passed by a Division Bench of the Calcutta High Court affirming a
judgment and order dated 2.06.1992 passed by a learned Single Judge of the said
Court in Suit No. 866 of 1979 on a preliminary issue raised by the appellants
therein as to whether the respondents had any locus to file the suit in
2. Before embarking on the said questions, we may notice the admitted fact
of the matter.
3. Appellant No. 1 is an existing company within the meaning of the
provisions of the Companies
Act, 1956. It claims its title in respect of the disputed premises by a
lease executed by the Chamong Tea Company Limited as also purchase of a
property by a deed of sale.
4. The property in question admittedly belonged to Late Nerode Chandra Vasu
Mullick. The legatee under the Will Shri Hamir Chandra Vasu Mullick through
whom Appellant No. 1 claims its right, title and interest was his son.
5. The relevant clauses of the said Will are as under:
"5. I give all my immovable properties and the said debentures in the
Hooghly Docking and Engineering Co. Ltd. to my son the said Hamir Chandra
Mullick to hold and enjoy the same during the term of his natural life without
impeachment of waste and on the determinator of his life Estate to such one of
his sons and grandsons as he may by deed, will or otherwise in writing appoint
absolutely and in default of such appointment to his eldest male descendants
absolutely. If my son has no male issue, the power of appointment may be
exercised by him in favour of his daughters or daughters son.
6. My son may sell or convert into money any of the properties mentioned in
the last foregoing clause but it will be obligatory on him to invest the entire
proceed thereof in the purchase of immovable properties in Calcutta on the
7. My son shall have the right and I devise that he should settle the said
immovable properties on one of his sons for such sons life with remainder to
such son's son."
6. Indisputably, the testator executed a Codicil on 4.03.1932 in terms
whereof inter alia it was provided:
"12. If my son has no issue, however distant or adopted son or any
issue of such adopted son, my estate shall go to the University of Calcutta for
advancement of learning. It is my Will and desire that the University should in
that connection suitably perpetuate for the benefit of Hindus only the memory
of (1) my father, Hem Chandra Vasu Mullick (2) my mother Vooban Mohini Vasu
Mullick (3) my maternal grand father Narendra Kumar Dutt and (4) my maternal
grandmother Golap Mohini Dutt and also use my residence no.
12, Wellington Square Calcutta as a Centre of learning to be called after my
7. We may, however, mention that the said Codicil, according to the
testator, should be read as a part of his last Will and testament dated
4.03.1932 and thereby he also confirmed the said Will and testament.
8. Soon after the execution of the Codicil, the testator died on 7.08.1942
leaving behind his widow, legatee and his daughter-in-law. The legatee under
the Will separated from his wife. His wife is said to have remarried.
Widow of the testator also passed away. Appellant No. 3 in that situation
allegedly was asked to take care of the affairs of the properties.
9. An application for grant of probate in terms of the Act was filed before
the original side of the Calcutta High Court and by an order dated 15.01.1943,
the legatee was appointed as the sole executor and trustee of the Will.
Allegedly by a registered indenture dated 27.12.1966, the legatee let out the
premises in question in favour of the appellant company, a portion of the
premises No. 156, Bipin Behari Ganguly Street, Calcutta (hereinafter referred
to as 'the immovable property') for a period of ten years with the option to
renew the same for further four consecutive periods of 10 years each in all for
fifty years from the said date on the terms and conditions mentioned therein.
10. It is not in dispute that Appellant No. 1 paid unto the legatee the
agreed rent till 14.07.1973. The legatee, however, purported to have conveyed a
portion of the said leasehold by a registered deed of sale in favour of one
Chamong Tea Company Limited, subject to the said lease granted in favour of the
11. Indisputably, the legatee died on 18.11.1976 without any issue. He had
not adopted any son also. He had also not made any appointment in terms of the
12. Respondent University claiming its right in terms of Clause 12 of the
aforementioned Codicil filed an application for grant of a Letters of
Administration and by reason of a judgment and order dated 22.08.1977, the said
application was allowed. It is stated that pursuant to or in furtherance of the
said order dated 22.08.1977 the Registrar of the Calcutta University took over
possession of the said property.
13. Three suits came to be filed thereafter. One of the suit was filed by
the appellants herein which was marked as Suit No. 390 of 1978 praying for the
"a) A declaration that the plaintiff is entitled to possession and/ or
to remain in possession and enjoyment of the portions of Baithakhana Bazar
being premises Nos. 155, 156, Bepin Behari Ganguly Street and 167 Baithakhana
Road Calcutta both within the aforesaid jurisdiction and described in the
sketch plan annexed hereto and marked with the letter "C" and delineated
in red and yellow including the right to collect rents issues and profits
b) Perpetual injunction restraining the defendants Nos. 1 and 2 their
servants and agents from interfering with or further interfering with or
continuing to interfere with or disputing or denying the plaintiff's right to
remain in possession and/ or right to possess and enjoy the portions of the
said Baithakhana Bazar being premises Nos. 155, 155/1, 155/2, 156, Bepin Behari
Ganguly Street, and 167, Baithakhana Road, Calcutta more fully described in the
sketch plan annexed hereto and marked with the letter "C" and
delineated in red and yellow including the right to collect rests issues and
profits from the occupants of such areas in any manner whatsoever.
c) Perpetual injunction restraining the defendants Nos. 1 and 2 from
collecting or attempting to collect the rents issues and profits from the
aforesaid portions of the Baithakhana Market of which the plaintiff is the
d) If necessary, possession of the said portions of the Baithakhana Bazar
being premises Nos. 155, 155/1, 155/2, 156, Bepin Behari Ganguly Street, and
167, Baithakhana Road, Calcutta more fully described in the letter
"C" and delineated in colour red and yellow"
14. Respondent No. 1 herein also filed a suit in the original side of the
Calcutta High Court on or about 15.11.1979 which was marked as Suit No.
864 of 1979 praying for the following reliefs:
"a) A declaration that the sale purported to have been effected in
respect of premises Nos.
155,155/1,155/2, Bepin Behari Ganguly Street, Calcutta by the Deed of sale
dated 29th May 1971 executed by Hamir Chandra Vasu Mullick in favour of the
Chamong Tea Company Ltd. The defendant No. 1 is void or voidable and of no
effect as stated in paragraph 25 of the plaint.
b) That the aforesaid Deed of Sale deed 29th May 1971 executed by Hamir
Chandra Vasu Mallick in favour of the Chamong Tea Company Ltd. The defendant
No. 1 delivered up and cancelled and/ or adjudged void as stated in paragraph
25 of the plaint.
c) A declaration that the deed of lease dated 24th July 1972 in respect of premises No. 155, 155/1, 155/2, Bepin Behari Ganguly Street, Calcutta executed by
the Chamong Tea Company Ltd. the defendant No. 1 in favour of Bajrang Factory
the defendant no. 2 is void or voidable and of no effect as stated in
paragraph 26 of this plaint.
d) That the aforesaid deed of lease dated 24th July 1972 executed by the Chamong Tea Company Ltd.
The defendant No. 1 in favour of Bajrang Factory Ltd. The defendant No. 2 be
delivered up as stated in paragraph 26 of this plaint.
e) In the alternative a declaration that the said sale and said lease dated
29th May 1971 and 24th July 1972 respectively as referred to in prayers (a),
(b)(c) and (d) are not valid beyond the life time of the said Hamir Chandra
Vasu Mallick, deceased as stated in paragraph 25 and 26 of this plaint.
f) A decree for declaration that the University of Calcutta is the absolute
owner of the said premises g) Perpetual injunction restraining the defendants
Nos. 1 and 2 from collecting rents, issue and profits from the tenants in
occupation of the said premises h) perpetual injunction restraining the
defendants Nos. 1 and 2 and their servants agents and assigns from transferring
assigning or otherwise dealing with or taking any or any further steps or
action for enforcement of the said deed of sale and deed of lease dated 29th
May 1971 and 24th July 1972 respectively or any alleged right thereunder as
against the plaintiff No. 1"
15. It appears that the aforementioned Chamong Tea Company Limited had also
filed a suit.
16. In the suit filed by Respondent University, the appellants raised two
issues in regard to the validity of the Will, which are as under:
"(a) Whether the dispositions in regard to the residuary estate made by
the said Will are void save and except the life interests given thereby to the
plaintiffs and the defendant Susan Sopher.
(b) Whether subject to the life interests given in the residuary estate to
the plaintiff and the defendants Susan Sopher the said Plaintiffs and the
defendant Susan Sopher have succeeded to the residuary estate of the testator
as on a intestacy."
17. The said issues were taken as preliminary issues. According to the
appellants, the bequeath of the property in terms of Clauses 5, 6 and 7 of the
original Will, as amended by the Codicil dated 4.03.1932 was void in terms of
Section 113 of the Act. The learned Judge opined:
"The right created in favour of Hamir Chandra Basu Mallick was only a
life estate and his power or appointing certain specified person was in respect
of the entire estate absolutely. Under the circumstances the provision of
Section 113 had no application in as much as Hamir had no choice of curtailing
the interest from the remaining of the testator's interest. Hamir had no right
to cut down the absolute estate as such neither the provisions of Section 113
nor Section 114 are attracted. Section 116 had no application. The right
created in favour of the University of Calcutta could only be defeated, if
Hamir had any issue either natural born or adopted. Clause 12 of the Codicil
should override clause 5 of the Will. The question of appointment by Hamir
Chandra Basu Mallick could only arise provided he had issues either natural
born or adopted. The clause 7 in the Will is only directory and not imperative.
Under the circumstances there is no clause of defeasance and the legatee as
contemplated would take the entire estate of the testator is an unfetter form.
In view of the facts and circumstances of this case and in view of the
various principles of law as laid down in the cases discussed above this Court
is of the view that the preliminary point raised by the defendants in the suit
must be answered in the negative in as much as this Court is of the view that
the University of Calcutta is entitled to file the suits and proceed with the
18. Aggrieved by and dissatisfied therewith, the appellants preferred an
intra-court appeal before the Division Bench of the Calcutta High Court. By reason
of the impugned judgment dated 14.02.2003, the said appeal has been dismissed
"After considering the respective submissions of the parties and the
entire materials on record we do not find any reason to interfere with the
impugned judgment and order of the Trial Court as we agree with the view of the
Trial Court that the bequest of the property in favour of the University of
Calcutta is not void and therefore the University is entitled to file the suit.
It has been rightly contended by the learned counsel appearing on behalf of
the respondent, University of Calcutta, that in the matter of interpretation of
the Will, the Court is required to ascertain the dominant intention of the
testator on a plain reading of the will and it will also be the duty of the
Court to implement such intention of the testator and if there are two clauses
which might appear to be inconsistent to each other it will be the duty of the
Court to reconcile the aforesaid two Clauses.
Keeping such principle of law, if we now examine the aforesaid three Clauses
of the Will, Clauses 5, 6 and 7, we are of the view that Clause 5 and Clause 7
of the Will are not inconsistent with each other.
In Clause 6 of the Will the son of the testator who was given life estate of
the property was given right to sell or convert into money the property was
given right to sell or convert into money the aforesaid immovable properties
bequeathed to him for life but subject to the condition contained in Clause
that in such event he has to invest for purchase of another immovable
properties which has to be settled by the son of the testator to one of the
sons of Hamir. The reference to immovable properties in Clause 7, which follows
Clause 6 obviously is to the properties which Hamir was required to purchase,
if he transferred the immovable properties bequeathed to him by investing the
sale proceeds thereof.
We are therefore unable to accept the submission of the learned counsel
appearing on behalf of the appellant that there was inconsistency between
Clauses 5 & 7 and because of the same, the alter Clause will prevail."
It was furthermore observed:
"Clause 5 of the Will therefore stood modified by Clause 6 of the
Codicil. On the death of the testator therefore as Hamir did not beget or adopt
any son, the property will validly go to the University of Calcutta.
We are unable to accept the contention of the learned Counsel appearing for
the appellant that bequests of the property by the testator to the unborn son
of Hamir subject to his life interest was void under the provisions of Section
113 of the Indian Succession Act and consequently the bequests in favour of the
University of Calcutta is also void under Section 116 of the Indian Succession
It appears to us that the bequests in favour of the unborn son of Hamir by
the testator of the immovable properties was absolute and the same comprised of
the whole of the interest of the testator in the property bequeathed having
been devised and bequeathed absolutely in favour of them. Since the bequests
therefore comprised of the whole of the interest of the testator in the said
property, such bequests will not be void.
Consequently, not the provision of Section 116 of the Indian Succession Act
but the provision of Section 129 of the said Act will apply and the bequests
made in favour of the University of Calcutta shall take effect upon failure of
the bequest made in favour of the unborn son of Hamir."
19. Mr. C.S. Sundaram, learned senior counsel appearing on behalf of the
appellants in assailing the judgment and order passed by the Calcutta High
Court would inter alia submit:
(i) Clause 7 of the Will being inconsistent with the stipulations contained
in Clause 5 thereof would prevail thereover in view of the provisions contained
in Section 88 of the Act.
(ii) Clause 7 of the Will providing for a bequest in favour of an unborn
person is clearly violative of Section 113 of the Act and in that view of the
matter, the bequest which was to take effect on the failure of the prior
bequest in terms of Section 129 thereof would also be void under Section 116 of
(iii) Assuming that the High Court judgment is correct, Clause 5 of the Will
would be defeated by the contingencies contained therein or by Clause 6 thereof
inasmuch as in such an event, the consequences provided for under Clause 7 of
the Will would take over; as a consequence whereof, Clause 5 of the Will would
also be void under Section 113 of the Act.
(iv) If Clauses 5 and 7 of the Will were void, the consequences thereof
would be that the bequest under Clause 12, being dependant on the failure of
the aforesaid bequest, would also be rendered void in view of Section 129 of
20. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of the
respondents, on the other hand, would submit:
(i) The principles of interpretation of the Will being to ascertain the
intention of the testator are:
(a) the court will sit on the arm-chair of the testator so as to give effect
to his intention; and (b) would implement that intention of the testator and in
that process an endeavour would be made to clear the inconsistencies if any so
as to see that the intention of the testator is not defeated.
(ii) Having regard to the definition of Codicil contained in Section 2(b) of
the Act, the latter will prevail and if the Codicil is read in its entirety, it
would be evident that the testator clearly provided for gift to the respondent
University if the legatee Hamir Chandra Mullick did not leave behind any son or
had not adopted any. As admittedly, the legatee died in the year 1977 without
any issue or without adopting any son or without appointing any person, Clause
12 of the Codicil would come into effect.
(iii) Clause 6 of the Will clearly shows that merely a life interest was
conveyed to the legatee inasmuch as even had he transferred the property, the
same would be subject to investment of the sale proceeds in acquiring one or
the other property.
(iv) Clause 7 of the Will merely provides for an enabling clause in the
hands of the legatee in terms whereof he may or may not appoint any person and
only in the event such appointment is made, the desire of the legatee was to
see that the same may be made in favour of his male issue.
(v) Clauses 5 and 7 of the Will, therefore, would not be hit by Section 113
of the Act.
(vi) Clause 7 of the Will furthermore would not operate qua the property but
qua the option of the legatee. The Will so read, it was urged, that both
clauses 5 and 7 can be given effect to as it merely provided for a just pious
hope or wishful thinking on the part of the testator.
21. The Act was enacted to consolidate the law applicable to intestate and
22. "Codicil' has been defined to Section 2(b) of the Act to mean 'an
instrument made in relation to a will, and explaining, altering or addition to
its dispositions, and shall be deemed to form part thereof'.
23. Section 82 of the Act reads as under:
"82. Meaning or clause to be collected from entire Will The meaning of
any clause in a will is to be collected from the entire instrument, and all its
parts are to be construed with reference to each other."
24. Section 88 of the Act provides for a rule of construction of the Will
stating that where two clauses of gifts in a Will are irreconcileable so that
they cannot possibly stand together, the last shall prevail. This provision is
itself a pointer to the fact that once it is possible to give effect to both
the clauses which although apparently appears to be irreconcileable the court
should take recourse thereto.
25. It is admitted that there are certain typographical errors in the said
Will. While construing the said Will, therefore, we will have to take note
26. In construction of the Will for the purpose of considering the validity
thereof, we must see as the things were at the relevant time and not what they
27. By reason of Clause 5, the testator bequeathed his right, title and
interest in favour of his son Hamir Chandra Vasu Mullick inter alia of the
immovable properties during the term of his natural life. The bequest was,
therefore, not absolute. Only upon determination of his life estate, the same
is to vest absolutely on such one of his sons and grandsons as he may by deed,
Will or otherwise in writing appoint. The said Clause is also not void inasmuch
as the bequest to the sons or the grandsons of the testator is not for a life
time but it vests in them absolutely. The intention of the testator becomes
clear in reading the next sentence which again provides that in default of such
appointment to his eldest male descendants absolutely, if Hamir Chandra Vasu
Mullick has no male issue, the power of appointment may be exercised by him in
favour of his daughters or daughters' sons.
28. While making the bequest on the aforementioned terms, the limited power
to transfer the said bequeathed property had also been conferred upon him. For
all intent and purport it did not confer any power of absolute transfer. It, in
effect and substance, merely provided for conversion of the property. Such
conversion of the property was to be made strictly in the manner as laid down
therein. As regard the purported transfer of the properties in suit by the
legatee, two questions would arise:
(a) What would be the effect of non-conversion of such properties by
purchase of immovable properties in Calcutta or the suburbs.
(b) Whether Clause 7 of the Will only refers to the properties so
transferred only on one of the appointees of the testator.
29. It is one thing to say that non-compliance of conditions contained in
Clause 6 of the Will would not invalidate the transfer, but it is another thing
to say that the said provision contemplated illegality in the transaction. If
the transaction is void or voidable at the instance of the beneficiary to the
Will, no further question need be asked. Courts in the event of its findings
that the transactions are illegal, would have to proceed on the basis that the
same had not taken place at all.
30. At this juncture, this Court is not concerned with the other allegations
made by the University as to whether the deed of sale executed by the legatee
was invalid or not, inasmuch as the preliminary issue raised is confined to the
question of validity of the will.
31. What would be the effect of a sale if the sale proceeds have not been
applied for purchase of immovable property is also a question which would fall
for consideration of the High Court at an appropriate stage. It goes without
saying that it would be open to the High Court to consider as to whether a suo
motu action or at the instance of the University can be taken as the conditions
for grant of probate have been violated. We, however, need not apply our mind
to the said question.
32. We may, furthermore, notice that the word 'devise' in the context of
Clause 7 does not appear to be appropriate. The word 'devise' would inter alia
mean a 'plan' or a 'scheme'. What probably the testator meant was to use the
word 'desire' and not 'devise'. Clause 7 on a plain reading does not appear to
be a clause, in terms whereof, the testator was bequeathing any property in
favour of any person. It thereby merely conferred a right upon the legatee and
only a desire was expressed by the testator in regard to the legatee's exercise
of power of option.
33. Clause 7, therefore, may not have any application for the purpose of
construction of the Will..
34. However, it is not in dispute that Clause 12 contained in the Codicil
shall prevail over the Will. Clause 12 of the Codicil did not substitute
Clauses 5, 6 and 7. As indicated hereinbefore, the Codicil was to be read as a
part of the Will and by reason of the said Codicil, the said Clauses of the
Will were confirmed by the testator. In our opinion, by reason of the Codicil,
the testator expressed his intention clearly to the effect that in the event
the legatee does not have any issue or he does not adopt anybody as his son or
otherwise appoint a person provided for in Clause 5, the bequest would be in
favour of the Calcutta University. The desire of the testator apparently was to
perpetuate the memory of his ancestors. Bequest in favour of the Calcutta
University was meant to achieve a particular purpose which has clearly been
stated in Clause 12 of the Codicil.
35. The principles of construction of Will are well known.
36. Lord Russell in Margaret Goonewardens v. Eva Moonemale Goonewardene and
others [AIR 1931 PC 307] was considering a bequest made by the testator which
was in the following terms:
"(g) The rest and residue of my cash found in my possession at the time
of my demise and also the money in deposit to my credit in my No. 1 account in
the Mercantile Bank of India Limited Galle, in the Bank of Madras Colombo, in
the Government Savings Bank and in the Post Office Savings Bank and the amount
of my Policy of Insurance together with the profit thereof and all other
moveable property absolutely to my said wife Margaret."
37. The testator, thereafter, made a Codicil in terms whereof the pecuniary
legacy to a servant in respect of certain house was made which contained these
words: "Save as hereby altered or modified I hereby confirm the said
38. A question arose therein as to whether a sum of Rs. 2,14,200/- to which
amount the testator became entitled to from the moneys invested on mortgage
bonds or promissory notes passed under the bequest of the legacy or under the
gift of all other immovable property. The Judicial Committee opined:
"It is well settled in England that by virtue of S.34, English Wills
Act, the effect of confirming a Will by codicil is to be bring the Will down to
the date of the codicil and to effect the same disposition of the testator's
property as would have been effected if the testator had at the date of the
codicil made a new will containing the same disposition as in the original will
but with the alterations introduced by the codicil"
39. In Pearley Lal v. Rameshwar Das [(1963) Supp 2 SCR 834], Subba Rao, J.
"Where apparently conflicting disposition 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. Further, 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.
If the construction suggested by learned counsel be adopted, in the event of
his son predeceasing the testator, there would be intestacy after the death of
the wife. If the construction suggested by the respondent be adopted; in the
event that happened it would not bring about intestacy, as the defeasance
clause would not come into operation.
That was the intention of the testator is also clear from the fact that he
mentioned in the will that no other relation except his wife and son should
take his property and also from the fact that though he lived for about a
quarter of a century after the execution of the will, he never thought of
changing the will, though his son had predeceased his wife."
40. In Navneet Lal Alias Rangi v. Gokul and Others [(1976) 1 SCC 630], this
"8. From the earlier decisions of this Court the following 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 out the intended meaning of the
words which have actually been employed. ( Ram Gopal v. Nand Lal) (2) In
construing the language of the will the court is entitled to put itself into
the testator's armchair ( Venkata Narasimha v. Parthasarathy) 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
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 case and Gnanambal Ammal v. T.
Raju Ayyar) (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 ignoring none of them as redundant or
contradictory. ( Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer) (4) The
court must accept, if possible, such construction as would give to every expression
some effect rather than 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 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 discarded in
favour of a construction which does not create any such hiatus.
( Pearey Lal v. Rameshwar Das) (5) 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 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 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.
Hilda Brite Mrs )"
41. To the same effect are the judgments of this Court in Arunkumar and
Another v. Shriniwas and Others [(2003) 6 SCC 98], Uma Devi Nambiar and Others
v. T.C. Sidhan (Dead) [(2004) 2 SCC 321], Sadhu Singh v.
Gurdwara Sahib Narike and Others [(2006) 8 SCC 75] and Gurdev Kaur and
Others v. Kaki and Others [(2007) 1 SCC 546].
42. In Halsbury's Law of England, 4th Edition,, Vol. 50, at pg 332, it was
"The only principle of construction which is applicable without
qualification to all wills and overrides every other rule of construction is
that the testator's intention is collected from a consideration of the whole
will taken in connection with any evidence properly admissible, and the meaning
of the will and of every part of it is determined according to that intention.
For this purpose, the will and all the codicils to it are construed together as
one testamentary disposition, but not as one document, and the testator's
intention is gathered from the whole disposition."
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 thereto. The Will as a whole must, thus, be considered
for the said purpose and not merely the particular part thereof.
As the Will if read in its entirety, can be given effect to, it is
imperative that nothing should be read therein to invalidate the same.
44. In construing a will, no doubt, all possible contingencies are required
to be taken into consideration; but it is also a well-settled principle of law
that only because a part of a document is invalid, the entire document need not
be invalidated, if the former forms a severable part. The legatee admittedly
did not have any issue, nor did he adopt or appoint any person.
In a situation of this nature, effect can be given to clause 12 of the will,
if it is read as occurring immediately after Clause 5 of the original will. As
the said clause stands on its own footing, its effect must be considered
vis-`-vis clause 6, but the court may not start with construction of clauses 6
and 7, which may lead to a conclusion that clause 5 is also invalid. The
contingencies contemplated by clause 6 may not have any effect on clause 7, if
it does not take place at all. The property which should have been purchased
with the sale proceeds could have been the subject-matter of the bequest and in
terms thereof the University of Calcutta became the beneficiary on the death of
the original legatee. We do not find any reason as to why the same cannot be
given effect to. We have indicated hereinbefore that it is possible to construe
clause 7 of the will and in fact a plain reading thereof would, thus, lead to
the conclusion that it merely provides for an option given to the legatee to
take recourse thereto. We have also indicated hereinbefore that the term
'device' in the context of clause 7 does not carry any meaning and, therefore,
the same for all intent and purport should be substituted by the word 'desire'.
As a matter of fact, the appellant in the copy of the will supplied to us had
also used the word 'desire' in place of the word 'device', which would also go
to show that even the appellant understood clause 7 in that fashion. Clause 7,
if so read, will have no application to the properties which were to be
substituted in place of the immovable properties belonging to the testator. The
benefit of the sale proceeds, thus, in absence of any action on the part of the
legatee in terms of clause 7 shall also vest in the University. Moreover, the
question as to whether the deed of sale purported to have been executed by the
legatee in favour of Chamong Tea Co. Ltd.. or other instruments executed by him
in favour of the appellants herein are pending consideration before the High
Court which may have to be determined on its own merit. In the event, the said
transactions are held to be void, the question of giving any other or further
effect to clause 6 of the Will may not arise.
45. In view of the findings aforementioned, we are of the opinion that the
decision relied upon by Mr. Sundaram on Margaret Goonewardens (supra) cannot be
said to have any application in the instant case, as in view of our findings
aforementioned, clause 5 of the will is not hit by Section 113 of the Indian
46. The submission (iv) of the appellant fails in view of the matter that
Clause 12 does not attract Section 129 of the Act since both the clauses, i.e.,
5 and 7 are valid as observed hereinbefore.
47. For the reasons aforementioned, there is no merit in this appeal which
is accordingly dismissed with costs. Counsel's fee is quantified at Rs.50,000/-
48. We would request the High Court to consider the desirability of
disposing of the suits filed by the parties hereto, as expeditiously as
possible, keeping in view the fact that they are pending for more than 28 years