Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi [2008] INSC 2060 (2 December 2008)

Judgment

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7011 OF 2008 (Arising out of SLP (C) No.13331 of 2006) Narendra Gopal Vidyarthi ... Appellant Versus Rajat Vidyarthi ... Respondents

S.B. Sinha, J.

1.     Leave granted.

2.     This appeal is directed against a judgment and order dated 4.4.2006 passed by a learned Single Judge of the High Court of Judicature of Madhya Pradesh, Gwalior Bench, Gwalior in Second Appeal No.356 of 2001 whereby and whereunder an appeal preferred by the respondent from the judgment and decree dated 2.7.2001 passed by the 9th Additional District 2 Judge, Gwalior in Civil Appeal No.86A of 1999 affirming the judgment and decree dated 1.11.1999 passed by the XIth Civil Judge Class II, Gwalior in Civil Suit No.203A of 1996 dismissing civil suit filed by appellant/respondent, was allowed.

3.     Controversy involved in this appeal centres around the construction of a Will executed by one Shri Bishan Sahai Vidyarthi on 21.11.1965. The said Bishan Singh Sahai died in or about 1973.

4.     Indisputably, within a month from the date of the execution of the said Will, an immoveable property was purchased for a sum of Rs.32,000/-, inter alia, from the amount set apart for the benefit of the appellant and his mother.

5.     Bishan Sahai Vidyarthi had five sons, namely, Rameshwar Sahai, Rajeshwar Sahai, Harbansh Sahai, Raghuvansh Sahai and Krishan Sahai; the eldest of them being Harbansh Shai, father of the appellant herein.

Plaintiff-respondent Rajat Vidyarthi is son of Rameshwar Sahai, the youngest son of Bishan Sahai.

6.     The aforementioned suit was filed by the respondent for declaration and permanent injunction against the appellant herein alleging that he had been making attempts to dispose of the suit property which is a house 3 belonging to the joint family. Appellant, in his written statement, contended that the said property was bequeathed to his mother and, thus, the plaintiff- respondent had no right in relation thereto.

7.     The learned Trial Judge, despite finding that the suit property was a joint family property, inter alia, on the premise that no injunction can be granted against a co-owner in terms of Section 41(h) of the Specific Relief Act, 1963 and the only remedy available to the plaintiff was to file a suit for partition, dismissed the suit.

8.     The respondent did not prefer any appeal thereagainst. The appellant, however, preferred an appeal against the finding made therein that the suit property was a joint family property. By reason of a judgment and order dated 2.7.2001, the said appeal was allowed by the learned 9th Additional District Judge, Gwalior, holding :

"21. At the time of execution of the Will, if Bishan Sahai was trying to purchase the house for Chandramukhi, but no appropriate and good house was found by him and even plaintiff has not initiated any proceedings on the ground that their money is invested in the disputed house before filing of the suit after the demise of Bishan Sahai, though Bishan Sahai had died in the year 1973.

Therefore, this inference could be drawn from the conduct of other heirs of Bishan Sahai that the disputed house has been purchased from the amount payable to Chandramukhi. Therefore, 4 plaintiff has failed to prove that the disputed house is the property of the Joint Family."

9.     A Second Appeal was preferred thereagainst by the respondent. Two substantial questions of law were formulated which are :

"(1) Whether, after dismissal of the suit, defendant has right to file appeal? (2) Whether, the property in dispute is Joint Hindu Family Property?"

The first question was answered in favour of the appellant.

Respondent has not filed any appeal there against.

So far as the second substantial question of law is concerned, the High Court held :

"Substantial question of law No.2 is "whether the property in dispute is Joint Hindu Family Property". To decide this substantial question of law, I will have to go through the record of the trial court, judgment and decree passed by trial court and lower appellant court. It is also necessary to peruse the evidence adduced by both the parties and if it reveals that learned First Appeal court's finding pertaining to sole ownership of defendant/respondents to disputed house is perverse, against evidence, misreading of evidence or overlooking of any evidence then, it 5 would be necessary to re-appreciate the evidence adduced by both the parties."

10.  Appellant is, thus, before us.

11.  Mr. Dhruv Mehta, learned counsel appearing on behalf of the appellant, would submit :

(1) Keeping in view the fact that after death of Bishan Sahai, not only the property was mutated in the name of Chandramukhi, the mother of the appellant and also the appellant, the High Court committed a serious error in opining that by reason of the said Will dated 21.11.1965, only a limited interest has been bequeathed in favour of the appellant and his mother.

(2) The second question of law formulated is not a substantial question of law. The approach of the High Court in formulating the same was, thus, erroneous, wherefor no opportunity of hearing was given to the appellant.

Reliance in this behalf has been placed on Krishnan v. Backiam & Anr. [2007 (11) SCALE 46] and Boodireddy Chandraiah & Ors. v. Airgela Laxmi & Anr. [2007 (1) SCALE 188].

6 (3) In any event, the High Committed a serious error insofar as it misconstrued and misinterpreted the said Will dated 21.11.1965 to hold that by reason thereof, only a limited interest in favour of the appellant had been bequeathed.

12.  Dr. Saxena, learned counsel appearing on behalf of the respondent, on the other hand, would submit :

(1) No objection having been raised by the appellant before the High Court, it does not lie in the mouth of the appellant now to contend that the substantial question of law formulated by the High Court was not correct.

(2) A bare perusal of the Will dated 21.11.1965 would clearly show that the testator who was proficient in Urdu having used the word `wakf' and a board of trustees consisting of four persons named therein having been constituted, no absolute interest had been or could have been conferred in the appellant.

13.  One of the issues which arose for consideration before the High Court was as to whether the property in question was a joint family property. The learned Trial Judge answered the question in the affirmative. The same was reversed by the first appellate court. A finding of fact arrived at by the first 7 appellate court is ordinarily final. Its correctness can be questioned if, inter aila, the same was based upon no evidence or is otherwise perverse or that correct legal principles were applied. The question formulated, namely, as to whether the property in dispute is a Joint Hindu Family property, per se, is not a substantial question of law.

14.  The High Court, however, proceeded on the basis that if the judgment is based on no evidence or is otherwise perverse, a substantial question of law would arise for consideration. It is so but therefor also a substantial question of law must be framed. In terms of Section 100 of the Code of Civil Procedure, the High Court can entertain a second appeal if a substantial question of law arises for its consideration and not otherwise.

15.  A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidences have not been taken into consideration or inadmissible evidences have been taken into consideration.

16.  We fail to understand as to on what basis, the said question of law was formulated. Before an additional question is formulated, the procedure laid down therefor must be complied with. This aspect of the matter stands concluded by this Court in Krishnan's case (supra), wherein it was held :

8 "10. Under the amended Section 100 CPC the High Court has to frame substantial questions of law and can decide the second appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the First Appellate Court that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse.

11. It may be mentioned that the First Appellate Court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96 CPC. No doubt the findings of fact of the First Appellate Court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the First Appellate Court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the First Appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court."

{See also Subramaniaswamy Temple, Ratnagiri v. V. Kanna Gounder (Dead) by LRs. [2008 (9) SCALE 386]}.

Yet again in Boodireddy Chandraiah's case (supra), this Court opined:

9 "8. The phrase `substantial question of law', as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying `question of law', means--of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely.

However, it is clear that the legislature has chosen not to qualify the scope of `substantial question of law' by suffixing the words `of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance.

In Guran Ditta v. T. Ram Ditta the phrase `substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju: (Chunilal case) `5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled 10 and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'

12. The principles relating to Section 100 CPC relevant for this case may be summarised thus :

(i) An inference of fact from the recitals or contents of a document is a question of fact.

But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but 11 because the decision rendered on a material question, violates the settled position of law.

13. The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to `decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

17.  This Court, for the reasons stated hereinbefore, should ordinarily upon setting aside the judgment of the High Court, remit the matter to it.

However, we, in view of the fact that the suit was filed in the year 1995 and the principal controversy between the parties is construction of the said Will dated 21.11.1965, thought it proper to dispose of the matter ourselves.

18.  Before adverting to the said question, we may place on record that we have heard the learned counsel for the parties at some length on 17.7.2008.

Appellant had furnished to us an unofficial translation of the said Will, correctness whereof was disputed by Dr. Saxena. We, therefore, entrusted the job to the official translator. A copy of the said Will, as translated by 12 the official translator, has been placed before us. It is accepted by the counsel for both the parties that the said translation, to put it simply, even does not carry any meaning. We, therefore, chose to ignore the same.

19.  The translated portions of the Will which are disputed one are as under :

Extract of Will Official Translation Correct Translation 13 maorI AaiKrI #vaa[Xa hO ik Apnao My last willingness is It is my last wish that tmaama vasaIyat naamaaoM kao maMsaUK that I shall cancel my by way of this will, krko [sa vasaIyatnaamaoM ko jairyao all previous Wills and which I am stating in jaao maOM vahavaasa thrIr kr rha hMU by way of this Will, I in my senses, that from my Apnao AaiKrI AXaaXaa AaOr my complete mental self acquired earnings ijandgaI Bar kI Kud pOda krda and physical of whole life, only kmaa[- maoM sao mauvailaga tIsa hjaar consciousness, execute Rs.30,000/- (Rs. Thirty 30000) Ipyaa ijasako that out of my self thousand only), the half acquired earnings a sum of which is only inasfmauvailaga pMd`h hjaar 15000) of Rs.30,000/- (Rupees Rs.15,000/- (Rupees Ipyaa haoto hOOM ik AjaIja narond` fifteen thousand only) fifteen thousand only) gaaopala ivaVaqaI- AaOr ]sakI maaP be spared or set apart may give `Wakf' for the cand`mauKI ivaVaqaI- ko mafad ko ile from the benefit of Dear benefits of dear va@f kr dMU ijasasao narond` gaaopala Narendra Gopal Narendra Gopal kI talaIma va trKIyat va SaadI Vidyarthi and his Vidyarthi, and his vagaOrh A]r ]sakI maaP kI gaujar widowed mother widow mother Cnahder basar Kanao kpD,o vagaOrh ka maakUla Chandramukhi Mukhi Vidyarthi, by [ntjaama )ao sako A]r AajaIvana Vidyarthi so that the which for the education iksaI trh kI tklaIf A]r study and marriage etc. and maintenance and proSaanaI na hao. [sa maustrj,aa vaalaa of Narendra Gopal and for the marriage etc. of rkma pr maoro isavaaya maoro A]r Livelihood of his Narendra Gopal and for iksaI ka kao[- hk A]r mautalabaa mother such as fooding the maintenance, food, nahIM hO A]r mauJao ApnaI #vaa[-Sa ko and clothes could easily clothes etc. of his mautaibak [sa rkma ko [stomaala be arranged and they Mother appropriate A]r saf- ko ile vasaIyat krnao would not get any arrangement could be ka pUra PaUra hk hO A]r iksaI difficulty in their lives. made, and throughout Sa#sa kao [sa pr kao[- etraja yaa No one has any right or life, there may not be claim over his any type of difficulty JagaD,a krnao ka hk nahIM hO.

Mundaraja amount and and problem. On this ilahajaa baduIstI haoSa hvaasa [sa I have complete right to stipulated amount vasaIyatnaamao ko jairyao maOM ibaSana use this as per my excepting me, there is sahaya pu~ laalaa iSava sahaya wishes and nobody has not right or concern of mausdrjaa vaala tIsa hjaar Ipyaa any objection or right to anyone else, and I, kao jaao baOMk Aa^f [MiDyaa ila0 raise dispute. according to my wish, gvaailayar ba`aMca maoM saoivMaga baOMk Therefore in my for the use and eka]nT maoM jamaa hO AjaIja narond` complete physical and spending, I have gaaopala ivaVaqaI- AaOr ]sakI maaP mental consciousness complete right to make cand`mauKI ivaVaqaI- ko mafad ko ile by way of this Will, I the Will, and no other va@f krko ek T/sT kayama Vishun Sahay son of person has any right to krta hUP ........ Lala Sibo Sahay hereby object or quarrel. As gifting the Mundaraja such in my complete tIsa hjaar Ipyaa 14 According to the respondent, the aforementioned controversial portion should read as under :

"In such circumstances, if immovable property does not get available, handing over of cash amount to her would be useful destruction.

Therefore, for the purpose of safety of the amount, it would be must that she be not given all big cash amount. Watch on rental amount and interest is must. For the bigger expenditure, the decision and sanction of the trustees is necessary.

If immovable property becomes available then rent of the same otherwise the bank interest over the said amount of Rs.30,000/- shall be given to the Narendra Gopal and his widowed mother for their personal expenses so that they would not have to stretch their hands before anyone for the personal expenses. In this regard trustees have to be gracious and farsighted. It would be taken care that the property shall remain family and would not be mortgaged or sold.

Rs.30,000/- was set apart for the limited purpose of maintenance and for the benefit of Vaidarthi and his mother.

This means that the intention of the testator was that only small amount should be given not a big amount and for the safety of the amount, big cash should not be given to the widowed mother or the petitioner. Strict vigil would be must. The decisions and sanction of the trustees is necessary.

Watch on rental and interest is must. They wanted to bring up the widowed mother as well as the minor child and for that purpose they spared that amount."

20.  We have also been taken through the entire original Will. The testator had a philosophical bent of mind. The recitals in the Will show that he was aware of the uncertainties of life. He had made a Will also on 19th February, 1959. As he lived till 1965, he executed the Will in question.

The Will recites that God had been kind enough to him. He had four daughters, Sunbderkala, Sarladevi, Shanti Devi and Lakshmi Devi who were happily married. He also acknowledged that he had five sons, Raghuvansh Sahay (Mithubabu), Harbans Sahay (Kaptan), Rameshwar Sahay, Rajeshwar Sahay and Krishna Sahai (Kisho). He also stated that out of the five sons, four, namely, Raguuvansh Sahay, Rameshwar Sahay, Rajesnwar Sahay and Krishna Sahay were highly educated and well placed in their life. They are married and were in employment. They had been leading a happy life. He wished a long and prosperous life for them.

However, he expressed his agony for the death of his eldest son Harvansh Sahay (Kaptan) who had died in the year 1949 leaving behind a small child and a young wife. He acknowledges that proper arrangements should be made for maintenance of Chandramukhi, his widowed daughter-in-law.

Some arrangements should also be made for education, maintenance and marriage of her son Narendra Gopal. It appears from the Will that he had 16 saved about Rs.30,000/-. Indisputably, he had also a sum of Rs.10,000/- in a firm known as "Vidyarthi and Sons". Indisputably again, he thought of purchasing an immoveable property for the benefit of the appellant and his mother but the same did not materialize.

21.  It is in the aforementioned backdrop of facts, the Will in question is required to be construed. Before we proceed to do so, we may also notice some subsequent events. The house property in question was purchased by Bishan Sahai in his own name from Smt. Laxmibai Kelkar. After his death which took place in 1973, the said property stood mutated in the name of Chandramukhi Devi and after her death in the name of the appellant. No other family member objected thereto. The High Court, in its impugned judgment, has, in fact, recorded that for the purpose of obtaining the order of mutation, the other family members helped Chandramukhi. They also filed applications for exemption from payment of property tax by her.

Admittedly, since the date of death of Bishan Sahai, the appellant and his mother alone have been in possession of the property. The suit was filed in the year 1995. Therein, no other family member was impleaded. If the plaintiff-respondent intended to obtain a declaration that the property in question is a joint family property, it was expected that other family members would be impleaded. None of the sons of Bishan Sahai was 17 examined as a witness. No explanation was sought for from them as to why they themselves were instrumental in getting the name of Chandramukhi mutated.

22.  A bare perusal of the Will would show that he had kept apart Rs.30,000/- for Chandramukhi and the appellant. The purpose of doing so was that from his income, he had made jewelleries for others. The Will speaks of division of the utensils also. According to him, it was the duty of the brothers to look after the widow of his son Kaptan and Narendra Gopal, as they had been earning well, the child of with his mother should live with them so as to enable him to meet the ups and downs of life. He did not want that the said amount should be wasted and for the said purpose, some sort of supervision was necessary. He, therefore, wanted to make a `wakf' in their favour so as to enable them not only to maintain themselves but also to spend for the education and upbringing as well as marriage of Narendra Gopal. He declared that apart from himself, nobody else had any interest therein nor anybody can raise any dispute in regard thereto. He made his sons the Executors of the wakf. He as, indicated hereinbefore, used the word `wakf'.

23.  What should be the true meaning of the said word is the question.

Whereas, Mr. Mehta submits that it should be treated as `gift', according to 18 Dr. Saxena, the same connotes a trust. The ordinary meaning of `wakf' is taking out something out of one's ownership and passing it on to God's ownership dedicating its usufruct - without regard to indigence or affluence, perpetually and with the intention of obtaining Divine pleasure - for persons and individuals, or for institutions or mosques and graveyards, or for other charitable purposes. It is in their true sense neither gift nor trust.

24.  Gift of some amount in cash does not require registration nor does the statutory requirements as contained in Sections 122 and 123 of the Transfer of Property Act are attracted therefor.

25.  Was it the amount which was the subject matter of the Will or an immoveable property which was to be purchased from the said amount, meant to be transferred in favour of the respondent absolutely is the question.

26.  The Will provides that if the sum of Rs.30,000/- is found to be inadequate for purchase of an immoveable property, the amount of Rs.10,000/- which was available with the partnership firm vidyarthi & Sons be utilized which would be determinative factor as regards the extent of title of the property.

27.  The word used in the Will is `karar'. It may mean determination; it may also mean agreement. But if the extent of the title is to be determined, the same will have a direct nexus with the amount spent from the sum of Rs.10,000/- which was with the partnership firm. If determination of the extent of the title has a nexus with the amount spent from the said sum of Rs.30,000/- vis-`-vis the said sum of Rs.10,000/-, title was to be passed in favour of the beneficiary.

28.  This gives rise to two questions which are of some importance. When a sum is to be invested in the immoveable property and in the event, any further sum is necessary, the extent of title is required to be determined, does it demonstrate the intention on the part of the testator. In our opinion, it does. Wakf is a `final dedication'. It goes out of the control of dedicator.

The use of the said word may not be appropriate in a situation of this nature but that only goes to show that the testator intended to divest himself of the said property.

29.  The very fact that the testator categorically stated that the extent of title in the property will depend upon the amount of additional contribution required to be made from the fund of Vidyarthi and Sons itself is an indication to show that his wish was that title should vest in the beneficiaries to the extent of the property which represented the amount of 20 Rs.30,000/- out of the total amount of consideration required to acquire the same. There cannot be any doubt whatsoever that his intention also was that the entire cash may not be paid to Chandramukhi as she was of gullible character. She could be made to part therewith by any other person by sweet words. A precaution was, therefore, required to be taken. The amount was required to be spent wisely. The amount which was required for their maintenance and education of appellant whether derived from the interest or from the rental only was to be handed over. It is only for the aforementioned limited purpose, the trust was created. The sole beneficiary of the trust, in our opinion, was merely the appellant and his mother. It may be true that the property was purchased in the name of the testator himself.

The High Court commented that the same could have been done in the name of the appellant and his mother or at least the purchase could have been a joint one. But the Will is required to be construed on the basis of the terms used therein and not otherwise.

30.  The answer to the question may be difficult one. Only because there does not exist any straight forward answer, the same would not mean that beneficiaries under the Will shall be deprived therefrom only because the property was purchased in his own name by the testator. The testator had a long wish to purchase an immoveable property. He even thought of 21 acquiring a property, price whereof might exceed Rs.30,000/-. If he wanted to keep apart the said sum of Rs.30,000/- for the benefit of the appellant and his mother, we think he also wanted to bequeath the immoveable property purchased out of the said amount.

31.  The Indian Succession Act contains provisions for construction of the Will. We may notice some of them.

"74 - Wording of Will--It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.

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.

Illustrations (i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted sense the words in which he describes what he gives to A.

(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to A, and in another part of his Will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had 22 said "I give Black Acre to B, and all the rest of my estate to A".

84--Which of two possible constructions preferred--Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred."

32.  Applying the principles of construction of Will, as contained in the aforementioned provisions, we are of the opinion that if the Will is read as a whole and if the surrounding circumstances are to be given effect to, the only conclusion that can be reached was that the aforementioned amount of Rs.30,000/-was set apart only for the benefit of the appellant and his mother. It might have been invested in immoveable property but only thereby they could not have been deprived of the amount.

33.  How a Will has to be interpreted is no longer res integra. Intention of the testator must be ascertained from the words used and the surrounding circumstances. The Court will put itself in the armchair of the testator.

In Navneet Lal v. Gokul [(1976) 1 SCC 630] it has been held :

"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 23 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 24 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)'."

{See also Arunkumar & Anr. v. Shriniwas & Ors. [(2003) 6 SCC 98]} This aspect of the matter has recently been considered in Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183], wherein it was held :

"39. With a view to ascertain the intention of the maker of the will, not only the terms thereof are 25 required to be taken into consideration but also all 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.

40. 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 "devise" 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 26 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 "devise", 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 questions 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 for 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."

In Anil Kak v. Kumari Sharda Raje & Ors. [2008 (6) SCALE 597], this Court stated :

"The testator's intention is collected from a consideration 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 irrespective of the appendices. In construing a Will, no doubt all possible 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. [See Bajrang Factory Ltd. and Anr. v. University of Calcutta and Ors.

[(2007) 7 SCC 183] 27 In Halsbury's Laws of England, Fourth edition, Volume 50, page 332-33, it is stated :

`462. Leading principle of construction: The leading principle of construction which is applicable to all wills without qualification 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'."

In Shyamal Kanti Guha (D) Through LRs. & Ors. v. Meena Bose [2008 (9) SCALE 363], it is stated :

"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 the Court should be to give effect to his intention. The intention of the testator can be culled out not only upon reading the Will in its entirety, but also the background facts and circumstances of the case."

Following the said principles, we have no hesitation to hold that the title to the said property vested in the appellant.

34.  For the reasons aforementioned, we are of the view that the impugned judgment cannot be sustained. It is set aside accordingly. Appeal is allowed with costs. Counsel's fee assessed at Rs.50,000/-.

.....................................J. [S.B. Sinha]

.....................................J. [Cyriac Joseph]

New Delhi;

 

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