& Ors. Vs. Cherichi @ Padmini  INSC 553 (27 July 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7226 OF
2002 Ittianam & Others ..Appellant(s) Versus Cherichi alias Padmini
CIVIL APPEAL NO.4432 OF 2003
APPEAL NO.7226 OF 2002
This appeal is directed against the judgment of the Division Bench
of the Kerala High Court dated 6th December, 2000 rendered in Miscellaneous
First Appeal No. 44 of 1990.
The dispute is over some of properties bequeathed by the Will
dated 8.5.1967 by one Kakkassery Ippuru.
The material facts on which there is not much dispute are that the
testator Ippuru's first wife Kunhiri died, leaving behind daughter Molutty and
son Vareed who died on 8.1.86. The wife and children of Vareed, since deceased,
are the plaintiffs. The second wife of Ippuru, Kunjila, is the 7th plaintiff.
She has two daughters Mariyamma, the 8th plaintiff and the other daughter is
Padmini @ Cherichi, the defendant and respondent herein.
By a sale deed, being Exhibit-B1, dated 2.5.67, Kunjila, the
second wife of Ippuru, sold to Ippuru half of her rights in respect of item
Nos. 4 to 7 of the properties in the Will bequeathed by Ippuru. The other half
of the property belonged to her son Vareed. Both the sale deed 2 and the Will
were registered on 8.5.1967, Ippuru died on 20.7.71.
In the Will of Ippuru, seven items of properties were bequeathed
and out of which items 1 to 3 were given to one Molutty, daughter of the
testator by his first wife. Items 4 to 7 of the properties were previously
owned in equal moieties by Vareed and Kunjila, the second wife of Ippuru.
Kunjila, as noted above, sold her share to Ippuru on 2.5.67 but the sale deed
was registered on 8.5.67, the same day when the Will was registered.
After the death of Vareed on 1.8.1986, his wife and children
appellants, 1 to 5 herein, jointly applied under Section 278 of the Indian
Succession Act (the Act) for grant of Letters of Administration of the Will of
the testator. That petition was contested by the Padmini @ Cherichi, one of the
daughters of the testator's second wife. Thus the proceeding became contentious
and 3 was registered as a suit being O.S. 10 of 1988 in the District Court, Thrichur.
The District Judge granted the letters of administration in
respect of all the items of property in the Will. An appeal was taken to the
High Court whereupon by the impugned judgment the High Court upheld the
genuineness of the Will but modified the grant of letters of administration
only to items 1 to 3. The High Court declined to grant the letters of
administration in respect of items 4 to 7 and the reasoning given by the High
Court inter alia was that on the date of the Will i.e. 8.5.67 the testator's
title to half of the property, namely over item Nos. 4 to 7 was not perfected.
It was perfected only on the registration of sale deed, which is after the
execution of the Will, even though the sale deed was executed on 2.5.1967. The
correctness of the finding of the High Court is questioned in this appeal.
When the appeal was taken up for hearing on 25.2.2010, the learned
counsel for the appellant urged that in view of provisions of Section 90 of the
Act, the judgment of the High Court is erroneous. But that point was not
specifically taken either before the High Court or in the Special leave
petition. As such the learned counsel for the appellant prayed for leave to
file an application for urging additional grounds.
Since the question is purely one of law and is arising from the
records of the case and can be urged without raising any new factual
controversy, this Court granted leave to urge the additional grounds. The
respondents were granted liberty to file its response to the application for
Pursuant thereto, application for urging additional grounds was
filed and the respondent, though was given opportunity to file response to 5
those grounds, did not choose to do so. But the respondent's counsel was heard
on those grounds and he sought to controvert those grounds orally.
Admittedly, the parties are Christians and are governed by the
Act. Along with the application for additional grounds a translated copy of the
Will was also filed.
Section 90 of the Act provides:
Words describing subject refer to property answering description at testator's
death. - The description contained in a Will of property, the subject of gift,
shall, unless a contray intention appears by the Will, be deemed to refer to and
comprise the property answering that description at the death of the
This Section is based on Section 24 of the English Wills Act.
Prior to the English Wills Act under the common law, testamentary disposition
of real property spoke from the date of the Will.
But the English Wills Act changed that by a statutory presumption
to the effect, that unless 6 a contrary intention appears from the recitals of
the Will, the Will speaks from the date of the testator's death.
Section 90 of the Act uses the legal fiction "deemed"
and that is used with the specific purpose of raising a presumption against
intestacy. Therefore, on an analysis of the provisions of Section 90 it is
clear that the property described in the Will shall be deemed to refer to and
comprise the property answering that description at the death of the testator.
In the context of Section 90, the word `comprise' will obviously
mean `to include, embrace, to comprehend compendiously, to contain, to consist
of, to extend, cover" (See Shorter Oxford Dictionary on Historical
Principles, page 386).
Webster's Dictionary the word `comprise' means to "include and contain,
consist of and embrace".
Comprehensive Dictionary Encyclopedic Edition, page 269).
Therefore, on a plain reading of the Section, the meaning is
clear. It is, that in the absence of a contrary intention in the Will, the
description of the properties in the Will shall be deemed to refer to and
include the property answering that description at the death of the testator.
It is well known when legislature uses a deeming provision to
create a legal fiction, it is always used to achieve a purpose. In State of
Cashewnut Factory, Quilon, reported in AIR 1953 SC 333, the Constitution Bench
opined, when a legal fiction is created, one is led to ask at once for what
purpose it is created (see para 38 page 343).
In this case the obvious purpose is to avoid intestacy in respect
of properties referred to and comprised in the Will. Once the purpose is
ascertained, the Court must give full effect to the statutory fiction and the
fiction is to be 8 carried to its logical end. In State of Bombay 1953 SC 244,
this Court laid down the aforesaid propositions at page 246 of the report. In
doing so, this Court relied on the famous dictum of Lord Asquith which has
virtually become locus classicus on statutory interpretation of `deeming'
provisions. Lord Asquith's formulations Council, 1952 AC 109 are:
you are bidden to treat an imaginary state of affairs as real, you must surely,
unless prohibited from doing so, also imagine as real the consequences and
incidents which, if the putative state of affairs had in fact existed, must
inevitably have flowed from or accompanied it......The statute says that you
must imagine a certain state of affairs; it does not say that having done so,
you must cause or permit your imagination to boggle when it comes to the
inevitable corollaries of that state of affairs."
Going by this test, in our judgment, the High Court did not
properly appreciate the purport of 9 Section 90. In the context of the Will
when it is common ground that the Will does not contain any contrary intention
in respect of the bequest of items 4 to 7 of the properties.
The principle of Section 90 which, as noted above, has been taken
from Section 24 of the English Wills Act has been very lucidly discussed in
Williams, Law of Wills (3rd Edition). At page 429 of the treaties, the learned
author by properly appreciating the deeming clause commented:
Will must be construed with reference to the property comprised within it, to
speak and to take effect as it has been executed immediately before the date of
death of the testator and as if the conditions of things to which it refers in
this respect is that existing immediately before the date of the testator,
unless a contrary intention appears from the Will".
On general principles also a Will speaks only from the date of the
death of the testator (See AIR 1964 SC 136). In this case assuming but not
admitting that the testator had not acquired 10 title in respect of half of the
property, namely, items 4 to 7 of the property bequeathed by him in the Will on
8.5.1967, but the sale deed having been registered on 8.5.1967, the title
reverts back to the date of execution of the sale deed on 2.5.67 under Section
47 of the Registration Act.
testator died on 20.7.71. Therefore, much before his death, the testator
acquired full title over items 4 to 7 of the property.
the High Court was in clear error in not appreciating the effect of Section 90
on the interpretation of the Will.
It is one of the well established principles that while construing
a Will, the Court should lean against any intestacy. This has been put beyond
any doubt by Lord Esher, Master of Rolls in Re 30 Chancery Division 390 wherein
learned Master of Rolls held:
a testator has executed a will in solemn form you must assume that he did not
intend to make it a solemn farce,- that he did not intend to die intestate 11
when he has gone through the form of making a will. You ought, if possible, to
read the will so as to lead to a testacy, not an intestacy."
The learned counsel for the appellant in support of his argument
on Section 90 of the Act relied on a decision in the case of Re Fleming's Will
Trust Limited and Another (1974) 3 All ER 323).
In that case by a Will made in September 1969, the testator
bequeathed to the first defendants his leasehold house at 54 Narcissus Road
when the testator had his house under a lease term expiring on 28th September,
2008 subject to covenants to repair. In April 1971, the testator purchased the
freehold and that was registered with acquisition of title.
The leasehold interest was unregistered and the testator died in
February, 1973. As a sole executor of the Will, the plaintiff applied for
determination of interest that passed on to the 12 first defendants. The
residuary beneficiaries under the Will claimed that the first defendants was
only entitled to leasehold interest.
that contention, Templeman J, while delivering the judgment held:
my judgment, a gift of property discloses an intention to give the estate and
interest of the testator in that property at his death; a mere reference in the
will to the estate and interest held by the testator at the date of his will is
not sufficient to disclose a contrary intention. It follows that the freehold
in the case passes to the first defendants.
The learned counsel for the appellants also relied on the decision
in the case of Alavandar Madras 383). Construing Section 90 of the Act, the
Division Bench of Madras High Court held:
Section 90 of the Succession Act, XXXIX of 1925, there is a presumption, unless
a contrary intention appears by the Will, that it comprises all property as at
the testator's death..."
The learned counsel also relied on the decision of Bombay High
Court in the case of Abdulsakur Abba and others reported in AIR 1930 Bombay 191.
196 of the report, Bombay High Court decided:
this connection it is necessary to remember certain general principles that
attach to wills. A will speaks from the date of the death of the deceased.
There might be accretions to or diminutions from the property of the testator
as they existed at the date of the will. Another principle to remember in this
connection is that a testator is presumed to dispose of all the property that
he may die possessed of and not only what he possessed at the date of the
Reliance was last placed on the decision of the Harisa and another
reported in AIR 1932 Nagpur 163. Explaining the purport of Section 90, the High
Court observed that Section 90 is in 14 accordance with Section 24 of the
English Wills Act of 1837. According to such principle "the Will has to be
construed with reference to the real estate and personal estate comprised in it
to speak and to take effect, as if it had been executed immediately before the
death of the testator, and as if the condition of things to which it refers in
this respect before the death of the testator unless contrary intention appears
by the Will" (page 165 of the report). The decision in Rangoo Ramji
(supra) was based on the Madras High Court decision in Gramani (supra).
All the decisions discussed above, namely those of English Court
and of the High Courts of Madras, Bombay and Nagpur support the contention of
Faced with this argument the learned counsel for the respondent
wanted to rely on the observation of the Privy Council and contended that this
leaning towards intestacy is purely a product of 15 British Jurisprudence based
on English necessities and English habit of thoughts and there would be no
justification in taking them as guide in the case of Indian Wills.
The aforesaid observations were made by Lord Moulton while
considering the effect of adoption in the context of an Indian Will in the case
of Row and another reported in 41 Indian Appeals 51 (at page 71 of the report).
These observations were by way of obiter dicta by the learned judge and were
made in 1913 when the Act was not there.
Section 90 of the Act is on the principles of Raju Ayyar and
others (AIR 1951 SC 103) speaking through Justice B.K. Mukherjea (as His
Lordship then was) clarified the position. This Court considered the decision
of Privy Council in Venkat Narasimha (supra) and held that the presumption
against intestacy may be raised if it 16 is justified from the context of the
document or the surrounding circumstances and where there is ambiguity about
the intention of the testator (see para 11 page 106 of the report). It is true
that presumption against intestacy cannot be raised ignoring the intention in
the Will. That is why Section 90 stipulates that the deeming clause will
operate only where there is no contrary intention. In this case it is common
ground that no contrary intention could be discerned in the Will in respect of
items 4 to 7.
In subsequent decisions while discussing presumption against
intestacy this Court made Ponnammal and others, reported in AIR 1961 SC 1302.
Justice Gajendragadkar, as His Lordship then was, speaking for the Bench,
opined if two constructions are reasonably possible and one of them avoids
intestacy while the other suggests it, "the Court would certainly be
justified in preferring that construction which avoids 17 intestacy" and
the decision rendered in Gnambal Ammal (supra) was relied upon (para 15 page
1307 of the report). Same view was endorsed by this AIR 1963 SC 1703 wherein
Justice Subba Rao, as His Lordship then was, speaking for the Bench observed
where one of the two reasonable constructions would lead to intestacy that should
be discarded in favour of the construction which prevents the hiatus (para 7
page 1706 of the report). The same principle has been quoted with approval by
this Court in the case of Navneet Lal 1976 SC 794. Speaking for the Bench,
Justice Goswami, at para 4 page 797 of the report, quoted the aforesaid
principle laid down in Pearey Lal (supra).
Therefore, both the English Courts and this Court in construing a
Will lean against any presumption favouring intestacy in the absence of a
manifest contrary intention in the Will. The argument on 18 behalf of the
learned counsel for the respondent has therefore no substance.
The learned counsel also relied on the decision Domini Kuer and
others, reported in AIR 1961 SC 1747.
A perusal of the decision in Ram Saran (supra) makes it clear that
the same was rendered on totally different facts and against a completely
different legal background. In Ram Saran (supra), parties were Hindus, but they
were governed by the Mohammedan Law of pre-emption as available to them by
custom. The main question discussed in Ram Saran (supra) was when can the
demand for pre-emption be exercised. The majority opinion of the Court, by a
3:2 verdict, decided that such demand can be made only after completion of the
sale. The majority was of the view that a sale is complete not only after
registration of the sale deed under Section 47 of the Registration Act but 19
it is complete only after the registered document is copied in the Registration
Office, as provided under Section 61 of the Registration Act.
We fail to appreciate the relevance of the ratio in Ram Saran
(supra) to the facts of the present case.
Two other judgments cited by the learned counsel for the
respondent rendered in the case of Hamda in (1991) 1 SCC 715, and that of A.
Jithendernath and another reported in (2006) 10 SCC 96, are on Section 47 of
the Registration Act to the effect that the title passes retrospectively with
effect from the date of execution and not from the date of registration. These
are accepted legal principles on which there can be no debate but they have no
application to the facts of this case.
For the reasons discussed above the appeal is allowed. We are
constrained to set aside the judgment of the High Court and restore that of the
District Judge. No order as to costs.
APPEAL NO.4432 OF 2003
For the reasons discussed above and in view of the order passed in
Civil Appeal No. 7226 of 2002, this appeal is dismissed. No order as to costs.
.....................J. (G.S. SINGHVI)
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