TMI Blog2006 (12) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 JUDGMENT R.M. Lodha, J. 1. This group of five Appeals is between the same parties and interconnected issues are raised therein and accordingly, by this common judgment, we shall dispose of these five Appeals. 2. The Appeal Nos. 163 of 2005 and 164 of 2005 are from Originating Summons Nos. 309 of 2000 and 447 of 2003 respectively. We shall first deal with Appeal No. 164 of 2003, since the fate of other appeals is dependant on the decision in this appeal. As a matter of fact the whole focus of Mr. M.L. Palan, the counsel for the appellants was on appeal No. 164 of 2005, arising from originating summons No. 447 of 2003. According to him, the decision in appeal No. 164 of 2005 shall virtually decide all appeals. 3. By originating summons No. 447 of 2003, the Appellant prayed for determination of the following issues by the Court: a) Whether the bequeaths made in favour of the Plaintiff by the deceased Pilloo under the said Will dated 12th April, 1989 inter alia under Clauses 11, 13, 14, 15, 18, 24, 40 and 42 are absolute bequeaths to the Plaintiff ? (b) Whether the directions of the deceased Piloo inter alia in said Will including in Clauses 11, 13, 14, 15, 18, 24, 40 42 of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 86 provides that if the same words occur in different parts of the same Will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears. Section 87 provides the Testator's intention to be effectuated as far as possible. In a case where the inconsistent clauses of gifts in a Will are irreconcilable, Section 88 says that the last shall prevail. Section 95 provides that the property by way of bequest to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended to him. As per Section 104, if a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if he dies, it shall pass to his representatives. Section 119 makes a provision where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction 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. (5) 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. 8. We need not multiply the authorities as the legal provisions enshrined in the Indian Succession Act and the principles culled out by the Supreme Court in respect of construction of the Wills, provide enough guidance, approach and direction for construction of the Wills. 9. At this stage, we may also refer to the provisions of the Bombay High Court (Original Side) Rules, 1980 relating to the Originatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the instrument (Will) dated 12th April, 1989. By this Will, the testatrix Piloo M. Ghaswala appointed Mr. Justice Bakhtawar Lentin, Mr. Mohan Jayakar and Mrs. Roshan Chopra to be the executors and trustees. The executors and trustees have been collectively referred to in the Will as My Trustees . Clauses 6 and 7 of the Will are material. These clauses throw strong beam of light on the intention of the testatrix. Clauses 6 and 7 read thus: 6. I HAVE two daughters viz. Mrs. Lyla Darius Jehangir and Miss Anita Ghaswala (I have called my daughter Anita Ghaswala by her maiden name as she has already filed a petition for divorce in respect of her marriage to Mr. Balla Toddywalla). My elder daughter Mrs. Lyla Darius Jehangir is an extravagant and irresponsible girl and is subject to fits of depression and it is for this reason that I DIRECT my Trustee by this my Will under the Trust created hereunder to hold all properties bequeathed and devised by me to her for the benefit of her daughter Zenia and the said property bequeathed to Lyla shall be held upon trust for the benefit of her daughter Zenia and upon Zenia completing the age of 21 years, my Trustees shall hand over all such prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SE To my daughter Anita absolutely. This is seen from Clauses 12, 13, 14, 17, 19, 25,28, 30, 37 and 41. 20. It needs no elaboration that the clauses in the Will have to be construed with reference to each other and the meaning is to be collected from the entire instrument. Each of the clauses i.e. 11, 13, 14, 15, 18, 24, 40 and 42 which are to be construed by us have to be seen with reference to each other in the light of the entire instrument. It is in this view of the matter that Clauses 6 and 7 are of great importance, wherein the testatrix had indicated her mind and intention as to why she has not bequeathed and devised her properties absolutely to daughter Lyla as she did to her other daughter Anita. Surely the testatrix did not want her legacy to be frittered away because of extravagance and irresponsible behaviour of the her daughter Lyla and, therefore, the bequest and devise was made for the benefit of her grand daughter Zenia, who was minor at that time. Some properties, as set out in different clauses, were to be held upon the trust for the benefit of her grand daughter Zenia and upon Zenia completing the age of 21 years, the trustees were directed to hand over all such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus: 13. ... As far as the box bearing the name of my daughter Lyla is concerned, the contents thereof shall belong to her but shall be held upon trust by my Trustees for my grand-daughter Zenia and the contents thereof shall be handed over by my Trustees to my grand daughter Zenia on her attaining the age of 21 years. I however, direct that one of the contents of the sold box are to be sold and if, however, any of the rings do not fit Lyla then the designs can be changed but in no way will there be a sale of the said jewellery. In other words, Lyla has been held to have access to the jewellery box bearing her name and was entitled to use the same until Zenia attained the age of 21 years but there is no vesting of the jewellery in that box to the daughter Lyla. 23. Clause 14 of the Will, to the extent it is relevant, reads thus: 14. ...However, as far as the box bearing the name of my daughter Lyla and my grand-daughter Zenia are concerned, the contents thereof shall be held in trust by my trustees to be handed over upon her attaining the age of 21 years. I DIRECT however that none of the contents of the said boxes shall be sold but that the same should be used by the ultimate, ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in them and that was not the subject matter of the Will or the estate of the deceased, which was bequeathed under the Will. We do not think it necessary to comment upon the order of J.N. Patel, J. dated 5th February, 1997. But suffice it to say that on the plain reading of Clause 15, no doubt is left that the flat on the second floor of the Gazdar house is the subject matter of the Will and the estate of the deceased Piloo Ghaswala, who has under her Will directed the trustees to dispose of the said flat and from the sale proceeds, purchase two flats, one jointly in the name of Lyla and Zenia and the other in the name of Anita. 26. We are informed by Mr. Rajeev Kumar, the counsel for the Respondents that insofar as half portion of the said flat in occupation of Anita is concerned, that portion has been sold by Anita already and other half portion continues to be in occupation of Lyla. Mr. Rajeev Kumar would submit that Zenia has now attained majority and that she has no objection if her mother Lyla continues to occupy the half portion of the said flat, which is in her possession presently. He, however, submitted that the said portion shall only be sold by the consent of Lyla and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at 45, Warden Road, Bombay 400026, the other shares belonging to my cousin Jehangir Gamdar staying at Palisime Warden Road, share shall be equally distributed between my daughter Lyla and my daughter Anita. The share of my daughter Lyla shall be kept in trust by my Trustees to be handed over to my grand-daughter Zenia on her attaining the age of 21 years. I GIVE BEQUEATH AND DEVISE my daughter Anita's share in 1/3rd share in the Trust of Gazdar House to my daughter Anita absolutely. 30. The testatrix has provided by this clause that her 1/3rd share in the trust of Gazdar House shall be equally distributed between her two daughters Lyla and Anita and the share of Lyla must be kept in trust by the trustees to be handed over to Zenia on her attaining the age of 21 years. The disposition of the testatrix's estate referred to in Clause 40, according to us, is very clear. Reading this clause with Clauses 6 and 7, the intention of the testatrix is that half of the one third share in the trust of the Gazdar House must go to Zenia. She never intended that by distribution of share equally between Lyla and Anita, Lyla must become owner of that part of share distributed to her. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age, moiety of the estate was made over by the executor. Flora married George Williams in 1878; the only issue of the marriage being a son born in 1883, who lived only for a few hours. Construing Clause 11, in the backdrop of these facts, it was held by the Privy Council that moiety of the estate vested in the sons of Cecilia and Flora on their birth. The vesting of the estate on the son was not suspended by the direction that the estate should remain in the hands of the executor, who should make over the share of each on his attaining 21 years. The word that the estate should remain in the hands of the executor merely pointed to the possession and enjoyment of the shares which had already been vested. It was thus held that on the birth of Flora's son, a moiety of the estate vested to him and after his death, passed to his father as his heir. 34. The ratio in the case of Harris clearly applies to the facts of the present case. The estate of the testatrix which was to be made over to her grand daughter Zenia on her attaining the age of 21 years vested in Zenia on the opening of the Will i.e. on the death of the testatrix. This is also clear from Section 119 of the Indian Succes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n her attaining the age of 21 years, vested in her on the date the testatrix died. Even from the conduct of the appellant-Lyla, it is clear that she knew and had no doubt that she was holding the estate given by the testatrix to Zenia as Zenia's guardian and which was to be made over to Zenia on attaining her age of 21 years. On 15th February, 1999 the appellant sent a letter to the administrator Shri M.L. Dudhat, retired Judge, wherein she stated in paras 7 and 9 thus: 7. As per the earlier Statement of Accounts filed by the Ex-Executors Rs. 2.20 crores have been received on account of my 1/6th share to be paid to my daughter Zenia on her attaining 21 years i.e. 29th October, 2003. A sum of Rs. 60,00,000/-has been paid to acquire Pune property by earlier executors and the balance was invested in Fixed Deposit. A sum of Rs. 15,47,411/- was received as an interest upto 6th August, 1996. Subsequently Rs. 1,11,04,861/-was invested in State Bank of Mysore which subsequently re-invested from time to time with interest and become Rs. 1,27,92,363/-referred to above. Rs. 55,00,000/-were invested in Saving Bank Accounts with Corporation Bank for which Rs. 59,34,225/-was received from Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances. 188. Circumstances in which knowledge or waiver is presumed of inferred.--(1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing any act to express dissent. (2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done . 39. In C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolithaya and Ors. [1964] 5 SCR 836 , the Supreme Court exposited the doctrine of election to the effect that one who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. This principle is often put in another form that a person cannot approbate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until Zenia attained the age of 21 years Lyla is not entitled to income or other monetary benefits from the said estate until Zenia attained the age of 21 years. questions raised in the originating Summons No. 309 of 2000 from which Appeal No. 163 of 2005 arises ,are concerned, the counsel for the Appellant did not specifically argue the said Appeal and he submitted that the questions raised in Originating Summons No. 447 of 2003 sufficiently cover the controversy raised in originating summons No. 309 of 2000. In this view of the matter, we do not deem it necessary to deal with the questions specifically raised in Originating Summons No. 309 of 2000 from which Appeal No. 163 of 2005 arises. Suffice it to say that the construction put by us to the various clauses of the Will dated 12.04.1989 and the answers given to those questions raised in originating Summons No. 447 of 2003, decide the Appeal No. 163 of 2005 as well. Needless to say that on the basis of such construction, Testamentary Petition No. 50 of 1999 before the learned single Judge shall be heard and decided. 43. Appeal Nos. 80 of 2000 and 81 of 2000 are the Appeals from the same order i.e. dated 22nd December, 1999. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y directing the Solicitors to give an undertaking to This court to pay the aforesaid amount in the court in the event the Appeals Nos. 80 and 81 of 2000 are dismissed. Pursuant thereto an undertaking has been given by the Solicitors, L.C. Tolat and Co., on 28th July, 2000. Now since the Appeal Nos. 80 and 81 have been dismissed by us, obviously the Solicitors, L.C. Tolat and Co. have to deposit in court the said amount of Rs. 9,11,152/- as per the order dated 22nd December, 1999. 47. Appeal No. 508 of 2005 arises from the order dated 24th June 2005 on the Notice of Motion taken out by Zenia on her attaining the age of 21 years. By that Notice of motion, Zenia prayed that direction be issued to the Bank of Baroda, Bhulabhai Desai Road Branch, Mumbai to pay over to her the amount of two fixed deposits in the sum of Rs. 1,27,00,923 = 63/-and Rs. 15,50,000 = 00/- kept in the fixed deposit with the said Bank in the name of the Administrator with accrued interest on both the said fixed deposits and the Advocate of the Appellant who has in his possession the fixed deposit receipts be directed to make available the same to the said bank for discharge. The Applicant Zenia also sought for va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been appointed. 48. The learned single Judge by the order dated 24th of June, 2005 passed the following order: a. Court Receiver is directed to hand over to the applicant an amount of Rs. 1,27,00,923=63 and Rs. 15,50,000/-by encashing the Fixed Deposits with the Bank of Baroda along with accrued interest thereon. b. Court Receiver is also directed to hand over to the applicant, the Jewellery and other articles of ornaments lying with the Court Receiver, High Court, Bombay and belonging to the estate of the said deceased, Piloo Ghaswalla. c. The Hongkong and Shanghai Banking Corporation Ltd., M.G. Road, Mumbai is directed to pay over to the Applicant the total amount lying credit to the savings bank account No. 002- 1523346-006. 49. Mr. M.L. Palan, did not argue this Appeal specifically and submitted that the fate of this Appeal is also dependent on the construction put by us to the various clauses of the Will. The directions given by the learned single Judge are in conformity with the construction of the various clauses of the Will put by us and, therefore, call for no interference. 50. In the result, we dispose of this group of five Appeals by the following order: i. Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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