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TMI Blog2008 (12) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramukhi, 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]. (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 corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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: "8. The phrase `substantial question of law', as occurring in the amended Section 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld easily clothes etc. of his be arranged and they Mother appropriate would not get any arrangement could be difficulty in their lives. made, and throughout No one has any right or life, there may not be claim over his any type of difficulty. Amount and problem. On this I have complete right to stipulated amount use this as per my excepting me, there is wishes and nobody has not right or concern of any objection or right to anyone else, and I, raise dispute. according to my wish, Therefore in my for the use and complete physical and spending, I have mental consciousness complete right to make by way of this Will, I the Will, and no other Vishun Sahay son of person has any right to hereby object or quarrel. As gifting the such in my complete 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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 ir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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