TMI Blog1975 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... the will on September 21, 1916. He had then a legally wedded wife, Smt, Jarian, approaching nearly her forty-fifth year and they had no issue in wedlock. The only person whom the testator appeared to have almost treated like a son was the respondent Gokul, doubly related to the testator, being his sister's son and also his wife's brother's son. Gokul had been with him since childhood and the testator got him married. Gokul in return had been serving the testator to his satisfaction and was in enjoyment of his full confidence and affection till the testator's death in 1918. Gokul was then aged about 23 years. It was directed in the will that Smt. Jarian would get the obsequies and other religious rites of the testator performed by Gokul. After the death of the testator Smt. Jarian and Gokul continued to live in cordiality for nearly 18 years. Feelings, however, got estranged some time after that and there was even litigation, criminal and civil, between Smt. Jarian and Gokul. It appears Smt. Jarian, who died in March, 1948, had executed a gift deed and a will in respect of certain properties in suit in favour of the appellant, Navneet Lal. All this led to the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrounding 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's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)]. (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(2)]. (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 expression 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 const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty and of the income from Birt Jijmani. After my death Mst. Jarian, the wedded wife of me, the executant, shall be the owner (malik) of my entire estate, movable and immovable, and of the income from Birt Jijmani and shall have all the proprietary powers (aur usko jamiya akhtiyarat malikana hasil honge). After the death of Mst. Jarian, Gokul aforesaid shall be the owner of the entire estate left by me (malik kamil jaidad matruka meri ka hoga), and he shall have all the proprietary powers and the power of making transfer of all sorts (aur usko jamiya akhtiyarat malikana wa inteqalat har qism hasil honge). If per chance, Mst. Jarian dies in my life time, then Gokul aforesaid will be the absolute owner (malik kamil) of the estate left by me (matrura meri) and he shall have power of making all sort of transfers (aur usko har quism ke akhtiyarat inteqalat hasil honge). Gokul aforesaid should go to Jijmana and should continue to give to Mst. Jarian during her life time the charitable gifts (daan dakshina) which he brings from there. After her death he might continue to be benefited thereby. Mst. Jarian should get my obsequies, Barsi (annual death ceremony), Chhamchhi etc. performed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore this Court in some cases. In Dhyan Singh and anr. v. Jugal Kishore Anr.(4), this Court ruled that the words `malik mustakil' were strong, clear and unambiguous and if those words are not qualified by other words and circumstances appearing in the same document, the courts must hold that the estate given is an absolute one We are, however, not required to consider the words `malik mustakil' in this case. But it is clear that even those words can be qualified by other words and circumstances appearing in the same document. It is, therefore, abundantly clear that the intention of the testator will have to be gathered from all the relevant and material contents in the entire will made in the situation in which the testator was placed in life in the back ground of his property, his inclinations, wishes, desires and attitudes as can be clearly and unambiguously found either from the recitals from the instrument or from absolutely undoubted contemporaneous legally admissible evidence. Reading the present will as a whole and if every disposition has to be rationally harmonised, we find that the testator intended a life estate for his wife so long as she lived. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enjoyment of the property in any event. All the above features run counter to the theory of an absolute estate in favour of Smt. Jarian. There is still another clinching factor. It is clear from the will that the testator had misunderstanding and quarrels with his brother regarding ancestral property and the matter had to be settled by arbitration leading to partition and separate enjoyment of property as far back as 1889. It also appears from the recitals in the will that he had grave apprehension that after his death his only reversioners, his brother and nephew, might trouble and harass my wife Mst. Jarian and my sister's son Gokul. One thing was, therefore, clear that the testator never intended that his property should pass to his brother and nephew. This intention of the testator would best be achieved by holding that there was a devise of a life estate to his wife and an absolute estate thereafter to Gokul indicating a different line of inheritance in the will. On the other hand, if any absolute estate would have been conferred on the widow, then on her death the property would have passed on by inheritance to her husband's heirs who were none else than the br ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
