TMI Blog1990 (12) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... y a portion of the value of the mill properties which are attributable to the deceased's interest passed on the death of the deceased? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the provisions of section 40(a) have no application to the case on the ground that the deceased's interest in the mill assets did not extend to the whole income derived from the mill and, consequently, only one-eighth share in the mill assets can be included in the principal value of the estate?" On January 3, 1957, one S. V. Venkatesa Naidu executed a will in favour of his wife, S. V. Rajammal, bequeathing certain properties to her and died on June 21, 1957. S. V. Rajammal passed away on October 16, 1972. The accountable person, while submitting the estate duty account, maintained that the deceased Rajammal was constituted, under the will of Venkatesa Naidu, as an administrator and that the estate did not pass on her death, as it had already passed to them on the death of Venkatesa Naidu on June 21, 1957. However, by way of abundant caution, the accountable person had also furnished the details of the properties belonging to the estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e one-eighth share of Rajammal in the mill assets as part of the dutiable estate of the deceased. That is how the questions of law set out earlier have come up before us. The answer to the questions so referred would depend entirely upon the interpretation to be put upon the clauses in the will dated January 3, 1957, executed by Venkatesa Naidu in favour of his wife, Rajammal. It would, therefore, be appropriate at this stage to make a reference to those clauses which will have a bearing upon the nature of the interest conferred upon the deceased Rajammal under the terms of the will executed by her husband, Venkatesa Naidu. In the preamble portion of the will, a reference has been made by the testator to his desire to make a provision with reference to his properties with a view to safeguard the future interest of his family and for preventing disputes relating to the enjoyment of the properties arising at the instance of his heirs. In paragraph 2 of the will, the testator had provided as follows : " My wife, Smt. S. V. Rajammal, shall have absolute rights over all my properties, both movable and immovable, including my residential bungalow at Pollachi, which are existing now a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed. It has also to be borne in mind that a construction which has the effect of totally destroying one clause while effectuating another should, as far as possible, be avoided. Bearing the aforesaid general principles relating to the construction of wills in mind, the intention of the testator with reference to the nature of the interest conferred on Rajammal under the above-quoted provisions of the will have to be ascertained. In the paragraph immediately following the preamble to the will referred to above, the testator had, in clear and unequivocal terms, expressed that his wife, Rajammal, shall have absolute rights over all his properties which are his self-acquisitions, both movable and immovable, including his bungalow at Pollachi. The use of the expression " all " establishes that the conferment of absolute rights on the self-acquired properties in favour of Rajammal did not admit of any exception, but took in the whole or entirety of the properties of the testator. This clause would undoubtedly establish that the testator intended that his wife, Rajammal, should have absolute and unfettered rights over all his properties, movable as well as immovable. The further p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision in the will to the effect that the mill shall be under her control during her lifetime and that she shall not dispose of the mill during her lifetime are merely in the nature of directions, detracting from the absolute bequest in her favour given to her by the first clause in the fourth paragraph in the will, referred to already and conferring on her sole proprietorship with reference to Indo-Commercial Syndicate Mills and, in such an event, Rajammal was entitled to take the bequest, as if the will had contained no such direction, as per section 138 of the Indian Succession Act. Even on the assumption that what was conferred on Rajammal under the clause in paragraph 4 of the will was in the nature of a life interest, it is seen that that would run counter to the earlier clause in the will conferring absolute rights and both the clauses cannot stand together. Likewise, it is seen from paragraph 9 that the testator had again stated that, except his wife, Rajammal, none will have any manner of right or interest in the properties disposed of under the will. We, therefore, find that, under the clause in the second paragraph of the will, the testator had conferred on Rajammal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jammal died on October 16, 1972, and, therefore, the provision in the will regarding partition among the sons is not really very helpful or decisive in deciding the nature of right conferred upon Rajammal under the will. However, what is significant is that no right has been conferred on the sons during the lifetime of Rajammal and this will have a material bearing while considering the applicability of the provisions of sections 7 and 40 of the Act. Thus, on a due and careful consideration of all the clauses in the will, we hold that the deceased Rajammal obtained an absolute interest in all the properties of her husband and, on her death, all those properties passed, thereby justifying their inclusion in the dutiable estate of the deceased Rajammal. We may also consider the question in the light of sections 7 and 40 of the Act, irrespective of whether Rajammal was conferred an absolute right in respect of the properties dealt with under the will of her husband or not. In the will, as noticed earlier, there is nothing to indicate that any fetter or restriction was imposed on Rajammal by the testator in the matter of enjoyment of the income from the mills. Indeed, Rajammal had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire income from the mill. We fail to see the significance of the absence of such a provision in the will for, when Rajammal had been stated to be the sole proprietrix of the mills with powers to manage, lease and carry on the business according to her will and pleasure, it would follow that there was no need for any specific provision for making clearer what had already been more than sufficiently, clearly and explicitly indicated, viz., that she had the full and complete control over all the business activities of the mill, as she wished and that would suffice to include her right to enjoy the entire income from the mill. The circumstance that the deceased Rajammal appears to have drawn Rs. 500 per mensem for her maintenance would not in any manner indicate that her interest in the income was limited only to Rs. 500. It may be that the withdrawal of Rs. 500 every month was as a result of some kind of self-imposed restriction on Rajammal with a view to conserve the available income for the benefit of others. That, however, in our view, is no indication that she did not have an absolute interest or that her interest did not extend to the whole of the income derived from the mill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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