TMI Blog2007 (5) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... we may notice the admitted fact of the matter. 3. Appellant No. 1 is an existing company within the meaning of the provisions of the Companies Act, 1956. It claims its title in respect of the disputed premises by a lease executed by the Chamong Tea Company Limited as also purchase of a property by a deed of sale. 4. The property in question admittedly belonged to Late Nerode Chandra Vasu Mullick. The legatee under the Will Shri Hamir Chandra Vasu Mullick through whom Appellant No. 1 claims its right, title and interest was his son. 5. The relevant clauses of the said Will are as under: 5. I give all my immovable properties and the said debentures in the Hooghly Docking and Engineering Co. Ltd. to my son the said Hamir Chandra Mullick to hold and enjoy the same during the term of his natural life without impeachment of waste and on the determinate of his life Estate to such one of his sons and grandsons as he may by deed, will or otherwise in writing appoint absolutely and in default of such appointment to his eldest male descendants absolutely. If my son has no male issue, the power of appointment may be exercised by him in favour of his daughters or daughters son. 6. My son may se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute that Appellant No. 1 paid unto the legatee the agreed rent till 14.07.1973. The legatee, however, purported to have conveyed a portion of the said leasehold by a registered deed of sale in favour of one Chamong Tea Company Limited, subject to the said lease granted in favour of the appellants herein. 11. Indisputably, the legatee died on 18.11.1976 without any issue. He had not adopted any son also. He had also not made any appointment in terms of the said Will. 12. Respondent University claiming its right in terms of Clause 12 of the aforementioned Codicil filed an application for grant of a Letters of Administration and by reason of a judgment and order dated 22.08.1977, the said application was allowed. It is stated that pursuant to or in furtherance of the said order dated 22.08.1977 the Registrar of the Calcutta University took over possession of the said property. 13. Three suits came to be filed thereafter. One of the suit was filed by the appellants herein which was marked as Suit No. 390 of 1978 praying for the following reliefs: a) A declaration that the plaintiff is entitled to possession and/or to remain in possession and enjoyment of the portions of Baithakhana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reet, Calcutta executed by the Chamong Tea Company Ltd. the defendant No. 1 in favour of Bajrang Factory Ltd. the defendant No. 2 is void or voidable and of no effect as stated in paragraph 26 of this plaint. d) That the aforesaid deed of lease dated 24th July 1972 executed by the Chamong Tea Company Ltd. The defendant No. 1 in favour of Bajrang Factory Ltd. The defendant No. 2 be delivered up as stated in paragraph 26 of this plaint. e) In the alternative a declaration that the said sale and said lease dated 29th May 1971 and 24th July 1972 respectively as referred to in prayers (a), (b)(c) and (d) are not valid beyond the life time of the said Hamir Chandra Vasu Mallick, deceased as stated in paragraph 25 and 26 of this plaint. f) A decree for declaration that the University of Calcutta is the absolute owner of the said premises g) Perpetual injunction restraining the defendants Nos. 1 and 2 from collecting rents, issue and profits from the tenants in occupation of the said premises- h) perpetual injunction restraining the defendants Nos. 1 and 2 and their servants agents and assigns from transferring assigning or otherwise dealing with or taking any or any further steps or actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants in the suit must be answered in the negative in as much as this Court is of the view that the University of Calcutta is entitled to file the suits and proceed with the same. 18. Aggrieved by and dissatisfied therewith, the appellants preferred an intra-court appeal before the Division Bench of the Calcutta High Court. By reason of the impugned judgment dated 14.02.2003, the said appeal has been dismissed holding: After considering the respective submissions of the parties and the entire materials on record we do not find any reason to interfere with the impugned judgment and order of the Trial Court as we agree with the view of the Trial Court that the bequest of the property in favour of the University of Calcutta is not void and therefore the University is entitled to file the suit. It has been rightly contended by the learned Counsel appearing on behalf of the respondent, University of Calcutta, that in the matter of interpretation of the Will, the Court is required to ascertain the dominant intention of the testator on a plain reading of the will and it will also be the duty of the Court to implement such intention of the testator and if there are two clauses whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of Section 129 of the said Act will apply and the bequests made in favour of the University of Calcutta shall take effect upon failure of the bequest made in favour of the unborn son of Hamir. 19. Mr. C.S. Sundaram, learned senior counsel appearing on behalf of the appellants in assailing the judgment and order passed by the Calcutta High Court would inter alia submit: (i) Clause 7 of the Will being inconsistent with the stipulations contained in Clause 5 thereof would prevail there over in view of the provisions contained in Section 88 of the Act. (ii) Clause 7 of the Will providing for a bequest in favour of an unborn person is clearly violative of Section 113 of the Act and in that view of the matter, the bequest which was to take effect on the failure of the prior bequest in terms of Section 129 thereof would also be void under Section 116 of the Act. (iii) Assuming that the High Court judgment is correct, Clause 5 of the Will would be defeated by the contingencies contained therein or by Clause 6 thereof inasmuch as in such an event, the consequences provided for under Clause 7 of the Will would take over; as a consequence whereof, Clause 5 of the Will would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made in relation to a will, and explaining, altering or addition to its dispositions, and shall be deemed to form part thereof'. 23. Section 82 of the Act reads as under: 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. 24. Section 88 of the Act provides for a rule of construction of the Will stating that where two clauses of gifts in a Will are irreconcilable so that they cannot possibly stand together, the last shall prevail. This provision is itself a pointer to the fact that once it is possible to give effect to both the clauses which although apparently appears to be irreconcilable the court should take recourse thereto. 25. It is admitted that there are certain typographical errors in the said Will. While construing the said Will, therefore, we will have to take note thereof. 26. In construction of the Will for the purpose of considering the validity thereof, we must see as the things were at the relevant time and not what they are today. 27. By reason of Clause 5, the testator bequeathed his right, title and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds have not been applied for purchase of immovable property is also a question which would fall for consideration of the High Court at an appropriate stage. It goes without saying that it would be open to the High Court to consider as to whether a suo motu action or at the instance of the University can be taken as the conditions for grant of probate have been violated. We, however, need not apply our mind to the said question. 32. We may, furthermore, notice that the word 'devise' in the context of Clause 7 does not appear to be appropriate. The word 'devise' would inter alia mean a 'plan' or a 'scheme'. What probably the testator meant was to use the word 'desire' and not 'devise'. Clause 7 on a plain reading does not appear to be a clause, in terms whereof, the testator was bequeathing any property in favour of any person. It thereby merely conferred a right upon the legatee and only a desire was expressed by the testator in regard to the legatee's exercise of power of option. 33. Clause 7, therefore, may not have any application for the purpose of construction of the Will. 34. However, it is not in dispute that Clause 12 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original will but with the alterations introduced by the codicil.... 39. In Pearley Lal v. Rameshwar Das AIR1963SC1703 , Subba Rao, J. opined: ...Where apparently conflicting disposition 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. If the construction suggested by learned Counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted; in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possible to every testamentary intention contained in the will. ( Ramachandra Shenoy v. Hilda Brite Mrs) 41. To the same effect are the judgments of this Court in Arunkumar and Anr. v. Shriniwas and Ors. [2003]3SCR453 , Uma Devi Nambiar and Ors. v. T.C. Sidhan (Dead) AIR2004SC1772 , Sadhu Singh v. Gurdwara Sahib Narike and Ors. AIR2006SC3282 and Gurdev Kaur and Ors. v. Kaki and Ors. AIR2006SC1975 . 42. In Halsbury's Law of England, 4th Edition,, Vol. 50, at pg 332, it was stated:: The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction is that the testator's intention is collected from a consideration of the whole will taken in connection with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;. As a matter of fact, the appellant in the copy of the will supplied to us had also used the word 'desire' in place of the word 'device', 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 question 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 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. 45. In view of the findings aforementioned, we are of the opinion that the decision relied upon by Mr. Sundaram on Margaret Goonewardens (supra) cannot be said to have any application in the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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