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PETITIONER: GNANAMBAL AMMAL

       Vs.

RESPONDENT: T. RAJU AYYAR AND OTHERS.

DATE OF JUDGMENT: 21/10/1950

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  103            1950 SCR  949  CITATOR INFO :  RF         1961 SC1302  (15)

ACT:     Hindu   law--   Will--Construction--General   principles --Presumption against intestacy.

HEADNOTE:     The cardinal maxim to be observed by courts in  constru- ing  a will is to endeavour to ascertain the  infentions  of the  testator. This intention has to be  gathered  primarily from  the language of the document which is to be read as  a whole without indulging in any conjecture or speculation  as to  what the testator would have done if he had been  better informed or better advised.     The  courts  are however entitled and bound to  bear  in mind  other matters than merely the words used.   They  must consider the surrounding circumstances, the position of  the testator,  his family relationship, the probability that  he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure the  court  is entitled to put itself  into  the  testator’s armchair ’.     But all this is solely as an aid to arriving at a  right construetion  of the will, and to ascertain the  meaning  of the  language when used by that particular testator in  that document.  As soon as the construction is settled, the  duty of  the court is to carry out the intsentions as  expressed. The court is in no case justified in adding to  testamentary dispositions.   In all cases it must loyally carry  out  the will as properly construed, and this duty is 950   universal, and is true alike of wills of every nationality and every religion or rank of life. A  presumption  against  intestacy may be raised  if  it  is justified by the context of the document or the  surrounding circumstances;  but  it can be invoked only  when  there  is undoubted  ambignity in ascertainment of the  intentions  of the  testator.   It  cannot be that merely with  a  view  to avoiding  intestacy  you are to do otherwise  than  construe plain words according to their plain meaning. A  Hindu died leaving   a widow, a widowed daughter  and   a

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married daughter G, after he had made a will giving authori- ty to his widow to adopt a son of G should she beget one, or in the alternative a son of one of his nephews.  Para. 4  of the will provided that if his widow adopted G’s son all  his properties  except the village of K and the house at  I  and other  properties disposed of by the will shall pass to  the adopted son; and para. 5 provided as follows:’’The whole  of the  village  of K and the house a I, my  daughter  N  shall enjoy  with  life interest and after her the  said  property shall  pass to my daughter G and her children on payment  by the latter of Rs. 5,000 to A, the daughter of N." Later  on, amongst the provisions which he wished to make if a son of a nephew  was  adopted,  there was a provision  which  ran  as follows: "Para. 13.  The village of K shall be enjoyed by  N as  stated in para. 5."  A nephew’s son was adopted  and  he instituted a suit against G after N’s death for recovery  of the  village  K contending that under para. 13 of  the  will there  was  no  disposition of the village  after  the  life interest of N and on her death the village vested in him  as the testator’s heir:       Held,  on a construction of the will as a whole,  that the  teststor did not intend that in the contingency of  the adoption of nephew’s son, the village K should pass, on  N’s death, to the adopted son; on the other hand, the provisions of  para.. 5 of the will were intended to apply even in  the case  of such a contingency and the village passed to  G  on N’s death under para. 5 of the will. Judgment of the High Court of Madras reversed.       Venkatanarasimha v. Parthasarathy (41 I.A. 51) and  Re Edward; Jones v. Jones [1906] 1 Ch. 5701, referred to.

JUDGMENT: APPELLATE  JURISDICTION:  Civil  Appeal No.  XIII  of  1950. Appeal from a judgment and decree of a Division Bench of the Madras High Court (Wadsworth and Rajamannar JJ.)  dated 27th November,  1945,  in Appeal No. 518 of 1941,  reversing  the judgment  of  the Subordinate Judge of  Mayuram  dated  10th July, 1944, in Original Suit No. 34 of 1943.       B.  Somayya (R. Ramamurti, with  him) for  the  appel- lant. 951 K.S.  Krishnaswami  Aiyangar  (K.  Narasimha Aiyangar,  with him) for respondent No. 1. 1950. December 21.  The Judgment of the Court was  delivered by MUKHERJEA  J.--This appeal is directed against an  appellate judgment of a Division Bench of the Madras High Court  dated November 27, 1945, reversing the decision of the Subordinate Judge of’ Mayuram made in Original Suit No. 34 of 1943.     There is no dispute about the material facts of the case which lie within a short compass and the controversy centers round one point only which turns upon the construction of  a will  left by one Kothandarama Ayyar to whom the  properties in suit admittedly belonged.  Kothandarama, who was a  Hindu inhabitant of the District of Tanjore and owned considerable properties,  died on 25th April 1905, leaving behind him  as his  near  relations his adoptive mother  Valu  Ammal,   his widow  Parbari  and  two  daughters Nagammal and  Gnanambal, of  whom  Nagammal,who became a widow during the  testator’s life time had an infant daughter named Alamelu  Kothandarama executed  his  last will on 13th March, 1905,  and  by  this will,  the  genuineness  of which is  not  disputed  in  the present  litigation,  he gave an authority to his  widow  to

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adopt  unto  him  a son of his  second  daughter  Gnanambal, should she beget one before January., 1908, or in the alter- native any of the sons  of his two nephews, if the widow  so chose. The  suit, out of which the appeal arises, was commenced  by Raju Ayyar, who was a son of the testator’s nephews and  was taken in adoption by the widow in terms of the will; and  it was for recovery of possession of certain properties,  known as Kothangudi properties which formed part of the testator’s estate  on  the  allegation that under  the  will  mentioned above,  these properties were given to Nagarnmal, the   wid- owed  daughter  of the testator for her  life-time,  but  as there was no disposition of the remaining interest after the death of the life tenant, the properties vested in the 952 plaintiff as the adopted son and heir of the deceased on the death of Nagammal which took place on 3rd of January,  1943. Gnanambal,  the  second daughter of the  testator,  was  the first  and main defendant in the suit, and she resisted  the plaintiff’s claim primarily on the ground that there was  no intestacy as regards the suit properties after the  termina- tion  of the life interest of Nagammal, and that  under  the terms  of  the  will itself she was entitled  to  get  these properties  in absolute right after the death  of  Nagammal, subject  to  payment of a sum of Rs. 5,000 to  Alamelu,  the daughter of Nagammal.  Alamelu was made the second defendant in the suit and as she died when the suit was pending in the trial court, her heirs were impleaded as defendants 3 to 9.     The first court accepted the contention of the defendant No.  1 and dismissed the plaintiff’s suit. On appeal to  the High  Court, the judgment was reversed and  the  plaintiff’s claim  was  allowed.  The defendant No. 1 has  now  come  up appeal to this court.     To  appreciate the contentions that have been raised  by the parties to this appeal, it would be convenient first  of all to refer briefly to the relevant provisions of the will: After  cancelling  his previous wills. the testator  in  the third  paragraph  of his will, gave his widow  authority  to adopt  a son. She was to adopt the son of Gnanambal, if  the latter  got  a son previous to January 1908,  or  she  could adopt any of the sons of the testator’s nephews.   Paragraph 4 provides that if the first course is followed, that is, if the  son of Gnanambal is adopted by the widow, then all  the properties, movable and immovable, belonging to the testator excepting  the village of Kothangudi, the house at  Injigudi and the other properties which were disposed of by the  will would go to such adopted son.  Paragraph 5, which is materi- al for our present purposes runs as follows:....      "The  whole  village  of Kothangudi and  the  house  at Injigudi,  both of Nannilam  Taluk,  my  daughter  Nagammal, shall  enjoy  with  life interest and  after  her  the  said property  shall pass to my daughter Gnanambal and her  chil- dren on payment by the latter of Rs. 5,000 to Alamelu Nagam- mal’s daughter." 953     By  the sixth paragraph the  Nallathukudi  and  Pungavur villages together with certain house  property at  Mayavaram are given to the testaor’s adoptive mother and wife in equal shares to be enjoyed by both of them during their  life-time and   after their death they are to pass on to  the  adopted son. Paragraph 7 gives a small h.use absolutely to  Nagammal for  her residence and paragraph 8 makes certain  provisions for management of the properties.  In paragraph 9  direction is given to collect the money due on the insurance policy on the life of the testator and to pay off his debts.  Pragraph

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10 mentions certain charities, the expenses of which are  to be derrayed from the income of the Nallathukudi  properties. Paragraph 11 then says that in the event of the widow adopt- ing any of the nephew’s sons of the testator, such son shall inherit the entire property at Kokkur and also the lands  of Nallathukudi  after  the death of the  testator’s  wife  and mother.   By paragraph 12, the village of  Maruthanthanallur is   given to Gnanambal and paragraph 13 provides that  "the village of Kothangudi shall be enjoyed by Nagammal as stated in  paragraph 5"  By paragraphs 15 and 16 the  remainder  in the house at Mayavaram situated in the east row of Vellalar- kovil  Street is given to Gnanambal after the death  of  the testator’s  wife and mother. Paragraph 18 provides for  cer- tain  other charities. In paragraph 20 it is stated that  if the  wife of the testator should die before  January,  1908, without  making any adoption, then the eldest or any son  of Gnanambal would be his adopted son without any formality and inherit  all the properties subject to the  conditions  men- tioned  in the will. Paragraph 21, which is the  penultimate paragraph  in  the will, further lays down that if  all  the three contingencies fail and no adoption is taken, the  male child or children born to Gnanambal shall inherit as  grand- sons  all  the properties of the testator,  subject  to  the conditions  specified in the will. These, in brief, are  the dispositions  made  in the will. The  plaintiff  founds  him claim upon paragraph 13 of the will which, according to him, contains the enire disposition so far as the Kothangudi 954 property  is concerned.  That  village is given to   Nagarm- mal for her life with no disposition of the remaining inter- est.  If the remainder has not been disposed of, there is no doubt  that the plaintiff would be entitled to the  property as the heir of the testator under the ordinary law of inher- itance.     The defendant No. 1. on the other hand, relies on  para- graph 5 of the will, which gives the Kothangudi village  and the Injigudi house to Nagammal to he enjoyed by her so  long as she lives and after her death they are to go to Gnanambal and  her  children subject to the payment of a  sum  of  Rs. 5,000 to be paid to Alamelu, the daughter of Nagammal.      The High Court on a construction of the will has  found in  favour of the plaintiff primarily on the ground that  in the  contingency which happened in the present  case,  viz., that the widow took in adoption a nephew’s son of the testa- tor, paragraph 5 of the will did not come into operation  at all.   The  disposition as regards Kothangudi  property  is, therefore,  to be found exclusively in paragraph 13  of  the will  and the actual words employed by the testator in  that paragraph do not indicate that apart from Nagammal’s  taking a  life  estate in the Kothangudi village the  rest  of  the provisions in regard to this property as laid down in  para- graph  5 would also be incorporated into paragraph  13.   An Obvious  difficulty,  according to the  learned  Judges,  in accepting the construction sought to be put upon the will by defendant No. 1  is that paragraph 5 speaks both of  Kothan- gudi and Injigudi properties, whereas paragraph 13 does  not mention  the Injigudi house at all, nor does it  purport  to give a life interest in the same to Nagammal.  It could  not be  reasonably held on a construction of the will  that  the intention of the testator was that Gnanambal was to pay  Rs. 5,000  to  Alamelu for the Kothangudi property  alone.   The result  was that the plaintiff’s claim was allowed.   It  is the  propriety  of this decision that  has  been  challenged before us in this appeal.      In  course of the arguments, we have been  referred  by

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the learned Counsel on both sides to quite a large 955 number of decided authorities,  both  English and Indian, in support of their respective contentions. It is seldom  prof- itable to compare the words of one will with those of anoth- er  or  to attempt to find out to which of  the  wills  upon which decisions have been: given in reported cases, the will before  us approximates closely.  Cases are helpful only  in so  far as they purport to lay down certain general  princi- ples  of construction and at the present day  these  general principles seem to be fairly well settled. The cardinal maxim to be observed by courts in  constru- ing  a will is to endeavour to ascertain the  intentions  of the  testator.  This intention has to be gathered  primarily from  the language of the document which is to be read as  a whole without indulging in any conjecture or speculation  as to  what the testator would have done if he had been  better informed  or better advised.  In construing the language  of the will as the Privy  Council observed in Venkata Narasimha v. Parthasarathy (1), "the courts are entitled and bound  to bear in mind other matters than merely the words used.  They must  consider the surrounding circumstances,  the  position of the testator, ’his  family relationship, the  probability that  he  would use words in a particular  sense,  and  many other  things  which  are often summed up  in  the  somewhat picturesque figure ’The court is entitled to put itself into the testator’s armchair’  ......  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.  So soon as the  con- struction is settled, the.duty of the court is to carry  out the intentions as expressed, and none other.  The  court  is in no case justified in adding to testamentary dispositions......   In all cases it must loyally carry  out the will as properly construed, and this duty  is universal, and  is true alike of wills of every nationality  and  every religion or rank of life."     A question is sometimes raised as to whether in constru- ing a will the  court  should  lean  against (1) 42 I.A. 51 at  p.70. 956 intestacy.  The desire to avoid intestacy was considered  by the  Privy Council in the case referred to above as  a  rule based  on  English necessity and English habits  of  thought which should not necessarily bind an Indian court.  It seems that a presumption against intestacy may be raised if it  is justified by the context of the document or the  surrounding circumstances;  "but  it can be invoked only when  there  is undoubted ambiguity in acertainment of the intentions of the testator.   As Lord  Justice  Romer observed in Re  Edwards; Jones v. Jones (1), "it cannot be that merely with a view to avoiding  intestacy  you are to do otherwise  than  construe plain words according to their plain meaning".  It is in the light  of  the above principles that we  should  proceed  to examine the contents of the will before us.    The present will, which is the last of four  testamentary document  executed  by the testator, appears  to  have  been prepared with a great deal of care and circumspection.   The testator  had clearly in mind the different situations  that might arise in case his widow adopted either Gnanambal’s son or  a son of one of the nephews of the testator.  He  envis- aged   also   the  possibility of the  widow  dying  without making any adoption at all.  Besides the son to be  adopted, the  only other relations who had natural  claims  upon  the affection and bounty of the testator and for whom he desired

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to make provisions were his  wife,  his adoptive mother, the two datughters and the infant grand-daughter.  The interests given to his wife, the adoptive mother and the eldest daugh- ter, who were all widows, were for their life-time, except a small  house  property which was given  absolutely  for  the residence  of the eldest daughter. On the other  hand.,  the bequests in favour of Gnanambal, who was a married daughter, and the adopted son of the testator, were absolute in  their character.  Besides these dispositions, there  were  certain gifts for charity which were to be met out of the income  of the properties given to the wife and the adoptive mother for their lives.  One singular feature (1) [1906]1 Ch. 570 at p. 574.      957 in  the  will is that the testator took scrupulous  care  to include in it every item of property that he owned.     There  are two provisions in the will relating   Kothan- gudi  property  to  which the dispute in  the  present  suit relates.   One is in paragraph 5 which gives  this  property along with the house at Injigudi to Nagammal, the  remainder being given to the appellant subject to the payment of a sum of  Rs.  5, 000 to Alamelu, the daughter  of  Nagammal.  The other  is in paragraph 13, which merely says  that  Nagammal was  to get it for life as stated in paragraph 5.  The  view taken  by the High Court and which has been pressed for  our acceptance  here by the learned Counsel for the  respondents is  that paragraph 5 was meant to be operative only if  Gna- nambal’s  son  was adopted by the widow.   As that  was  not done,  paragraphs 4 to 8 of the will, it is urged,  will  go out  of the picture alttgether and it is not permissible  to refer to them except to the extent that they were  impliedly incorporated  in the subsequent paragraphs of the will.   We do  not  think that this is the correct way of  reading  the document. The testator  undoubtedly  contemplated  different contingencies;  but a  reading of  the  whole  will does not show  that  he wanted to make  separate  and  self-contained provisions  with regard to each of the  contingencies   that might  arise  and  that each  set  of  provisions  were   to be   read  as exclusive of the other set or sets. That  does not  appear  to be the scheme of the will.   The  testator’s main desire undoubtedly was that his widow should adopt  the son  of  his daughter Gnanambal, and in the first  part  his will after making provisions for his two daughters, his wife and adoptive mother and also for certain charities, he  left the rest of his properties to the son of Gnanambal that  was to be adopted by his widow. In the second part of the  will, which is comprised in paragraphs 11 to 16, the testator sets out the modifications which he desires to make in the earli- er  dispositions  in case a son of one of  his  nephews  was adopted by the widow. It was not the intention of the testa- tor that on the happening of the second contingency, all 958 the earlier provisions of the will would stand cancelled and the  entire  dispositions of the testator’s  property  would have to be found within the four corners of paragraphs 11 to 16 of the will.  In our opinion, the provisions made for the two daughters, the widow and the adoptive mother as made  in paragraphs  5, 6 and 7 of the will and also  the  provisions for charities and payment of debts contained in paragraphs 9 and  10  were  meant to be applicable under  all  the  three contingencies  referred  to above.  This is clear  from  the fact that provisions of paragraphs 7, 9 and 10 have not been repeated  or incorporated  in paragraphs 11 to 16,  although it cannot be suggested that they were not to take effect  on the happening of the second contingency. Again in the  third

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contingency contemplated by the testator, which is described in paragraph 20, it is expressly stated that if no  adoption is made, the eldest or  any  son  of  Gnanambal would inher- it  the   properties   and  he  shall  take  the  properties subject  to  the  conditions  mentioned in   the  will.  The conditions  spoken of here undoubtedly refer to the   provi- sions made  for  the  mother,  wife and the two daughters of the  testator as well as in respect to payment of debts  and carrying out of the charities specified in paragraph 10.       The  changes that are to take effect on the  happening of the second event are in regard to the bequests in  favour of  the  adopted son.  Under paragraph 4 of  the  will,  the adopted son was to get all the p. roperties of the  testator with the exception of those given to the two daughters,  the mother-  and the wife.  Under paragraph 11, if the  adoption is  of a nephew’s son of the testator, the adopted son  gets only  the Kokkur properties and the reversionary  interestin Nallathukudi village after the death of the testator’s  wife and mother. The village Maruthanthanallur which would go  to the adopted son under paragraph 4 is taken away under  para- graph  11 and is given to Gnanambal.  She is also given  the remaining interest in the Mayavaram house which was given to the  adopted son under paragraph 6.  Subject to the  changes thus made, the provisions 959 of paragraphs 5, 6 and 7 would, in our opinion, still remain operative  even if the person adopted was a nephew’s son  of the testator.  No change is made in paragraphs 11 to 16 with regard  to  the provision in paragraph 5 of  the  will.   In paragraph  13 it is only stated that the village  Kothangudi shall  be enjoyed by Nagammal as stated in paragraph 5.   It may  be conceded that this statement by itself does not  let in  the  entire provision of paragraph 5, but  that  is  not material  for our present purpose.  It is enough that  para- graph  5  has not been changed or altered in any  way.   The statement in paragraph 13 may, after all, be a loose expres- sion which the testator used only for the purpose of  empha- sising  that  the  Kothangudi village would  be  enjoyed  by Nagammal  even if Gnanambal’s son was not adopted.  This  is not by way of making any new disposition, but only to affirm what has been already done.  The affirmation of a portion of the provision which is perfectly superfluous cannot  exclude the  rest. It is somewhat difficult to say why the  rest  of the provisions in paragraph 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in  para- graph  13.  It may be that the testator did not consider  it necessary or it may be that it was due to inadvertance.   It is  to be noted here that the testator did not mention  any- where in  paragraphs 11 to 16 the small house that was given absolutely to Nagamreal under paragraph 7.  It was certainly not  the intention of the testator that Nagammal  would  not have that house on the happening of the second  contingency. If  paragraph 5 itself is held to be applicable-and  in  our opinion it should be so held--there is no question of adding to or altering any of the words made use of by the testator. It  is not a question of making a new will for the  testator or  inventing a bequest for certain persons  simply  because the will shows that they were the objects of the  testator’s affection.   The provision is in the will itself and  it  is only  a question of interpretation as to whether it  is  ap- plicable  in  the circumstances which have happened  in  the present case.  The position, therefore, seems 960 to  be that the disposition made in paragraphs 5, 6  and  7, which  were  in favour of the mother, the wife and  the  two

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daughters of the testator were meant to take effect  immedi- ately  on  the testator’s death.  They were  not  contingent gifts in the sense of being made dependent upon the adoption of  Gnanambal’s son by the wife of the testator.   Only  the reversionary  interest in the Mayavaram house, which was  to vest  in the adopted son under the provision of paragraph  6 after  the death of the widow and the mother was taken  away from  the  adopted son and given to Gnanambal  in  case  the person  adopted was not her own son.  If the whole of  para- graph  5 remains operative the Injigudi house must  also  be deemed  to have been given to Nagammal for her life  and  in fact the evidence is that she enjoyed it so long as she  was alive.   No difficulty also arises regarding the payment  of Rs. 5,000 to Alamelu as has been stated by the High Court in its judgment.     Having  regard  to the meticulous care  with  which  the testator seems to have attempted to provide for the  differ- ent contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the proper- ties he owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothan- gudi  village if  he really thought that such direction  had to be repeated in the latter part of the will.  The omission of the gift of Rs. 5,000 to Alamelu also cannot be explained on any other hypothesis. It is not necessary for the purpose of  the  present  case to invoke  any  rule  of  presumption against. intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at.     The  result is that the appeal is allowed, the  judgment and decree of the of the High Court are set aside and  those of the Subordinate Judge restored.  The appellant will  have costs of all the courts.                           Appeal allowed.  Agent for the appellant:      M.S. K. Aiyangar.  Agent for respondent  No. 1:  M. S. Krishnamoorthi  Sastri.      961