http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

CASE NO.: Appeal (civil)  3374 of 2006

PETITIONER: Bajrang Factory Ltd. & Anr

RESPONDENT: University of Calcutta & Ors

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA,  J :

1.      Construction/ interpretation of a Will executed by one Nerode  Chandra Vasu Mullick on 04.03.1932 vis-‘-vis certain provisions of the  Indian Succession Act (for short "the Act"), viz., Sections 113, 116 and 129  falls for our consideration in this appeal which arises out of a judgment and  decree passed by a Division Bench of the Calcutta High Court affirming a  judgment and order dated 2.06.1992 passed by a learned Single Judge of the  said Court in Suit No. 866 of 1979 on a preliminary issue raised by the  appellants therein as to whether the respondents had any locus to file the suit  in question.

2.      Before embarking on the said questions, 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 determinator 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 sell or convert into money any of  the properties mentioned in the last foregoing  clause but it will be obligatory on him to invest the  entire proceed thereof in the purchase of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

immovable properties in Calcutta on the suburbs.

7. My son shall have the right and I devise that he  should settle the said immovable properties on one  of his sons for such sons life with remainder to  such son’s son."

6.      Indisputably, the testator executed a Codicil on 4.03.1932 in terms  whereof inter alia it was provided:

"12. If my son has no issue, however distant or  adopted son or any issue of such adopted son, my  estate shall go to the University of Calcutta for  advancement of learning.  It is my Will and desire  that the University should in that connection  suitably perpetuate for the benefit of Hindus only  the memory of (1) my father, Hem Chandra Vasu  Mullick (2) my mother Vooban Mohini Vasu  Mullick (3) my maternal grand father Narendra  Kumar Dutt and (4) my maternal grandmother  Golap Mohini Dutt and also use my residence no.  12, Wellington Square Calcutta as a Centre of  learning to be called after my late father."

7.      We may, however, mention that the said Codicil, according to the  testator, should be read as a part of his last Will and testament dated  4.03.1932 and thereby he also confirmed the said Will and testament.     8.      Soon after the execution of the Codicil, the testator died on 7.08.1942  leaving behind his widow, legatee and his daughter-in-law.  The legatee  under the Will separated from his wife.  His wife is said to have remarried.   Widow of the testator also passed away.  Appellant No. 3 in that situation  allegedly was asked to take care of the affairs of the properties.

9.      An application for grant of probate in terms of the Act was filed  before the original side of the Calcutta High Court and by an order dated  15.01.1943, the legatee was appointed as the sole executor and trustee of the  Will.  Allegedly by a registered indenture dated 27.12.1966, the legatee let  out the premises in question in favour of the appellant company, a portion of  the premises No. 156, Bipin Behari Ganguly Street, Calcutta (hereinafter  referred to as ’the immovable property’) for a period of ten years with the  option to renew the same for further four consecutive periods of 10 years  each in all for fifty years from the said date on the terms and conditions  mentioned therein.

10.     It is not in dispute 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

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 Bazar  being premises Nos. 155, 156, Bepin Behari  Ganguly Street and 167 Baithakhana Road  Calcutta both within the aforesaid jurisdiction and  described in the sketch plan annexed hereto and  marked with the letter "C" and delineated in red  and yellow including the right to collect rents  issues and profits thereof; b) Perpetual injunction restraining the defendants  Nos. 1 and 2 their servants and agents from  interfering with or further interfering with or  continuing to interfere with or disputing or  denying the plaintiff’s right to remain in  possession and/ or right to possess and enjoy the  portions of the said Baithakhana Bazar being  premises Nos. 155, 155/1, 155/2, 156, Bepin  Behari Ganguly Street, and 167, Baithakhana  Road, Calcutta more fully described in the sketch  plan annexed hereto and marked with the letter  "C" and delineated in red and yellow including the  right to collect rests issues and profits from the  occupants of such areas in any manner whatsoever. c) Perpetual injunction restraining the defendants  Nos. 1 and 2 from collecting or attempting to  collect the rents issues and profits from the  aforesaid portions of the Baithakhana Market of  which the plaintiff is the lessee. d) If necessary, possession of the said portions of  the Baithakhana Bazar being premises Nos. 155,  155/1, 155/2, 156, Bepin Behari Ganguly Street,  and 167, Baithakhana Road, Calcutta more fully  described in the letter "C" and delineated in colour  red and yellow\005"

14.     Respondent No. 1 herein also filed a suit in the original side of the  Calcutta High Court on or about 15.11.1979 which was marked as Suit No.  864 of 1979 praying for the following reliefs:

"a) A declaration that the sale purported to have  been effected in respect of premises Nos.  155,155/1,155/2, Bepin Behari Ganguly Street,  Calcutta by the Deed of sale dated 29th May 1971  executed by Hamir Chandra Vasu Mullick in  favour of the Chamong Tea Company Ltd.  The  defendant No. 1 is void or voidable and of no  effect as stated in paragraph 25 of the plaint. b) That the aforesaid Deed of Sale deed 29th May  1971 executed by Hamir Chandra Vasu Mallick in  favour of the Chamong Tea Company Ltd. The  defendant No. 1 delivered up and cancelled and/ or  adjudged void as stated in paragraph 25 of the  plaint. c) A declaration that the deed of lease dated 24th  July 1972 in respect of premises No. 155, 155/1,  155/2, Bepin Behari Ganguly Street, 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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

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\005 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\005 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 action for  enforcement of the said deed of sale and deed of  lease dated 29th May 1971 and 24th July 1972  respectively or any alleged right thereunder as  against the plaintiff No. 1\005"

15.    It appears that the aforementioned Chamong Tea Company Limited  had also filed a suit.          16.     In the suit filed by Respondent University, the appellants raised two  issues in regard to the validity of the Will, which are as under:

"(a) Whether the dispositions in regard to the  residuary estate made by the said Will are void  save and except the life interests given thereby to  the plaintiffs and the defendant Susan Sopher.

(b) Whether subject to the life interests given in  the residuary estate to the plaintiff and the  defendants Susan Sopher the said Plaintiffs and the  defendant Susan Sopher have succeeded to the  residuary estate of the testator as on a intestacy."   

17.     The said issues were taken as preliminary issues.  According to the  appellants, the bequeath of the property in terms of Clauses 5, 6 and 7 of the  original Will, as amended by the Codicil dated 4.03.1932 was void in terms  of Section 113 of the Act.  The learned Judge opined:

"The right created in favour of Hamir Chandra  Basu Mallick was only a life estate and his power  or appointing certain specified person was in  respect of the entire estate absolutely.  Under the  circumstances the provision of Section 113 had no  application in as much as Hamir had no choice of  curtailing the interest from the remaining of the  testator’s interest.  Hamir had no right to cut down  the absolute estate as such neither the provisions of  Section 113 nor Section 114 are attracted.  Section  116 had no application.  The right created in  favour of the University of Calcutta could only be  defeated, if Hamir had any issue either natural  born or adopted.  Clause 12 of the Codicil should  override clause 5 of the Will.  The question of  appointment by Hamir Chandra Basu Mallick

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

could only arise provided he had issues either  natural born or adopted.  The clause 7 in the Will  is only directory and not imperative.  Under the  circumstances there is no clause of defeasance and  the legatee as contemplated would take the entire  estate of the testator is an unfetter form.

       In view of the facts and circumstances of  this case and in view of the various principles of  law as laid down in the cases discussed above this  Court is of the view that the preliminary point  raised by 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\005"

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 which might  appear to be inconsistent to each other it will be  the duty of the Court to reconcile the aforesaid two  Clauses.

       Keeping such principle of law, if we now  examine the aforesaid three Clauses of the Will,  Clauses 5, 6 and 7, we are of the view that Clause  5 and  Clause 7 of the Will are not inconsistent with each  other.         In Clause 6 of the Will the son of the testator  who was given life estate of the property was  given right to sell or convert into money the  property was given right to sell or convert into  money the aforesaid immovable properties  bequeathed to him for life but subject to the  condition contained in Clause that in such event he  has to invest for purchase of another immovable  properties which has to be settled by the son of the  testator to one of the sons of Hamir.  The reference  to immovable properties in Clause 7, which  follows Clause 6 obviously is to the properties  which Hamir was required to purchase, if he  transferred the immovable properties bequeathed  to him by investing the sale proceeds thereof.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

       We are therefore unable to accept the  submission of the learned counsel appearing on  behalf of the appellant that there was inconsistency  between Clauses 5 & 7 and because of the same,  the alter Clause will prevail."

       It was furthermore observed:

"Clause 5 of the Will therefore stood modified by  Clause 6 of the Codicil.  On the death of the  testator therefore as Hamir did not beget or adopt  any son, the property will validly go to the  University of Calcutta.

       We are unable to accept the contention of  the learned Counsel appearing for the appellant  that bequests of the property by the testator to the  unborn son of Hamir subject to his life interest was  void under the provisions of Section 113 of the  Indian Succession Act and consequently the  bequests in favour of the University of Calcutta is  also void under Section 116 of the Indian  Succession Act.

       It appears to us that the bequests in favour of  the unborn son of Hamir by the testator of the  immovable properties was absolute and the same  comprised of the whole of the interest of the  testator in the property bequeathed having been  devised and bequeathed absolutely in favour of  them.  Since the bequests therefore comprised of  the whole of the interest of the testator in the said  property, such bequests will not be void.   Consequently, not the provision of Section 116 of  the Indian Succession Act but 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 thereover 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  be void under Section 113 of the Act. (iv)    If Clauses 5 and 7 of the Will were void, the consequences thereof  would be that the bequest under Clause 12, being dependant on the  failure of the aforesaid bequest, would also be rendered void in  view of Section 129 of the Act.   

20.     Mr. K.K. Venugopal, learned senior counsel appearing on behalf of  the respondents, on the other hand, would submit:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

(i)     The principles of interpretation of the Will being to ascertain the  intention of the testator are: (a)     the court will sit on the arm-chair of the testator so as to give  effect to his intention; and (b)     would implement that intention of the testator and in that  process an endeavour would be made to clear the  inconsistencies if any so as to see that the intention of the  testator is not defeated. (ii)    Having regard to the definition of Codicil contained in Section 2(b)  of the Act, the latter will prevail and if the Codicil is read in its  entirety, it would be evident that the testator clearly provided for  gift to the respondent University if the legatee Hamir Chandra  Mullick did not leave behind any son or had not adopted any.  As  admittedly, the legatee died in the year 1977 without any issue or  without adopting any son or without appointing any person, Clause  12 of the Codicil would come into effect. (iii)   Clause 6 of the Will clearly shows that merely a life interest was  conveyed to the legatee inasmuch as even had he transferred the  property, the same would be subject to investment of the sale  proceeds in acquiring one or the other property. (iv)    Clause 7 of the Will merely provides for an enabling clause in the  hands of the legatee in terms whereof he may or may not appoint  any person and only in the event such appointment is made, the  desire of the legatee was to see that the same may be made in  favour of his male issue. (v)     Clauses 5 and 7 of the Will, therefore, would not be hit by Section  113 of the Act. (vi)    Clause 7 of the Will furthermore would not operate qua the  property but qua the option of the legatee.  The Will so read, it was  urged, that both clauses 5 and 7 can be given effect to as it merely  provided for a just pious hope or wishful thinking on the part of the  testator.

21.     The Act was enacted to consolidate the law applicable to intestate and  testamentary succession.

22.     "Codicil’ has been defined to Section 2(b) of the Act to mean ’an  instrument 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 \026 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 irreconcileable 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 irreconcileable 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

interest in favour of his son Hamir Chandra Vasu Mullick inter alia of the  immovable properties during the term of his natural life.  The bequest was,  therefore, not absolute.  Only upon determination of his life estate, the same  is to vest absolutely on such one of his sons and grandsons as he may by  deed, Will or otherwise in writing appoint.  The said Clause is also not void  inasmuch as the bequest to the sons or the grandsons of the testator is not for  a life time but it vests in them absolutely.  The intention of the testator  becomes clear in reading the next sentence which again provides that in  default of such appointment to his eldest male descendants absolutely, if  Hamir Chandra Vasu Mullick has no male issue, the power of appointment  may be exercised by him in favour of his daughters or daughters’ sons.

28.     While making the bequest on the aforementioned terms, the limited  power to transfer the said bequeathed property had also been conferred upon  him. For all intent and purport it did not confer any power of absolute  transfer.  It, in effect and substance, merely provided for conversion of the  property.  Such conversion of the property was to be made strictly in the  manner as laid down therein.  As regard the purported transfer of the  properties in suit by the legatee, two questions would arise:

(a)     What would be the effect of non-conversion of such  properties by purchase of immovable properties in Calcutta  or the suburbs. (b)     Whether Clause 7 of the Will only refers to the properties so  transferred only on one of the appointees of the testator.

29.     It is one thing to say that non-compliance of conditions contained in  Clause 6 of the Will would not invalidate the transfer, but it is another thing  to say that the said provision contemplated illegality in the transaction.  If  the transaction is void or voidable at the instance of the beneficiary to the  Will, no further question need be asked.  Courts in the event of its findings  that the transactions are illegal, would have to proceed on the basis that the  same had not taken place at all.

30.     At this juncture, this Court is not concerned with the other allegations  made by the University as to whether the deed of sale executed by the  legatee was invalid or not, inasmuch as the preliminary issue raised is  confined to the question of validity of the will.

31.     What would be the effect of a sale if the sale proceeds 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 contained in the Codicil  shall prevail over the Will.  Clause 12 of the Codicil did not substitute  Clauses 5, 6 and 7.  As indicated hereinbefore, the Codicil was to be read as  a part of the Will and by reason of the said Codicil, the said Clauses of the  Will were confirmed by the testator.  In our opinion, by reason of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

Codicil, the testator expressed his intention clearly to the effect that in the  event the legatee does not have any issue or he does not adopt anybody as  his son or otherwise appoint a person provided for in Clause 5, the bequest  would be in favour of the Calcutta University.  The desire of the testator  apparently was to perpetuate the memory of his ancestors.  Bequest in favour  of the Calcutta University was meant to achieve a particular purpose which  has clearly been stated in Clause 12 of the Codicil.   

35.     The principles of construction of Will are well known.   

36.     Lord Russell in Margaret Goonewardens v. Eva Moonemale  Goonewardene and others [AIR 1931 PC 307] was considering a bequest  made by the testator which was in the following terms:

"(g) The rest and residue of my cash found in my  possession at the time of my demise and also the  money in deposit to my credit in my No. 1 account  in the Mercantile Bank of India Limited Galle, in  the Bank of Madras Colombo, in the Government  Savings Bank and in the Post Office Savings Bank  and the amount of my Policy of Insurance together  with the profit thereof and all other moveable  property absolutely to my said wife Margaret."

37.     The testator, thereafter, made a Codicil in terms whereof the  pecuniary legacy to a servant in respect of certain house was made which  contained these words: "Save as hereby altered or modified I hereby confirm  the said Will".

38.     A question arose therein as to whether a sum of Rs. 2,14,200/- to  which amount the testator became entitled to from the moneys invested on  mortgage bonds or promissory notes passed under the bequest of the legacy  or under the gift of all other immovable property.  The Judicial Committee  opined:

"\005It is well settled in England that by virtue of  S.34, English Wills Act, the effect of confirming a  Will by codicil is to be bring the Will down to the  date of the codicil and to effect the same  disposition of the testator’s property as would have  been effected if the testator had at the date of the  codicil made a new will containing the same  disposition as in the original will but with the  alterations introduced by the codicil\005"

39.     In Pearley Lal v. Rameshwar Das [(1963) Supp 2 SCR 834], Subba  Rao, J. opined:

 "\005Where 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

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  execution of the will, he never thought of changing  the will, though his son had predeceased his wife."

40.     In Navneet Lal Alias Rangi v. Gokul and Others [(1976) 1 SCC 630],  this Court held:

"8. From the earlier decisions of this Court the  following principles, inter alia, are well  established:  "(1) In construing a document whether in English  or in vernacular the fundamental rule is to  ascertain the intention from the words used; the  surrounding circumstances are to be considered;  but that is only for the purpose of finding out the  intended meaning of the words which have  actually been employed. ( Ram Gopal v. Nand Lal)   (2) In construing the language of the will the court  is entitled to put itself into the testator’s armchair (  Venkata Narasimha v. Parthasarathy) and is  bound to bear in mind also other matters than  merely the words used. It must consider the  surrounding 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 case and Gnanambal Ammal v. T. Raju  Ayyar)   (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) (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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

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  Another v. Shriniwas and Others [(2003) 6 SCC 98], Uma Devi Nambiar  and Others v. T.C. Sidhan (Dead) [(2004) 2 SCC 321], Sadhu Singh v.  Gurdwara Sahib Narike and Others [(2006) 8 SCC 75] and Gurdev Kaur and  Others v. Kaki and Others [(2007) 1 SCC 546].  

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 any evidence properly admissible, and the  meaning of the will and of every part of it is  determined according to that intention. For this  purpose, the will and all the codicils to it are  construed together as one testamentary disposition,  but not as one document, and the testator’s  intention is gathered from the whole disposition."

43.     With a view to ascertain the intention of the maker of the Will, not  only the terms thereof are required to be taken into consideration but all also  circumstances attending thereto.  The Will as a whole must, thus, be  considered for the said purpose and not merely the particular part thereof.   As the Will if read in its entirety, can be given effect to, it is imperative that  nothing should be read therein to invalidate the same.   

44.     In construing a will, no doubt, all possible contingencies are required  to be taken into consideration;  but it is also a well-settled principle of law  that only because a part of a document is invalid, the entire document need  not be invalidated, if the former forms a severable part.  The legatee  admittedly did not have any issue, nor did he adopt or appoint any person.   In a situation of this nature, effect can be given to clause 12 of the will, if it  is read as occurring immediately after Clause 5 of the original will.  As the  said clause stands on its own footing, its effect must be considered vis-‘-vis  clause 6, but the court may not start with construction of clauses 6 and 7,  which may lead to a conclusion that clause 5 is also invalid.  The  contingencies contemplated by clause 6 may not have any effect on clause 7,  if it does not take place at all.  The property which should have been  purchased with the sale proceeds could have been the subject-matter of  the  bequest and in terms thereof the University of Calcutta became the  beneficiary on the death of the original legatee.  We do not find any reason  as to why the same cannot be given effect to.  We have indicated  hereinbefore that it is possible to construe clause 7 of the will and in fact a  plain reading thereof would, thus, lead to the conclusion that it merely  provides for an option given to the legatee to take recourse thereto.  We have  also indicated hereinbefore that the term ’device’ in the context of clause 7  does not carry any meaning and, therefore, the same for all intent and  purport should be substituted by the word ’desire’.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

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 instant case, as in view of our  findings aforementioned, clause 5 of the will is not hit by Section 113 of the  Indian Succession Act.

46.     The submission (iv) of the appellant fails in view of the matter that  Clause 12 does not attract Section 129 of the Act since both the clauses, i.e.,  5 and 7 are valid as observed hereinbefore.   47.     For the reasons aforementioned, there is no merit in this appeal which  is accordingly dismissed with costs.  Counsel’s fee is quantified at  Rs.50,000/-  

48.     We would request the High Court to consider the desirability of  disposing of the suits filed by the parties hereto, as expeditiously as possible,  keeping in view the fact that they are pending for more than 28 years from  now.