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PETITIONER: PRAMOD KUMARI BHATIA

       Vs.

RESPONDENT: OM PRAKASH BHATIA AND ORS.

DATE OF JUDGMENT15/11/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH

CITATION:  1980 AIR  446            1980 SCR  (2)  53  1980 SCC  (1) 412

ACT:      Will-Testamentary Will, construction of-Jurisdiction of the Court  in exercising  its curial draughtsmanship for the testator  to  supply  the  specific  words  from  the  Will, explained.

HEADNOTE:      Evidence-Additional evidence  reception of  by the High Court-Supreme Court  cannot interfere with the discretionary power of  the High  Court, when the application is very much belated.      The testator  Pearey Lal Singh Bhatia died on 30-3-1952 leaving behind him a Will dated 8-4-44, a widow Lakshmi Devi being his second wife, a son Om Prakash by Lakshmi Devi, and the widow  and daughters  (Manmohini, Raj  Kumari and Pramod Kumari respectively)  of a predeceased son by a pre-deceased first wife.  Manmohini, the  daughter-in-law of the testator and her  daughter Raj  Kumari had  left the family house and moved away  to Mathura,  while Pramod  Kumari stayed in with her grand  father and  was brought  by up him. Lakshmi Devi, widow of Pearey Lal Singh died in 1958.      The suit  filed by Om Prakash for title to a sum of Rs. 16,490/- lying  in deposit  with two  banks was dismissed by the trial  Judge, who on a strict and narrow construction of the will  came to  the conclusion  that Om  Prakash was  not entitled to  succeed under the will and that on the death of Lakshmi Devi  the amount had to be divided among Om Prakash, Man Mohini, Raj Kumari and Pramod Kumari. On appeal the High Court of  Allahabad held  that on a true construction of the will Om Prakash alone was entitled to the amount.      Dismissing the appeal by special leave, the Court, ^      HELD :  1. A  reading of  the whole of the will clearly shows the unambiguous intention of the testator that his son Om Prakash  should succeed  to his estate after the death of Lakshmi Devi  and none  else was  to be  the  owner  of  the properties. [57 A]      The testator  noticed the  existence of  five  possible heirs :  his wife,  Lakshmi Deve,  his son  Om Prakash,  his deceased son  Krishna Chandra’s widow, Manmohini and Krishna Chandra’s daughters,  Raj Kumari  and Pramod  Kumari. He was desirous that  Pramod Kumari should be brought up by himself

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and his wife and that they should also perform her marriage. He was  also desirous that a sum of Rs. 2000/- should be set apart for  the marriage  of Raj  Kumari. Apart from that, he did make  it clear  that Man  Mohini, Raj  Kumari and Pramod Kumari should  have no  right or  interest  in  any  of  his properties  under   any  circumstances.  On  his  death  his properties were  to go  to his  wife Lakshmi Devi who was to have a  life interest  in them.  If his  wife  Lakshmi  Devi predeceased him,  the properties  were to  go to  his son Om Prakash. [56 F-H] 54      2. No  doubt, the  testator while  specifying  that  Om Prakash was  to take  the properties  in case  Lakshmi  Devi predeceased the  tester, did  not specify  that  Om  Prakash should take  the properties  after the death of Lakshmi Devi in case Lakshmi Devi survived the testator to enjoy the life estate given to her under the will. But this is a case where the testator’s  intention  to  give  the  properties  to  Om Prakash in case Lakshmi Devi predeceased the testator was so patently and  reasonably  certain,  ‘no  speculation  but  a compelling conviction’, that the Court would be justified in exercising its  curial draughtsmanship  for the testator and supplying the  specific words  missing from  the  will.  The Court  has   undoubted  jurisdiction  to  do  so.  Therefore necessary words  to that  effect can  and must  be read into will. [57 A-C, 58-C]      William Abbott  v. Eliza Middleton, 7 H.L.C. 68 Eden v. Wilson, 4  H.L.C. 284,  Re Smith  (1947 2  All  England  Law Reports 708),  Re Cory  (1955 1  W.L.R. 725 Re. Riley’s Will Trusts (1962 I W.L.R. 344); quoted with approval.      3. Supreme  Court cannot  interfere with the discretion exercised  by   the  High   Court  in  refusing  to  receive additional evidence  for which an application was made after several years. [58 F-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2577 of 1969.      From the  Judgment and  Order dated  18-7-1967  of  the Allahabad High Court in First Appeal No. 166/60.      M. V. Goswami for the Appellant.      Mohan Behari  Lal and  Vishnu Mathur for Respondent No. 1.      The Judgment of the Court was delivered by      CHINNAPPA REDDY, J.-The question in the appeal is about the construction  of a  will. The facts which are now not in dispute before  us are as follows : The testator, Pearey Lal Singh Bhatia died on 30-3-52 leaving behind him a will dated 8-4-1944, a  widow Lakshmi Devi being his second wife, a son Om Prakash  by Lakshmi  Devi and  the  widow  and  daughters (Manmohini, Raj  Kumari and Pramod Kumari respectively) of a pre-deceased son by a pre-deceased first wife. Manmohini and her daughter  Raj Kumari had left the family house and moved away to  Mathura while  Pramod Kumari  stayed  on  with  her grand-father and  was brought up by him. Lakshmi Devi, widow of Pearey Lal Singh, died in 1958. We are now concerned with the title to a sum of Rs. 16,490/- lying in deposit with the State Bank  of India  and  the  District  Cooperative  Bank, Bulandshahr. Om  Prakash claims  the amount  under the  will dated 8-4-1944.  The will,  a registered  one,  was  in  the following terms:-           "I, Pyare  Lal Singh, son of Babu Ghanshyam Narain      Saheb, by  caste Kshatriya  Bhatia, resident of Mohalla

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    Sheopuri, Bulandshahr, do declare as follows:-           "I, the  executant, am  owner in possession of the      property specified as given below in Schedules ‘A’, ‘B’      and ‘C’. The 55      property given  in  Schedules  ‘B’  and  ‘C’  has  been      purchased by me the executant, with my own funds in the      name of my wife Smt. Laksmi Devi and my son Om Prakash.      In fact  I, the  executant, am the owner of it as well.      The entire  movable and  immovable property,  owned and      possessed by  me, is  my self, acquired property and is      not ancestral  property, and  I the executant, have all      sorts of  rights to  make transfers in respect thereof.      Now I, the executant, am about sixty years of age and I      have a  wife, Lakshmi  Devi, a son, Om Prakash, and two      dear grand-daughters,  Raj Kumari  and  Pramod  Kumari,      daughters  of  my  first  son  Krishna  Chandra  Singh,      M.A.,LL.B., who has already died in June, 1932, leaving      behind his  widowed wife  Smt. Man Mohini Devi, besides      these two daughters aforesaid. Both the daughters of my      deceased son aforesaid, who are my grand-daughters, are      still  minors.  By  way  of  prudence  and  for  future      management I, the executant, make a will as under :-           That I,  the executant,  till I  am  alive,  shall      remain  owner   of  my  entire  movable  and  immovable      property, cash  etc., which  I possess  at  present  or      which may  be added to it during my life time and which      I, the executant, leave behind at the time of my death.      After my  death, if  my wife  Smt. Laxmi  Devi  remains      alive, she  will become  owner of my entire estate with      life interest,  but she shall have no power to transfer      any movable  and immovable  property. If  my wife  Smt.      Lakshmi  Devi   predeceases   me,   then   under   such      circumstances, after  my death  my son  Om Prakash, who      has now  appeared at the examinations of the X class of      the English  School and  who is  18 years of age, shall      become permanent  owner  in  possession  of  my  entire      estate and  he shall  be bound  by the  conditions laid      down in this will. I and my wife shall be duty-bound to      maintain and perform marriage etc. of my grand-daughter      Pramod Kumari  and  my  son  Om  Prakash  and  it  will      incumbent upon  me and  my wife to discharge that duty.      My second  grand-daughter Raj  Kumari  lives  with  her      mother at  Mathura. After  the death of her father, she      or her mother did not come to me and remained under the      guidance of her maternal grand-father and grand-mother.      Therefore, it  is the  duty of  the mother of my grand-      daughter Rajkumari, who is a teacher in a girl’s school      in Mathura  City,  to  maintain  her  and  perform  her      marriage. Even then I lay down for her as well that 56      a sum  upto Rs.  2000/- may  be given  or spent for her      marriage. Appropriate  expenses are to be incurred over      the education  and marriage of my second grand-daughter      Pramod Kumari  and my  son Om  Prakash, who  are living      with me  and are  getting education. My daughter-in-law      Smt.  Manmohini   Devi  aforesaid   or  her   daughters      aforesaid or  my any  other relation shall not have any      right  or   share  in   my   any   estate   under   any      circumstances.  Only   the  expenses   of  maintenance,      marriage etc.  of my both the grand-daughters aforesaid      and later  on the  expenses of  their bringing here and      sending  off  shall  be  met  according  to  custom  in      accordance with  the directions given above. It is also      my will  that after  my death,  a sum of about Rs. 20/-

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    per mensem  out of  the income  from rent  of shops and      houses  and  other  field  property  may  be  sent  for      charitable purposes in the following manner :-           I shall  continue to  do all  the charitable  acts      aforesaid during  my life  time. After  my death, if my      wife remains  alive, she  shall, and after her death my      son Om  Prakash, may  he live long, shall be duty-bound      to continue  this charitable  act. I  have strong hopes      that my  wife Lakshmi  Devi and my son Om Prakash shall      execute this  will of mine in every way and in this way      they shall  cause benediction to my soul, and that they      shall make  additions to  my estate and shall not allow      it to be under charge or to decrease in any way."      The testator, it is seen, noticed the existence of five possible heirs  : his wife, Lakshmi Devi, his son Om Praksh, his deceased  son Krishna  Chandra’s  widow,  Manmohini  and Krishna Chandra’s  daughters, Raj  Kumari and Pramod Kumari. He was  desirous that  Pramod Kumari should be brought up by himself and  his wife  and that they should also perform her marriage. He  was also  desirous that  a sum  of Rs.  2000/- should be  set apart  for the  marriage of Raj Kumari. Apart from that,  he did make it clear that Man Mohini, Raj Kumari and Pramod Kumari should have no right or interest in any of his properties  under any  circumstances. On  his death  his properties were  to go  to his  wife Lakshmi Devi who was to have a  life interest  in them.  If his  wife  Lakshmi  Devi predeceased him,  the properties  were to  go to  his son Om Prakash. Directions  were given  for  the  carrying  out  of certain charitable objects. His wife Lakshmi Devi and after 57 her death,  his son  Om Prakash were enjoined to perform the charitable acts.  A reading of the whole of the will clearly shows that it was the intention of the testator that his son Om Prakash and none else was to be the ultimate owner of the properties. No  doubt, the testator while specifying that Om Prakash was  to take  the properties  in case  Lakshmi  Devi predeceased the  testator, did  not specify  that Om Prakash should take  the properties  after the death of Lakshmi Devi in case Lakshmi Devi survived the testator to enjoy the life estates given  to her  under the  will. But  this is  a case where the  testator’s intention to give the properties to Om Prakash in case Lakshmi Devi predeceased the testator was so patently and  reasonably  certain,  ‘no  speculation  but  a compelling conviction’, that the court would be justified in exercising its  curial draughtsmanship  for the testator and supplying the  specific words  missing from  the  will.  The Court has undoubted jurisdiction to do so.      In William  Abbott v.  Eliza Middleton(1),  the testaor gave an annuity of &2000 to his widow, and set apart, out of his personal  property, a  sum sufficient to provide for its payment. He  directed that,  on the  death of his widow, the sum so  set apart  was to  go to his son George for his life and on  his death to George’s children, but he directed, "in case of  my son  dying before  his mother,  then and in that case the  principal sum  to be divided among the children of my daughter".  On the  date of  the  will,  George  was  not married. He married subsequent to the will and had a son. He died before  the testator.  The testator’s  widow died  soon thereafter.  A  question  arose  whether  George’s  son  was entitled to  take the  sum after the death of the testator’s widow. He  could so  take if  the words "without leaving any child" could  be supplied  after the  word  "dying"  in  the deposition  relating  to  the  final  gift  over.  The  Lord Chancellor observed,  "where there  is an  uncertainty as to the meaning  of any  part of a will, the right of a Court of

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construction even  to introduce words, in case of necessity, is clearly  stated by  Lord St.  Leonards,  in  the  passage quoted from  Eden v.  Wilson(2), and  declared the  right of George’s son to the sum.      Re Smith(3),  re Cory(4) and re Riley’s Will Trusts(5), are other  instructive cases  where words have been supplied by Courts  because of "so strong a probability of intention, that an  intention contrary  to that which is imputed to the testator cannot be supposed". 58      In Jarman On Wills, 8th Edn. 592, it is said :-           "Where it  is clear on the face of a will that the      testator has not accurately or completely expressed his      meaning by  the words he has used, and it is also clear      what are  the words  which he  has omitted, those words      may be  supplied in  order to effectuate the intention,      as collected from the context."      As already observed by us, we do not have the slightest doubt in  the  present  case  that  it  was  the  clear  and unambiguous intention  of  the  testator  that  his  son  Om Prakash should  succeed to  his estate  after the  death  of Lakshmi Devi. Necessary words to that effect can and must be read into the will.      The  learned  trial  Judge,  on  a  strict  and  narrow construction of  the will,  came to  the conclusion  that Om Prakash was  not entitled to succeed, under the will, on the death of  Lakshmi Devi and that the amount had to be divided among Om  Prakash, Man Mohini, Raj Kumari and Pramod Kumari. On appeal,  the High  Court of Allahabad held that on a true construction of  the will  Om Prakash  alone was entitled to the amount.  In the  view that  we have taken, we agree with the conclusion of the High Court.      Before  the   High  Court,   Pramod  Kumari   filed  an application  for   reception  of  additional  evidence.  The principal additional  evidence sought  to be  adduced was an alleged letter  said to have been written by late Pearey Lal Singh to  the bank  nominating Pramod  Kumari as  the person entitled to  the amount in deposit with the Bank. The letter itself was  not filed  along  with  the  application  but  a request was  made to  summon the  letter from  the Bank. The High Court  rejected the application. The application to the High Court  was made very many years after the suit had been filed, and  also quite  some years after the appeal had been filed before  the High  Court, and  we do  not think that we will  be   justified  in  interfering  with  the  discretion exercised  by   the  High   Court  in  refusing  to  receive additional evidence  at that  stage. The appeal is therefore dismissed but  in the  circumstances with  no  order  as  to costs. S.R.                                       Appeal dismissed. 59