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PETITIONER: RAMACHANDRA SHENOY AND ANOTHER

       Vs.

RESPONDENT: MRS.  HILDA BRITE AND OTHERS

DATE OF JUDGMENT: 01/04/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA DAS, S.K. SARKAR, A.K.

CITATION:  1964 AIR 1323            1964 SCR  (2) 722  CITATOR INFO :  R          1976 SC 794  (8)  R          1985 SC1359  (5)

ACT:    Will-Construction-"Shall   enjoy  permanently  and   with absolute   right",  "After  her  life-time,"   Meaning   of- Principles of construction.

HEADNOTE:   Mrs.  Mary Magdelene Coelho executed on July 25,  1907,  a will, cl. 3 (c) of which provided that "all kinds of movable properties  that shall be in my possession and authority  at the time of my death, i. e., all kinds of movable properties inclusive  of the amounts that shall be got from others  and the  cash  ; all these my eldest  daughter  Severina  Sobina Coelho,  shall,  after my death, enjoy and after  her  life- time,  her  male children shall enjoy permanently  and  with absolute right." Mrs. Coelho died in February, 1946, and in September,  1946, a  suit was filed for partition and separate  possession  by the widow and daughter of Denis-one of the sons of Severina. The  contention  of plaintiffs was  that  Severina  acquired under  the  terms of cl. 3 (c) only a life-interest  in  the property  and the remainder in absolute was  conferred  upon her  male issues.  The defendants maintained that cl. 3  (c) conferred  on Severina an absolute interest in the  property as a result of which the entire interest in the property and not merely her life interest passed under the Court  auction and  consequently  the claim for partition must  fail.   The contention of the defendants was accepted by the trial court and  the District judge.  However, the High Court held  that Severina  obtained  only  a life interest  in  the  property covered by cl. 3 (c). The  appellants  came to this Court by special  leave.   The only point Urged before this Court was that under cl. 3 (c), Severina  got an absolute interest in the property  and  not merely a life interest. Held that the only reasonable construction of cl. 3 (c)  was that the interest created in favour of Severina was merely a life interest and the remainder in absolute was conferred  723

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on  her  male, children.  The use of the  words  "after  her lifetime" was intended to show that the interest referred to was a life interest. One of the cardinal principles of. construction of wills  is 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.  Moreover, each  will has to be construed on its own terms and  in  the setting in which the clauses occur.

JUDGMENT:   CIVIL  APPELLATE  JURISDICTION : Civil Appeal No.  452  of 1959. Appeal  by special leave from the judgment and decree  dated August 25, 1959, of the Madras High Court in S. C. No.  2371 of 1950. S.N. Andley and A. G. Ratnaparkhi, for the appellants. A.V.   Viswanatha  Sastri,  G.  Gopalakrishnan   and   R. Ganapathy Iyer, for respondents Nos. 1 and 19. M.V. Goswami and B. C. Misra, for respondents Nos. 8-14. 1963.  April 1. The judgment of the Court was delivered by AYYANGAR J. -This  appeal   by special leave raisesfor consideration a very short but by no means   an         easy question regarding the proper construction of a will. The  testatrix  was an Indian Christian lady of  the-  Roman Catholic faith-Mrs.  Mary Magdelene Coelho.  She was a widow and  was possessed of considerable properties in respect  of which  she had previously executed settlements in favour  of her  children.   The  will  whose  construction  falls   for determination  was executed on July 25, 1907 and related  to the   properties  still  remaining  with  her  after   these settlements.  She had originally four 724 daughters, but by the date of the will only two of them were alive-her  eldest Severina Sabina Brito and her second  Mary Matilda Coelho.  The other members of her family then  alive and to whom it is necessary to refer were a  grand-daughter- Juli  Mary Margaret Fernandez by her deceased  4th  daughter and  four sons of the eldest daughter Severina.  It  may  be added  that the third daughter who died before 1907 left  no issue.  We might now proceed to the terms of the will.   The relevant  clause  whose  interpretation is  the  subject  of debate in this appeal is its cl. 3 (c). Clauses  1  and  2 are in the  nature  of  an  introduction, contain  no disposition but are merely a narration of  facts etc.  and  therefore  not  material  to  be  set  out.   The dispositive  portion  of the will starts with  cl.  3.  This consists of 3 sub-clauses.  Sub clauses (a) and (b) describe certain immovable properties which not having been  included in the previous settlements, remained at the disposal of the testatrix   and  sub-cl.  (c)  proceeds  to   effectuate   a disposition  of  these  items  and  of  all  other   movable properties that she might die possessed of. We  ought  to  mention  that the original  will  is  in  the Canarese language and there has been some dispute as regards the  correct translation of this relevant clause.  We  shall now  set out the official translation. which is included  in the printed record and refer later to the other translations submitted  to  us  and to the  arguments  based  upon  them. Clause  3  (c)  which  effects the  disposition  now  to  be construed reads:               "3.  (c) All kinds of movable properties  that               shall be in my possession and authority at the

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             time  of my death, i.e., all kinds of  movable               properties inclusive of the amounts that shall               be got from others and the cash;-all these  my               eldest daughter Severina Sobina Coelho, shall  725               after my death, enjoy and after her  lifetime,               her male children also shall enjoy permanently               and with absolute right......" The  rest of it is not very material and is omitted.   There are  a  few  other  clauses in this  will  which  have  been referred to by learned counsel in their arguments before  us and  also  in  the Courts below as furnishing  aids  to  the construction  of the disposition in cl.3(c). These  are  the cls. 4 and 5 and they run:               "4.  The  bagaitu hithlu land  and  the  house               situated  therein ..and the buildings,  shops,               etc.   attached   thereto:-these   my   second               daughter, Mary Matilda Coelho should enjoy  up               to her death only; and further, she should not               alienate  them in any manner by way  of  gift,               sale,  mortgage, etc.  After the  lifetime  of               the said daughter of mine, viz., Mary  Matilda               Coelho, the property should be enjoyed by  the               daughter of my fourth daughter, Mary Margaret,               i.e.   of   juila  Mary   Margenta   Fernandez               hereditarily and with permanent right.  In the               said property, the said julia’s father and his               heirs have no manner of right whatsoever.  "               "5. If the said Julia does not marry or if she               has no issues, the said Julia should enjoy the               said  property up to her death and  thereafter               this property of mine should be enjoyed by  my               eldest  daughter, Severina Sobina  Coelho  and               after   her  by  her  male  descendants   with               permanent rights". The  short  question for decision in the appeal  is  whether under  cl.  3  (c) extracted above the  interest  which  the eldest  daughter’  Severina  took  under  the  bequest   was absolute or whether she had merely :a life interest with the absolute remainder vesting in ,her male issues, 726 Before  proceeding  to deal with this matter,  it  would  be convenient  to  set out how the question  comes  before  us. This appeal arises out of a suit for partition and  separate possession  filed  in  September,  1946  by  the  widow  and daughter  of Denis--one of the sons of Mrs. Severina  Sabina and  relates to the property measuring 1 acre 37 cents  with houses and structures thereon which is part of the  property covered by cl. 3. We ought to mention that Severina died  on February  14, 1946.  It is the case of the  plaintiffs  that Severina  acquired under the terms of cl. 3 (c)only  a  life interest in that property and that the remainder in absolute was conferred upon her male issues.  On the other hand,  the construction  put forward by the contesting  defendants  who claim  under a purchaser in a Court sale in execution  of  a decree against Severina is, that on a proper  interpretation of the clause what was conferred on Severina was an absolute interest  in the property as a result of which the  interest in  the  property and not merely her  life  interest  passed under the Court auction, and that consequently the claim for partition had to fail - Both the learned Trial judge as well as  the  District judge on appeal  upheld  the  construction contended for by the defendants and dismissed the suit.   On further  appeal to the High Court the learned  Single  judge reversed  this decree and decreed the suit holding that  the

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daughter  Severina  obtained  only a life  interest  in  the property  covered  by cl. 3. It is the correctness  of  this construction   that   is  challenged   by   the   contesting defendants-the appellants before us. Pausing  here,  we  ought to mention that  there  have  been numerous  proceedings  between the parties before  the  suit giving  rise  to the appeal but that it  is  unnecessary  to refer to them and that besides, several of the parties  have died during the pendency of the proceedings and their  legal representatives  have  beep added to the record.   To  these also  727 reference  is unnecessary as nothing turns on them.   As  we stated  earlier, the sole point for consideration  on  which the decision in the appeal turns is whether under cl. 3  (c) Severina,  the eldest daughter of the testatrix acquired  an absolute interest or was her interest merely limited to  one for her life, the absolute remainder being bequeathed to her male issues. The  testatrix being an Indian Christian, the rules  of  law and  the principles of construction laid down in the  Indian Succession  Act X of 1865 which was in force in 1907  govern the  interpretation of this will.  It should be  added  that the  Act  of 1865 has been repealed, but every  one  of  its relevant provisions has been re-enacted in exactly the  same terms  in the Succession Act of 1925.  As, however, the  Act of 1865 was the statute in operation at the relevant time we shall  refer to its provisions and to that enactment as  the Act.   We  might premise the discussion by stating  that  we are,  in the case before us, concerned not with any  special rule  of law but only with the rules laid down by  the  Act’ for  the  construction of wills.  Some of  these  rules  are merely  the  embodiment in statutory form  of  the  ordinary rules  governing the construction of all  documents  whether they  are  dispositions testamentary or inter vivos  or  are non-dispositive, rules which would have been applicable even apart  from  specific  provision  in  the  Act.,  Such,  for instance are :               "69.   The meaning of any clause in a Will  is               to  be collected from the  entire  instrument,               and  all  its arts are to  be  construed  with               reference to each other............. "               "72.   No part of a Will is to be rejected  as               destitute of meaning if it is possible to  put               a reasonable construction upon it."               "73.   If  the same words occur  in  different               part  of the same Will, they must be taken  to               have 728               been used everywhere in the same sense, unless               there appears an intention to the contrary." Next there are a group of provisions with which we are  more intimately  concerned.  Of these reference was made to’  and reliance placed only on two sections which we shall  proceed to read:               "82.   Where  property is  bequeathed  to  any               person,  he is entitled to the whole  interest               of  the  testator therein, unless  it  appears               from the Will that only a restricted  interest               was intended for him."                                    and               "84.   Where  property  is  bequeathed  to   a               person,  and words arc added which describe  a               class  of persons, but do not denote  them  as               direct  objects of a distinct and  independent

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             gift,  such  person is entitled to  the  whole               interest  of  the testator therein,  unless  a               contrary intention appears by the Will." It was this last provision (s. 84) that was very much relied on  by learned Counsel for the appellants and in  particular to the illustrations appended to it and we shall, therefore, refer to some of these illustrations "(a) A bequest is made- to A and his children, . to A and the heirs male of his body,  729               In each of these cases, A takes the whole  in-               terest   which   the  testator  had   in   the               property.,               (b)   A bequest is made to A and his brothers.               A and his brothers are jointly entitled to the               legacy."               (c)   A  bequest  is made to A for  life,  and               after his death to his issue.  At the death of               A the property belongs in equal shares to  all               persons who shall then answer the  desoription               of issue of A." Put  shortly’,  the submission of learned  Counsel  for  the appellants was this : There could be no doubt that by cl.  3 (c) the testatrix intended a bequest to her eldest daughter- Severina-of the properties referred to in cl. (3).  The only point  in  controversy is whether the interest  Conveyed  to Severina was limited in duration to her life, or whether  it was  absolute.   Under s. 82 of the Act, when a  bequest  is made the presumption is in favour of its being absolute  and the  point  urged was that there was no  contrary  intention manifested  to displace this statutory presumption,  for  if the  bequest  in  her  favour  was  absolute  there  was  no possibility   in  law  of  a  gift  over  and  any   further dispositions  of  the  property  would  naturally  be  void. Learned  Counsel  pointed  out  that  for  the  purposes  of conferring an absolute interest the law did not require  any particular  form  of  words  to be used.   The  use  of  the expression  "enjoy"  ,  which is employed  in  the  relevant dispositive  clause  ever,.  if it  stood  alone,  would  be sufficient  for  the purpose.  The testatrix,  however,  not content   with  that  had  added  the  words  "shall   enjoy permanently and with absolute rights"-to make her  intention even  more clear.  There are, no doubt, words which  purport to confer an interest on her male children 730 after  her life-time and, no doubt, also it is  stated  that they shall enjoy "permanently and with absolute right,"  but if  the  daughter  Severina had  been  granted  an  absolute interest   in  the  property  by  the  words   "enjoy"   and "permanently  and  with  absolute  rights"  the   subsequent disposition must necessarily fail.  Learned Counsel  further submitted that light was thrown on the absolute  disposition in favour of Severina by cl. 3 (c) by contrasting its  terms with  the  vocabulary  employed by the  testatrix  when  she intended to create a limited interest for life in cl. 4.  In the  latter clause, apart from the specific  condition  that the  second daugbter-Matilda Coclho was to enjoy up  to  her death  only,  the testatrix had gone further and  imposed  a condition  forbidding  alienations.  The  absence  of  these features  in  the  disposition  in  favour  of  the   eldest daughter-Severina-under  cl. 3 (c) were  clear  indications, according  to learned Counsel, that the legate  therein  was intended  to  be  granted an  absolute  interest.   In  this connection  it was pointed out that the bequest in  question

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fell  within the class of dispositions referred to in s.  84 extracted earlier and particularly to the bequest  specified in  illustration  (a) to that section.  We might  point  oat that  these submissions were, in fact, the reasoning on  the basis  of which both the learned trial judge as well as  the District judge on appeal upheld the construction put forward by the appellants. It  would  be seen that in ultimate  analysis  the  question arising  on the construction of cl. 3 (c) would  be  whether the words "shall enjoy permanently and with absolute  right" apply  to the interest of Severina or are they  confined  to designate exclusively the interest of her male-children  who are  to take after her life-time.  It is with  reference  to this point that learned Counsel for the appellants  disputed the correcsness of the translation of the clause as found in the Paper-book.  We were referred  731 to the words in Canarese in the document and it was  pointed out  that the word enjoy’ occurred in the clause  only  once referring to the interest both of the daughter as well as of her  male-children  and  that the  words  "permanently  with absolute  rights" qualified and indicated the nature of  the enjoyment  by  both.   We shall be referring  to  the  other translations  of the relevant words but by doing so  we  are not to be understood as disposed to encourage any laxity  in or departure from the salutary rule that save in exceptional cases  if  the  correctness of an  official  translation  is disputed by any party steps must be taken to have a retrans- lation  made  by  the  officers  of  the  Court  on   proper application  made in time therefore.  In the present  case.. however,  we have permitted learned Counsel to place  before us   the   other  translations  particularly   because   the translation  now  found  in the  paper-book  which  we  have extracted earlier was, though it was the translation on  the record  of the High Court, not adopted by the learned  judge in  the High Court who had a fresh translation made  by  the Official translator of the High Court which is found in  the judgment now under appeal.  Besides this translation in  the High  Court the learned trial judge had also included in  Ms judgment  a translation which he had himself made of  -  the passage.   The  learned trial judge after  setting  out  the words  in  the original translated the  passage  as  reading "after  me  my eldest daughter S. S. Coelho  and  after  her lifetime  her  male children also with  permanent  and  full rights  shall enjoy." The learned Single judge in  the  High Court accepted the following as the correct translation :               ,,All  these  (properties) shall after  me  be               enjoyed by my eldest daughter Severina  Sabina               and  after her lifetime by her  male  children               too as permanent and absolute hukdars." It would be seen that there is not much difference 732 between  these  translations,  but that  compared  with  the translation  from  the  Paper -book which we  have  set  out earlier, it is found that the verb "enjoy" occurs only once- not  twice-as  in the paper book where it  occurs  first  in relation  to  the  daughter and again with  respect  to  the bequest to the daughter’s male issue. Based  on these translations learned Counsel submitted  that as  the word "’enjoy" occurs only once, the nature  of  that enjoyment  indicated  by the later words "as  permanent  and absolute  hukdars"  must  govern  both  the  dispositions-in favour of the daughter and in favour of her male issue.   In our  opinion this does not necessarily follow.  We  consider that  the translation which was got prepared by the  learned

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judge  in the High Court is nearer the original  in  spirit, for we have been furnished by Mr. Viswanatha Sastri with the original  text  together with a literal translation  of  the Canarese words. If the bequest to Severina was "to enjoy" and the  testatrix proceeds  to  add that after the lifetime of  Severina,  her male  issue were "to have permanent and absolute  rights  in the  same" the very contrast in the phraseology should  lead one  irresistibly  to  the conclusion  that  the  nature  or quantum  of Severina’s interest was different from  that  of those  who  took  after  "her  lifetime."  Learned  Counsel, however, laid special stress on the use of the word "too" or "also"  occurring towards the end of the clause as  pointing to the "enjoyment" of Severina being also "’permanent"  with absolute  right.  We are however unable to read the word  as having such a significance and as referring to the nature of Severina’s enjoyment as well, and in this conclusion we  are supported  by  the text and the literal translation  of  the word  used.   In  our opinion, the only  relevant  words  in relation  to  the bequest to Severina arc  that  "she  shall after my death enjoy,"and the rest of the clause deals with  733 what  is  to  happen  after  her  lifetime.   The   dominant intention  of  the testatrix was to confer a  permanent  and absolute  remainder on the male issue of her daughter  after the  lifetime of the first done and the words used  are  apt and capable of supporting such a construction. Learned  Counsel  next  relied on the terms of  s.  84,  his submission  being that the male issues of Severina were  not ’direct  objects  of  a  distinct  and  independent   gift." Applying  the terms of s. 84 to the present case,  no  doubt "’property is bequeathed to a person" viz, the daughter, but the question is whether the words that follow which refer to the  male children enjoying "permanently and  with  absolute rights," for there is no doubt that on any interpretation of the document those words do apply to them, designate them as direct  objects of a distinct arid independent gift, or  are they added merely to denote the nature of the interest which the  first taker-Severina was to obtain?  Put  in  technical language are the words referring to the male children, words of  purchase or are they words of limitation indicating  the nature  of  the interest conveyed to the  first  taker.   It would  be  observed that in illustration (a) to  s.  84  the bequest  is  made to the first taker  and  his  descendants. Where  they  are  the descendants of the  first  taker,  the presumption is that the reference to the persons to take the gift  over, is intended to denote the quality of  the  first taker’s  estate  and not for the purpose of  the  subsequent takers  having  independent  gifts.   Where  the  subsequent legatees are intended to be themselves direct  beneficiaries and they are directed to take along with the first taker the interest of the first taker is cut down to a joint  interest in  the property so as to enable the subsequently  named  to partake  the  legacy.   That  is  illustration  (b)  to  the section.  There the second named is a collateral and by  the use of the conjunction ’and’ a joint interest is presumed to be created in favour of all the 734 legatees.  Where the subsequent taker is a descendant of the first  taker, as in illustration (a), but the testator  does not provide for his taking it along with the first named, it is  a  case falling under illustration  (c)where  successive interests are created by the use of the words   "after   the first  taker’s  death".  In such a case even if  the  second taker were the issue of the first the first taker’s interest

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is for life since by the use of the words "after his or  her lifetime’  successive interests are intended to be  created. In   our  opinion  the  case  on  hand  would  fall   within illustration (c) and the bequest to Severina is only of life interest,  this  being made clear by the use  of  the  words after her lifetime’. It  was  next said that cl. 4 of the will  furnished  cogent evidence  of  what  might be called the  vocabulary  of  the textatrix  which she employed when she intended to create  a life interest.  This intention it was urged, was  manifested in  that clause by two provisions, first by  providing  that the legatee-the second daughter "should enjoy upto her death only" and then as if to emphasise the limited nature of  the interest conferred, by expressly prohibiting all alienations by  way  of  gift, sale, mortgage etc.  We  however  see  no distinction between the phrase "enjoy up to her death" and a provision  which  directs  an enjoyment by a  legatee  by  a clause  which proceeds to make a gift over of  the  absolute interest "after the death" of the first legatee.  Nor do  we consider  that  the emphasis contained  in  the  prohibition against alienation in cl. 4 as of any decisive importance in understanding  the phraseology employed by the testatrix  in this  will.   For when one turns to cl. 5 we find  there  is what without doubt is a life interest in favour of her grand daughter-julia-created  by the use of the words  "enjoy  the property  up  to  her death" without  the  addition  of  the prohibition  against alienation which is found in cl. 4.  It is therefore manifest that expressions ’after the  lifetime’ and                             735 ’after the death’ were words understood by the draftsman  of the  will  to indicate that the interest referred to  was  a terminable  one-a  life  interest and we  have  these  words ’after her lifetime’ in cl. 3 (c). There  is  also one other consideration which  supports  the above  construction.  It was common ground that under cl.  3 (c),  the  testatrix  intended to  confer  an  absolute  and permanent  interest  on the male children of  her  daughter, though  if  the  contentions urged by  the  appellants  were accepted  the legacy in their favour would be  void  because there  could  legally  be no gift  over  after  an  absolute interest  in  favour  of  their  mother.   This  is  on  the principle that where property is given to A absolutely, then whatever  remains  on A’s death must pass to  his  heirs  or under  his will and any attempt to sever the incidents  from the absolute interest by prescribing a different destination must  fail as being repugnant to the interest created.   But the  initial  question  for consideration is  whether  on  a proper  construction  of the will an  absolute  interest  in favour  of  Severina  is  established.  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  disposition  contained  in the will  unless  the  law prevents  effect being given to it.  Ofcourse, 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.  It is for this reason that where  there  is a bequest to A even though it be  in  terms apparently  absolute  followed by a gift of the  same  to  B absolutely  "on" or "’after" or "at" A’s death, A  is  prima facie  held  to take a life interest and B  an  interest  in remainder, the apparently absolute interest

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736 of  A being cut down to accommodate the interest created  in favour of B. In the present case if, as has to be  admitted, the  testatrix did intend to confer an absolute interest  in the male children of Severina the question is whether effect can  or cannot be given to it.  If the interest of  Severina were held to be absolute no dobut effect could not be  given to  the said intention.  But if there are words in the  will which  on  a reasonable construction would denote  that  the interest of Severina was not intended to be absolute but was limited  to her life only, it would be proper for the  Court to adopt such a construction, for that would give’ effect to every testamentary disposition contained in the will.  It is in  that  context  that  the  words  ’after  her   lifetime’ occurring  in  cl. 3 (c) assume crucial  importance.   These words  do indicate that the persons designated by the  words that  follow were to take an interest after her, i.  e.,  in succession  and not jointly with her.  And unless  therefore the  words referring to the interest conferred on  the  male children were held to be words of limitation merely, i.  e., as denoting the quality of the interest Severina herself was to  take  and  not words of purchase,  the  only  reasonable construction  possible of the clause would be to  hold  that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her  male children.  This was the interpretation  which  the learned  Single  judge  of the High  Court  adopted  and  we consider the same is correct. Quite a number of authorities were cited by learned  Counsel on  either side but in each one of these we find  it  stated that in the matter of the construction of a will authorities or  precedents  were  of  no help as each  will  has  to  be construed  in its own terms and in the setting in which  the clauses  occur.  We have therefore not thought it  necessary to refer to these decisions.  737 The  result is that the appeal fails and is  dismissed  with costs. Appeal dismissed.