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PETITIONER: VEERATTALINGAM AND OTHERS

       Vs.

RESPONDENT: RAMESH AND OTHERS

DATE OF JUDGMENT18/09/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMY, K.

CITATION:  1990 AIR 2201            1990 SCR  Supl. (1) 507  1991 SCC  (1) 489        JT 1991 (5)   425  1990 SCALE  (2)550

ACT:     Indian  Succession Act, 1925: Section  I74--Will--Inter- pretation  of--Factors to be considered apart from  language of the document--Recourse to precedents-Permissibility of.     Transfer of Property Act 1882: Section 14--Rule  against perpetuity-Rejection of plea--When arises.

HEADNOTE:     The  property in the suit belonged to the  great  grand- mother  of  the plaintiffs and defendant Nos. 5  to  14  who executed  a registered will. According to the terms  of  the will, her two sons, defendant No. 1 and plaintiffs’  witness No. 2 were to remain in possession of the properties without any power of alienation, to pay the taxes and conduct  regu- larly certain religions festivals, and their male issues  on attaining  majority were to get the property in  equal  por- tions and enjoy it absolutely.     The  main dispute in the suit was about the share  which the plaintiffs are entitled to under the terms of the afore- said  will. The plaintiffs claimed that they being the  only grand-sons of the younger son of the testatrix were entitled to half-share in the properties, the remaining half going to the  grand-sons of defendant No. 1 namely, defendant Nos.  5 to  14. The suit was contested on behalf of the  defendants, who  pleaded  that the suit properties have  to  be  divided amongst  all  the 13 great grand-sons of  the  testatrix  in equal  shares, and that the suit was fit to be dismissed  as defendant No. 1 defendent No. 15 had finally partitioned the properties  in  1975, and no question of  further  partition arises. The maintainability of the suit was also  challenged on  the ground of minority of the plaintiffs as also on  the basis of the rule against perpetuity.     The  trial  Court rejected the plea based  on  the  rule against  perpetuity  but having regard to  the  interest  of defendant No. 1, his brother, and defendant No. 15, it  held that  the  alleged  partition of 1975 was  illegal  and  not binding  on the plaintiffs and that so far as the shares  of the plaintiffs and defendant Nos. 5 to 14 are concerned held that  the parties would take the properties as  per  capita. The suit was however dismissed on the ground that the plain- tiffs were still minor.

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   In  the appeal to the High Court by the plaintiffs,  the High  Court confirmed the findings of the trial  court  that the  1975 partition was illegal, but held that the  division would take place as per stirpes, and taking into account the fact  that  during the pendency of the appeal,  two  of  the plaintiffs  had attained majority, the High Court  passed  a decree  in theft favour for one-sixth share each. So far  as the  third  plaintiff was concerned, it declared  his  right without passing a decree for partition. The  appellants-defendants  challenged the decision  of  the High Court in 508 this  Court  by special leave, contending that  as  per  the terms of the will the great grand-sons of the testatrix have inherited  the  suit properties as per capita and  that  the conclusion  of the High Court on this aspects  was  illegal, and that reliance by the High Court, on Boddu-Venkatakrishna Rao & Ors. v. Shrimati Boddu Satyavathi & Ors., [1968] 2 SCR 395 was inapplicable to the facts of this case.     Allowing  the appeal in part, and decreeing the suit  in favour  of all the plaintiffs, that the share of  the  three plaintiffs  and defendant Nos. 5 to 14 shah be  one-thirteen each in the suit properties this Court,     HELD:  1. A Court while construing a will should try  to ascertain  the  intention  of the testator  to  be  gathered primarily  from the language of the document; but  while  so doing  the  surrounding circumstances the  position  of  the testator,  his family relationship and the probability  that he  used the words in a particular sense also must be  taken into  account. They lend a valuable aid in arriving  at  the correct construction of the will. Since these considerations are  changing from person to person it is seldom  profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the  decisions have been given in reported cases. the disputed will approx- imates closely. Recourse to precedents, therefore, should be confined for the purpose of general principles of  construc- tion only.     2.There is still another reason as to why the  construc- tion  put  on certain expressions in a will  should  not  be applied  to a similar expression in the will under  question for,  a will has to be considered and construed as a  whole, and  not  piecemeal. It follows that a fair  and  reasonable construction  of the same expression may vary from  will  to will.     3.  Therefore, in the matter of construction of a  will, authorities or precedents are of no help as each will has to be  construed in its own terms and in the setting  in  which the clauses occur.     In the instant case, the High Court has interpreted  the crucial part of the will containing the expression ’SAMABHA- GAMAGA ADAINTHU’ as directing the plaintiffs on the one hand and the defendants5 to 14 on the other to "share equally out of  each  branch". The main reason for the  High  Court  for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venka- takrishna  Rao & Ors. v. Shrbnati Boddu Satvavathi  &  Ors., [1968]  2  SCR 395; were more or less similar. It  has  also been  assumed that the properties finally descended  on  the two  branches in equal shares and consequently  parties  be- longing to the two branches inherited the properties as  per stripes. While so doing the Court failed to notice that  the relevant  facts and circumstances of that case  were  widely different from those in the present case. The conclusion  of the High Court on the construction of the will was therefore

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not correct.     In the instant case, there is no manner of doubt, and it is  not  denied by any party that neither the sons  nor  the grand-sons of the testatrix got any life estate 509 in the properties. It is the agreed case of the parties that as  soon  as plaintiffs and defendants No. 5  to  14  become major  they  are  entitled to get  the  property  absolutely without waiting for the death of their respective fathers or grandfather. The will has therefore to be interpreted  with- out being influenced by the meaning given to the will in the reported case.     4.  The devolution of the property under the will  takes place  on the plaintiffs and defendants No. 5 to 14 for  the first  time  ’under equal shares’. Since this is  the  first occasion  for the shares in the property to be defined,  the expression  ’equal shares’ must refer to the entire  proper- ties  left  by the testatrix which will have to  be  divided equally  amongst  all the thirteen great grand-sons  by  the testatrix.  In other words they take the properties  as  per capita.  The  third  plaintiff has  also  attained  majority during the pendency of the present appeal and has  therefore become  entitled to a share in the properties. The  suit  is decreed  in favour of all the plaintiffs their  share  being one-thirteenth each.     Ramachandra  Shenoy and Another v. Mrs.Hilda  brite  and Others, [1964] 2 SCR 722, relied on.     Boddu  Venkatakrishna Rao & Ors. v. Shrimati Boddu  Sat- vavathi & Ors., [1968] 2 SCR 395, distinguished.     5.  The plea that disposition under the will was hit  by the  rule  against perpetuity was rightly  rejected  by  the trial court on the ground that the sons of the testatrix  as also their respective sons were alive.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2231  of 1988.     From  the  Judgment  and Order dated  19.8.1987  of  the Madras High Court in Appeal No. 86 of 1982. R. Venkataramani for the Appellants. S. Balakrishnan and M.K.D. Namboodiri for the Respondents. The Judgment of the Court was delivered by     SHARMA,  J.  This appeal by special  leave  is  directed against the decree passed by the High Court in favour of the plaintiff-respondents in a suit for partition.     2.  The property in suit belonged to  Smt.  Rathinammal, who after executing a registered will died in 1942.  Accord- ing to the terms of the will, her two sons Natesan.  defend- ant  no. 1, and Subramanian. plaintiffs’ witness no. 2  (PW- 2),  were to remain in possession of the properties  without any power of alienation and had to pay the taxes and conduct regularly certain religious festivals; and thereafter  their sons  were  to manage the properties on similar  terms.  The will  further provides that after their  attaining  majority the great grand-sons, i.e., 510 the  son’s sons’ sons of the testatrix will get the  proper- ties as absolute owners.     3.  Subramanian, the younger son of the  testatrix,  who has been in ’the present suit examined as the second witness on  behalf of the plaintiffs, has one son  Arunachalam,  de- fendant  no.  15. The three plaintiffs, Ramesh,  Ganesh  and Sivalingam are the sons of the defendant no. 15. The defend-

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ant No. 1 got four sons and ten sons’ sons. The main dispute in  the  suit is about the share which  the  plaintiffs  are entitled  to, under the terms of the will. They  claim  that they  being  the only grand-sons of  Subramanian  have  half share  in  the properties, the remaining half going  to  the grand-sons of the defendant no. 1, namely, defendants no.  5 to  14. On behalf of the defendants it is pleaded  that  the suit properties have to be divided amongst all the 13  great grand-sons of the testatrix in equal shares. The  defendants also contended that the suit was fit to be dismissed as  the defendant no. 1 and the defendant no. 15 had finally  parti- tioned the properties in 1975, and no question of a  further partition  arises. The maintainability of the suit was  also challenged  on the ground of minority of the  plaintiffs  as also on the basis of the rule against perpetuity.     4.  The trial court rejected the plea based on the  rule against  perpetuity.  Having regard to the interest  of  the defendant  no. 1, his brother Subramanian  and  Arunachalam, defendant no. 15, the court held that the alleged  partition of  1975 was illegal and not binding on the  plaintiffs.  So far the shares of the plaintiffs and the defendants no. 5 to 14 are concerned, agreeing with the defence case, the  court held  that  the  parties would take the  properties  as  per capita.  However, the suit was dismissed on the ground  that the plaintiffs were still minor.     5. On appeal by the plaintiffs, the High Court confirmed the  finding of the trial court that the 1975 partition  was illegal.  On the question of the shares of the parties,  the High  Court  agreed with the plaintiffs and  held  that  the division  would take place as per stirpes. Taking  into  ac- count the fact that during the pendency of the appeal two of the plaintiffs had attained majority, the High Court  passed a  decree in their favour for one-sixth share each.  So  far the  third plaintiff is concerned, the High  Court  declared his  right without passing a decree for partition.  The  de- fendants  are challenging the decision of the High Court  by the present civil appeal.     6. The learned counsel for the appellants has  contended that  as per the terms of the will the great  grand-sons  of the  testatrix  have inherited the suit  properties  as  per capita and the conclusion of the 511 High Court on this aspect is illegal. The English version of the  operative portion of the will has been quoted in  para- graph 7 of the judgment of the trial court and is not  chal- lenged  by  either  party before us.  After  mentioning  the rights  and the duties of her sons the testatrix has  stated the position of her grand-sons and great grand-sons thus: "They  (that is, sons’ sons) have also to pay the taxes  and out of their income conduct the aforesaid festivals regular- ly. Then their male issues after attaining majority, have to take  possession of the said properties in equal shares  and enjoy them with all powers of alienation." It  has been stated by the learned counsel for  the  parties before  us  that  the words "the said  properties  in  equal shares"  are the English version of the words  SAMABHAGAMAGA ADAINTHU. The learned counsel for the appellants  translated this portion of the will as stating that, "they  (that is, the sons’ sons) shall pay the taxes due  to the  Government and will carry on  the  charitable/religious activities  without  fail  and their male  issues  would  on attaining  majority  get  the properties  in  equal  portion (SAMABHAGAMAGA ADAINTHU) and will possess, own and enjoy  it absolutely." The  crucial  expression  is  SAMABHAGAMAGA  ADAINTHU  which

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according  to the learned counsel for the parties  means  in equal  portions.  The question is as to whether in  view  of this  provision in the will, the entire properties  left  by the  testatrix  are to be divided equally  amongst  all  her great  grand-sons;  or, the three plaintiffs  shall  amongst themselves  take  half, the remaining half  going  to  their cousins.     7.  The High Court has interpreted the crucial  part  of the will, mentioned in the preceding paragraph, as directing the plaintiffs on the one hand and the defendants 5 to 14 on the  other  respectively  to  "share  equally  out  of  each branch".  It  has been assumed that the  properties  finally descended  on the two branches in equal shares,  and  conse- quently parties belonging to the two branches inherited  the properties  as stirpes. The main reason for the  High  Court for taking such a view is that the terms of a will which was the  subject matter of interpretation in the case  of  Boddu Venkatakrishna  Rao  & Ors. v. Shrimati Boddu  Satyavathi  & Ors.,  [1968]  2 SCR 395; were more or less  similar,  which this  Court  construed  in the manner as  suggested  by  the plaintiffs  in the case before us. We are not  in  agreement with the. approach of the High Court. 512     8.  It is well-settled that a court while  construing  a will  should try to ascertain the intention of the  testator to be gathered primarily from the language of the  document; but while so doing the surrounding circumstances, the  posi- tion  of  the  testator. his family  relationship  ’and  the probability  that  he used the words in a  particular  sense also must be taken into account. They lend a valuable aid in arriving  at  the correct construction of  the  will.  Since these considerations are changing from person to person.  it is  seldom profitable to compare the words of one will  with those  of another or to try to discover which of  the  wills upon which the decisions have been given in reported  cases, the  disputed will approximates closely. Recourse to  prece- dents,  therefore,  should be confined for  the  purpose  of general  principle of construction only. which, by now,  are well-settled.  There is still another reason as to  why  the construction put on certain expressions in a will should not be  applied to a similar expression in the will under  ques- tion  for,  a will has to be considered and construed  as  a whole, and not piecemeal. It follows that a fair and reason- able construction of the same expression may vary from  will to will. For these reasons it has been again and again  held that in the matter of construction of a will. authorities or precedents  are of no help as each will has to be  construed in  its  own terms and in the setting in which  the  clauses occur  (see  Ramachandra Shenoy and Another  v.  Mrs.  Hilda Brite  and Others, [1964] 2 SCR 722 at p. 736. The  risk  in not appreciating this wholesome rule is demonstrated by  the case before us.     9.  Assuming that the will in the case of  Boddu  Venka- takrishna  Rao & Ors. v. Shrimati Boddu Satyavathi  &  Ors., [1968]  2  SCR  395; was somewhat similar  to  that  in  the present  case.  the High Court. following  the  construction given  on  the will in the reported case, has  held  in  the judgment  under  appeal  that the great  grand-sons  of  the testatrix  shall  be taking the properties as  per  stripes. While so doing the Court failed to notice that the  relevant facts  and circumstances of that case were widely  different from those in the present case. There. the testatrix who was a  childless widow. had bequeathed under the will  life  es- tates  to  two children who were defendants 4 and 5  in  the case  and  whom she had brought up from their  infancy.  and

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subject  to the same, the property was to go to their  chil- dren after their death. The conclusion of the High Court  on the construction of the will. with which this Court  agreed. was expressed thus. "the  bequest in favour of defendants 4 and 5 was that of  a life  estate  with  a vested remainder in  favour  of  their children  and that the children should take the  vested  re- mainder per stripes and not per capita". 513     In  the  case before us no life estate  was  created  in favour  of  anybody.  otherwise there would  not  arise  any question of the plaintiffs’ getting any share in the proper- ty  even on their attaining majority during the lifetime  of their  father and uncle. The High Court has also. under  the impugned  judgment, observed that a Hindu is not  ordinarily expected to create a joint tenancy but, failed to appreciate that  there is only presumption. to this effect,  which  can not override the provisions ’of the will, if the language is unambiguous  and  clear.  In the present case  there  is  no manner  of  doubt, and it is not denied by  any  party  that neither the sons nor the grand-sons of the testatrix got any life estate in the properties. It is the agreed case of  the parties  that as soon as plaintiffs and defendants no. 5  to 14 become major they are entitled to get the property  abso- lutely  without  waiting for the death of  their  respective fathers  or grand-fathers. We should,  therefore.  interpret the  will without being influenced by the meaning  given  to the will in the reported case.     10. The devolution of the property under the will  takes place  on the plaintiffs and defendants No. 5 to 14 for  the first  time  "under equal shares". Since this is  the  first occasion  for the shares in the property to be  defined  the expression  "equal shares" must refer to the entire  proper- ties  left  by the testatrix which will have to  be  divided equally  amongst  all the thirteen great grand-sons  by  the testatrix.  In other words. they take the properties as  per capita.     11.  Admittedly  the third plaintiff has  also  attained majority during the pendency of the present appeal and  has, therefore. become entitled to a share in the properties now. The suit. is accordingly decreed in favour of all the plain- tiffs,--their share being one thirteenth each.     12. The plea that the disposition under the will was hit by  the  rule against perpetuity was rejected by  the  trial court in paragraph 7 of judgment on the ground that the sons of the testatrix, namely, the first defendant and the plain- tiff’s  witness  no.  2 as also their  respective  sons  the defendants  no. 2 to 4 are alive. The point was not  pressed in the High Court. The view of the trial court appears to be correct,  and  does.  not require  reconsideration  at  this stage.  In  the  result, the appeal is allowed  in  part  as indicated  above. The suit is accordingly decreed in  favour of  all the three plaintiff. The share of the  three  plain- tiffs  and the ten defendants, that is, defendants No. 5  to 14,  shall  be onethirteenth each in  the  suit  properties. There shall be no order as to costs. N.V.K.                                Appeal party allowed. 514