REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    7011        OF 2008 (Arising out of SLP (C) No.13331 of 2006)

Narendra Gopal Vidyarthi ... Appellant

Versus

Rajat Vidyarthi … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 4.4.2006

passed by a learned Single Judge of the High Court of Judicature of Madhya

Pradesh,  Gwalior  Bench,  Gwalior  in  Second  Appeal  No.356  of  2001

whereby and whereunder an appeal  preferred by the respondent from the

judgment and decree dated 2.7.2001 passed by the 9th Additional District

Judge, Gwalior in Civil Appeal No.86A of 1999 affirming the judgment and

decree dated 1.11.1999 passed by the XIth Civil Judge Class II, Gwalior in

Civil  Suit  No.203A  of  1996  dismissing  civil  suit  filed  by

appellant/respondent, was allowed.

3. Controversy involved in this appeal centres around the construction

of a Will executed by one Shri Bishan Sahai Vidyarthi on 21.11.1965.  The

said Bishan Singh Sahai died in or about 1973.

4. Indisputably, within a month from the date of the execution of the

said Will, an immoveable property was purchased for a sum of Rs.32,000/-,

inter alia, from the amount set apart for the benefit of the appellant and his

mother.

5. Bishan  Sahai  Vidyarthi  had  five  sons,  namely,  Rameshwar  Sahai,

Rajeshwar Sahai,  Harbansh Sahai,  Raghuvansh Sahai  and Krishan Sahai;

the  eldest  of  them being  Harbansh  Shai,  father  of  the  appellant  herein.

Plaintiff-respondent  Rajat  Vidyarthi  is  son  of  Rameshwar  Sahai,  the

youngest son of Bishan Sahai.   

6. The aforementioned suit was filed by the respondent for declaration

and permanent injunction against the appellant herein alleging that he had

been  making  attempts  to  dispose  of  the  suit  property  which  is  a  house

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belonging to the joint family.  Appellant, in his written statement, contended

that the said property was bequeathed to his mother and, thus, the plaintiff-

respondent had no right in relation thereto.

7. The learned Trial Judge, despite finding that the suit property was a

joint  family property, inter alia, on the premise that no injunction can be

granted against a  co-owner in terms of Section 41(h) of the Specific Relief

Act, 1963 and the only remedy available to the plaintiff was to file a suit for

partition, dismissed the suit.  

8. The respondent did not prefer any appeal thereagainst.  The appellant,

however, preferred an appeal against the finding made therein that the suit

property was a joint family property.  By reason of a judgment and order

dated 2.7.2001, the said appeal was allowed by the learned 9th Additional

District Judge, Gwalior, holding :

“21.   At  the  time  of  execution  of  the  Will,  if Bishan Sahai was trying to purchase the house for Chandramukhi, but no appropriate and good house was  found  by  him  and  even  plaintiff  has  not initiated any proceedings on the ground that their money  is  invested  in  the  disputed  house  before filing of the suit after the demise of Bishan Sahai, though  Bishan Sahai  had  died  in  the year  1973. Therefore, this inference could be drawn from the conduct  of  other  heirs  of  Bishan  Sahai  that  the disputed  house  has  been  purchased  from  the amount  payable  to  Chandramukhi.   Therefore,

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plaintiff has failed to prove that the disputed house is the property of the Joint Family.”

9. A Second Appeal was preferred thereagainst by the respondent.  Two

substantial questions of law were formulated which are :

“(1) Whether,  after  dismissal  of  the  suit, defendant has right to file appeal?

(2) Whether,  the  property  in  dispute  is  Joint Hindu Family Property?”

The  first  question  was  answered  in  favour  of  the  appellant.

Respondent has not filed any appeal thereagainst.   

So  far  as  the  second substantial  question  of  law is  concerned,  the

High Court held :

“Substantial question of law No.2 is “whether the property  in  dispute  is  Joint  Hindu  Family Property”.  To decide this substantial question of law, I  will  have to  go through the record of the trial  court,  judgment  and  decree  passed  by  trial court  and  lower  appellant  court.   It  is  also necessary to peruse the evidence adduced by both the  parties  and  if  it  reveals  that  learned  First Appeal  court’s  finding  pertaining  to  sole ownership  of  defendant/respondents  to  disputed house is perverse, against evidence, misreading of evidence or overlooking of any evidence then, it

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would be necessary to re-appreciate the evidence adduced by both the parties.”

10. Appellant is, thus, before us.

11. Mr.  Dhruv  Mehta,  learned  counsel  appearing  on  behalf  of  the

appellant, would submit :

(1) Keeping in view the fact that after death of Bishan Sahai, not only the

property was mutated in the name of Chandramukhi,  the mother of

the  appellant  and  also  the  appellant,  the  High  Court  committed  a

serious  error  in  opining  that  by  reason  of  the  said  Will  dated

21.11.1965, only a limited interest has been bequeathed in favour of

the appellant and his mother.

(2) The second question of law formulated is not a substantial question of

law.  The approach of the High Court in formulating the same was,

thus, erroneous, wherefor no opportunity of hearing was given to the

appellant.   

Reliance in this behalf has been placed on Krishnan v. Backiam

& Anr. [2007  (11) SCALE 46] and Boodireddy Chandraiah & Ors. v.

Airgela Laxmi & Anr. [2007 (1) SCALE 188].

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(3) In  any  event,  the  High  Committed  a  serious  error  insofar  as  it

misconstrued and misinterpreted  the said  Will  dated  21.11.1965  to

hold that by reason thereof, only a limited interest in favour of the

appellant had been bequeathed.

12. Dr. Saxena, learned counsel appearing on behalf of the respondent, on

the other hand, would submit :

(1) No objection  having  been  raised  by the  appellant  before  the  High

Court, it does not lie in the mouth of the appellant now to contend

that the substantial question of law formulated by the High Court was

not correct.   

(2) A bare perusal of the Will dated 21.11.1965 would clearly show that

the testator who was proficient in Urdu having used the word ‘wakf’

and  a  board  of  trustees  consisting  of  four  persons  named  therein

having been constituted, no absolute interest had been or could have

been conferred in the appellant.  

13. One of the issues which arose for consideration before the High Court

was as to whether the property in question was a joint family property.  The

learned Trial Judge answered the question in the affirmative.  The same was

reversed by the first appellate court.  A finding of fact arrived at by the first

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appellate court is ordinarily final.  Its correctness can be questioned if, inter

aila, the same was based upon no evidence or is otherwise perverse or that

correct legal principles were applied.  The question formulated, namely, as

to whether the property in dispute is a Joint Hindu Family property, per se,

is not a substantial question of law.   

14. The High Court, however, proceeded on the basis that if the judgment

is based on no evidence or is otherwise perverse, a substantial question of

law would arise for consideration.  It is so but therefor also a substantial

question of law must be framed.  In terms of Section 100 of the Code of

Civil  Procedure,  the  High  Court  can  entertain  a  second  appeal  if  a

substantial question of law arises for its consideration and not otherwise.

15. A finding of fact may give rise to a substantial question of law, inter

alia, in the event the findings are based on no evidence and/or while arriving

at the said finding, relevant admissible evidences have not been taken into

consideration or inadmissible evidences have been taken into consideration.

16. We fail to understand as to on what basis, the said question of law

was formulated.  Before an additional question is formulated, the procedure

laid down therefor must be complied with.  This aspect of the matter stands

concluded by this Court in Krishnan’s case (supra), wherein it was held :

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“10.  Under  the  amended  Section  100  CPC  the High Court has to frame substantial  questions of law  and  can  decide  the  second  appeal  only  on those questions framed. A perusal of the questions framed shows that no question of law was framed as  to  whether  the  finding  of  fact  of  the  First Appellate  Court  that  Lakshmi  and  Ramayee  are one and the same person, is based on no evidence or is perverse.  

11.  It may be mentioned that the First  Appellate Court  under Section 96 CPC is  the last  court  of facts.  The  High  Court  in  second  appeal  under Section  100  CPC  cannot  interfere  with  the findings  of  fact  recorded  by  the  First  Appellate Court  under  Section  96  CPC.  No  doubt  the findings of fact of the First Appellate Court can be challenged in second appeal on the ground that the said  findings  are  based  on  no  evidence  or  are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed  by  the  High  Court  as  to  whether  the finding of the First Appellate Court that Ramayee and Lakshmi  are  one  and  the  same person,  is  a finding based on no evidence or is perverse. Hence the  findings  of  the  First  Appellate  Court  that Ramayee  and  Lakshmi  are  one  and  the  same person, could not have been interfered with by the High Court.”

{See also Subramaniaswamy Temple, Ratnagiri v. V. Kanna Gounder (Dead) by LRs. [2008 (9) SCALE 386]}.

Yet  again  in  Boodireddy  Chandraiah’s  case (supra),  this  Court

opined:

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“8. The phrase ‘substantial question of law’, as occurring in the amended Section 100 CPC is not defined  in  the  Code.  The  word  substantial,  as qualifying  ‘question  of  law’,  means—of  having substance,  essential,  real,  of  sound  worth, important or considerable. It is to be understood as something in contradistinction with—technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of ‘substantial question of law’  by  suffixing  the  words  ‘of  general importance’  as  has  been  done  in  many  other provisions  such  as  Section  109  of  the  Code  or Article  133(1)(a)  of  the  Constitution.  The substantial  question  of  law  on  which  a  second appeal  shall  be  heard  need  not  necessarily  be  a substantial question of law of general importance. In  Guran  Ditta v.  T.  Ram  Ditta the  phrase ‘substantial question of law’ as it was employed in the  last  clause  of  the  then  existing  Section  100 CPC (since omitted by the Amendment Act, 1973) came  up  for  consideration  and  Their  Lordships held that it did not mean a substantial question of general  importance  but  a  substantial  question  of law which was involved in the case. In  Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the  Madras  High  Court  in  Rimmalapudi  Subba Rao v. Noony Veeraju: (Chunilal case)

‘5. …  when  a  question  of  law  is  fairly arguable, where there is room for difference of opinion on it or where the court thought it  necessary  to  deal  with  that  question  at some length and discuss  alternative views, then  the  question  would  be  a  substantial question  of  law.  On the  other  hand  if  the question  was  practically  covered  by  the decision  of  the  highest  court  or  if  the general  principles  to  be  applied  in determining  the  question  are  well  settled

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and the only question was of applying those principles to the particular facts of the case it  would  not  be  a  substantial  question  of law.’

12. The principles relating to Section 100 CPC relevant for this case may be summarised thus :

(i) An inference of fact from the recitals or contents of a document is a question of fact. But  the  legal  effect  of  the  terms  of  a document is a question of law. Construction of a document involving the application of any principle  of  law, is  also a question  of law.  Therefore,  when  there  is misconstruction  of  a  document  or  wrong application  of  a  principle  of  law  in construing  a  document,  it  gives  rise  to  a question of law.

(ii) The High Court should be satisfied that the case  involves  a substantial  question  of law,  and  not  a  mere  question  of  law.  A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law,  if  it  is  not  covered  by  any  specific provisions  of law or settled legal principle emerging  from  binding  precedents,  and, involves  a  debatable  legal  issue.  A substantial question of law will also arise in a contrary situation, where the legal position is  clear,  either  on  account  of  express provisions of law or binding precedents, but the  court  below  has  decided  the  matter, either  ignoring  or  acting  contrary  to  such legal principle. In the second type of cases, the  substantial  question  of  law  arises  not because  the  law  is  still  debatable,  but

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because the decision rendered on a material question, violates the settled position of law.

13. The general rule is that the High Court will not  interfere  with  the  concurrent  findings  of  the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts  below  have  ignored  material  evidence  or acted on no evidence;  (ii) the courts  have drawn wrong  inferences  from proved facts  by applying the  law  erroneously;  or  (iii)  the  courts  have wrongly cast the burden of proof. When we refer to  ‘decision  based  on  no  evidence’,  it  not  only refers  to  cases  where  there  is  a  total  dearth  of evidence,  but  also  refers  to  any case,  where  the evidence,  taken  as  a  whole,  is  not  reasonably capable of supporting the finding.”

17. This  Court,  for  the  reasons  stated  hereinbefore,  should  ordinarily

upon setting aside the judgment of the High Court, remit the matter to it.

However, we, in view of the fact that the suit was filed in the year 1995 and

the principal controversy between the parties is construction of the said Will

dated 21.11.1965, thought it proper to dispose of the matter ourselves.

18. Before adverting to the said question, we may place on record that we

have heard the learned counsel for the parties at some length on 17.7.2008.

Appellant  had  furnished  to  us  an  unofficial  translation  of  the  said  Will,

correctness whereof was disputed by Dr. Saxena.  We, therefore, entrusted

the job to the official translator.  A copy of the said Will, as translated by

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the  official  translator,  has  been  placed  before  us.   It  is  accepted  by  the

counsel for both the parties that the said translation, to put it simply, even

does not carry any meaning.  We, therefore, chose to ignore the same.   

19. The  translated  portions  of  the  Will  which  are  disputed  one  are  as

under :

Extract of Will Official Translation Correct Translation

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maorI AaiKrI #vaa[Xa hO ik Apnao tmaama  vasaIyat  naamaaoM  kao  maMsaUK krko  [sa  vasaIyatnaamaoM  ko  jairyao jaao maOM vahavaasa thrIr kr rha hMU Apnao  AaiKrI  AXaaXaa  AaOr ijandgaI  Bar  kI Kud  pOda  krda kmaa[-  maoM  sao  mauvailaga  tIsa  hjaar 30000) Épyaa  ijasako inasfmauvailaga pMd`h hjaar 15000) Épyaa  haoto  hOOM  ik AjaIja  narond` gaaopala  ivaVaqaI-  AaOr  ]sakI  maaÐ cand`mauKI ivaVaqaI- ko mafad ko ile va@f kr dMU ijasasao narond` gaaopala kI  talaIma  va  trKIyat va  SaadI vagaOrh  AÝr ]sakI  maaÐ  kI  gaujar basar Kanao kpD,o vagaOrh ka maakUla [ntjaama  )ao  sako  AÝr  AajaIvana iksaI  trh  kI  tklaIf  AÝr proSaanaI na hao. [sa maustrj,aa vaalaa rkma  pr  maoro  isavaaya  maoro  AÝr iksaI ka kao[- hk AÝr mautalabaa nahIM hO AÝr mauJao ApnaI #vaa[-Sa ko mautaibak  [sa  rkma  ko  [stomaala AÝr  saf-  ko  ile  vasaIyat  krnao ka  pUra  PaUra  hk hO  AÝr  iksaI Sa#sa kao [sa pr kao[- etraja yaa JagaD,a  krnao  ka  hk  nahIM  hO. ilahajaa baduÉstI haoSa  hvaasa  [sa vasaIyatnaamao  ko  jairyao  maOM  ibaSana sahaya  pu~  laalaa  iSava  sahaya mausdrjaa  vaala  tIsa  hjaar  Épyaa kao  jaao  baOMk  Aa^f  [MiDyaa  ila0 gvaailayar  baàMca  maoM  saoivMaga  baOMk eka]nT maoM  jamaa hO AjaIja narond` gaaopala  ivaVaqaI-  AaOr  ]sakI  maaÐ cand`mauKI ivaVaqaI- ko mafad ko ile va@f  krko  ek  T/sT  kayama krta hUÐ ……..

tIsa  hjaar  Épyaa

My  last  willingness  is that  I  shall  cancel  my all  previous  Wills  and by way of this Will, I in my  complete  mental and  physical consciousness,  execute that  out  of  my  self acquired earnings a sum of  Rs.30,000/-  (Rupees fifteen  thousand  only) be  spared  or  set  apart from the benefit of Dear Narendra  Gopal Vidyarthi  and  his widowed  mother Chandramukhi Vidyarthi  so  that  the study and marriage etc. of  Narendra  Gopal  and Livelihood  of  his mother such as fooding and clothes could easily be  arranged  and  they would  not  get  any difficulty in their lives. No one has any right or claim  over  his Mundaraja  amount  and I have complete right to use  this  as  per  my wishes and nobody has any objection or right to raise  dispute. Therefore  in  my complete  physical  and mental  consciousness by  way of  this  Will,  I Vishun  Sahay  son  of Lala Sibo Sahay hereby gifting  the  Mundaraja

It  is  my last  wish  that by  way  of  this  will, which  I  am  stating  in my senses, that from my self  acquired  earnings of  whole  life,  only Rs.30,000/-  (Rs.  Thirty thousand only), the half of  which  is  only Rs.15,000/-  (Rupees fifteen  thousand  only) may give ‘Wakf’ for the benefits  of  dear Narendra  Gopal Vidyarthi,  and  his widow mother Cnahder Mukhi  Vidyarthi,  by which for the education and  maintenance  and for the marriage etc. of Narendra Gopal and for the  maintenance,  food, clothes  etc.  of  his Mother  appropriate arrangement  could  be made,  and  throughout life,  there  may  not  be any  type  of  difficulty and  problem.   On  this stipulated  amount excepting  me,  there  is not  right  or  concern of anyone  else,  and  I, according  to  my  wish, for  the  use  and spending,  I  have complete right  to make the  Will,  and  no  other person has any right  to object  or  quarrel.   As such  in  my  complete

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According  to  the  respondent,  the  aforementioned  controversial

portion should read as under :

“In  such  circumstances,  if  immovable  property does  not  get  available,  handing  over  of  cash amount  to  her  would  be  useful  destruction. Therefore, for the purpose of safety of the amount, it would be must that she be not given all big cash amount.  Watch on rental  amount and interest  is must.  For the bigger expenditure, the decision and sanction of the trustees is necessary.

If immovable property becomes available then rent of the same otherwise the bank interest  over the said amount of Rs.30,000/-  shall  be given to the Narendra Gopal and his widowed mother for their personal expenses so that they would not have to stretch their hands before anyone for the personal expenses.   In  this  regard  trustees  have  to  be gracious  and farsighted.   It  would be taken care that  the  property shall  remain  family and  would not be mortgaged or sold.

Rs.30,000/- was set apart for the limited purpose of  maintenance  and  for  the  benefit  of  Vaidarthi and his mother.

This means that the intention of the testator  was that only small amount should be given not a big amount and for the safety of the amount, big cash should not be given to the widowed mother or the petitioner.   Strict  vigil  would  be  must.   The decisions and sanction of the trustees is necessary. Watch on rental and interest is must.  They wanted to  bring  up  the  widowed  mother  as  well  as  the minor child and for that purpose they spared that amount.”

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20. We  have  also  been  taken  through  the  entire  original  Will.   The

testator had a philosophical bent of mind.  The recitals in the Will show that

he was aware of the uncertainties of life.  He had made a Will also on 19th

February, 1959.   As he lived till  1965, he executed the Will  in question.

The  Will  recites  that  God  had  been  kind  enough  to  him.   He  had  four

daughters,  Sunbderkala,  Sarladevi,  Shanti  Devi  and  Lakshmi  Devi  who

were  happily  married.   He  also  acknowledged  that  he  had  five  sons,

Raghuvansh  Sahay  (Mithubabu),  Harbans  Sahay  (Kaptan),  Rameshwar

Sahay, Rajeshwar Sahay and Krishna Sahai (Kisho).  He also stated that out

of  the  five  sons,  four,  namely,  Raguuvansh  Sahay,  Rameshwar  Sahay,

Rajesnwar Sahay and Krishna Sahay were highly educated and well placed

in their life.  They are married and were in employment.  They had been

leading  a  happy  life.   He  wished  a  long  and  prosperous  life  for  them.

However, he expressed his agony for the death of his eldest son Harvansh

Sahay (Kaptan) who had died in the year 1949 leaving behind a small child

and a young wife.  He acknowledges that proper arrangements should be

made  for  maintenance  of  Chandramukhi,  his  widowed  daughter-in-law.

Some arrangements  should  also  be made for  education,  maintenance  and

marriage of her son Narendra Gopal.  It appears from the Will that he had

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saved about Rs.30,000/-.  Indisputably, he had also a sum of Rs.10,000/- in

a firm known as “Vidyarthi and Sons”.  Indisputably again, he thought of

purchasing an immoveable property for the benefit of the appellant and his

mother but the same did not materialize.   

21. It is in the aforementioned backdrop of facts, the Will in question is

required to be construed.  Before we proceed to do so, we may also notice

some subsequent events.  The house property in question was purchased by

Bishan Sahai in his own name from Smt. Laxmibai Kelkar.  After his death

which took place in 1973, the said property stood mutated in the name of

Chandramukhi Devi and after her death in the name of the appellant.  No

other family member objected thereto.  The High Court,  in its  impugned

judgment, has, in fact, recorded that for the purpose of obtaining the order

of mutation, the other family members helped Chandramukhi.   They also

filed  applications  for  exemption  from  payment  of  property  tax  by  her.

Admittedly, since the date of death of Bishan Sahai, the appellant and his

mother alone have been in possession of the property.  The suit was filed in

the year 1995.  Therein, no other  family member was impleaded.   If the

plaintiff-respondent  intended  to  obtain  a  declaration  that  the  property  in

question  is  a  joint  family  property,  it  was  expected  that  other  family

members  would  be  impleaded.   None  of  the  sons  of  Bishan  Sahai  was

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examined as a witness.  No explanation was sought for from them as to why

they themselves  were instrumental  in  getting the name of Chandramukhi

mutated.   

22. A  bare  perusal  of  the  Will  would  show  that  he  had  kept  apart

Rs.30,000/- for Chandramukhi and the appellant.  The purpose of doing so

was that from his income, he had made jewelleries for others.  The Will

speaks of division of the utensils also.  According to him, it was the duty of

the brothers to look after the widow of his son Kaptan and Narendra Gopal,

as they had been earning well, the child of with his mother should live with

them so as to enable him to meet the ups and downs of life.  He did not want

that the said amount should be wasted and for the said purpose, some sort of

supervision was necessary.  He, therefore, wanted to make a ‘wakf’ in their

favour so as  to enable  them not  only to maintain themselves but  also to

spend for the  education  and upbringing as well  as  marriage of  Narendra

Gopal.  He declared that apart from himself, nobody else had any interest

therein nor anybody can raise any dispute in regard thereto.  He made his

sons the  Executors  of  the wakf.   He as,  indicated  hereinbefore,  used the

word ‘wakf’.

23. What should be the true meaning of the said word is the question.

Whereas, Mr. Mehta submits that it should be treated as ‘gift’, according to

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Dr. Saxena, the same connotes a trust.  The ordinary meaning of ‘wakf’ is

taking  out  something out  of  one's  ownership  and passing  it  on  to  God's

ownership dedicating its usufruct - without regard to indigence or affluence,

perpetually and with the intention of obtaining Divine pleasure - for persons

and individuals, or for institutions or mosques and graveyards, or for other

charitable purposes.   It is in their true sense neither gift nor trust.   

24. Gift of some amount in cash does not require registration nor does the

statutory requirements as contained in Sections 122 and 123 of the Transfer

of Property Act are attracted therefor.   

25. Was it  the amount which was the subject  matter  of the Will  or an

immoveable  property  which  was  to  be  purchased  from the  said  amount,

meant  to  be  transferred  in  favour  of  the  respondent  absolutely  is  the

question.   

26. The  Will  provides  that  if  the  sum  of  Rs.30,000/-  is  found  to  be

inadequate  for  purchase  of  an  immoveable  property,  the  amount  of

Rs.10,000/- which was available with the partnership firm vidyarthi & Sons

be utilized which would be determinative factor as regards the extent of title

of the property.

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27. The word used in the Will is ‘karar’.  It may mean determination; it

may also mean agreement.  But if the extent of the title is to be determined,

the same will have a direct nexus with the amount spent from the sum of

Rs.10,000/- which was with the partnership firm.  If determination of the

extent of the title has a nexus with the amount spent from the said sum of

Rs.30,000/- vis-à-vis the said sum of Rs.10,000/-, title was to be passed in

favour of the beneficiary.

28. This gives rise to two questions which are of some importance.  When

a sum is to be invested in the immoveable property and in the event, any

further sum is  necessary, the extent  of title  is  required to be determined,

does it demonstrate the intention on the part of the testator.  In our opinion,

it does.  Wakf is a ‘final dedication’.  It goes out of the control of dedicator.

The use of the said word may not be appropriate in a situation of this nature

but that only goes to show that the testator intended to divest himself of the

said property.

29. The very fact that the testator categorically stated that the extent of

title in the property will depend upon the amount of additional contribution

required  to  be  made  from  the  fund  of  Vidyarthi  and  Sons  itself  is  an

indication  to  show  that  his  wish  was  that  title  should  vest  in  the

beneficiaries to the extent of the property which represented the amount of

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Rs.30,000/- out of the total amount of consideration required to acquire the

same.  There cannot be any doubt whatsoever that his intention also was that

the entire cash may not  be paid to Chandramukhi  as she was of gullible

character.   She could  be made to  part  therewith  by any other  person by

sweet  words.   A  precaution  was,  therefore,  required  to  be  taken.   The

amount was required to be spent wisely.  The amount which was required

for their maintenance and education of appellant whether derived from the

interest or from the rental only was to be handed over.  It is only for the

aforementioned limited purpose, the trust was created.  The sole beneficiary

of the trust, in our opinion, was merely the appellant and his mother.  It may

be true that the property was purchased in the name of the testator himself.

The High Court commented that the same could have been done in the name

of the appellant and his mother or at least the purchase could have been a

joint one.  But the Will is required to be construed on the basis of the terms

used therein and not otherwise.

30. The answer to the question may be difficult one.  Only because there

does not exist any straight forward answer, the same would not mean that

beneficiaries under the Will shall  be deprived therefrom only because the

property was purchased in his own name by the testator.  The testator had a

long  wish  to  purchase  an  immoveable  property.   He  even  thought  of

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acquiring a property, price whereof might exceed Rs.30,000/-.  If he wanted

to keep apart the said sum of Rs.30,000/- for the benefit of the appellant and

his mother, we think he also wanted to bequeath the immoveable property

purchased out of the said amount.

31. The Indian Succession Act contains provisions for construction of the

Will.  We may notice some of them.

“74 - Wording of Will—It is  not necessary that any technical  words or terms of art  be used in a Will,  but  only that  the wording be such that  the intentions of the testator can be known therefrom.

82  -  Meaning  or  clause  to  be  collected  from entire Will—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.

Illustrations

(i)  The  testator  gives  to  B  a  specific  fund  or property at  the death of A, and by a subsequent clause gives the whole of his property to A. The effect  of  the  several  clauses  taken  together  is  to vest the specific fund or property in A for life, and after  his  decease  in  B;  it  appearing  from  the bequest  to  B that  the  testator  meant  to  use  in  a restricted sense the  words in  which he describes what he gives to A.

(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to A, and in another part of his Will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had

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said "I give Black Acre to B, and all the rest of my estate to A".

84—Which  of  two  possible  constructions preferred—Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred.”

32. Applying the principles of construction of Will, as contained in the

aforementioned provisions, we are of the opinion that if the Will is read as a

whole and if the surrounding circumstances are to be given effect to, the

only conclusion that can be reached was that the aforementioned amount of

Rs.30,000/-was  set  apart  only  for  the  benefit  of  the  appellant  and  his

mother.   It  might  have  been  invested  in  immoveable  property  but  only

thereby they could not have been deprived of the amount.   

33. How a Will has to be interpreted is no longer res integra.  Intention of

the testator must be ascertained from the words used and the surrounding

circumstances.  The Court will put itself in the armchair of the testator.  

In Navneet Lal v. Gokul [(1976) 1 SCC 630] it has been 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

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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

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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  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)’.”

{See also Arunkumar & Anr. v. Shriniwas & Ors. [(2003) 6 SCC 98]}

This  aspect  of  the  matter  has  recently  been  considered  in  Bajrang

Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183], wherein it was

held :

“39. With a view to ascertain the intention of the maker of the will, not only the terms thereof are

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required to be taken into consideration but also all 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.

40. 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-à-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 “devise” 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

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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 “devise”, which would also go to show that 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  questions  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  for 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.”

In Anil Kak v.  Kumari Sharda Raje & Ors. [2008 (6) SCALE 597],

this Court stated :

“The  testator's  intention  is  collected  from  a consideration  of  the  whole  Will  and  not  from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible  contingencies  are  required  to  be  taken into  consideration.  Even  if  a  part  is  invalid,  the entire document need not be invalidated, only if it forms a severable part. [See  Bajrang Factory Ltd. and  Anr. v.  University  of  Calcutta  and  Ors. [(2007) 7 SCC 183]

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In  Halsbury’s  Laws  of  England,  Fourth  edition, Volume 50, page 332-33, it is stated :

‘462. Leading principle of construction: The leading  principle  of  construction  which  is applicable to all wills without qualification 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’.”

In  Shyamal Kanti  Guha (D) Through LRs. & Ors. v.  Meena Bose

[2008 (9) SCALE 363], it is stated :

“Keeping  in  mind  the  aforementioned  backdrop, the Will should be construed.  It should be done by a  Court  indisputably  placing  itself  on  the  arm- chair of the testator.  The endeavour of the Court should  be  to  give  effect  to  his  intention.   The intention of the testator can be culled out not only upon reading the Will in its entirety, but also the background facts and circumstances of the case.”

Following the said principles, we have no hesitation to hold that the

title to the said property vested in the appellant.

34. For the reasons aforementioned, we are of the view that the impugned

judgment  cannot  be  sustained.   It  is  set  aside  accordingly.   Appeal  is

allowed with costs.  Counsel’s fee assessed at Rs.50,000/-.

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……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi;

December 02, 2008

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