Sadaram Suryanarayana V/S Kalla Surya Kantham- CIVIL APPEAL NO.2758 OF 2004(October 22, 2010)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITION
CIVIL APPEAL NO.2758 OF 2004
Sadaram Suryanarayana & Anr. ...Appellants
Versus
Kalla Surya Kantham & Anr. ...Respondents

JUDGMENT

T.S. THAKUR, J.
1. This appeal by special leave is directed against an order
dated 4th March, 2003 passed by the High Court of Andhra
Pradesh whereby Civil Appeal No.1530 of 1998 has been
allowed, the judgment and order passed by the IInd
Additional Senior Civil Judge, Vishakapatnam in O.S. No.32
of 1991 set aside and the suit for possession filed by the
plaintiff-respondent decreed with mesne profits @ Rs.800/-
p.m. from the date of the suit till the date of delivery of its
judgment. The facts giving rise to the filing of the suit may
be summarised as under:

2. The appellants are the sons of late Smt. Sadaram

Appalanarasamma while the respondents are her daughter

and son-in-law. The property in dispute consisting of four

eastern portions (two on the ground floor and two on the

first floor) bearing door Nos.44-23-35/7, 44-23-35/6, 44-

23-35/1 and 44-23-35 situated at Railway New Colony,

Visakhapatnam was originally owned by late Smt. Kalla

Jaggayyamma, who passed away on 5th July, 1981 leaving

behind four sons besides two daughters named: Smt.

Sadaram Appalanarasamma and Smt. Sadaram

Ramanamma. It is not in dispute that in terms of a Will

dated 4th September, 1976 executed by the deceased Smt.

Kalla Jaggayyamma the property mentioned at item 2 in

para 6 of the Will was bequeathed in favour of her two
daughters mentioned above with a stipulation that the same
shall after their death devolve upon their female offsprings.
Smt. Sadaram Appalanarasamma mother of the first plaintiff

and defendants 1 to 6 (Sadaram Suryanarayana, Sadaram

Eswararao, Sadaram Devanand, Sadaram Ramana, Sadaram

Satyanarayana and Sadaram Ramu) died intestate on 11th

January, 1990. The case of the plaintiffs is that defendants

1 to 6 i.e. sons of late Appalanarasamma took possession of

suit property comprising item no.2 of the Will executed by

Smt. Kalla Jaggayyamma which had devolved upon plaintiff

no.1 in her capacity as the daughter of late

Appalanarasamma and the stipulation contained in the Will

executed by Smt. Kalla Jaggayyamma. The plaintiffs

respondents, therefore, filed OS No.32/91 in which they

sought a decree for declaration of title over the suit property

and for recovery of possession thereof apart from other

reliefs.


3. The defendants appellants in the present appeal

contested the suit, inter alia, taking the plea that late Smt.
4


Sadaram Appalanarasamma had acquired absolute title in

the property under the Will executed in her favour and that

in terms of a Will dated 5th January, 1981 she had

bequeathed the property in question to the defendant which

they were entitled to retain in possession as owners thereof.


4. On the pleadings of the parties the Trial Court framed

four issues, allowed the parties to adduce evidence in

support of their respective cases, but eventually dismissed

the suit. The Trial Court held that the execution of the Will

by Smt. Kalla Jaggayyamma had been proved and that

according to the said Will the property would devolve

absolutely upon the legatee Smt. Sadaram

Appalanarasamma. The plaintiffs' claim to the property

based on the stipulation that upon the death of Sadaram

Appalanarasamma the property would devolve upon her

female offsprings was thus negatived. Aggrieved, the

plaintiffs appealed to the High Court of Andhra Pradesh who

has by the judgment impugned before us, reversed the view

taken by the Trial Court and decreed the suit. In doing so
5


the High Court followed the decisions of this Court in

Kaivelikkal Ambunhi (Dead) By Lrs. and Ors. v. H.

Ganesh Bhandary (1995) 5 SCC 444, Ramachandra

Shenoy and Anr. v. Mrs. Hilda Brite & Ors. 1964 (2) SCR

722 and the decision of Privy Council in Sasiman

Chowdhurain and Ors. v. Shib Narain Chowdhury and

Ors. AIR 1922 PC 63 and Pearey Lal v. Rameshwar Das

(1963) Supp 2 SCR, in preference to those delivered in

Mauleshwar Mani and Ors. v. Jagdish Prasad and Ors.

(2002) 2 SCC 468, Ramkishore Lal v. Kamal Narain

(1963) Supp 2 SCR 417, Radha Sundar Dutta v. Mohd.

Jahadur Rahim and Ors. 1959 SCR 1309 and (Kunwar)

Rameshwar Bakhsh Singh and Ors. v. (Thakurain)

Balraj Kuar and Ors. AIR 1935 PC 187.


5. The English rendition of Para 6 of the Will executed by

Smt. Kalla Jaggayyamma is as under:


"6) 2nd item Tiled house situated in New
colony out of which Eastern wing 2 rooms
shall devolves to my 2nd daughter Chandaram
Appalanarasamma and the Western wing 2
rooms shall devolve upon my elder daughter
Chandram Ramanamma with absolute rights
of Sale, Gift, Mortgage etc., and this will
come into force after my demise. After
demise of my daughters the retained and
remaining property shall devolve upon their
female children only."



6. It is evident from a plain reading of the above that the

testatrix had bequeathed in absolute terms the property

mentioned in clause (6) (supra) in favour of her daughters

Chandaram Appalanarasamma and Chandaram Ramanamma

with absolute rights of sale, gift, mortgage etc. That the

bequest was in absolute terms was made abundantly clear

by the use of the words "absolute rights of sale, gift,

mortgage etc." appearing in clause (6) above. To that extent

there is no difficulty. What led to a forensic debate at the

bar was the latter part of bequest under which the Testatrix

has attempted to regulate the devolution of the property in

question after the demise of her daughters. The Testatrix

has desired that after the demise of her daughters the

property vested in them would devolve upon their female
7


heirs only. The question is whether the Testatrix Smt. Kalla

Jaggayyamma, had made two bequests one that vests the

property absolutely in favour of her daughters and the other

that purports to vest the very same property in their female

offsprings. If so whether the two bequests can be reconciled

and if they cannot be, which one ought to prevail.


7. Before we address these questions we may briefly refer

to the decisions noted above especially because the High

Court seems to have seen a conflict in the legal position

settled by those decisions.


8. In (Kunwar) Rameshwar Bakhsh Singh's case

(supra) the Privy Council held that where an absolute estate

is created by a Will in favour of the devisee, other clauses in

the Will which are repugnant to such absolute estate cannot

cut down the estate; but must be held to be invalid. The

following passage summed up the law on the subject:


"Where an absolute estate is created by a
Will in favour of the devisee, the clauses in
the Will which are repugnant to such absolute
8


estate cannot cut down the estate; but they
must be held to be invalid."



9. In Radha Sundar Dutta's case (supra), this Court was

dealing with a situation where there was a conflict between

two clauses appearing in the Will. This Court ruled in favour

of the earlier clause, holding that the later clause would give

way to the former. This Court said:


"..........where there is a conflict between the
earlier clause and the later clauses and it is
not possible to give effect to all of them, then
the rule of construction is well established
that it is the earlier clause that must override
the later clauses and not vice versa".



10. The issue came up for consideration once again before

a Constitution Bench of this Court in Ramkishore Lal's case

(supra). In that case too the Court was concerned with the

approach to be adopted in a matter where a conflict arises

between what is said in one part of the testament vis-`-vis

what is stated in another part of the same document

especially when in the earlier part the bequest is absolute
9


but the latter part of the document gives a contrary direction

about the very same property. This Court held that in the

event of such a conflict the absolute title conferred upon the

legatee by the earlier clauses appearing in the Will cannot be

diluted or taken away and shall prevail over directions

contained in the latter part of the disposition. The following

passage from the decision is instructive:


"The golden rule of construction, it has been
said, is to ascertain the intention of the
parties to the instrument after considering all
the words, in their ordinary, natural sense.
To ascertain this intention the Court has to
consider the relevant portion of the
document as a whole and also to take into
account the circumstances under which the
particular words were used. Very often the
status and the training of the parties using
the words have to be taken into
consideration. It has to be borne in mind that
very many words are used in more than one
sense and that sense differs in different
circumstances. Again, even where a
particular word has, to a trained
conveyancer, a clear and definite significance
and one can be sure about the sense in which
such conveyancer would use it, it may not be
reasonable and proper to give the same strict
interpretation of the word when used by one
who is not so equally skilled in the art of
conveyancing. Sometimes it happens in the
10


case of documents as regards disposition of
properties, whether they are testamentary or
non-testamentary instruments, that there is
a clear conflict between what is said in one
part of the document and in another. A
familiar instance of this is where in an earlier
part of the document some property is given
absolutely to one person but later on, other
directions about the same property are given
which conflict with and take away from the
absolute title given in the earlier portion.
What is to be done where this happens? It is
well settled that in case of such a conflict the
earlier disposition of absolute title should
prevail and the later directions of disposition
should be disregarded as unsuccessful
attempts to restrict the title already given.
(See Sahebzada Mohd. Kamgar Shah v.
Jagdish Chandra Deo Dhabal Deo (1960) 3
SCR 604. It is clear, however, that an
attempt should always be made to read the
two parts of the documents harmoniously, if
possible. It is only when this is not possible,
e.g., where an absolute title is given is in
clear and unambiguous terms and the later
provisions trench on the same, that the later
provisions have to be held to be void."



11. To the same effect is the decision of this Court in

Mauleshwar Mani's case (supra) where the question once

again was whether an absolute interest created in the

property by the Testatrix in the earlier part of the Will can
11


be taken away or rendered ineffective by the subsequent

bequest which is repugnant to the first bequest. Answering

the question in the negative, this Court held that once the

testator has given an absolute right and interest in his entire

property to a devisee it is not open to him to further

bequeath the very same property in favour of the second set

of persons. The following passage from the decision in this

regard is apposite:



"In view of the aforesaid principles that once
the testator has given an absolute right and
interest in his entire property to a devisee it
is not open to the testator to further
bequeath the same property in favour of the
second set of persons in the same will, a
testator cannot create successive legatees in
his will. The object behind is that once an
absolute right is vested in the first devisee
the testator cannot change the line of
succession of the first devisee. Where a
testator having conferred an absolute right
on anyone, the subsequent bequest for the
same property in favour of other persons
would be repugnant to the first bequest in
the will and has to be held invalid.
xxx xxx xxx
xxx xxx xxx
We are, therefore, of the view that once the
testator has given an absolute estate in
favour of the first devisee it is not open to
him to further bequeath the very same
12

property in favour of the second set of
persons."



12. In Pearey Lal's case (supra), this Court held that

while interpreting a Will the Court must take the document

as a whole with a view to harmonizing apparently conflicting

stipulations. This Court recognized the following guiding

principles in the matter of interpretation of Wills:



"(i) the intention of the testator by reading
the will as a whole and if possible, such
construction as would give to every
expression some effect rather than that
which could render any of the expression
inoperative must be accepted; (ii) another
rule is that the words occurring more than
once in a will shall be presumed to be used
always in the same sense unless a contrary
intention appears from the will; (iii) all parts
of a will should be construed in relation to
each other; (iv) 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; (v)
where apparently conflicting dispositions can
be reconciled by giving full effect to every
word used in a document, such a
construction should be accepted instead of a
construction which would have the effect of
cutting down the clear meaning of the words
13


used by the testator; (vi) where one of the
two reasonable construction would lead to
intestacy, that should be discarded in favour
of a construction which does not create any
such hiatus."


13. In Ramachandra Shenoy's case (supra) this Court

was dealing with a case where the Testatrix had made a Will

in favour of her daughter and a gift over in favour of her

(daughter's) male children. The relevant portion of the Will

was translated in English to the following effect:



"All these (properties) shall after me be
enjoyed by my elder daughter Severina
Sabina and after her lifetime by her male
children too as permanent and absolute
hukdars."



The question was whether the Testatrix had made an

absolute bequest to the daughter or created only a life

interest followed by an absolute bequest in favour of the

grandsons of the Testatrix. This Court held on an

interpretation of the bequest that what was created in

favour of the daughter was only a life estate and that the
14


intention of the Testatrix was to make an absolute bequest

in favour of her grandsons through her daughter. The

following passage from the decision is in this regard

apposite:



"It was common ground that under
clause 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 of 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 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. 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
15


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 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 doubt
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
clause 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
16


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."



14. In Kaivelikkal Ambunhi's case (supra), the Court

applied the maximum "cum duo inter se pugnantia

reperiuntur in testamento ultimum ratum est" which means

that in a will if there are two provisions the latter shall

prevail over the earlier.



15. Time now to refer to the provisions of Indian

Succession Act 1925, Chapter VI whereof deals with

construction of Wills. Some of the principles of interpretation

of Wills that are statutorily recognized in Chapter VI need

special notice. For instance, Section 84 provides that if a

clause is susceptible of two meanings, according to one of

which it has some effect and according to the other it can

have none, the former shall be preferred. So also, Section

85 provides that no part of a Will shall be rejected as
17


destitute of meaning if it is possible to put a reasonable

construction on the same. Section 86 provides that if the

same word occurs in different parts of the same Will, they

shall be taken to have been used everywhere in the same

sense unless a contrary intention appears. Section 87 makes

it clear that the intention of the Testator shall not be set

aside merely because it cannot take effect to the full extent,

and that effect is to be given to it as far as possible. Section

88 provides that if there are two clauses of gift in a Will,

which are irreconcilable, so that they cannot possibly stand

together, the last shall prevail.



16. It is evident from a careful reading of the provisions

referred to above that while interpreting a Will, the Courts

would as far as possible place an interpretation that would

avoid any part of a testament becoming redundant. So also

the Courts will interpret a Will to give effect to the intention

of the Testator as far as the same is possible. Having said

so, we must hasten to add that the decisions rendered by
18


Courts touching interpretation of the Wills are seldom helpful

except to the extent the same recognize or lay down a

proposition of law of general application. That is so because

each document has to be interpreted in the peculiar

circumstances in which the same has been executed and

keeping in view the language employed by the Testator.

That indeed is the requirement of Section 82 of the

Succession Act also inasmuch it provides that meaning of

any clause in a Will must be collected from the entire

instrument and all parts shall be construed with reference to

each other.



17. Coming then to the facts of the case at hand it is

evident from a careful reading of clause 6 of the Will

extracted above that the same makes an unequivocal and

absolute bequest in favour of daughters of Testatrix. The

use of words like "absolute rights of sale, gift, mortgage

etc." employed by the Testatrix make the intention of the

Testatrix abundantly clear. Learned counsel for the plaintiffs
19


respondents herein also did not have any quarrel with the

proposition that the Testatrix had in no uncertain terms

made an absolute bequest in favour of her daughters. What

was argued by him was that the bequest so made could be

treated as a life estate not because the testament stated so

but because unless it is so construed the second part of

clause 6 by which the female offsprings of the legatees

would get the property cannot take effect. It was on that

premise contended that the absolute estate of the Smt.

Sadaram Appalanarasamma ought to be treated only as a

life estate. The contention though attractive on first blush,

does not stand closer scrutiny. We say so because the

ultimate purpose of interpretation of any document is to

discover and give effect to the true intention of the executor

in the present case the Testatrix. We are not here dealing

with a case where the Testatrix has in one part of the Will

bequeathed the property to `A' while the same property has

been bequeathed to `B' in another part. Had there been such

a conflict, it may have been possible for the plaintiff-
20


respondent to argue that the latter bequest ought to take

effect in preference to the former. We are on the contrary

dealing with a case where the intention of the Testatrix to

make an absolute bequest in favour of her daughters is

unequivocal. Secondly, the expression "after demise of my

daughters the retained and remaining properties shall

devolve on their females children only" does not stricto

sensu amount to a bequest contrary to the one made earlier

in favour of the daughters of the Testatrix. The expression

extracted above does not detract from the absolute nature

of the bequest in favour of the daughters. All that the

Testatrix intended to achieve by the latter part of clause 6

was the devolution upon their female offsprings all such

property as remained available in the hands of the legatees

at the time of their demise. There would obviously be no

devolution of any such property upon the female offsprings

in terms of the said clause if the legatees decided to sell or

gift the property bequeathed to them as indeed they had

every right to do under the terms of the bequest. Seen thus,
21


there is no real conflict between the absolute bequest which

the first part of clause 6 of the Will makes and the second

part of the said clause which deals with devolution of what

and if at all anything that remains in the hands of the

legatees. The two parts of clause 6 operate in different

spheres, namely, one vesting absolute title upon the

legatees with rights to sell, gift, mortgage etc. and the other

regulating devolution of what may escape such sale, gift or

transfer by them. The latter part is redundant by reason of

the fact that the same was repugnant to the clear intention

of the Testatrix in making an absolute bequest in favour of

her daughters. It could be redundant also because the

legatees exercised their rights of absolute ownership and

sale thereby leaving nothing that could fall to the lot of the

next generation females or otherwise. All told the stipulation

made in the second part of clause 6 did not in the least

affect the legatees being the absolute owners of the

property bequeathed to them. The corollary would be that

upon their demise the estate owned by them would devolve
22


by the ordinary law of succession on their heirs and not in

terms of the Will executed by the Testatrix.



18. In the result this appeal succeeds and is hereby

allowed. The judgment and order passed by the High Court

is set aside and that passed by the Trial Court restored. No

costs.




..................................J.
(MARKANDEY KATJU)




..................................J.
(T.S. THAKUR)
New Delhi
October 22, 2010