Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 10742 of 2016, Judgment Date: Nov 09, 2016


                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.10742 of 2016
                   (Arising out of SLP(C)No.4994 of 2014)


      Madhuri Ghosh & Anr.                            ...Appellants

                                      VS.

      Debobroto Dutta & Anr.                         ...Respondents


                                 J U D G M E N T

      R.F.Nariman, J.

1.    Leave granted.
2.    The present appeal arises out of  a  judgment  dated  5th  July,  2013
passed by the High Court of Allahabad in which  a  second  appeal  has  been
allowed reinstating the trial Court decree, in  which  a  certain  Will  has
been construed to confer only a life interest on the plaintiffs.
3.    The brief facts necessary to decide this appeal are as follows.
4.    By a registered Will dated 21st January, 2000, one  Ajit  Kumar  Ghosh
bequeathed House No.77, Ram Bagh, Allahabad to his wife and  elder  daughter
jointly.  He went on to state in the aforesaid Will that after the death  of
his wife and his elder daughter,  various  other  lineal  descendants  would
become owners of specified parts of the immovable  property,  namely,  House
No.77.   Since  the  bone  of  contention  revolves   around   the   correct
construction of this Will, paragraphs 2 and  4  of  the  Will  are  set  out
herein:
“2. That house no.77, Ram Bagh,  Allahabad  was  inherited  by  me  from  my
mother Smt. Subodh Bala Ghose vide registered Will dated 27.2.83  and  I  am
the absolute owner of said immovable property.  So long  as  I  am  alive  I
shall be the exclusive owner of the said property  and  after  my  death  my
said house no.77, Ram Bagh, Allahabad shall vest on  my  wife  Smt.  Madhuri
Ghose and my elder daughter Sunanda Ghose jointly.  After the  death  of  my
wife Smt. Madhuri Ghose my daughter  Km.  Sunanda  Ghose  shall  become  the
exclusive owner of the said house property no.77, Ram Bagh,  Allahabad.   In
case Km. Sunanda Ghose predeceases my wife Smt.  Madhuri  Ghose,  then  Smt.
Madhuri Ghose shall become the exclusive owner of the  said  house  property
No.77, Ram Bagh, Allahabad.  The ownership of my Ambassadar Car No.UPD  2575
shall pass on to my wife Smt. Madhuri Ghose.

4. That after the death of my wife Smt. Madhuri Ghose and  my  daughter  Km.
Sunanda Gosh, my grandson Indranil Chaudhary son of Amit Chaudhary  R/o  AE-
232, Sector Salt Lake City Calcutta shall become the  owner  of  the  ground
floor of house no.77, Ram Bagh, Allahabad and he shall  be  exclusive  owner
of the said portion and my grand daughter  Km.  Mohana  Chaudhary  d/o  Amit
Chaudhary r/o AE-232, Sector  Salt  Lake  City  Calcutta  shall  become  the
exclusive owner of second floor of house No.77, Ram Bagh, Allahabad  and  my
grand son Devopriyo Dutta s/o Devobrito Dutto r/o 77,  Ram  Bagh,  Allahabad
shall become the owner of Ist floor of house no.77, Ram Bagh, Allahabad  and
none else shall have any right or title on the said house.”

5.    Shri Ajit Kumar Ghosh died on 18th June, 2001.  His  widow  and  elder
daughter filed Suit No.747/2001 before the Additional  Civil  Judge,  Senior
Division, Allahabad on 8th October, 2001, in which it was claimed  that  the
plaintiffs be declared as joint owners of one half of house no.77 by  virtue
of the Will dated 21st January, 2000.  Paragraph 1 of the  plaint  expressly
stated that the mother-in-law of plaintiff No.1 had bequeathed  house  no.77
jointly to her  son  and  daughter-in-law  i.e.  plaintiff  No.1,  and  that
therefore the relief claimed against the defendants, who  are  other  family
members, would be confined to  a  declaration  of  the  other  half  of  the
property which was the subject matter of the  bequest.   This  position  was
not disputed by  the  defendants,  and  hence  the  parties  went  to  trial
basically on two issues - (I) whether a subsequent Will  propounded  by  the
defendants dated 4th June, 2001 superseded  the  Will  dated  21st  January,
2000 and must, therefore, be given effect and  (II)  if  not,  what  is  the
correct construction of the Will dated 21st January, 2000.   Suffice  it  to
say that it has concurrently been found  by  the  learned  Additional  Civil
Judge and the Additional District Judge  in  first  appeal,  that  the  Will
dated 4th June, 2001 was not proved.  The only  question,  therefore,  which
survived was the correct construction of  the  registered  Will  dated  21st
January, 2000.
6.    Whereas the trial Court found that only a life  interest  was  created
in the said property in favour of the widow  and  the  elder  daughter,  the
first appellate Court found that in view of the unequivocal language of  the
said Will that an absolute interest  had  been  created  in  favour  of  the
plaintiffs, and therefore, to the extent that  the  trial  Court  held  that
only a life interest had been so created set aside the trial Court.  In  the
second appeal, two substantial question of law were formulated as follows:
“3. This Court formulated following  substantial  questions  of  law,  after
hearing the parties under Order 41 Rule 11 C.P.C.:

(I) Whether the  plaintiffs-respondents  acquired  absolute  rights  to  the
exclusion of the consequences and effect of  other  clauses  of  will  dated
21.01.2000 in respect of House No.77/116, Rambagh, Allahabad to  the  extent
of share of testator, late Sri Ajit Ghosh or their rights are restricted  so
as to constitute the life interest?

(II) Whether the defendants-appellants were a mere licensee  in  respect  of
their right to reside in the accommodation in question mentioned  above  and
he could have been evicted from  the  premises  in  dispute  by  plaintiffs-
appellants relying on the rights they have acquired  under  the  will  dated
21.01.2000?”

7.    The answer given to the aforesaid two questions was that in fact  only
a life interest was created by the Will dated 21st January, 2000  in  favour
of the plaintiffs and that therefore, the second appeal  would  have  to  be
allowed and the trial Court decree reinstated.
8.    Shri Dhruv Mehta, learned senior counsel appearing on  behalf  of  the
appellants, contended before  us  that  first  and  foremost  there  was  no
pleading of life  interest  by  the  defendants  and  that  therefore,  this
question  ought not to have been raised in the second appeal.   He  went  on
to state that it was clear that a Will must first be read as  a  whole,  and
if various parts of it appear to conflict with each other, they ought to  be
harmoniously construed.  In the event that this  cannot  be  done,  then  if
there is an absolute bequest in an earlier part of the  Will,  which  cannot
be reconciled with a subsequent bequest of the same  property  in  a  latter
part of the Will, the subsequent  portion  of  the  Will  will  have  to  be
declared as invalid.  For this proposition,  he  cited  three  judgments  of
this Court before us.  He also argued that it is  well  settled  that  if  a
Will contains one portion which is illegal and another which is  legal,  and
the illegal portion can be  severed,  then  the  entire  Will  need  not  be
rejected, and the legal portion can be enforced.  He  also  argued  that  in
any case Section 14 of the Hindu Succession Act,  1956  would  come  to  the
rescue even if a life interest was created in favour of the widow,  inasmuch
as the deceased had really provided for her  share  in  the  said  immovable
property in lieu of maintenance.
9.    Learned counsel appearing on behalf of the respondents  argued  before
us that the Will must be read as a whole  and  harmoniously  construed.   He
further argued that it was  the  intention  of  the  testator  not  only  to
bequeath the property to the widow and the elder daughter but  also  to  his
grand children i.e. the son and the daughter of the second daughter and  the
son of a nephew who is treated as a grand son. If therefore, the Will is  to
be looked at as a whole, it is clear that the testator's wish would  not  be
carried out qua the latter beneficiaries, and every effort  should  be  made
to see that the testator's intention is carried out as  a  whole.   He  also
relied upon the reasoning of the trial Court and the second Appellate  Court
 to say that, in any event, a life interest had been created  in  favour  of
the two plaintiffs and that it did not matter that there was no pleading  to
this effect inasmuch as it was the defendants who raised this plea  and  not
the plaintiffs.  He also countered the submission  made  on  Section  14  by
stating that the bequest has been made jointly in favour of  the  widow  and
the daughter and that therefore such joint bequest could not possibly be  in
the nature of maintenance to the widow alone.
10.   Having heard learned counsel for the parties, the point before  us  is
a narrow one, namely, what is the true construction of paragraph  2  of  the
Will  dated  21st  January,  2000,  and  whether  in  view  of   such   true
construction, paragraph 4 of the said Will can be said to survive.
11.   It will be noticed on a reading of paragraph 2 of the said  Will  that
the testator has chosen his language very  carefully.   He  makes  it  clear
that after his death house No.77 shall “vest” on my wife Smt. Madhuri  Ghosh
and my elder daughter Sunanda Ghosh jointly.  With this declaration he  goes
on to further state that after the death of  his  wife,  the  said  daughter
shall become the “exclusive” owner of the said house No.77 and that  if  his
daughter was to  predecease  his  wife,  then  his  wife  shall  become  the
“exclusive” owner.  A reading of this paragraph therefore, leaves no  manner
of doubt that what is granted jointly in favour of the widow and  the  elder
daughter is an absolute right to the property namely,  house  No.77.   There
are no words of limitation used in this paragraph and  we,  therefore,  find
it very difficult to agree with the High Court in its conclusion  that  what
is bequeathed by paragraph 2 is only a limited interest  in  favour  of  the
widow and the elder daughter.
12.   However, it  remains  to  consider  the  argument  on  behalf  of  the
respondent that the Will should be read as a whole and that  the  testator's
intention should be given effect so that the grand children are “not on  the
road” as is argued by counsel for the respondents. In law  the  position  is
that where an absolute bequest has been made in respect of certain  property
to certain persons, then a subsequent bequest made  qua  the  same  property
later in the same Will to other persons will  be  of  no  effect.   This  is
clearly laid down in Ramkishorelal and Another vs. Kamal Narayan  1963  Supp
(2) SCR 417 as follows:

“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  had
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 case of  documents  as  regards  disposition  of
properties, whether they are testamentary  or  nontestamentary  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). It is clear,  however,
that an attempt should always be made to read the two parts of the  document
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.”

13.    This  judgment  was  referred  to  with  approval  and  followed   in
Mauleshwar Mani & Ors.  vs.  Jagdish  Prasad  &  Ors.(2002)  2  SCC  468  as
follows:
“The next question that arises for consideration is,  the  validity  of  the
second part of the will whereby and whereunder the testator  gave  the  very
same property to nine sons of his daughters.



In Ramkishorelal v. Kamalnarayan it  was  held  that  in  a  disposition  of
properties, if there is a clear conflict between what is said  in  one  part
of the document and in another 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,  in  such  a
conflict the earlier disposition of absolute title should  prevail  and  the
later directions of disposition should  be  disregarded.   In  Radha  Sundar
Dutta v. Mohd. Jahadur Rahim it was held where  there  is  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.  In Rameshwar Bakhsh Singh v. Balraj Kuar it was laid down  that
where an absolute estate is created by a will  in  favour  of  devisee,  the
clauses in the will which are repugnant to such absolute estate  cannot  cut
down the estate; but they must be held to be invalid.

From the decisions referred to above,  the  legal  principle  that  emerges,
inter alia, are;

1) where under a will, a testator has bequeathed his  absolute  interest  in
the property in  favour  of  his  wife,  any  subsequent  bequest  which  is
repugnant to the first bequeath would be invalid; and

2) where a testator has given a restricted or limited right in his  property
to his widow, it is open to the testator to bequeath the property after  the
death of his wife in the same will.”

14.   Needless to add, it is settled law that the fact  that  clause  4  has
been declared by us to be of no effect would not  impact  the  bequest  made
under clause 2, and the rest of the Will, therefore, would have to be  given
effect to.  In view of the aforesaid, we do not  deem  it  necessary  to  go
into the  other  questions  raised  by  Shri  Dhruv  Mehta,  learned  senior
counsel, namely, the absence of pleading and the effect  of  Section  14  of
the Hindu Succession Act, 1956.  The appeal is, accordingly allowed and  the
judgment of the High Court is set aside.
Pending applications, if any, shall also stand disposed of.

                                                     .....................J.
                                                          [R.K. AGRAWAL]


                                                     .....................J.
                                                 [ROHINTON FALI NARIMAN]
New Delhi;
November 9, 2016.