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Gulbaji Ajisigi and Co. Vs. Rustomji Khabsedji Banatvalla - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 49 of 1924 and Suit No. 175 of 1922
Judge
Reported in(1925)27BOMLR380; 95Ind.Cas.229
AppellantGulbaji Ajisigi and Co.
RespondentRustomji Khabsedji Banatvalla
DispositionAppeal dismissed
Excerpt:
.....the son died leaving, or without leving, children - nature of the interest taken by the son in the property-indian succession act (x of 1865), sections 110 and 111.;a parsi testator by his will gave certain property to his son r 'as a gift' and he further directed that 'should ray son r die which god forbid and should he then leave a son, such his son shall afterwards be the owner thereof; should he however have daughters, an estimate is to be formed of the value of the said estate at that time and out of the same four annas in the rupee are to be paid to his daughters. and should he have no children, two annas in the rupee is to be paid to his widow. and as to the whole residue which shall then remain e and his heirs are to become the owners thereof.;r executed certain mortgage and..........the plain meaning is 'on the death of my son rustomji.' the meaning is in substance 'after the death of rustomji if he leave a son his son shall be the owner of the property.22. para 8 is therefore not consistent with para 10. 'where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail' (indian succession act, section 75). can the two gifts be reconciled? yes, if reading the two clauses together it appears that 'a restricted interest was intended for rustomji.' the rule in section 75 should only be applied in the last resort. and in my opinion the decision of the learned trial judge is correct and that it must be taken that the testator intended a life interest for rustomji. if the rule in section 75 were applied the.....
Judgment:

Norman Macleod, Kt., C.J.

1. Kharsedji Jamasji Banatwalla died on July 10, 1870, leaving .1 will dated May 5, 1870, probate of which was granted to his son Edulji on June 14, 1871. Under clause 8 of the will, certain property was given to Rustomji, the second son of the testator. By clause 10 of the will, certain limitations were sought to be imposed on Rustomji's interests in the property. In 1908 he mortgaged the property to the plaintiff's in this suit and granted two further charges dated December 9,1909, and July 10, 1911. In 1917 Rustomji took out an originating summons to determine the true construction of the will with regard to the interest he acquired thereunder in this property. The present plaintiff's were not parties to those proceedings which were evidently of a friendly nature between Rustomji and other members of his family.

2. By the order of the Court of July 30, ] 917J it was declared that Rustomji only took a life interest in the property. It was not until 1921 that the plaintiffs became aware of that order, which could not possibly operate as res judicata against them. Consequently they filed this suit asking for a declaration that Rustomji was absolutely entitled to the suit property.

3. The lower Court has given the plaintiffs a declaration that Rustomji only was given a life interest in the property and dismissed the suit against the other defendants. Defendants Nos. 2 to 5 were the sons, the 6th and 7th defendants were the daughters and the 8th defendant was the wife of the first defendant.

4. The plaintiffs have appealed, and the only question which has been argued before us was whether, on a proper construction of clauses 8 and 10 of the will, the first defendant took a life estate or an absolute estate.

Clause &'. As to my second sun Chi. Roostomji. There was sold to Parsi Kharsedji Jamaaji Working boxwalla one hundred and ninety Burgas of vacant ground situated near the Grant Road, upon a lease for ninety-nine years. Therefrom Burgas forty and half were repurchased, Deducting thorn (from the said 190 Burgas) there remain Burgay 1492 one hundred and forty nine and a half which, at the rate of Us. 6 six and a quarter per Burga per annum, (yields an income of) Rupees 934- 6 annas. Nine hundred and thirty four and annas six per annum. This is given an a gift to Chi, Rooatomji. After my decease the income of the ground that is the rent in to be collected from those Persons who are possessed thereof and credited to the name of the Chi. tomji tomji in (the books of) the shop. For Chi. Roostomji is now seventeen years old when therefore he shall arrive at the age of 21 twenty one years, the said ground is to be made over to him, and as to the moneys which may have been collected and credited, the principal together with interest thereon at the rate of 5 five per cent is to be paid over to Chi. Roostomji, It is to be paid over by Chi. Edulji.

Clause 10. The property which is in the above eighth Clause directed to be given to Chi. Rustomji is to be given (to him) in accordance therewith. And afterwards should my son Chi. Rustomji die which Clod forbid and should be then leave a son, such his son shall afterwards be the owner thereof, should he however leave daughters, an estimate is to be formed of the value of the said Estate at that time and out of the same Four annas in the rupee are to paid to his daughters. And should he have no children, two annas in the rupee is to be paid to his widow, And as to the whole residue which should then remain Chi. Edulji and his heirs are to become the owners thereof.

5. It was first contended that clause 10 was repugnant and void as being contrary to the terms of clause 8 whereby the property was gifted to the first defendant.

6. The second contention was that Section 111 of the Indian Succession Act applied so that the gifts over bequeathed by clause 10 could only take effect if the first defendant had died in the life-time of the testator.

7. The learned Judge has referred to the principles which should guide the Court in construing a will, Those principles have been laid down in innumerable cases, but they are not always easy to follow. The Court must give to each expression used by a testator its plain meaning except where there is authority for giving a particular legal interpretation to a particular form of words. As far as possible effect must be given to the intentions of the testator as shown by the terms of the will taken as a whole and if different clauses appear contradictory attempt must be made to reconcile them. If two clauses are irreconcilable under s,75 of the Indian Succession Act the later clause prevails. But when the Court having followed those principles has come to a certain conclusion, if we agree with the judgment of Joyce J. in In re Sanford, Sanford v. Sanford [1901] 1 Ch. 939 we ought to examine the authorities to see whether any one of them prevents us from adopting that conclusion as final. That may be permissible and even desirable when construing an English will drawn by English lawyers in what is recognised as ordinary legal phraseology, but when we have to construe a vernacular will like the one before us the safest course in my opinion is to adhere to principles and avoid if possible any examination of decided cases, or in any event the English cases. In India the Indian Succession Act has attempted to codify the law as fat-as it can be ascertained from those cases but generally speaking the illustrations to the sections of the Indian Succession Act being taken from English decisions are of little use in construing a vernacular will For instance when we come to discuss the question whether an absolute gift can be cut down by later provisions in a will, if we attempt to derive any clear principle on which the Court should act from the English cases we find a large number of cases which it is difficult to adjust with each other. It has been laid down that if there is in a will an absolute gift it is not to be cut down except by clear limitations in the rest of the will. That sounds plain enough, but after considering the various cases on that question there is very great difficulty in obtaining a guide as to what are and what are not clear limitations. However, Section 82 of the Indian Succession Act says that ' where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.' The Act also deals with irreconcilable clauses, but there is no mention of the word ' repugnant.' If repugnancy is different from irreconcilability what is to happen when a later clause is repugnant to an earlier clause There are authorities which appear to show that repugnancy in a later clause renders that clause null and void.

8. It cannot be denied, however, that, as pointed out by the learned Judge, decisions of the Privy Council, in spite of their lordships' warning not to apply decisions on English wills to the , wills of Indiana, or even decisions on other wills whether English or Indian (see Norendra Nath Sircar v. Kamalbasini Dasi I.L.R. (1996) Cal. 583) do sometimes depend on the application of some English rule of construction, which has been laid in English cases see Kaiku-shrw Besonji v. Shirinbai I.L.R. (1918) 43 Bom. 88 : 21 Bom. L.R. 130 and Shirinbai v. Ratanbai I.L.R. (1921) 45 Bom. 711 : 23 Bom. L.R. 618 .

9. Dealing with the will in suit, the learned Judge continues: 'The defendants Nos. 2 to 8 have an alternative construction to that put forward by the plaintiffs, and it is this, that if one cuts down the interest, of Rustomji to a life interest, then clause 10 is perfectly intelligible, and the whole will becomes quite simple. What then, so far as this will is concerned, are the reasons for and against adopting that construction?' and he concludes, 'Looking then at this will I see no difficulty in confining the interests of Rustomji to a life interest. In that case there is no repugnancy under clause 1'). It in merely an ordinary case of a gift for life to a testator's son with remainder to the testator's grand-children. But the defendants' argument begs the whole question They premise that clause 8 gives RUSTAMJI a life interest and therefore clause 10 deals with the remainder, without any repugnancy. But the learned Judge concludes that clause 8 gives an absolute estate, and the fact that express words signifying absolute ownership are absent, is, he remarks, 'a slight circumstance to be observed on.' The words in clause 8 are ' This is given as a gift to RUSTAMJI.' We cannot there fore get over the difficulty in this summary fashion. Clause 10 is repugnant to clause 8. It deals with the remainder to be the property, which has already been wholly disposed of,

10. Mr. Desai has argued that Section 111 of the Indian Succession Act is applicable. That section says :

Where a legacy is given if a specifier! uncertain event shall happen, and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.

11. Illustration (a) is as follows :-

A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect.

12. In other words by a statutory construction to be placed on such a gift to B it is construed as if the testator had said : ' If A dies before me R shall take but if A survives me he will take absolutely.

13. The logical deduction must be that if the testator had only said, ' I give to A but, if A dies after me B shall take ' the,! bequest to B is null and void. It makes little difference whether it is null and void according to the doctrine of repugnancy, or owing to the statutory construction to be placed on the bequest which gives effect to that doctrine. I do not think myself that Section 111 has any bearing on the construction of this will. I think that the difficulty which it has been suggested exists is purely artificial, and is due to clauses 8, 9 and 10 of the will having been treated as three separate clauses whereas they are really one. That perhaps was what was meant by the defendants' argument in the lower Court, though it certainly was not so expressed. Otherwise the discussion and the judgment would have been shortened considerably, if it had not been taken for granted that clause 8 by itself gave an absolute estate. If it had been recognised that the gift to Rustomji was really in the middle of a clause, nothing further could have been said.

14. We agree, therefore, with the learned Judge that Rustomji took a life interest in the property referred, to in clause 8 and dismiss the appeal with costs.

Crump, J.

15. On May 5, 1870, Kharsedji Jamasji Banatvalla made a will. He died on July 10, 1870 The testator at the date of the will and at the date of his death had two sons, Edulji and Rustomji, and four daughters. By paragraph 8 of the will certain property was given to his son Rustomji. In 1908, 1909 and 1911 RUSTAMJI alone executed certain mortgages and charges in favour of the plaintiffs. Rustomji is the first defendant. Defendants Nos. 2 to 5 are his sons. Defendants Nos. 6 and 7 are his daughters. Defendant No. 8 is his wife. The plaintiffs allege that on a true construction of the will, defendant No. 1 took an absolute interest in the property in suit. The defendants contend that on a true construction of the will defendant No. 1 is entitled to a life interest only.

16. Para 1 of the will appoints Edulji executor and directs him to distribute the estate after the expiration of thirteen months from the decease of the testator. Paras 2 to 7 set out certain bequests of other property to Edulji. Para 8 recites that the property in suit is given to Rustomji. Para 9 directs that that marriage expenses of RUSTAMJI, who was seventeen years old and unmarried at the date of the will, are to be defrayed by Edulji out of the property given to him. Para 10 contains directions as to the disposition of the property given to Rustomji by clause 8 after Rustomji's death. Paras 11 to 15 are not material for the purposes of the question to be determined.

17. The question arises thus. Para 8 of the will would appear to give an absolute interest to RUSTAMJI. Para 10 provides for an absolute interest to the grandchildren after Rustomji's death. What then is the true construction The learned trial Judge has held that para 8 standing alone would give an absolute interest to Rustomji but that the effect of the will read as a whole was to confine the interest of Rustomji to a life interest.

18. The first thing to be done in construing a will is to read the will as a whole and to endeavour to gather its meaning when so read. Section 69 of the Indian Succession Act is as follows:

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.

19. As remarked by their lordships of the Privy Council in Shookmoy Chandra Das v Monoharri Dassi I.L.R.(1885) Cal. 684 the duty of the Court 'is to find the intention [ of the testator ] looking at the whole of the provisions of the will.' For the purposes of the present question it is therefore necessary to read together paras 8 and 10 of the will, and to endeavour to discover the intention of the testator. Those paras are set out in the judgment under appeal and need not be repeated here. The material words in para. 8 are: ' This is given as a gift to Rustomji.' If those words stood alone their meaning would be free from doubt. Section 82 of the Indian Succession Act runs as follows:-

Where property is bequeathed to any parson, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.

20. There is no question hore as to the applicability of the Indian Succession Act, and the Court is bound to adopt this rule which is part of the Chapter of that Act as to the construction of wills. Upon this point, and indeed as to other questions of the construction of wills, I would cite the remarks of their lordships of the Privy Council in Norendra Nath Sircar v. Kamadbasini Dasi I.L.R.(1896) Cal. 563 :

To search and sift the heaps of cases on Wills which cumber our English Law Reports in order to understand and interpret Wills of people speaking a different tongue, trained in different habits of thought, and brought up under different conditions of life seems almost absurd .. The Indian legislature may well have thought it better to exclude all controversy by positive .enactment. At any rate in regard to contingent or executory bequests the Indian Succession Act, 1865, has laid down a hard and fast rule without speculating on the intention of the testator.

21. Their lordships were there dealing specifically with Section 111 to which reference must be made shortly. But it is clear from those remarks that where the Indian Succession Act is clear upon a point it is inappropriate to refer to decided cases. The question, therefore, is whether on the words of that section 'it appears from this will that only a restricted interest was intended for him (Rustomji).' That question must be answered by reading paras 8 and 10 together. The first sentence of para 10 refers to the directions in para 8, and reaffirms those directions. The testator had in mind that point of time when those directions had been carried into effect, that is to say, that Rustomji had attained the age of twenty-one years, and had been put in possession of the property. The will then proceeds 'and afterwards should my son Rustomji die which God forbid and should he then leave a son such his son shall afterwards be the owner thereof.' I agree with the learned trial Judge that the words 'should my son RUSTAMJI die which God forbid' are no more than an euphemism and that the plain meaning is 'on the death of my son Rustomji.' The meaning is in substance 'after the death of Rustomji if he leave a son his son shall be the owner of the property.

22. Para 8 is therefore not consistent with para 10. 'Where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail' (Indian Succession Act, Section 75). Can the two gifts be reconciled? Yes, if reading the two clauses together it appears that 'a restricted interest was intended for Rustomji.' The rule in Section 75 should only be applied in the last resort. And in my opinion the decision of the learned Trial Judge is correct and that it must be taken that the testator intended a life interest for Rustomji. If the rule in Section 75 were applied the result would be that on the birth of a son no interest would be left to Rustomji, a conclusion which should not be accepted unless it is inevitable It is not indeed the case of either party.

23. But it is said that the case falls within Section 111 of the Act, The construction sought to be put on the will is that the words used in clause 10 mean 'if' Rustomji should die before the death of the testator.' It is argued that there is a specified uncertain event, viz., the death of rustomji before the death of the testator, and that as that event did not happen clause 10 is inoperative. That is not in my opinion an admissible construction of the words of the will. It is not in my opinion possible to hold that the testator had in mind the possibility of the death of Rustomji before his own death, nor do I precisely apprehend how Section 111 can be applied to the circumstances of this case. The gift to the sons of Rustomji. was not a gift to persons in case, but a gift to persons not in existence at the date of the will. A bequest to A. for his life and after his death to A's eldest son A having no son at the time of the testator's death is valid if the later bequest comprises the whole of the remaining interest of the testator in the thing bequeathed. That appears to be the true construction of the will and Section 111 of the Act has no operation.


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