1. This appeal by special leave raised for consideration a very short but byno means an easy question regarding the proper construction of a will.
2. The testatrix was an Indian Christian lady of the Roman Catholic faith -Mrs. Mary Magdelene Coelho. She was a widow and was possessed of considerableproperties in respect of which she had previously executed settlements infavour of her children. The will whose construction falls for determination wasexecuted on July 25, 1907 and related to the properties still remaining withher after these settlements. She had originally four daughters, but by the dateof the will only two of them were alive - her eldest Severina Sabina Brito andher second Mary Matilda Coelho. The other members of her family then alive andto whom it is necessary to refer were a grand-daughter Juli Mary MargaretFernandez by her deceased 4th daughter and four sons of the eldest daughterSeverina. It may be added that the third daughter who died before 1907 left noissue. We might now proceed to the terms of the will. The relevant clause whoseinterpretation is the subject of debate in this appeal is its clause 3(c).
3. Clauses 1 and 2 are in the nature of an introduction, contain nodisposition but are merely a narration of facts etc. and therefore not materialto be set out. The dispositive portion of the will starts with clause 3 Thisconsists of 3 sub-clauses. Sub clauses (a) and (b) describe certain immovableproperties which not having been included in the previous settlements, remainedat the disposal of the testatrix and sub-clause (c) proceeds to effectuate adisposition of these items and of all other movable properties that she mightdie possessed of.
4. We ought to mention that the original will is in the Canarese languageand there has been some dispute as regards the correct translation of thisrelevant clause. We shall now set out the official translation which isincluded in the printed record and refer later to the other translationssubmitted to us and to the arguments based upon them. Clause 3(c) which effectsthe disposition now to be construed reads :
'3. (c) All kinds of movable properties that shallbe in my possession and authority at the time of my death, i.e., all kinds ofmovable properties inclusive of the amounts that shall be got from others andthe cash; - all these my eldest daughter Severina Sobina Coelho, shall after mydeath, enjoy and after her lifetime, her male children also shall enjoypermanently and with absolute right...............'
The rest of it is not very material and is omitted. There are a few otherclauses in this will which have been referred to by learned counsel in theirarguments before us and also in the Courts below as furnishing aids to theconstruction of the disposition in clause 3(c). These are the cls. 4 and 5 andthey run :
'4. The bagaitu hithluland........... and the house situated therein...... and the buildings, shops,etc. attached thereto :- these my second daughter, Mary Matilda Coelho shouldenjoy up to her death only; and further, she should not alienate them in anymanner by way of gift, sale, mortgage, etc. After the lifetime of the saiddaughter of mine, viz., Mary Matilda Coelho, the property should be enjoyed bythe daughter of my forth daughter, Mary Margaret, i.e. of Julia Mary MargentaFernandez hereditarily and with permanent right. In the said property, the saidJulia's father and his heirs have no manner of right whatsoever.'
'5. If the said Julia doesnot marry or if she has no issues, the said Julia should enjoy the saidproperty up to her death and thereafter this property of mine should be enjoyedby my eldest daughter, Severina Sobina Coelho and after her by her maledescendants with permanent rights'.
5. The short question for decision in the appeal is whether under clause3(c) extracted above the interest which the eldest daughter Severina took underthe bequest was absolute or whether she had merely a life interest with theabsolute remainder vesting in her male issues.
6. Before proceeding to deal with this matter, it would be convenient to setout how the question comes before us. This appeal arises out of a suit forpartition and separate possession filed in September, 1946 by the widow anddaughter of Denis - one of the sons of Mrs. Severina Sabina and relates to theproperty measuring 1 acre 37 cents with houses and structures thereon which ispart of the property covered by clause 3. We ought to mention that Severinadied on February 14, 1946. It is the case of the plaintiffs that Severinaacquired under the terms of clause 3(c) only a life interest in that propertyand that the remainder in absolute was conferred upon her male issues. On theother hand, the construction put forward by the contesting defendants who claimunder a purchaser in a Court sale in execution of a decree against Severina is,that on a proper interpretation of the clause what was conferred on Severinawas an absolute interest in the property as a result of which the interest inthe property and not merely her life interest passed under the Court auction,and that consequently the claim for partition had to fail. Both the learnedTrial Judge as well as the District Judge on appeal upheld the constructioncontended for by the defendants and dismissed the suit. On further appeal tothe High Court the learned Single Judge reversed this decree and decreed thesuit holding that the daughter Severina obtained only a life interest in theproperty covered by clause 3. It is the correctness of this construction thatis challenged by the contesting defendants - the appellants before us.
7. Pausing here, we ought to mention that there have been numerous proceedingsbetween the parties before the suit giving rise to the appeal but that it isunnecessary to refer to them and that besides, several of the parties have diedduring the pendency of the proceedings and their legal representatives havebeen added to the record. To these also reference is unnecessary as nothingturns of them. As we stated earlier, the sole point for consideration on whichthe decision in the appeal turns is whether under clause 3(c) Severina, theeldest daughter of the testatrix acquired an absolute interest or was herinterest merely limited to one for her life, the absolute remainder beingbequeathed to her male issues.
8. The testatrix being an Indian Christian, the rules of law and theprinciples of construction laid down in the Indian Succession Act X of 1865which was in force in 1907 govern the interpretation of this will. It should beadded that the Act of 1865 has been repealed, but every one of its relevantprovisions has been re-enacted in exactly the same terms in the Succession Actof 1925. As, however, the Act of 1865 was the statute in operation at therelevant time we shall refer to its provisions and to that enactment as theAct. We might premise the discussion by stating that we are, in the case beforeus, concerned not with any special rule of law but only with the rules laiddown by the Act for the construction of wills. Some of these rules are merelythe embodiment in statutory form of the ordinary rules governing theconstruction of all documents whether they are dispositions testamentary orinter vivos or are non-dispositive, rules which would have been applicable evenapart from specific provision in the Act. Such, for instance are :
'69. The meaning of anyclause in a Will is to be collected from the entire instrument, and all itsparts are to be construed with reference to each other,............'
'72. No part of a Will is tobe rejected as destitute of meaning if it is possible to put a reasonableconstruction upon it.'
'73. If the same words occurin different part of the same Will, they must be taken to have been usedeverywhere in the same sense, unless there appears an intention to thecontrary.'
9. Next there are a group of provisions with which we are more intimatelyconcerned. Of these reference was made to and reliance placed only on twosections which we shall proceed to read :
'82. Where property isbequeathed to any person, he is entitled to the whole interest of the testatortherein, unless it appears from the Will that only a restricted interest wasintended for him.'
'84. Where property isbequeathed to a person, and words are added which describe a class of persons,but do not denote them as direct objects of a distinct and independent gift,such person is entitled to the whole interest of the testator therein, unless acontrary intention appears by the Will.'
10. It was this last provision (s. 84) that was very much relied on bylearned Counsel for the appellants and in particular to the illustrationsappended to it and we shall, therefore, refer to some of these illustrations :-
'(a) A bequest is made -
to A and his children,..................................................................
to A and the heirs male of his body,.......................
In each of these cases, A takesthe whole interest which the testator had in the property.
(b) A bequest is made to A andhis brothers. A and his brothers are jointly entitled to the legacy.'
(c) A bequest is made to A forlife, and after his death to his issue. At the death of A the property belongsin equal shares to all persons who shall then answer the description of issueof A.'
11. Put shortly, the submission of learned Counsel for the appellants wasthis : There could be no doubt that by clause 3(c) the testatrix intended abequest to her eldest daughter-Severina-of the properties referred to in clause(3). The only point in controversy is whether the interest conveyed to Severinawas limited - limited in duration to her life, or whether it was absolute.Under s. 82 of the Act, when a bequest is made the presumption is in favour ofits being absolute and the point urged was that there was no contrary intentionmanifested to displace this statutory presumption, for if the bequest in her favourwas absolute there was no possibility in law of a gift over and any furtherdispositions of the property would naturally be void. Learned Counsel pointedout that for the purposes of conferring an absolute interest the law did notrequire any particular form of words to be used. The use of the expression'enjoy' which is employed in the relevant dispositive clause even ifit stood alone, would be sufficient for the purpose. The testatrix, however,not content with that had added the words 'shall enjoy permanently andwith absolute rights' - to make her intention even more clear. There are,no doubt, words which purport to confer an interest on her male children afterher life-time and, no doubt, also it is stated that they shall enjoy'permanently and with absolute right,' but if the daughter Severinahad been granted an absolute interest in the property by the words'enjoy' and 'permanently and with absolute rights' thesubsequent disposition must necessarily fail. Learned Counsel further submittedthat light was thrown on the absolute disposition in favour of Severina byclause 3(c) by contrasting its terms with the vocabulary employed by thetestatrix when she intended to create a limited interest for life in clause 4.In the latter clause, apart from the specific condition that the seconddaughter-Matilda Coelho was to enjoy up to her death only, the testatrix hadgone further and imposed a condition forbidding alienations. The absence ofthese features in the disposition in favour of the eldest daughter - Severina -under clause 3(c) were clear indications, according to learned Counsel, thatthe legatee therein was intended to be granted an absolute interest. In thisconnection it was pointed out that the bequest in question fell within theclass of dispositions referred to in s. 84 extracted earlier and particularlyto the bequest specified in illustration (a) to that section. We might pointout that these submissions were, in fact, the reasoning on the basis of whichboth the learned trial Judge as well as the District Judge on appeal upheld theconstruction put forward by the appellants.
12. It would be seen that in ultimate analysis the question arising on theconstruction clause 3(c) would be whether the words 'shall enjoypermanently and with absolute right' apply to the interest of Severina orare they confined to designate exclusively the interest of her male-childrenwho are to take after her life-time. It is with reference to this point thatlearned Counsel for the appellants disputed the correctness of the translationof the clause as found in the Paper-book. We were referred to the words inCanarese in the document and it was pointed out that the word 'enjoy' occurredin the clause only once referring to the interest both of the daughter as wellas of her male-children and that the words 'permanently with absoluterights' qualified and indicated the nature of the enjoyment by both. Weshall be referring to the other translations of the relevant words but by doingso we are not to be understood as disposed to encourage any laxity in ordeparture from the salutary rule that save in exceptional cases if thecorrectness of an official translation is disputed by any party steps must betaken to have a translation made by the officers of the Court on properapplication made in time therefor. In the present case, however, we havepermitted learned Counsel to place before us the other translationsparticularly because the translation now found in the paper-book which we haveextracted earlier was, though it was the translation on the record of the HighCourt, not adopted by the learned Judge in the High Court who had a freshtranslation made by the Official translator of the High Court which is found inthe judgment now under appeal. Besides this translation in the High Court thelearned trial Judge had also included in his judgment a translation which hehad himself made of the passage. The learned trial Judge after setting out thewords in the original translated the passage as reading 'after me myeldest daughter S. S. Coelho and after her life-time her male children alsowith permanent and full rights shall enjoy.' The learned Single Judge inthe High Court accepted the following as the correct translation :
'All these (properties) shall after me be enjoyedby my eldest daughter Severina Sabina and after her lifetime by her malechildren too as permanent and absolute hukdars.'
13. It would be seen that there is not much difference between thesetranslations, but that compared with the translation from the Paper-book whichwe have set out earlier, it is found that the verb 'enjoy' occursonly once - not twice - as in the paper book where it occurs first in relationto the daughter and again with respect to the bequest to the daughter's maleissue.
14. Based on these translations learned Counsel submitted that as the word'enjoy' occurs only once, the nature of that enjoyment indicated bythe later words 'as permanent and absolute hukdars' must govern boththe disposition - in favour of the daughter and in favour of her male issue. Inour opinion this does not necessarily follow. We consider that the translationwhich was got prepared by the learned Judge in the High Court is nearer theoriginal in spirit, for we have been furnished by Mr. Viswanatha Sastri withthe original text together with a literal translation of the Canarese words.
15. If the bequest to Severina was 'to enjoy' and the testatrixproceeds to add that after the lifetime of Severina, her male issue were'to have permanent and absolute rights in the same' the very contrastin the phraseology should lead one irresistibly to the conclusion that thenature or quantum of Severina's interest was different from that of those whotook after 'her lifetime.' Learned Counsel, however, laid specialstress on the use of the word 'too' or 'also' occurringtowards the end of the clause as pointing to the 'enjoyment' ofSeverina being also 'permanent' with absolute right. We are howeverunable to read the word as having such a significance and as referring to thenature of Severina's enjoyment as well, and in this conclusion we are supportedby the text and the literal translation of the word used. In our opinion, theonly relevant words in relation to the bequest to Severina are that 'sheshall after my death enjoy,' and the rest of the clause deals with what isto happen after her lifetime. The dominant intention of the testatrix was toconfer a permanent and absolute remainder on the male issue of her daughterafter the lifetime of the first donee and the words used are apt and capable ofsupporting such a construction.
16. Learned Counsel next relied on the terms of s. 84, his submission beingthat the male issues of Severina were not 'direct objects of a distinctand independent gift.' Applying the terms of s. 84 to the present case, nodoubt 'property is bequeathed to a person' viz, the daughter, but thequestion is whether the words that follow which refer to the male childrenenjoying 'permanently and with absolute rights,' for there is nodoubt that on any interpretation of the document those words do apply to them,designate them as direct objects of a distinct and independent gift, or arethey added merely to denote the nature of the interest which the first taker -Severina was to obtain Put in technical language are the words referring tothe male children, words of purchases or are they words of limitationindicating the nature of the interest conveyed to the first taker. It would beobserved that in illustration (a) to s. 84 the bequest is made to the firsttaker and his descendants. Where they are the descendants of the first taker,the presumption is that the reference to the persons to take the gift over, isintended to denote the quality of the first take's estate and not for thepurpose of the subsequent takers having independent gifts. Where the subsequentlegatees are intended to be themselves direct beneficiaries and they aredirected to take along with the first taker the interest of the first taker iscut down to a joint interest in the property so as to enable the subsequentlynamed to partake the legacy. That is illustration (b) to the section. There thesecond named is a collateral and by the use of the conjunction 'and' a jointinterest is presumed to be created in favour of all the legatees. Where thesubsequent taker is a descendant of the first taker, as in illustration (a),but the testator does not provide for his taking it along with the first named,it is a case falling under illustration (c) where successive interests arecreated by the use of the words 'after the first taker's death'. Insuch a case even if the second taker were the issue of the first the taker'sinterest is for life since by the use of the words 'after his or herlifetime' successive interests are intended to be created. In our opinion thecase on hand would fall within illustration (c) and the bequest to Severina isonly of life interest, this being made clear by the use of the words 'after herlifetime'.
17. It was next said that clause 4 of the will furnished cogent evidence ofwhat might be called the vocabulary of the testatrix which she employed whenshe intended to create a life interest. This intention it was urged, wasmanifested in that clause by two provisions, first by providing that thelegatee - the second daughter 'should enjoy upto her death only' andthen as if to emphasise the limited nature of the interest conferred, byexpressly prohibiting all alienations by way of gift, sale, mortgage etc. Wehowever see no distinction between the phrase 'enjoy up to her death'and a provision which directs an enjoyment by a legatee by a clause whichproceeds to make a gift over of the absolute interest 'after thedeath' of the first legatee. Nor do we consider that the emphasiscontained in the prohibition against alienation in clause 4 as of any decisiveimportance in understanding the phraseology employed by the testatrix in thiswill. For when one turns to clause 5 we find there is what without doubt is alife interest in favour of her grand daughter - Julia - created by the use ofthe words 'enjoy the property up to her death' without the additionof the prohibition against alienation which is found in clause 4. It istherefore manifest that expressions 'after the lifetime' and 'after the death'were words understood by the draftsman of the will to indicate that theinterest referred to was a terminable one - a life interest - and we have thesewords 'after her lifetime' in clause 3(c).
18. There is also one other consideration which supports the above construction.It was common ground that under clause 3(c) the testatrix intended to confer anabsolute and permanent interest on the male children of her daughter, though ifthe contentions urged by the appellants were accepted the legacy in theirfavour would be void because there could legally be no gift over after anabsolute interest in favour of their mother. This is on the principle thatwhere property is given to A absolutely, then whatever remains of A's deathmust pass to his heirs or under his will and any attempt to sever the incidentsfrom the absolute interest by prescribing a different destination must fail asbeing repugnant to the interest created. But the initial question forconsideration is whether on a proper construction of the will an absolute interestin favour Severina is established. It is one of the cardinal principles ofconstruction of wills that to the extent that it is legally possible effectshould be given to every dispostition contained in the will unless the lawprevents effect being given to it. Of course, if there are two repugnantprovisions conferring successive interests, if the first interest created isvalid the subsequent interest cannot take effect but a Court of constructionwill proceed to the farthest extent to avoid repugnancy, so that effect couldbe given as far as possible to every testamentary intention contained in thewill. It is for this reason that where there is a bequest to A even though itbe in terms apparently absolute followed by a gift of the same to B absolutely'on' or 'after' or 'at' A's death, A is primafacie held to take a life interest and B an interest in remainder, theapparently absolute interest of A being cut down to accommodate the interestcreated in favour of B. In the present case if, as has to be admitted, thetestatrix did intend to confer an absolute interest in the male children ofSeverina the question is whether effect can or cannot be given to it. If theinterest of Severina were held to be absolute no doubt effect could not begiven to the said intention. But if there are words in the will which on areasonable construction would denote that the interest of Severina was notintended to be absolute but was limited to her life only, it would be properfor the Court to adopt such a construction, for that would give effect to everytestamentary disposition contained in the will. It is in that context that thewords 'after her lifetime' occurring in clause 3(c) assume crucial importance.These words do indicate that the persons designated by the words that followwere to take an interest after her, i.e., in succession and not jointly withher. And unless therefore the words referring to the interest conferred on themale children were held to be words of limitation merely, i.e., as denoting thequality of the interest Severina herself was to take and not words of purchase,the only reasonable construction possible of the clause would be to hold thatthe interest created in favour of Severina was merely a life interest and thatthe remainder in absolute was conferred on her male children. This was theinterpretation which the learned Single Judge of the High Court adopted and weconsider the same is correct.
19. Quite a number of authorities were cited by learned Counsel on eitherside but in each one of these we find it stated that in the matter of theconstruction of a will authorities or precedents were of no help as each willhas to be construed in its own terms and in the setting in which the clausesoccur. We have therefore not thought it necessary to refer to these decisions.
20. The result is that the appeal fails and is dismissed with costs.
21. Appeal dismissed.