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Amirthaien and anr. Vs. Ketharamaien (Minor) by His Guardian Minatchi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1896)6MLJ185
AppellantAmirthaien and anr.
RespondentKetharamaien (Minor) by His Guardian Minatchi Ammal and anr.
Excerpt:
.....that if by the words, any suitable boy, the testator meant some boy who was suitable out of his brothers' sons, he should have expressly said so, and not used the words 'you should adopt a boy you like from the children that may be born in my brothers' families. best, j. the rule is, however, never applied except on the failure of every attempt to give the whole will such a construe tion as will render every part of it effectual......the earlier clause which directs the adoption of a son ' out of the children that may hereafter be born my brothers' families.'10. there is no reason whatever for supposing that the non-repetition of the words ' born in my brothers' families ' in the latter part of the will indicated any change of mind on the part of the testator. the only fair presumption is that he thought the repetition unnecessary, his intention to limit the selection to a boy born in his brothers' families having been sufficiently stated in the earlier part of the will. the further direction in the will that ' every act you intend to do according to the above directions you must do in the presence of any of my brothers' is also significant as shewing that the testator remained favourable to his brothers to the end.....
Judgment:

Muthusami Aiyar, J.

1. The question for docision in this second appeal is whether the construction put by the District Judge upon the will (Exhibit I) is correct.

2. The testator Panchapakesayyan made his will on the 18th December 1884 and died on the 1st February 1885, leaving him surviving a widow named Menatchi Ammall, the 1st defendant, and two divided brothers, the plaintiffs. The plaintiffs' case was that Panchapakesayyan authorised Menatchi Ammal only to adopt one of their sons, and that the adoption of the 2nd defendant, who was a mere Sapinda, was invalid. On the other hand, the contention for the defendant was that the 'authority was general, and that the adoption was, therefore, open to no objection. The Subordinate Judge considered that the testator conferred upon the 1st defendant an authority to adopt a child only from a particular class, but the Judge held that there was no such restriction. It has been contended before us that the will has. been misconstrued by the Judge.

3. The terms in which the will was made are set out by the Subordinate Judge in paragraph 4 of his Judgment, and only two passages in it are material to our-present purpose. The first is in these words :--'Although an eagar desire to take a boy in adoption has now sprung in me, yet as I could not now do it, hereafter you must adopt for me a boy you like from the children that may be born in the families of my brothers.

4. There can be No. doubt that this passage confers an authority to chose a child for adoption from a class or two particula: families designated by the testator. It shows further that i was his intention not to make an immediate adoption but to post pone it until one of the class, viz., his brothers' sons became available for adoption.

5. The other material passage which occurs near the end of the will is in these terms:--' The principal object of the will is that you should adopt for me any suitable boy (Yaravadu oru takka Putranai), that as you are perfectly acquainted with what is conducive to my spiritual benefit, you shall spend out of my properties for such benefit, and that you should take upon yourself the responsibility of managing all my properties.' Does this passage mean any boy whom she considers suitable, are any boy who was already indicated by the testator as suitable? I have no doubt that the latter is the correct construction, for, the passage in question was intended to sum up and thereby explain the contents of the will, and not to operate [180] as an independent direction. If the other construction were to prevail, there was no occasion for the testator designating a class and thereby limiting his wife's discretion. Nor was there any occasion for the testator forbearing to make an adoption at once, and for directing his widow to wait until one of his brothers' children should thereafter be born. It is observed by the Judge that if by the words, any suitable boy, the testator meant some boy who was suitable out of his brothers' sons, he should have expressly said so, and not used the words ' you should adopt a boy you like from the children that may be born in my brothers' families.' But the passage in question states in a general way the object with which the Will was framed, and the reasonable inference is that the testator intended not that any direction already given by him should be struck out or cancelled, but th,at it should be read in the light thrown by the object he had in view., 'Any or some suitable or fitting boy' would, if read together with the direction contained in the earlier passage, only' signify 'such boy as I consider suitable or have already indicated as suitable.' The Judge's view cannot be accepted as it ignores the purpose with which the testator presumably inserted the second passage, and thereby imputes an intention to him practically to contradict himself The decree of the District Judge is set aside and that of the Sub-ordinate Judge restored. The 2nd Respondent will pay the Appel-; lant's costs both in this Court and in the Lower Appellate Court.

Best, J.

6. The question for decision in this appeal is whether under the Will Exhibit I, 2nd Respondent the widow of one Pancha-pakesayyen was authorized to adopt the 1st Respondent, or whether the authority to adopt given to her under the Will was limited to a boy belonging to the families of her husband's brothers, who are the Appellants in this case.

7. The Court of First Instance, the Subordinate Judge of Tanjore, construed Exh. I as giving only the limited power of adoption stated' above, and held the adoption of 1st Respondent to be void, whereas the District Judge on appeal has found that the power conferred on 2nd Respondent was not limited and that the adoption made by her of 1st Defendant is valid.

8. I am of opinion that the construction put on Exh. I. by the Court of First Instance is the correct one.

9. The primary rule in construing a document in the nature of a Will is that the meaning of any clause in it is to be collected from the entire instrument, and all its parts are to be construed, with reference to each other. So construed, I am of opinion that the Will in question limits the power of adoption given to 2nd Respondent to boys born in the testator's brothers' families. It is so expressly stated in the first part of the Will. No doubt at the end of the Will in summing up this instructions, the testator has said that the principal object of the Will is that his widow should (inter alia) adopt ' whoever may be fitting as a son for him.' These are general words, but general words may be understood in a restricted sense, where it may be collected from the Will that the testator meant to use them in a restricted sense; and it is only in cases where two clauses in a Will are so absolutely irreconcilable that they cannot possibly stand together, that the latter of the two can be allowed to prevail, the theory being that the testator may have' changed his mind. The rule is, however, never applied except on the failure of every attempt to give the whole Will such a construe tion as will render every part of it effectual. The words ' any suitable boy ' in the latter part of the Will must therefore be read -with the earlier clause which directs the adoption of a son ' out of the children that may hereafter be born my brothers' families.'

10. There is no reason whatever for supposing that the non-repetition of the words ' born in my brothers' families ' in the latter part of the Will indicated any change of mind on the part of the testator. The only fair presumption is that he thought the repetition unnecessary, his intention to limit the selection to a boy born in his brothers' families having been sufficiently stated in the earlier part of the Will. The further direction in the Will that ' every act you intend to do according to the above directions you must do in the presence of any of my brothers' is also significant as shewing that the testator remained favourable to his brothers to the end of the Will. The direction to adopt being thus found to be limited to a boy hereafter te be born in one of the brothers' families, was the mere fact of no other sons having been subsequently born in those families sufficient to warrant the adoption of any other boy? The Subordinate Judge has answered this question in the negative, and he seems to be supported by authority in this, answer of his. But even assuming it to be otherwise, the passage from the Will already [182] quoted requires that anything done under the Will should be done ' in the presence of any of my brothers,' whereas the so-called adoption of 1st Respondent was made in the absence of the brothers, without their consent and in defiance of the 1st Appellant's objections, who even offered to give his own second wife's son in adoption, if required. Vide Exhibit B.

11. I agree, therefore, in setting aside the decree of the Lower Appellate Court and restoring that of the Court of First Instance, and in directing 2nd Respondent to pay * Appellant's costs both in this Court and in the Lower Appellant Court.


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