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Kistammal and ors. Vs. Saraswathi Bai Ammal (Minor) by Next Friend, Her Husband, Bhimasena Rao - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1939Mad112; (1938)2MLJ1010
AppellantKistammal and ors.
RespondentSaraswathi Bai Ammal (Minor) by Next Friend, Her Husband, Bhimasena Rao
Excerpt:
.....even in an intestacy has the right to enjoy and has in fact enjoyed the residue for the whole of her lifetime and the only practical effect of the omission has been not to create a preference in favour of the minor daughter as compared with the married daughters. favour of the widow and the result must therefore be an intestacy with the consequence that the plaintiff cannot claim to be solely entitled to the property which her mother enjoyed during her life......recitals of some length. even if we read them together i find it very difficult to read into the preamble a disposition in favour of the widow merely by virtue of the direction in the final clause that 'she should do all acts aforesaid with full rights'. granted that the words 'sarva swathanrathndan' taken in conjunction with a verb indicating ownership would have the effect of making that ownership absolute, when taken in conjunction with a verb indicating merely management or administration, i do not think they could have the effect of converting that management into ownership. after all the preamble about the enjoyment of the property is couched in the vaguest possible terms and does not convey to my mind the impression that it was intended to be a disposing clause. moreover its.....
Judgment:

Wadsworth, J.

1. This appeal relates to the interpretation of a will dated 11th September, 1920. The testator at the time of his death left a widow an unmarried daughter who is now the plaintiff and two married daughters by another wife who are defendants 1 and 2. The will is an unprofessional document written in Tamil and its important provisions are as follows. It starts with a preamble in which the testator says:

After my death my properties and debts should, after considering the details mentioned hereunder, be enjoyed.

2. Then he goes on to specify his properties and his debts. Thereafter he makes a legacy to his sister and a small legacy to each of his married daughters, and then he makes provision for the payment of his funeral expenses. Finally there is the last clause which says:

As per the above directions my wife Thulasi Bai should do all acts aforesaid with full rights,

the words in Tamil being Both the Courts below reading the preamble along with the final clause have held that the testator by directing that the properties 'should be enjoyed' as subsequently recited and by directing his wife to 'do all acts aforesaid with full rights' intended to direct that his wife should enjoy all the residue with full powers of ownership. The effect of the interpretation is that, as the widow has now died, the whole of the residue will go to her daughter the plaintiff and not to her step-daughters defendants 1 and 2. Certain principles upon which a will should be construed are 'welt settled. The first principle is that the Court should give effect to the plain meaning of the words used. Secondly if there is any ambiguity, the Court should in interpreting the anguage lean towards carrying out the known intentions of the testator as far as they cart be ascertained from the recitals and from the surrounding circumstances. 'Thirdly in interpreting ambiguous,words the Court; should bear in mind the presumption that the testator was not likely to intend to create an intestacy regarding the residue of the estate. Fourthly the Court should not strain the language of the will either in order to give effect to the apparent intention of the testator or in order to prevent an intestacy. Finally, the Court has no power to insert in the will a disposition, which is missing, however desirable that disposition may be. Bearing these principles in mind, I shall endeavour to construe this will. The final clause isolated from its context would naturally be interpreted as doing nothing more than making the widow the executrix of the will with full powers to carry out the directions therein. The preamble taken alone cannot be held to indicate in any way who should enjoy any of the properties. These two clauses were not juxtaposed but are separated by recitals of some length. Even if we read them together I find it very difficult to read into the preamble a disposition in favour of the widow merely by virtue of the direction in the final clause that 'she should do all acts aforesaid with full rights'. Granted that the words 'sarva swathanrathndan' taken in conjunction with a verb indicating ownership would have the effect of making that ownership absolute, when taken in conjunction with a verb indicating merely management or administration, I do not think they could have the effect of converting that management into ownership. After all the preamble about the enjoyment of the property is couched in the vaguest possible terms and does not convey to my mind the impression that it was intended to be a disposing clause. Moreover its very position before the recitals of the extent of the estate and before the specific legacies is inconsistent with the theory that it, was intended to make a disposition in the preamble in favour of the person specified in the final clause, I have very little doubt that what has happened has been that owing to the unskilled draftsmanship of this will, there was a complete omission to dispose of the residue. Conceivably that omission might have been intentional, for the widow even in an intestacy has the right to enjoy and has in fact enjoyed the residue for the whole of her lifetime and the only practical effect of the omission has been not to create a preference in favour of the minor daughter as compared with the married daughters. More probably as the lower Courts have inferred, the omission was due to inadvertence. But I am learly: of opinion that there is no disposition of the residue in. favour of the widow and the result must therefore be an intestacy with the consequence that the plaintiff cannot claim to be solely entitled to the property which her mother enjoyed during her life. The residue will be divisible between the three daughters in equal shares. In this view, I allow the appeal with costs throughout and dismiss the plaintiff's suit.

3. Leave to appeal is refused.


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