Whether court can ignore clear words or add something of its own or dilute meaning of clear word used in Will?

High Court in its judgment has cut down/abridged the
expression 'absolutely' on the ground of mutual intention
of the parties in paragraph 66 of the judgment. High Court,
however,   at   the   same   time   has   held   that   expression
'absolute enjoyment' as employed in the Will as a sort of
comfort   or   cushion   to   the   survivor   who   meets   with   an
unforeseen   or   unexpected   contingencies,   if   any   absolute
necessity arises. Following was stated in paragraph 66:­
“66...we   are   therefore   of   the   view
that   the   said   expression   ‘absolute
enjoyment’ as employed in the Will as
a   sort   of   comfort   or   cushion   to   the
survivor   to   meet   any   unforeseen   or
unexpected   contingencies   if   any
absolute necessity arises but, at the
same   time,   it   cannot   be   stated   that
the bequest in favour of charities is
a   mere   wish   and   an   absolute   interest
was granted in favour of the survivor.
We therefore hold that the meaning of
the   expression   ‘absolutely’   should   be
cut   down   or   abridged   considering   the
mutual   intention   between   the
executants   in   making   the   Will   and
there   are   indications   in   the   Will
itself to curtail the full implication
and   import   of   the   expression
‘absolutely’   when   it   is   used   with
reference to the survivor...”
49. The   intention   in   testamentary   disposition   has   to   be
primarily found out from the actual words used in the Will.
The   court   is   not   entitled   to   ignore   clear   words   or   add
something   of   its   own   or   dilute   the   meaning   of   any   clear
word used in the Will. The solemn duty of the court is to
find out the intention of testator and thereafter to give
effect to such intention. On the reading of the Will, the
intendment   of   testator/testatrix   is   clear   that   survivor
shall have absolute right of enjoyment of properties. There
is no reason not to give effect to said intendment on the
ground   that   the   testator   and   testatrix   have   mutually
intended to set apart the property for charity and holding
that survivor shall have right of disposition be not in the
interest of the trust.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5924 OF 2005
DR. K.S. PALANISAMI(DEAD)
THROUGH LRS.
V
HINDU COMMUNITY IN GENERAL AND
CITIZENS OF GOBICHETTIPALAYAM  
AND OTHERS     
Dated:March 09,2017.
Citation: AIR 2017 SC 1473

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What are the rules for the interpretation of a will if there is an inconsistency between the earlier and latter part of the will?

To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will.

In Kalvelikkal Ambunhi v. H. Ganesh Bhandary (AIR 1995 SC 2491), it was observed that a Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. As observed in Hammond v. Treharne, (1938 (3) All ER

308), if in a Will there are two inconsistent provisions, latter shall prevail over the earlier clause. This is regulated by the well-known maxim "cum duo inter se pugantia reperiuntur in testamenta ultimum ratum est". This principle is also contained in Section 88 of the Act which together with its illustrations, provides as under:

"88. The last of two inconsistent clauses prevails.

- Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.

Illustrations

(i) the testator by the first clause of his Will leaves his estate of Ramnagar to "A", and by the last clause of his Will leaves it to "B" and not to A". B will have it.

(ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.

This rule of interpretation can be invoked if different clauses cannot be reconciled. (See Rameshwar v. Balraj, AIR 1935 PC 187). It is to be noted that rules of interpretation of Will are different from rules which govern interpretation of other documents like sale deed, or a gift deed, or a mortgage deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents, if there is any inconsistency between the earlier or the subsequent part or specific clauses, inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of Will the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails.

Supreme Court of India

Uma Devi Nambiar & Ors vs T.C. Sidhan (Dead) on 11 December, 2003

Bench: Doraiswamy Raju, Arijit Pasayat

Citation; AIR2004SC1772, (2004)2SCC321

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Golden rules for appreciation of evidence for proof of execution of will

It is well-settled that even probate cannot be granted by mere proof of due execution of the Will by the testator and attestation thereof by the attesting witness by the propounder, unless the propounder succeeds in proving that there was no suspicious circumstances leading to the execution of the Will by the testator.

The Hon'ble Apex Court in the decision reported in AIR 1964 SC 529(SASHI KR. BANERJEE & ORS v SUBODH KUMAR BANERJEE) has been pleased to set out the example of suspicious circumstances to the following effect.

(i) That the suspicious circumstances may be as to the genuineness of the signature of the testator.

(ii) It may be the condition of the testator's mind.

(iii) The disposition made in the will have the un- natural, improbable or unfair in the light of relevant circumstances.

(iv) There might be other indications in the will to show that the testator's mind was not fit or free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as last will of the testator.

In fact, the Hon'ble Supreme Court in the case of Navneet Lal alias Rangi V. Gokul & Ors. reported in AIR 1976 SC 794 has given us the guidelines as to how the genuineness of the Will and the testator's mind set at the time of execution of the Will can be judged for ascertaining true intention of the testator for giving his estate to the beneficiaries of the Will and the reasons for exclusion of others from inheriting any part of his estate by way of testamentary succession. The following guidelines were given by the Hon'ble Supreme Court in the decision noted above.

(a) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein.

(b) In construing the language of the will the Court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense-all as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.

(c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.

(d) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like.

Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus.

(e) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interest, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.

It is therefore apparent from the principle laid down by the Hon'ble Apex Court that in construing the language of the Will the Court is required to put itself into the testator's arm chair and is also bound to bear in mind other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.

It is not the wisdom of the Judge that is necessary for actual construction of the Will but learned Judge should place himself in the arm chair of the testator in order to appreciate the desire and intention of the testator in making such Will.

Kolkata High Court (Appellete Side)

Sri Birendranath Paul @ Barendra ... vs Sri Sankar Paul @ Kali Krishna Paul on 26 June, 2015

Present:

The Hon'ble Justice Jyotirmay Bhattacharya
        And
The Hon'ble Justice Debi Prosad Dey

 F.A. 315 of 2005

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Leading Supreme court judgment on interpretation of will

 (1) The following are the established principles for construing the language of the Will.

(a) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein. [927F-G]

(b) In construing the language of the Will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense-all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.

(c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory. 

(d) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of 

the expression inoperative. The court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus. [928C-E] (e) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will. [928E-G]

Supreme Court of India

Navneet Lal Alias Rangi vs Gokul And Others on 9 December, 1975

BENCH:
GOSWAMI, P.K.
MATHEW, KUTTYIL KURIEN
UNTWALIA, N.L.

Equivalent citations: 1976 AIR 794, 1976 SCR (2) 924

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