Paragraph numbers below are the court’s original numbering, recovered from the source text.
28. While making the bequest on the aforementioned terms, the limited A power to transfer the said l-~queathed property had also been conferred upon him. For all intent and purport it did not confer any power of absolute transfer. It, in effect and substance, merely provided for conversion of the property. Such conversion of the property was to be made strictly in the manner as laid down therein. As regard the purported transfer of the properties in suit by B the legatee, two questions would arise: (a) What would be the effect of non-conversion of such properties by purchase of immovable properties in Calcutta or the suburbs. (b) Whether Clause 7 of the Will only refers to the properties so transferred only on one of the appointees of the testator.
29. It is one thing to say that non-compliance of conditions contained in Clause 6 of the Will would not invalidate the transfer, but it is another thing to say that the said provision contemplated illegality in the transaction. If the transaction is void or voidable at the instance of the beneficiary to the Will, no further question need be asked. Courts in the event of its findings that D the transactions are illegal, would have to proceed on the basis that the same had not taken place at all.
30. At this juncture, this Court is not concerned with the other allegations made by the University as to whether the deed of sale executed by the legatee was invalid or not, inasmuch as the preliminary issue raised is confined to the E · question of validity of the will.
31. What would be the effect of a sale if the sale proceeds have not been applied for purchase of immovable property is also a question which would fall for consideration of the High Court at an appropriate stage. It goes F without saying that it would be open to the High Court to consider as to whether a suo motu action or at the instance of the University can be taken as the conditions for grant of probate have been violated. We, however, need not apply our mind to the said question.
32. We may, furthermore, notice that the word 'devise' in the context of G Clause 7 does not appear to be appropriate. The Y:ord 'devise' would inter alia mean a 'plan' or a 'scheme'. What probably the testator meant was to use the word 'desire' and not 'devise'. Clause 7 on a plain reading does not appear to be a clause, in terms whereof, the testator was bequeathing any property in favour of any person. It thereby merely conferred a right upon the legatee and only a desire was expressed by the testator in regard to the H [2007) 7 S.C.R. A legatee's exercise of power of option. c
33. Clause 7, therefore, may not have any application for the purpose of construction of the Will ..
34. However, it is not in dispute that Clause 12 contained in the Codicil shall prevail over the Will. Clause 12 of the Codicil did not substitute Clauses 5, 6 and 7. As indicated hereinbefore, the Codicil was to be read as a part of the Will and by reason of the said Codicil, the said Clauses of the Will were confinned by the testator. In our opinion, by reason of the Codicil, the testator expressed his intention clearly to the effect that in the event the legatee does not have any issue or he does not adopt anybody as his son or otherwise appoint a person provided for in Clause 5, the bequest would be in favour of the Calcutta University. The desire of the testator apparently was to perpetuate the memory of his ancestors. Bequest in favour of the Calcutta University was meant to achieve a particular purpose which has clearly been stated in Clause 12 of the Codicil.
35. The principles of construction of Will are well.known.
36. Lord Russell in Margaret Goonewardens v. Eva Moonema/e Goonewardene and Ors., AIR (193 l) PC 307 was considering a bequest made by the testator which was in the following tenns: "(g) The rest and residue of my cash found in my possession at the time of my demise and also the money in deposit to my credit in my No. 1 account in the Mercantile Bank of India Limited Galle, in the Bank of Madras Colombo, in the Government Savings Bank and in the Post Office Savings Bank and the amount of my Policy of Insurance together with the profit thereof and all other moveable property absolutely to my said wife Margaret."
37. The testator, thereafter, made a Codicil in terms whereof the pecuniary legacy to a servant in respect of certain house was made which contained these words: "Save as hereby altered or modified I hereby confinn the said Will".
38. A question arose therein as to whether a sum of Rs. 2, 14,200/- to which amount the testator became entitled to from the moneys invested on mortgage bonds or promissory notes passed under the bequest of the legacy or under the gift of all other immovable property. The Judicial Committee …… ~ -• \–" opined: BAJRANG FACTORY LTD. v. UNIVERSITY OF CALCUIT A [S.B. SINHA, J.] " … .It is well settled in e'llgland that by virtue of S.34, English Wills Act, the effect of confinning a Will by codicil is to be bring the Will down to the date of the codicil and to effect the same disposition of the testator's property as would have been effected if the testator had at the date of the codicil made a new will containing the same B disposition as in the original will but with the alterations introduced by the codicil"
39. In Pearley Lal v. Rameshwar Das, [1963] Supp 2 SCR 834, Subba Rao, J. opined: c " ….. Where apparently conflicting disposition 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 D lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted; in the event that happened it would not bring about intestacy, as the defeasance E clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will, though his son had predeceased his wife."
40. In Navneet Lal Alias Rangi v. G,okul and Ors., [1976] I SCC 630, this Court held: "8. From the earlier decisions of this Court the following principles, inter alia, are well established: "(I) 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 are to be considered; but that is only for the purpose of finding out the intended meaning of the words which c (2007] 7 S.C.R. have actually been employed. (Ram Gopal v. Nand Lal) (2) In construing the language of the will the court is entitled to put itself into the testator's annchair (Venkata Narasimha v. Parthasarathy) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense … But all this is solely 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. (Venkata Narasimha case and Gnanamba/ Amma/ v. T. Raju A;yar) (3) 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. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer) (4) 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 expressions 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 any such hiatus. (Pearey Lal v. Rameshwar Das) (5) 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, ifthere 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. (Ramachandra Shenoy v. Hilda Brite Mrs)" ;… … …, ~..; -~ ~ BAJRANG FACTORY LTD.''· UNIVERSITY OF CALCUTT A (S.B. SINHA. J.) ….
41. To the same effect are the judgments of this Court in Arunkumar A and Anr. v. Shriniwas and Ors., [2003] 6 SCC 98, Uma Devi Nambiar and Ors. v. T.C. Sidhan, (Dead)[2004] 2 SCC 321, Sadhu Singh v. Gurdwara Sahib Narike and Ors., [2006] 8 SCC 75 and Gurdev Kaur and Ors. v. Kaki and Ors., [20011 l sec 546].
42. In Halsbury's Law of England, 4th Edition,, Vol. 50, at pg 332, it was B stated:: "The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction is that the testator's intention is collected from a consideration of the c whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention. For this purpose, the will and all the codicils to it are construed together as one testamentary disposition, but not as one document, and the testator's intention is gathered from the whole disposition." _,,
43. With a view to ascertain the intention of the maker of the Will, not only the terms thereof are required to be taken into consideration but all also circumstances attending thereto. The Will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the Will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to inv'!lidate the same.
44. In construing a will, no doubt, all possible contingencies are required to be taken into consideration; but it is also a well-settled principle of law that only because a part of a document is invalid, the entire document need not F be invalidated, if the former forms a severable part. The legatee admittedly did not have any issue, nor did ·he adopt or appoint any person. In a situation of this nature, effect can be given to clause I 2 of the will, if it is read as occurring immediately after Clause 5 of the original will. As the said clause stands on its own footing, its effect must be considered vis-a-vis clause 6, but the court may not start with construction of clauses 6 and 7, which may G lead to a conclusion that clause 5 is also invalid. The contingencies contemplated by clause 6 may not have any effect on clause 7, if it does not take place at all. The property which should have been purchased with the sale proceeds could have been the subject-matter of the bequest and in terms thereof the University of Calcutta became the beneficiary on the death of the H original legatee. We do not find any reason as to why the same cannot be [2007) 7 S.C.R. A given effect to. We have indicated hereinbefore that it is possible to construe clause 7 of the will and in fact a plain reading thereof would, thus, lead to the conclusion that it merely provides for an option given to the legatee to take recourse thereto. We have also indicated hereinbefore that the term 'device' in the context of clause 7 does not carry any meaning and, therefore, B the same for all intent and purport should be substituted by the word 'desire'. As a matter of fact, the appellant in the copy of the will supplied to us had also used the word 'desire' in place of the word 'device', which would also go to show that even the appellant understood clause 7 in that fashion. Clause 7, if so read, will have no application to the properties which were to be substituted in place of the immovable properties belonging to the testator. C The benefit of the sale proceeds, thus, in absence of any action on the part of the legatee in terms of clause 7 shall also vest in the University. Moreover, the question as to whether the deed of sale purported to have been executed by the legatee in favour of Chamong Tea Co. Ltd .. or other instruments executed by him in favour of the appellants herein are pending consideration D before the High Court which may have to be determined on its own merit. In the event, the said transactions are held to be void, the question of giving any other or further effect to clause 6 of the Will may not arise.
45. In view of the findings aforementioned, we are of the opinion that the decision relied upon by Mr. Sundaram on Margaret Goonewardens (supra) E cannot be said to have any application in the instant case, as in view of our findings aforementioned, clause 5 of the will is not hit by Section 113 of the Indian Succession Act
46. The submission (iv) of the appellant fails in view of the m:!tter that Clause 12 does not attract Section 129 of the Act since both the clauses, i.e., F 5 and 7 are valid as observed hereinbefore.
47. For the reasons aforementioned, there is no merit in this appeal which is accordingly dismissed with costs. Counsel's fee is quantified at Rs.50,000/-
48. We would request the High Court to consider the desirability of disposing of the suits filed by the parties hereto, as expeditiously as possible, keeping in view the fact that they are pending for more than 28 years from now. vs Appeal dismissed.