eal No XIII of 1950
Appeal from a judgment and decree of a Division Bench of the Madras High Court Wadsworth and Rajamannar JJ dated 27th November 1945 in Appeal No 518 of 1941 reversing the judgment of the Subordinate Judge of Mayuram dated 10th July 1944 in Original Suit No 34 of 1943
B Somayya R Ramamurti with him for the appel lant
951 KS Krishnaswami Aiyangar K Narasimha Aiyangar with him for respondent No 1 1950
December 21
The Judgment of the Court was delivered by MUKHERJEA J
This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated November 27 1945 reversing the decision of the Subordinate Judge of  Mayuram made in Original Suit No 34 of 1943
There is no dispute about the material facts of the case which lie within a short compass and the controversy centers round one point only which turns upon the construction of a will left by one Kothandarama Ayyar to whom the properties in suit admittedly belonged
Kothandarama who was a Hindu inhabitant of the District of Tanjore and owned considerable properties died on 25th April 1905 leaving behind him as his near relations his adoptive mother Valu Ammal his widow Parbari and two daughters Nagammal and Gnanambal of whom Nagammalwho became a widow during the testator s life time had an infant daughter named Alamelu Kothandarama executed his last will on 13th March 1905 and by this will the genuineness of which is not disputed in the present litigation he gave an authority to his widow to adopt unto him a son of his second daughter Gnanambal should she beget one before January 1908 or in the alter native any of the sons of his two nephews if the widow so chose
The suit out of which the appeal arises was commenced by Raju Ayyar who was a son of the testator s nephews and was taken in adoption by the widow in terms of the will and it was for recovery of possession of certain properties known as Kothangudi properties which formed part of the testator s estate on the allegation that under the will mentioned above these properties were given to Nagarnmal the wid owed daughter of the testator for her life time but as there was no disposition of the remaining interest after the death of the life tenant the properties vested in the 952 plaintiff as the adopted son and heir of the deceased on the death of Nagammal which took place on 3rd of January 1943
Gnanambal the second daughter of the testator was the first and main defendant in the suit and she resisted the plaintiff s claim primarily on the ground that there was no intestacy as regards the suit properties after the termina tion of the life interest of Nagammal and that under the terms of the will itself she was entitled to get these properties in absolute right after the death of Nagammal subject to payment of a sum of Rs 5000 to Alamelu the daughter of Nagammal
Alamelu was made the second defendant in the suit and as she died when the suit was pending in the trial court her heirs were impleaded as defendants 3 to 9
The first court accepted the contention of the defendant No 1 and dismissed the plaintiff s suit
On appeal to the High Court the judgment was reversed and the plaintiff s claim was allowed
The defendant No 1 has now come up appeal to this court
To appreciate the contentions that have been raised by the parties to this appeal it would be convenient first of all to refer briefly to the relevant provisions of the will After cancelling his previous wills
the testator in the third paragraph of his will gave his widow authority to adopt a son
She was to adopt the son of Gnanambal if the latter got a son previous to January 1908 or she could adopt any of the sons of the testator s nephews
Paragraph 4 provides that if the first course is followed that is if the son of Gnanambal is adopted by the widow then all the properties movable and immovable belonging to the testator excepting the village of Kothangudi the house at Injigudi and the other properties which were disposed of by the will would go to such adopted son
Paragraph 5 which is materi al for our present purposes runs as follows The whole village of Kothangudi and the house at Injigudi both of Nannilam Taluk my daughter Nagammal shall enjoy with life interest and after her the said property shall pass to my daughter Gnanambal and her chil dren on payment by the latter of Rs 5000 to Alamelu Nagam mal s daughter
 953 By the sixth paragraph the Nallathukudi and Pungavur villages together with certain house property at Mayavaram are given to the testaor s adoptive mother and wife in equal shares to be enjoyed by both of them during their life time and after their death they are to pass on to the adopted son
Paragraph 7 gives a small huse absolutely to Nagammal for her residence and paragraph 8 makes certain provisions for management of the properties
In paragraph 9 direction is given to collect the money due on the insurance policy on the life of the testator and to pay off his debts
Pragraph 10 mentions certain charities the expenses of which are to be derrayed from the income of the Nallathukudi properties
Paragraph 11 then says that in the event of the widow adopt ing any of the nephew s sons of the testator such son shall inherit the entire property at Kokkur and also the lands of Nallathukudi after the death of the testator s wife and mother
By paragraph 12 the village of Maruthanthanallur is given to Gnanambal and paragraph 13 provides that the village of Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5 By paragraphs 15 and 16 the remainder in the house at Mayavaram situated in the east row of Vellalar kovil Street is given to Gnanambal after the death of the testator s wife and mother
Paragraph 18 provides for cer tain other charities
In paragraph 20 it is stated that if the wife of the testator should die before January 1908 without making any adoption then the eldest or any son of Gnanambal would be his adopted son without any formality and inherit all the properties subject to the conditions men tioned in the will
Paragraph 21 which is the penultimate paragraph in the will further lays down that if all the three contingencies fail and no adoption is taken the male child or children born to Gnanambal shall inherit as grand sons all the properties of the testator subject to the conditions specified in the will
These in brief are the dispositions made in the will
The plaintiff founds him claim upon paragraph 13 of the will which according to him contains the enire disposition so far as the Kothangudi 954 property is concerned
That village is given to Nagarm mal for her life with no disposition of the remaining inter est
If the remainder has not been disposed of there is no doubt that the plaintiff would be entitled to the property as the heir of the testator under the ordinary law of inher itance
The defendant No 1
on the other hand relies on para graph 5 of the will which gives the Kothangudi village and the Injigudi house to Nagammal to he enjoyed by her so long as she lives and after her death they are to go to Gnanambal and her children subject to the payment of a sum of Rs 5000 to be paid to Alamelu the daughter of Nagammal
The High Court on a construction of the will has found in favour of the plaintiff primarily on the ground that in the contingency which happened in the present case viz that the widow took in adoption a nephew s son of the testa tor paragraph 5 of the will did not come into operation at all
The disposition as regards Kothangudi property is therefore to be found exclusively in paragraph 13 of the will and the actual words employed by the testator in that paragraph do not indicate that apart from Nagammal s taking a life estate in the Kothangudi village the rest of the provisions in regard to this property as laid down in para graph 5 would also be incorporated into paragraph 13
An Obvious difficulty according to the learned Judges in accepting the construction sought to be put upon the will by defendant No 1 is that paragraph 5 speaks both of Kothan gudi and Injigudi properties whereas paragraph 13 does not mention the Injigudi house at all nor does it purport to give a life interest in the same to Nagammal
It could not be reasonably held on a construction of the will that the intention of the testator was that Gnanambal was to pay Rs 5000 to Alamelu for the Kothangudi property alone
The result was that the plaintiff s claim was allowed
It is the propriety of this decision that has been challenged before us in this appeal
In course of the arguments we have been referred by the learned Counsel on both sides to quite a large 955 number of decided authorities both English and Indian in support of their respective contentions
It is seldom prof itable to compare the words of one will with those of anoth er or to attempt to find out to which of the wills upon which decisions have been given in reported cases the will before us approximates closely
Cases are helpful only in so far as they purport to lay down certain general princi ples of construction and at the present day these general principles seem to be fairly well settled
The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the intentions of the testator
This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised
In construing the language of the will as the Privy Council observed in Venkata Narasimha vs Parthasarathy 1 the courts are entitled and bound to bear in mind other matters than merely the words used
They must consider the surrounding circumstances the position of the testator his family relationship the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure The court is entitled to put itself into the testator s armchair  
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
So soon as the con struction is settled theduty of the court is to carry out the intentions as expressed and none other
The court is in no case justified in adding to testamentary dispositions
In all cases it must loyally carry out the will as properly construed and this duty is universal and is true alike of wills of every nationality and every religion or rank of life A question is sometimes raised as to whether in constru ing a will the court should lean against 1 42 IA 51 at p70
956 intestacy
The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court
It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambiguity in acertainment of the intentions of the testator
As Lord Justice Romer observed in Re Edwards Jones vs Jones 1 it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning
It is in the light of the above principles that we should proceed to examine the contents of the will before us
The present will which is the last of four testamentary document executed by the testator appears to have been prepared with a great deal of care and circumspection
The testator had clearly in mind the different situations that might arise in case his widow adopted either Gnanambal s son or a son of one of the nephews of the testator
He envis aged also the possibility of the widow dying without making any adoption at all
Besides the son to be adopted the only other relations who had natural claims upon the affection and bounty of the testator and for whom he desired to make provisions were his wife his adoptive mother the two datughters and the infant grand daughter
The interests given to his wife the adoptive mother and the eldest daugh ter who were all widows were for their life time except a small house property which was given absolutely for the residence of the eldest daughter
On the other hand the bequests in favour of Gnanambal who was a married daughter and the adopted son of the testator were absolute in their character
Besides these dispositions there were certain gifts for charity which were to be met out of the income of the properties given to the wife and the adoptive mother for their lives
One singular feature 1 19061 Ch 570 at p 574 957 in the will is that the testator took scrupulous care to include in it every item of property that he owned
There are two provisions in the will relating Kothan gudi property to which the dispute in the present suit relates
One is in paragraph 5 which gives this property along with the house at Injigudi to Nagammal the remainder being given to the appellant subject to the payment of a sum of Rs 5 000 to Alamelu the daughter of Nagammal
The other is in paragraph 13 which merely says that Nagammal was to get it for life as stated in paragraph 5
The view taken by the High Court and which has been pressed for our acceptance here by the learned Counsel for the respondents is that paragraph 5 was meant to be operative only if Gna nambal s son was adopted by the widow
As that was not done paragraphs 4 to 8 of the will it is urged will go out of the picture alttgether and it is not permissible to refer to them except to the extent that they were impliedly incorporated in the subsequent paragraphs of the will
We do not think that this is the correct way of reading the document
The testator undoubtedly contemplated different contingencies but a reading of the whole will does not show that he wanted to make separate and self contained provisions with regard to each of the contingencies that might arise and that each set of provisions were to be read as exclusive of the other set or sets
That does not appear to be the scheme of the will
The testator s main desire undoubtedly was that his widow should adopt the son of his daughter Gnanambal and in the first part his will after making provisions for his two daughters his wife and adoptive mother and also for certain charities he left the rest of his properties to the son of Gnanambal that was to be adopted by his widow
In the second part of the will which is comprised in paragraphs 11 to 16 the testator sets out the modifications which he desires to make in the earli er dispositions in case a son of one of his nephews was adopted by the widow
It was not the intention of the testa tor that on the happening of the second contingency all 958 the earlier provisions of the will would stand cancelled and the entire dispositions of the testator s property would have to be found within the four corners of paragraphs 11 to 16 of the will
In our opinion the provisions made for the two daughters the widow and the adoptive mother as made in paragraphs 5 6 and 7 of the will and also the provisions for charities and payment of debts contained in paragraphs 9 and 10 were meant to be applicable under all the three contingencies referred to above
This is clear from the fact that provisions of paragraphs 7 9 and 10 have not been repeated or incorporated in paragraphs 11 to 16 although it cannot be suggested that they were not to take effect on the happening of the second contingency
Again in the third contingency contemplated by the testator which is described in paragraph 20 it is expressly stated that if no adoption is made the eldest or any son of Gnanambal would inher it the properties and he shall take the properties subject to the conditions mentioned in the will
The conditions spoken of here undoubtedly refer to the provi sions made for the mother wife and the two daughters of the testator as well as in respect to payment of debts and carrying out of the charities specified in paragraph 10
The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son
Under paragraph 4 of the will the adopted son was to get all the p roperties of the testator with the exception of those given to the two daughters the mother and the wife
Under paragraph 11 if the adoption is of a nephew s son of the testator the adopted son gets only the Kokkur properties and the reversionary interestin Nallathukudi village after the death of the testator s wife and mother
The village Maruthanthanallur which would go to the adopted son under paragraph 4 is taken away under para graph 11 and is given to Gnanambal
She is also given the remaining interest in the Mayavaram house which was given to the adopted son under paragraph 6
Subject to the changes thus made the provisions 959 of paragraphs 5 6 and 7 would in our opinion still remain operative even if the person adopted was a nephew s son of the testator
No change is made in paragraphs 11 to 16 with regard to the provision in paragraph 5 of the will
In paragraph 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5
It may be conceded that this statement by itself does not let in the entire provision of paragraph 5 but that is not material for our present purpose
It is enough that para graph 5 has not been changed or altered in any way
The statement in paragraph 13 may after all be a loose expres sion which the testator used only for the purpose of empha sising that the Kothangudi village would be enjoyed by Nagammal even if Gnanambal s son was not adopted
This is not by way of making any new disposition but only to affirm what has been already done
The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest
It is somewhat difficult to say why the rest of the provisions in paragraph 5 particularly the benefit that was meant to be given to Alamelu was not repeated in para graph 13
It may be that the testator did not consider it necessary or it may be that it was due to inadvertance
It is to be noted here that the testator did not mention any where in paragraphs 11 to 16 the small house that was given absolutely to Nagamreal under paragraph 7
It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency
If paragraph 5 itself is held to be applicable and in our opinion it should be so held there is no question of adding to or altering any of the words made use of by the testator
It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testator s affection
The provision is in the will itself and it is only a question of interpretation as to whether it is ap plicable in the circumstances which have happened in the present case
The position therefore seems 960 to be that the disposition made in paragraphs 5 6 and 7 which were in favour of the mother the wife and the two daughters of the testator were meant to take effect immedi ately on the testator s death
They were not contingent gifts in the sense of being made dependent upon the adoption of Gnanambal s son by the wife of the testator
Only the reversionary interest in the Mayavaram house which was to vest in the adopted son under the provision of paragraph 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnanambal in case the person adopted was not her own son
If the whole of para graph 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive
No difficulty also arises regarding the payment of Rs 5000 to Alamelu as has been stated by the High Court in its judgment
Having regard to the meticulous care with which the testator seems to have attempted to provide for the differ ent contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the proper ties he owned it is not probable that he would omit to make any provision regarding the future devolution of the Kothan gudi village if he really thought that such direction had to be repeated in the latter part of the will
The omission of the gift of Rs 5000 to Alamelu also cannot be explained on any other hypothesis
It is not necessary for the purpose of the present case to invoke any rule of presumption against
intestacy but if the presumption exists at all it certainly fortifies the conclusion which we have arrived at
The result is that the appeal is allowed the judgment and decree of the of the High Court are set aside and those of the Subordinate Judge restored
The appellant will have costs of all the courts
Appeal allowed
Agent for respondent No 1 M section Krishnamoorthi Sastri


Summary:
It was a contradiction in terms to say that a strike in a public utility service which was clearly illegal could also be justified
The law does not contemplate such a position nor is it warranted by any distinction made by the 
It should be clearly understood by workmen who participate in such a strike that they cannot escape their liability for such participation and any tendency to condone such a strike must be deprecated
The only question of practical importance that arises in such a strike is what should be the kind and quantum of the punishment to be meted out to the participants and that question has to be decided on the charge sheet served on each individual workman and modulated accordingly
In determining the question of punishment distinction has to be made between those who merely participated in such a strike and those who were guilty of obstructing others or violent demonstrations or defiance of law for a wholesale dismissal of all the workmen must be detrimental to the industry itself
If the employer before dismissing a workman gives him Sufficient opportunity of explaining his conduct and no question of mala fides or victimisation arises it is not for the Tribunal in adjudicating the propriety of such dismissal to look into the sufficiency or otherwise of the evidence led before the enquiring officer or insist on the same degree of proof as is required in a Court of Law as if it was sitting in appeal over the decision of the employer
In such a case it is the duty of the Tribunal to uphold the order of dismissal
Consequently in the present case where the appellants who were carrying on business in water transport service notified as a public utility service dismissed their workmen for joining an illegal strike on enquiry but without serving a charge sheet oil 2 each individual workman and the Industrial Tribunal directed their reinstatement excluding only those who had been convicted under section 143 of the Indian Penal Code but including those convicted under section 188 of the Code with full back wages and allowances Held that the decision of the Tribunal to reinstate those who had been convicted under section 188 of the  Code must be set aside and the wages and allowances allowed to those reinstated must be reduced by half and the award modified accordingly
Held further that the  Must be read as subject to the paramount law of the land namely the Constitution and the finality attaching to an award under sections 17 and 17A of the Act must therefore yield to the overriding powers of this Court under article 136 of the Constitution
As the award in the instant case did not fall within the Provisos to section 17 of the Act it was not correct to contend that the appellants had any other remedies thereunder to exhaust before they could come up in appeal to this Court
Nor was it correct to contend that the Government of Assam was a necessary party in the appeal inasmuch as it had acted by virtue of delegated powers of legislation under the Act in making the award enforceable as law
A State Government plays no part in such a proceeding except to make the reference under section 10 of the Act nor has it anything to do with regard to the publication of the award which is automatic under section 17 of the Act or its operation unless the case falls within the provisos to section 17A of the Act
A lock out lawfully declared under section 243 of the Act does not cease to be legal by its continuance beyond the strike although such continuance may be unjustified