Case: Bajrang Factory Ltd. &amp; Another Vs. University of Calcutta &amp; Others

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, 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. ( Ramachandra Shenoy v. Hilda Brite Mrs ) 41. To the same effect are the judgments of this Court in Arunkumar and Another v. Shriniwas and Others [(2003) 6 SCC 98] , Uma Devi Nambiar and Others v. T.C. Sidhan (Dead) [(2004) 2 SCC 321] , Sadhu Singh v. Gurdwara Sahib Narike and Others [(2006) 8 SCC 75] and Gurdev Kaur and Others v. Kaki and Others [(2007) 1 SCC 546] . 42. In Halsburys Law of England, 4th Edition,, Vol. 50, at pg 332, it was stated:: The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction is that the testators intention is collected from a consideration of the 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 testators 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 invalidate 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 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 12 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-à-vis clause 6, but the court may not start with construction of clauses 6 and 7, which may 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 original legatee. We do not find any reason as to why the same cannot be 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, 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. 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 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) 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 matter that Clause 12 does not attract Section 129 of the Act since both the clauses, i.e., 5 and 7 are valid as observed hereinbefore. 47. For the reasons aforementioned, there

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]are of the opinion that the decision relied upon by Mr. Sundaram on Margaret Goonewardens (supra) 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.