Case: A.K. Gopalan Vs. The State Of Madras.Union Of India: Intervener

10 were meant to be applicable under all the three contingencies referred to above. This is clear from the foot that provisions of paras 7, 9 and 10 have not been repeated or incorporated in paras 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 para 20, it is expressly stated that if no adoption is made, the eldest or any son of Gnambal would inherit 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 provisions 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 para 10.(14 ) 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 para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son under para6. Subject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in para5. It may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals 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 para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in para 13. It may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 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 para 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 testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 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 immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals 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 para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 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. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi 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. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it 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.

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

Explanation:
1[ds](14 ) 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 para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son underSubject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated inIt may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals 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 para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in paraIt may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 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 para 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 testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 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 immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals 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 para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 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. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi 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. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it 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.