Case: M.S. BHAVANI AND ANR.  Vs. M.S. RAGHU NANDAN

a clear indication of the creation of an absolute bequest in her favour, while the use of non-mandatory words such as desire indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose. 10.3 We also note that the High Court erred in observing that in the event that a sale was to be made by Nirmala Murthy, both the children would be entitled to a share in the sale proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it. Thus, we do not find that there was any bequest made in favour of the children of the testator under the Will dated 07.06.1995. 10.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequests. We may note the following excerpt from the decision: 4. 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. This is regulated by the well-known maxim cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier (See: Hammond, Re, Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR 903] ). …6. It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled. (See: Rameshwar Bakhsh Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ 1133] ). (emphasis supplied) Here, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator. 10.5 In any case, even if it is assumed that the latter clause went beyond a mere expression of desire and created a bequest in favour of the children of the testator (Appellant No. 1 and Respondent No. 1), the first clause creating an absolute right in favour of Nirmala Murthy shall prevail over such clause. In this regard, the following observations of this Court in Mauleshwar Mani (supra) are relevant: 11. From the decisions referred to above, the legal principle that emerges, inter alia, are: (1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and (2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will. 12. In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid. In the present case the testator Jamuna Prasad under the will had bequest his entire estate, movable and immovable property including the land under self- cultivation, house and groves etc. to his wife Smt Sona Devi and thereafter by subsequent bequest the testator gave the very same properties to nine sons of his daughters, which was not permissible… (emphasis supplied) Notably, these observations were reaffirmed by this Court in Madhuri Gosh (supra) as well. 10.6 Given that we find that an absolute right was given to Nirmala Murthy over the property, in view of the aforesaid decisions, any subsequent bequest sought in favour of the children of the testator cannot be given effect. Further, the reliance of Respondent No. 1 on the decision in Ramachandra Shenoy (supra) is misplaced inasmuch as the Clause in the Will in that case stated thus: 3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death i.e. all kinds of moveable properties inclusive of the amounts that shall be not from others and the cash – all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute interest. Clearly, the clauses in the Will in the present case are significantly different from the aforementioned clause, wherein the daughter was clearly given a life interest only. This is not the case with the right of Nirmala Murthy, which has been expressly stated to be absolute in nature.

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

Explanation:
0[ds]A reading of the above portion of the Will dated 07.06.1995, clearly indicates that the testator sought to provide for the manner in which his wife Nirmala Murthy would have a right to the suit property and how she would deal with the same. In addition to this, he also sought to provide for the manner in which the property may be dealt with by his daughter and son, in the event that his wife did not sell the property during her lifetime. Notably, this second part is not attracted at all in the present case, as Nirmala Murthy sold the suit property during her lifetime9. Since the issue essentially turns on the interpretation of the Will, it would be useful to note certain principles that should be borne in mind while undertaking the construction of a will. At its very core, the exercise involves an endeavour to try and find out the intention of the testator. This intention has to be gathered primarily from the language of the will, reading the entire document as a whole, without indulging in any conjecture or speculation as to what the testator would have done had he been better informed or better advised. In construing the language of a will, the Courts may look to the nature and the grammatical meaning of the words used, and also consider surrounding circumstances such as the position of the testator, his family relationship, and other factors that may surface once the Court puts itself in the position of a person making the will [see Shyamal Kanti Guha (dead) through LRs v. Meena Bose, (2008) 8 SCC 115  ]10. Keeping in mind these principles and upon a close reading of the wording of the Will dated 07.06.1995, we find that the testator intended to give his wife, Nirmala Murthy (Respondent No. 2) absolute rights over the suit property, by making her the sole legal and rightful heir of all his immovable and movable properties10.1 By according Nirmala Murthy the right to sell, mortgage, and lease the house or even to bequeath it to anybody who takes care of her in her last days, it is clear that the testator intended to create an absolute interest in her favour, and to preclude his daughter and son (Appellant No. 1 and Respondent No. 1 respectively) from succeeding to the suit property. This is further supported by the clause stating that the decision of Nirmala Murthy in exercise of these rights would be supreme and the children would have no right to question or put an unjust claim against the same. To this extent, we agree with the finding of the High Court that Nirmala Murthy had an absolute right in the suit property and that the children were disinherited from the bequest10.2 However, we hasten to add here that such right vested with Nirmala Murthy was intended to be completely unfettered in nature. The contention raised by Respondent No. 1 that she only had a life interest in the property as the testator necessarily wanted a sale of the property, cannot be accepted. This is because the part of the Will where the testator states that the house should be sold and sale amount be divided among my daughter and my sonis preceded by the expression it is my desire. Juxtaposed with this, the bequest in favour of Nirmala Murthy is characterized by words such as my wife shall be sole legal and rightful heir over my immovable and movable property and she will have every right and authority to sell, mortgage and lease…. The assertive language used in favour of Nirmala Murthy is a clear indication of the creation of an absolute bequest in her favour, while the use of non-mandatory words such as desire indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose10.3 We also note that the High Court erred in observing that in the event that a sale was to be made by Nirmala Murthy, both the children would be entitled to a share in the sale proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it. Thus, we do not find that there was any bequest made in favour of the children of the testator under the Will dated 07.06.199510.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequestsHere, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator10.6 Given that we find that an absolute right was given to Nirmala Murthy over the property, in view of the aforesaid decisions, any subsequent bequest sought in favour of the children of the testator cannot be given effect. Further, the reliance of Respondent No. 1 on the decision in Ramachandra Shenoy (supra) is misplaced inasmuch as the Clause in the Will in that case stated thus:3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death i.e. all kinds of moveable properties inclusive of the amounts that shall be not from others and the cash – all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute interestClearly, the clauses in the Will in the present case are significantly different from the aforementioned clause, wherein the daughter was clearly given a life interest only. This is not the case with the right of Nirmala Murthy, which has been expressly stated to be absolute in natureIn this regard, we note at the very outset that several observations have been made by the Trial Court and the High Court with respect to the circumstances in which the sale deed was executed, which cast an aspersion on its validity. However, we do not find the need to delve into this question as the same is beyond the scope of the suit filed by Respondent No. 1. Moreover, no prayer for setting aside the sale deed was raised by Nirmala Murthy either. Thus, we shall only confine ourselves to an examination of the sale deed vis-à-vis the Will dated 07.06.199512. Notably, the High Court found that the sale deed was not obtained by fraud or coercion on the part of the Appellants. However, it was held that such a deed was nevertheless unenforceable against Respondent No. 1, as it had been executed in a clandestine manner without his concurrence or consultation. The High Court found that a transparent process of sale of the property by Nirmala Murthy was integral to the intention of the testator, as he had clearly expressed a desire for his son to get a share of the sale consideration. Thus, it was held that the sale deed in question, having been executed without the knowledge of Respondent No. 1, was against such intention and therefore not binding on him. Upon perusing the record and the wording of the Will, we do not agree with such finding of the High Court12.1 As mentioned supra, the right vested under the Will in favour of Nirmala Murthy was an unfettered and absolute right. There is nothing in the wording of the Will which indicates that the testator necessarily required any subsequent sale, mortgage, or lease carried out by Nirmala Murthy to happen with the concurrence or consultation of his children. In fact, when one looks to the circumstances and the family relationship between the testator and his son, it becomes clear that their relations were strained. This is particularly reflected in Ex. P-17, a letter addressed by Nirmala Murthy to her son, Respondent No. 1 herein, where she specifically alludes to the ill treatment meted out by her son to his sister (Appellant No. 1) and the testator. In light of this, we find that a mere desire for the sale of the property and for the children to get a share in the proceeds therefrom cannot be read as a strict bar on the absolute right vested with Nirmala Murthy to deal with the property as she thought fit12.2 Thus, while it may have been desirable for Nirmala Murthy to carry out the sale transaction with the knowledge of Respondent No. 1, her failure to do so does not strike at the very root of the sale deed. In our considered opinion, interpreting the Will dated 07.06.1995 in a manner that places fetters on the power of Nirmala Murthy to sell the property by mandating consultation with her children would not be in consonance with the wording of the Will. Indeed, it effectively amounts to adding terms to the Will, which is impermissible12.3 In view of this, we find that the sale deed in question was executed in accordance with the Will dated 07.06.1995 and does not violate its terms. Therefore, Respondent No. 1 is also bound by the same and the finding of the High Court in this regard is liable to be set aside. The Appellants have acquired valid title over the suit property by virtue of the sale deed executed by Nirmala Murthy and are therefore entitled to possession of the same.