Case: Ramachandra Shenoy And Another Vs. Mrs. Hilda Brite And Others

1. This appeal by special leave raises for consideration a very short but by no means an easy question regarding the proper construction of a will2. The testatrix was an Indian Christian lady of the Roman Catholic faith Mrs. Mary Magdelene Coelho. She was a widow and was possessed of considerable properties in respect of which she had previously executed settlements in favour of her children. The will whose construction falls for determination was executed on July 25, 1907 and related to the properties still remaining with her after these settlements. She had originally four daughters, but by the date of the will only two of them were alive - her eldest Severina Sabina Brito and her second Mary Matilda Coelho. The other members of her family then alive and to whom it is necessary to refer were a grand-daughter-Julia Mary Margaret Fernandez by her deceased 4th daughter and four sons of the eldest daughter-Severina. It may be added that the third daughter who died before 1907 left no issue. We might now proceed to the terms of the will. The relevant clause whose interpretation is the subject of debate in this appeal is its Cl. 3 (c)3. Clauses 1 and 2 are in the nature of an introduction, contain no disposition but are merely a narration of facts etc, and therefore not material to be set out. The dispositive portion of the will starts with Cl. 3. This consists of 3 sub-clauses. Sub-clauses (a) and (b) describe certain immovable properties which not having been included in the previous settlements, remained at the disposal of the testatrix and sub-cl. (c) proceeds to effectuate a disposition of these items and of all other movable properties that she might die possessed of4. We ought to mention that the original will is in the Canarese language and there has been some dispute as regards the correct translation of this relevant clause. We shall now set out the official translation which is included in the printed record and refer later to the other translations submitted to us and to the arguments based upon them. Clause 3 (c) which effects the disposition now to be construed reads: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 movable properties inclusive of the amounts that shall be got 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 right..... The rest of it is not very material and is omitted. There are a few other clauses in this will which have been referred to by learned counsel in their arguments before us and also in the Courts below as furnishing aids to the construction of the disposition in Cl. 3(c) . These are the Cls. 4 and 5 and they run:4. The bagaitu hithlu land.. ... ... and the house situated therein... and the buildings, shops, etc., attached thereto:- these my second daughter, Mary Matilda Coelho should enjoy up to her death only; and further, she should not alienate them in any manner by way of gift, sale, mortgage, etc. After the lifetime of the said daughter of mine, viz., Mary Matilda Coelho, the property should be enjoyed by the daughter of my fourth daughter, Mary Margaret, i. e. of Julia Mary Margenta Fernandez hereditarily and with permanent right. In the said property, the said Julias father and his heirs have no manner of right whatsoever.5. If the said Julia does not marry or if she has no issues, the said Julia should enjoy the said property up to her death and thereafter this property of mine should be enjoyed by my eldest daughter, Severina Sobina Coelho and after her by her male descendants with permanent rights5. Before proceeding to deal with this matter, it would be convenient to set out how the question comes before us. This appeal arises out of a suit for partition and separate possession filed in September, 1946 by the widow and daughter of Denis-one of the sons of Mrs. Severina Sabina and relates to the property measuring 1 acre 37 cents with houses, and structures thereon which is part of the property covered by Cl. 3. We ought to mention that Severina died on February 14, 1946. It is the case of the plaintiffs that Severina acquired under the terms of Cl .3(c) only a life interest in that property and that the remainder in absolute was conferred upon her male issues. On the other hand, the construction put forward by the contesting defendants who claim under a purchaser in a Court sale in execution of a decree against Severina is, that on a proper interpretation of the clause what was conferred on Severina was an absolute interest in the property as a result of which the entire interest in the property and not merely her life interest passed under the Court auction, and that consequently the claim for partition had to fail. Both the learned Trial Judge as well as the District Judge on appeal upheld the construction contended for by the defendants and dismissed the suit. On further appeal to the High Court the learned single Judge reversed this decree and decreed the suit holding that the daughter Severina obtained only a life interest in the property covered by Cl .3. It is the correctness of this construction that is challenged by the contesting defendants- the appellants before us.

Reasoning: 14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. 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. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions.