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

2. The factual background to these appeals is as follows:2.1 The suit property was the self-acquired property of one M. Srinivasa Murthy (hereinafter testator) who had purchased it from the Bangalore Development Authority in 1974. He had a daughter namely M.S. Bhavani (Appellant No. 1 herein) and a son namely M.S. Raghu Nandan (Respondent No. 1 herein). Appellant No. 1 initially got married in 1983 and a son named Sameera was born to her. However, her marriage ended in a divorce and she then married one Suresh Babu (Appellant No. 2 herein) in 1994. At such time, her son was about 10 years old2.2 In 2002, M. Srinivasa Murthy died, leaving behind his last Will dated 07.06.1995, written in his own handwriting (holograph) and registered before the Sub-Registrar, Rajajinagar, Bangalore. Under this Will, he had bequeathed the suit property in favour of his wife, Nirmala Murthy (Respondent No. 2 herein)2.3 In exercise of the rights vested in her by the Will dated 07.06.1995, Respondent No. 2 Nirmala Murthy executed a sale deed on 25.02.2004 in favour of the Appellants herein (her daughter and son-in-law) for the sale of the suit property for a consideration of Rs. 16,42,000/- (hereinafter the sale deed). It has been stated that such amount was paid in cash by the Appellants at the time of the execution of the sale deed2.4 Respondent No. 1 herein filed O.S. No. 6341/2006 against his mother Nirmala Murthy (Respondent No. 2), and his sister and brother-in-law (the Appellants herein), seeking a declaration inter alia that his mother and sister were not entitled to execute any sale deed in favour of his brother-in-law, as he had a share in the suit property and the Will dated 07.06.1995 only gave his mother, Nirmala Murthy, a life interest in respect of such property2.5 Later, O.S. No. 1845/2008 came to be filed by the Appellants against Nirmala Murthy seeking her ejectment from the suit property on the ground that she was a mere licensee, who had only been permitted to stay in the property after the sale in 2004, as the Appellants were residing in Australia. It was stated that the Appellants did not wish to continue the said licence in her favour, as she had joined hands with Respondent No. 1 to file O.S. No. 6341/2006 against them2.6 Vide common judgment dated 09.09.2011, the III rd Additional City Civil Judge, Bangalore City partly decreed the suit for declaration, O.S. No. 6341/2006, noting that though the Will dated 07.06.1995 vested absolute rights with Nirmala Murthy in respect of the disposition of the suit property, the sale to the Appellants was vitiated by fraud inasmuch as Nirmala Murthy never intended to sell the property to the Appellants. It was further found that the Appellants had gotten the sale deed executed by misrepresentation by obtaining Nirmala Murthys signatures on the pretext that they were required on her visa applications for travel to Australia. In light of this, it was held that the sale deed did not bind Respondent No. 1, being a fraudulent document against the intention of the testator. Based on such finding, ejectment suit O.S. No. 1845/2008 was also dismissed2.7 In the appeal before the High Court, vide the impugned judgment dated 01.10.2012, it was observed that the nature of the right vested with Nirmala Murthy under the Will dated 07.06.1995 was absolute and she had unfettered powers to sell the property, as long as her discretion was exercised voluntarily. However, the High Court also noted that in the event that a sale was made by Nirmala Murthy, both her children (Appellant No. 1 and Respondent No.1 herein) would be entitled to a share in the sale proceeds. As regards fraud or coercion in the execution of the sale deed, the High Court modified the findings of the Trial Court and observed that there was no material on record to show that Nirmala Murthy had been drugged or threatened at gunpoint so as to execute the sale deed in question. Notwithstanding this, the final relief granted by the Trial Court that Respondent No.1 was not bound by the sale deed, was confirmed on the basis that such sale deed was against the intention of the testator inasmuch as it should have been executed in a transparent manner, after obtaining the concurrence of Respondent No. 12.8 It is against this common judgment that the Appellants have come in appeal before this Court. At this juncture, it may also be noted that Respondent No. 2 Nirmala Murthy passed away during the pendency of the proceedings before this Court.

Reasoning: 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.