Case: Shyamal Kanth Guha (D) Thru Lrs Vs. Meena Bose

2. Interpretation of a Will executed by one Hillol Kanti Guha is in question in this appeal which arises out of a judgment and order dated 13.11.2006 passed by a Division Bench of the Calcutta High Court in First Appeal No. 155 of 2002 affirming a judgment and order dated 24.5.2001 passed by Civil Judge Senior Division, Alipore in Title Suit No. 57 of 2000. The properties in suit belonged to the testator. The parties hereto are a brother, sister and the heirs and legal representatives of the testator. A suit for partition was filed by Meena, the sister of the testator for declaration of title in respect of 50% of the property in question and for partition. The right, title and interest of the parties to the suit indisputably arise for the Will in question.The said Will was executed by Hillol Kanti Guha on 3.4.1985. Hillol Kanti Guha was a bachelor. He had two brothers; Shyamal Kanti Guha and Ujjal Kanti Guha and one sister Smt. Meena Bose, the original plaintiff. He was owner of a dwelling house No. 5/1A, Moore Avenue, Calcutta-40. He had also a bank account as well as shares in the Company.Shyamal Kanti Guha died during the pendency of the appeal in the High Court. His heirs and legal representatives had been brought on record in his place.For the sake of convenience, we heretobelow re-produce the relevant clauses of the Will,Subject as aforesaid, I give, bequeath and devise my 50% dwelling house of No. 5/1A, Moor Avenue, Calcutta to my brother Sri Shyamal Kanti Guha and 50% to my sister Mrs. Meena Bose and after her demise the said brother is entitled to occupy the said premises absolutely.7. I give, bequest and devise, my fixed deposit A/c in my Bank or banks to my brother Mr. Shyamal Kanti Guha 50% and to my other brother Mr. Ujjal Kanti Guha 25% and also to my nephew Sri Jaydeep Basu 25% in total account absolutely.8. I also give bequeath and devise my companys shares in my any company to my brother Mr. Shyamal Kanti Guha 50% and to my sister Meena Basu 25% and also to my other brother Mr. Ujjal Kanti Guha.9. I also give, bequest and devise my Bank Deposit in the Allahabad Bank to my brother Mr. Shyamal Kanti Guha 50% and to my other brother Mr. Ujjal Kanti Guha 25% and to my sister Mrs. Meena Bose 25%.10. If any of my brothers or sister or both of them die during my life time then in such case the heirs of the deceased brothers or sister shall get their respective shares of the deceased absolutely as per above terms.11. Subject as aforesaid, I give, bequeath and devise the rest and residue of my estate to my brother and sisters and nephewsthe Will and in particularly clauses (10) and (11) thereof, both the courts held that bequeath in favour of the respondent – plaintiff was absolute and thus the suit should be decreed.

Reasoning:
There cannot be any doubt whatsoever that in the event of inconsistency between two parts in the Will, the last shall prevail having regard to Section 88 of the Act, but, once it is possible to give effect to both the clauses which although apparently appears to be irreconcileable, the court should take recourse thereto.Section 119 of the Indian Succession Act also speaks about postponement of the date of vesting of legacy when one of the brothers after the death of his sister became entitled to possess a dwelling house absolutely. In our opinion, the testator was of the opinion that the life interested should only be created in favour of his sister Meena Bose. This, however, would not mean as has been contended by Mr. Dave that the suit for partition was not maintainable.