Case: Bajrang Factory Ltd. &amp; Another Vs. University of Calcutta &amp; Others

Construction/ interpretation of a Will executed by one Nerode Chandra Vasu Mullick on 04.03.1932 vis-à-vis certain provisions of the Indian Succession Act (for short the Act), viz., Sections 113, 116 and 129 falls for our consideration in this appeal which arises out of a judgment and decree passed by a Division Bench of the Calcutta High Court affirming a judgment and order dated 2.06.1992 passed by a learned Single Judge of the said Court in Suit No. 866 of 1979 on a preliminary issue raised by the appellants therein as to whether the respondents had any locus to file the suit in questionBefore embarking on the said questions, we may notice the admitted fact of the matterAppellant No. 1 is an existing company within the meaning of the provisions of the Companies Act, 1956. It claims its title in respect of the disputed premises by a lease executed by the Chamong Tea Company Limited as also purchase of a property by a deed of saleThe property in question admittedly belonged to Late Nerode Chandra Vasu Mullick. The legatee under the Will Shri Hamir Chandra Vasu Mullick through whom Appellant No. 1 claims its right, title and interest was his sonThe relevant clauses of the said Will are as under:5. I give all my immovable properties and the said debentures in the Hooghly Docking and Engineering Co. Ltd. to my son the said Hamir Chandra Mullick to hold and enjoy the same during the term of his natural life without impeachment of waste and on the determinator of his life Estate to such one of his sons and grandsons as he may by deed, will or otherwise in writing appoint absolutely and in default of such appointment to his eldest male descendants absolutely. If my son has no male issue, the power of appointment may be exercised by him in favour of his daughters or daughters sonMy son may sell or convert into money any of the properties mentioned in the last foregoing clause but it will be obligatory on him to invest the entire proceed thereof in the purchase of immovable properties in Calcutta on the suburbsMy son shall have the right and I devise that he should settle the said immovable properties on one of his sons for such sons life with remainder to such sons sonIndisputably, the testator executed a Codicil on 4.03.1932 in terms whereof inter alia it was provided:12. If my son has no issue, however distant or adopted son or any issue of such adopted son, my estate shall go to the University of Calcutta for advancement of learning. It is my Will and desire that the University should in that connection suitably perpetuate for the benefit of Hindus only the memory of (1) my father, Hem Chandra Vasu Mullick (2) my mother Vooban Mohini Vasu Mullick (3) my maternal grand father Narendra Kumar Dutt and (4) my maternal grandmother Golap Mohini Dutt and also use my residence no. 12, Wellington Square Calcutta as a Centre of learning to be called after my late fatherWe may, however, mention that the said Codicil, according to the testator, should be read as a part of his last Will and testament dated 4.03.1932 and thereby he also confirmed the said Will and testamentSoon after the execution of the Codicil, the testator died on 7.08.1942 leaving behind his widow, legatee and his daughter-in-law. The legatee under the Will separated from his wife. His wife is said to have remarried. Widow of the testator also passed away. Appellant No. 3 in that situation allegedly was asked to take care of the affairs of the propertiesAn application for grant of probate in terms of the Act was filed before the original side of the Calcutta High Court and by an order dated 15.01.1943, the legatee was appointed as the sole executor and trustee of the Will. Allegedly by a registered indenture dated 27.12.1966, the legatee let out the premises in question in favour of the appellant company, a portion of the premises No. 156, Bipin Behari Ganguly Street, Calcutta (hereinafter referred to as the immovable property) for a period of ten years with the option to renew the same for further four consecutive periods of 10 years each in all for fifty years from the said date on the terms and conditions mentioned thereinIt is not in dispute that Appellant No. 1 paid unto the legatee the agreed rent till 14.07.1973. The legatee, however, purported to have conveyed a portion of the said leasehold by a registered deed of sale in favour of one Chamong Tea Company Limited, subject to the said lease granted in favour of the appellants hereinIndisputably, the legatee died on 18.11.1976 without any issue. He had not adopted any son also. He had also not made any appointment in terms of the said WillRespondent University claiming its right in terms of Clause 12 of the aforementioned Codicil filed an application for grant of a Letters of Administration and by reason of a judgment and order dated 22.08.1977, the said application was allowed. It is stated that pursuant to or in furtherance of the said order dated 22.08.1977 the Registrar of the Calcutta University took over possession of the said propertyThree suits came to be filed thereafter. One of the suit was filed by the appellants herein which was marked as Suit No. 390 of 1978 praying for the following reliefs:a) A declaration that the plaintiff is entitled to possession and/ or to remain in possession and enjoyment of the portions of Baithakhana Bazar being premises Nos. 155, 156, Bepin Behari Ganguly Street and 167 Baithakhana Road Calcutta both within the aforesaid jurisdiction and described in the sketch plan annexed hereto and marked with the letter C and delineated in red and yellow including the right to collect rents issues and profits thereof;b) Perpetual injunction restraining the defendants Nos. 1 and 2 their servants and agents from interfering with or further interfering with or continuing to interfere with or disputing or denying the plaintiffs right to remain in possession and/ or right to possess and enjoy the portions of the said Baithakhana Bazar being premises Nos. 155, 155/1, 155/2, 156, Bepin Behari Ganguly Street, and 167, Baithakhana Road, Calcutta more fully described in the sketch plan annexed hereto and marked with the letter C and delineated in red and yellow including the right to collect rests issues and profits from the occupants of such areas in any manner whatsoeverc) Perpetual injunction restraining the defendants Nos. 1 and 2 from collecting or attempting to collect the rents issues and profits from the aforesaid portions of the Baithakhana Market of which the plaintiff is the lesseed) If necessary, possession of the said portions of the Baithakhana Bazar being premises Nos. 155, 155/1, 155/2, 156, Bepin Behari Ganguly Street, and 167, Baithakhana Road, Calcutta more fully described in the letter C and delineated in colour red and yellowRespondent No. 1 herein also filed a suit in the original side of the Calcutta High Court on or about 15.11.1979 which was marked as Suit No. 864 of 1979 praying for the following reliefs:a) A declaration that the sale purported to have been effected in respect of premises Nos. 155,155/1,155/2, Bepin Behari Ganguly Street, Calcutta by the Deed of sale dated 29th May 1971 executed by Hamir Chandra Vasu Mullick in favour of the Chamong Tea Company Ltd. The defendant No. 1 is void or voidable and of no effect as stated in paragraph 25 of the plaint.b) That the aforesaid Deed of Sale deed 29th May 1971 executed by Hamir Chandra Vasu Mallick in favour of the Chamong Tea Company Ltd. The defendant No. 1 delivered up and cancelled and/ or adjudged void as stated in paragraph 25 of the plaintc) A declaration that the deed of lease dated 24th July 1972 in respect of premises No. 155, 155/1, 155/2, Bepin Behari Ganguly Street, Calcutta executed by the Chamong Tea Company Ltd. the defendant No. 1 in favour of Bajrang Factory Ltd. the defendant no. 2 is void or voidable and of no effect as stated in paragraph 26 of this plaintd) That the aforesaid deed of lease dated 24th July 1972 executed by the Chamong Tea Company Ltd. The defendant No. 1 in favour of Bajrang Factory Ltd. The defendant No. 2 be delivered up as stated in paragraph 26 of this plainte) In the alternative a declaration that the said sale and said lease dated 29th May 1971 and 24th July 1972 respectively as referred to in prayers (a), (b)(c) and (d) are not valid beyond the life time of the said Hamir Chandra Vasu Mallick, deceased as stated in paragraph 25 and 26 of this plaintf) A decree for declaration that the University of Calcutta is the absolute owner of the said premisesg) Perpetual injunction restraining the defendants Nos. 1 and 2 from collecting rents, issue and profits from the tenants in occupation of the said premisesh) perpetual injunction restraining the defendants Nos. 1 and 2 and their servants agents and assigns from transferring assigning or otherwise dealing with or taking any or any further steps or action for enforcement of the said deed of sale and deed of lease dated 29th May 1971 and 24th July 1972 respectively or any alleged right thereunder as against the plaintiff No. 1It appears that the aforementioned Chamong Tea Company Limited had also filed a suit16. In the suit filed by Respondent University, the appellants raised two issues in regard to the validity of the Will, which are as under:(a) Whether the dispositions in regard to the residuary estate made by the said Will are void save and except the life interests given thereby to the plaintiffs and the defendant Susan Sopher(b) Whether subject to the life interests given in the residuary estate to the plaintiff and the defendants Susan Sopher the said Plaintiffs and the defendant Susan Sopher have succeeded to the residuary estate of the testator as on a intestacyThe said issues were taken as preliminary issues. According to the appellants, the bequeath of the property in terms of Clauses 5, 6 and 7 of the original Will, as amended by the Codicil dated 4.03.1932 was void in terms of Section 113 of the Act. The learned Judge opined:The right created in favour of Hamir Chandra Basu Mallick was only a life estate and his power or appointing certain specified person was in respect of the entire estate absolutely. Under the circumstances the provision of Section 113 had no application in as much as Hamir had no choice of curtailing the interest from the remaining of the testators interest. Hamir had no right to cut down the absolute estate as such neither the provisions of Section 113 nor Section 114 are attracted. Section 116 had no application. The right created in favour of the University of Calcutta could only be defeated, if Hamir had any issue either natural born or adopted. Clause 12 of the Codicil should override clause 5 of the Will. The question of appointment by Hamir Chandra Basu Mallick could only arise provided he had issues either natural born or adopted. The clause 7 in the Will is only directory and not imperative. Under the circumstances there is no clause of defeasance and the legatee as contemplated would take the entire estate of the testator is an unfetter formIn view of the facts and circumstances of this case and in view of the various principles of law as laid down in the cases discussed above this Court is of the view that the preliminary point raised by the defendants in the suit must be answered in the negative in as much as this Court is of the view that the University of Calcutta is entitled to file the suits and proceed with the sameAggrieved by and dissatisfied therewith, the appellants preferred an intra-court appeal before the Division Bench of the Calcutta High Court. By reason of the impugned judgment dated 14.02.2003, the said appeal has been dismissed holding:After considering the respective submissions of the parties and the entire materials on record we do not find any reason to interfere with the impugned judgment and order of the Trial Court as we agree with the view of the Trial Court that the bequest of the property in favour of the University of Calcutta is not void and therefore the University is entitled to file the suit. It has been rightly contended by the learned counsel appearing on behalf of the respondent, University of Calcutta, that in the matter of interpretation of the Will, the Court is required to ascertain the dominant intention of the testator on a plain reading of the will and it will also be the duty of the Court to implement such intention of the testator and if there are two clauses which might appear to be inconsistent to each other it will be the duty of the Court to reconcile the aforesaid two ClausesKeeping such principle of law, if we now examine the aforesaid three Clauses of the Will, Clauses 5, 6 and 7, we are of the view that Clause 5 and Clause 7 of the Will are not inconsistent with each otherIn Clause 6 of the Will the son of the testator who was given life estate of the property was given right to sell or convert into money the property was given right to sell or convert into money the aforesaid immovable properties bequeathed to him for life but subject to the condition contained in Clause that in such event he has to invest for purchase of another immovable properties which has to be settled by the son of the testator to one of the sons of Hamir. The reference to immovable properties in Clause 7, which follows Clause 6 obviously is to the properties which Hamir was required to purchase, if he transferred the immovable properties bequeathed to him by investing the sale proceeds thereofWe are therefore unable to accept the submission of the learned counsel appearing on behalf of the appellant that there was inconsistency between Clauses 5 & 7 and because of the same, the alter Clause will prevailClause 5 of the Will therefore stood modified by Clause 6 of the Codicil. On the death of the testator therefore as Hamir did not beget or adopt any son, the property will validly go to the University of CalcuttaWe are unable to accept the contention of the learned Counsel appearing for the appellant that bequests of the property by the testator to the unborn son of Hamir subject to his life interest was void under the provisions of Section 113 of the Indian Succession Act and consequently the bequests in favour of the University of Calcutta is also void under Section 116 of the Indian Succession ActIt appears to us that the bequests in favour of the unborn son of Hamir by the testator of the immovable properties was absolute and the same comprised of the whole of the interest of the testator in the property bequeathed having been devised and bequeathed absolutely in favour of them. Since the bequests therefore comprised of the whole of the interest of the testator in the said property, such bequests will not be void. Consequently, not the provision of Section 116 of the Indian Succession Act but the provision of Section 129 of the said Act will apply and the bequests made in favour of the University of Calcutta shall take effect upon failure of the bequest made in favour of the unborn son of Hamir.

Reasoning:
are of the opinion that the decision relied upon by Mr. Sundaram on Margaret Goonewardens (supra) cannot be said to have any application in the instant case, as in view of our findings aforementioned, clause 5 of the will is not hit by Section 113 of the Indian Succession Act.