Case: N. Kasturi Vs. D. Ponnammal And Others

1. This appeal raises a short question about the construction of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura. In his suit the appellant alleged that under Cl. 12 of the will certain rights either vested or contingent had been conferred on him in regard to the property as therein described, and it was in pursuance of the said rights that he claimed a declaration with a view to protect his interest and safeguard the estate from being wasted by, and lost in the hands of, the testators widow, respondent 1, Ponnammal, who was in charge of the said estate. The trial court construed the will against the appellant and held that it conferred no right on him and so he could not claim any of the reliefs set out in his plaint,. Incidentally on the merits the trial court was satisfied that a case had been made out by the appellant and that it did appear that the estate was being wasted by its present holder, respondent 1. The appellant then took the matter before the Madras High Court by his appeal. The High Court has agreed with the trial court in the construction of the will. It has held that the appellant had no right under the will which would justify his claim for any of the reliefs set out in his plaint. On that finding the High Court thought it unnecessary to consider the merits of the case set out by the appellant and denied by respondent 1. The appellant then applied for and obtained a certificate from the High Court, and it is will the said certificate that he has come to this court by his present appeal;2. As we have already seen the testator executed the will on April 28, 1937, and he died on March 10, 1939. During his lifetime the testator was a member of a joint and undivided Hindu family consisting of himself and his cousin, Thayumanaswami Pillai. Neither of them had any son. At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows respondent 2, Managayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal. The testator who survived his cousin became entitled to the whole of the family property by survivorship, and it is as such that he made, and was competent to make, the will in question. The appellant is the sisters daughters grandson of the testator, whereas Kalyanasundaram, respondent 5, was treated as a foster-son by the testators cousin, Thayumanaswami Pillai. Respondent 5 died pending the appeal before this Court leaving behind him two widows, two minor sons and two minor daughters who have been brought on the record as his heirs and legal representatives. These are the persons who have been mentioned in the will and who appear to be the objects of the testators bounty in one way or another.

Reasoning: Therefore, there can be little doubt that what Mr. Sastri formulates as a rule of construction against the avoidance of intestacy cannot be treated as an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the court would certainly by justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly, in regard to the rule that vesting should not be postponed the position is exactly the same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together17. The respondents case, however, is, and that is the case which has been accepted by the courts below, that Cl. 12 should be construed as operating at the time of the death of the testator and not later, and according to this argument, as soon as the testator died the said clause ceased to be applicable and the rights of the appellant fall to be considered only under Cl. 11. If Cl. 12 had to be construed by itself separately and is isolation from Cl. 11 much could have been said in favour of the contention urged by the appellant; but, in our opinion, it would be plainly inconsistent with all the rules of construction to take Cl. 12 by itself and isolate it from the rest of the will. Clauses 6 to 11 deal primarily with the adoption which the testator contemplated would be made by his widow in case he did not make an adoption in his lifetime. Clause 11 confers a vested interest of respondent 5. This has to be done before respondent 1 makes any adoption and indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible adoptee and then deals with his rights on that footing. With the other bequests made by the said clause we are not directly concerned. Having thus made the provisions in Cl. 11 on the basis that his widow may adopt, Cl. 12 deals with an alternative situation which would arise in cases contemplated by the said clause, and it is intended to be operative only at the time of the death of the testator and not otherwise. If that be the true position then the appellant would not be entitled to any right under Cl. 12 at all18. Now, as a matter of construction there are some serious difficulties in the way of accepting the appellants case. The first part of Cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellants argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression myself and my wife has to be read as myself or my wife, and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and here is little doubt that Hindu law does in that sense recognizes an adoptive. Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown no Hindu law the word and should be read as or in the relevant clause. That is the first difficulty in accepting the appellants construction19. The second difficulty is that if the word and is read as or the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in the first part of the clause20. The third difficulty in accepting the said construction is that the right which has already vested under Cl. 11 in respondent 5 is again vested by Cl. 12. As we have already seen, under Cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thavumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under Cl. 12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under Cl. 1121. There is still one more difficulty in accepting the appellants construction, and that is in regard to the last part of Cl. 12. Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were to take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression all the properties means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with Cl. 11. Faced with this difficulty Mr. Sastri suggested that the context requires that all the properties would mean all the properties which would have gone to the appellant if he had been adopted; that is to say, half the properties given to him under Cl. 11 on the basis of his adoption. Such a limitation on the meaning of the words all the properties seems to us to be wholly unjustified. Therefore, we are satisfied that reading Cls. 11 and 12 together the High Court was right in holding that Cl. 12 was intended to operate at the time of the death of the testator and not later and that the appellant would get an interest under Cl. 12 only if the widow of the testator pre-deceased the testator and there is no adoption by the testator before his death. If that be so, the appellant cannot claim any right or title on the strength of Cl. 12 because at the relevant time it was not intended to be operative at all. In the circumstances the appellants the appellants rights are provided for by Cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sanstri on behalf of the appellant we see no reason to interfere with the said conclusion