Case: A.K. Gopalan Vs. The State Of Madras.Union Of India: Intervener

(2) There is no dispute about the material facts of this case which lie within a short compass and the controversy centres round one point only which turns upon the construction of a will left by one Kothandarama Ayyar to whom the properties in suit admittedly belonged. Kothandarama, who was a Hindu inhabitant of the District of Tanjore and owned considerable properties, died on 25/4/1905, leaving behind him as his near relations his adoptive mother, Vala Ammal, his widow, Parbati, and two daughters, Nagamal and Gnambal, of whom Nagammal, who became a widow during the testators lifetime, had an infant daughter named Alamelu. Kothandarama executed his last will on 13/3/1905 and by this will, the genuineness of which is not disputed in the present litigation, he gave an authority to his widow to adopt unto him a son of his second daughter Gnambal, should she beget one before January 1908 or in the alternative any of the sons of his two nephews, if the widow so chose(3) The suit, out of which the appeal arises was commenced by Raju Ayyar, who was a son of one of the testators nephews and was taken in adoption by the widow in terms of the will and it was for recovery of possession of certain properties, known as Kothangudi properties which formed part of the testators estate on the allegation that under the will mentioned above, these properties were given to Nagammal, the widowed daughter of the testator for her life time, but as there was no disposition of the remaining interest after the death of the life tenant, the properties vested in the plaintiff as the adopted son and heir of the deceased or the death of Nagammal which took place onGnambal, the second daughter of the testator, was the first and main defendant in the suit and she resisted the plaintiffs claim primarily on the ground that there was no intestacy as regards the suit properties after the termination of the life interest of Nagammal, and that under the terms of the will itself she was entitled to get these properties in absolute right after the death of Nagammal subject to payment of a sum of Rs. 5000.00 to Alamelu, the daughter of Nagammal. Alamelu was made defendant 2 in the suit and as she died when the suit was pending in the trial Court, her heirs were impleaded as defendants 3 to 9.(4) The first Court accepted the contention of defendant 1 and dismissed the plaintiffs suit. On appeal to the High Court, the judgment was reversed and the plaintiffs claim was allowed. Defendant 1 has now come up on appeal to this Court.(5) To appreciate the contentions that have been raised by the parties to this appeal, it would be convenient first of all to refer briefly to the relevant provisions of the will. After cancelling his previous wills, the testator in para 3 of his will gave his widow authority to adopt a son sort. She was to adopt the son of Gnambal, if the latter got a son previous to January 1908, or she could adopt any of the sons of the testators nephews. Paragraph provides that if the first course is followed, that is, if the son of Gnambal is adopted by the widow, then all the properties, movable and immovable, belonging to the testator excepting the village of Kothangudi, the house at Injigudi and the other properties which were disposed of by the will would go to such adopted Paragraph 5, which is material for our present purpose, runs as follows :"The whole village of Kothangudi and the house at Injigudi, both of Nannilam Taluk, my daughter Nagammal shall enjoy with life interest and after her the said property shall pass to my daughter Gnanam and her children on payment by the latter of Rs. 5000.00 to Alamelu, NagammalsBy para 6 the Nallathukudi and Pungavur villages together with certain house property at Mayavaram are given to the testators adoptive mother and wife in equal shares to be enjoyed by both of them during their life-time and after their death they are to pass on to the adopted son. Paragraph 7 gives a small house absolutely to Nagammal for her residence and para 8 makes certain provisions for management of the properties. In para 9 direction is given to collect the money due on the insurance policy on the life of the testator and to pay off his debts. Paragraph 10 mentions certain charities, the expenses of which are to be defrayed from the income of the Nallathukudi properties. Paragraph 11 then says that in the event of the widow adopting any of the newphews sons of the testator, such son shall inherit the entire property at Kokkur and also the lands of Nallathukudi after the death of the testators wife and mother. By para 12, the village of Maruthanthallur is given to Gnambal and para 13 provides that "the village of Kothangudi shall be enjoyed by Nagammal as stated in para 5." By paras 15 and 16 the remainder in the house at Mayavaram situated in the east row of Vellalarkovil Street is given to Gnambal after the death of the testators wife and mother. Paragraph 18 provides for certain other charities. In para 20 it is stated that if the wife of the testator should die before January 1908 without making any adoption, then the eldest or any son of Gnambal would be his adopted son without any formality and inherit till the properties subject to the conditions mentioned in the will Paragraph 21, which is the penultimate paragraph in the will, further lays down that if all the three contingencies fail and no adoption is taken, the male child or children born to Gnambal shall inherit as grandsons all the properties of the testator, subject to the conditions specified in the will. These, in brief, are the dispositions made in the will. The plaintiff founds his claim upon para 13 of the will which, according to him, contains the entire disposition so far as the Kothangudi property is concerned. That village is given to Nagammal for her life with no disposition of the remaining interest. If the remainder has not been disposed of, there is no doubt that the plaintiff would be entitled to the property as the heir of the testator under the ordinary law of inheritance.(7) Defendant 1, on the other hand, relies on para 5 of the will, which gives the Kothangudi village and the Injigudi house to Nagammal to be enjoyed by her so long as she lives and after her death they are to go to Gnambal and her children, subject to the payment of a sum of Rs. 5000.00 to be paid to Alamelu, the daughter of Nagammal.(8) The High Court on a construction of the will has found in favour of the plaintiff primarily on the ground that in the contingency which happened in the present case, viz., that the widow took in adoption a nephews son of the testator, para 5 of the will did not come into operation at all. The disposition as regards Kothangudi property is, therefore, to be found exclusively in para 13 of the will and the actual words employed by the testator in that paragraph do not indicate that apart from Nagammals taking a life estate in the Kothangudi village the rest of the provisions in regard to this property as laid down in para 5 would also be incorporated into paraAn obvious difficulty, according to the learned Judges, in accepting the construction sought to be put upon the will by defendant 1 is that para 5 speaks both of Kothangudi and Injigudi properties, whereas para 13 does not mention the Injigudi house at all, nor does it purport to give a life interest in the same to Nagammal. It could not be reasonably held on a construction of the will that the intention of the testator was that Gnambal was to pay Rs. 5,000.00 to Alamelu for the Kothangudi property alone. The result was that the plaintiffs claim was allowed. It is the propriety of this decision that has been challenged before us in this appeal.

Court's reasoning:
(14 ) The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son. Under para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son underSubject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated inIt may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals son was not adopted. This is not by way of making any new disposition, but only to affirm what has been already done. The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest. It is somewhat difficult to say why the rest of the provisions in para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in paraIt may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 7. It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency. If para 5 itself is held to be applicable and in our opinion it should be so held-there is no question of adding to or altering any of the words made use of by the testator. It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals son by the wife of the testator. Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive. No difficulty also arises regarding the payment of Rs. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi village if he really thought that such direction had to be repeated in the latter part of the will. The omission of the gift of Rs. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it not necessary for the purpose of the present case to invoke any rule of presumption against intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at.