dedol-hf/india-case-legal-rag huggingface dataset:
instituted a suit against G after N's death for recovery  of
the  village  K contending that under para. 13 of  the  will
there  was  no  disposition of the village  after  the  life
interest of N and on her death the village vested in him  as
the testator's heir:
      Held,  on a construction of the will as a whole,  that
the  teststor did not intend that in the contingency of  the
adoption of nephew's son, the village K should pass, on  N's
death, to the adopted son; on the other hand, the provisions
of  para.. 5 of the will were intended to apply even in  the
case  of such a contingency and the village passed to  G  on
N's death under para. 5 of the will.
Judgment of the High Court of Madras reversed.
      Venkatanarasimha v. Parthasarathy (41 I.A. 51) and  Re
Edward; Jones v. Jones [1906] 1 Ch. 5701, referred to.
JUDGMENT:
APPELLATE  JURISDICTION:  Civil  Appeal No.  XIII  of  1950.
Appeal from a judgment and decree of a Division Bench of the
Madras High Court (Wadsworth and Rajamannar JJ.)  dated 27th
November,  1945,  in Appeal No. 518 of 1941,  reversing  the
judgment  of  the Subordinate Judge of  Mayuram  dated  10th
July, 1944, in Original Suit No. 34 of 1943.
      B.  Somayya (R. Ramamurti, with  him) for  the  appel-
lant.
951
K.S.  Krishnaswami  Aiyangar  (K.  Narasimha Aiyangar,  with
him) for respondent No. 1.
1950. December 21.  The Judgment of the Court was  delivered
by
MUKHERJEA  J.--This appeal is directed against an  appellate
judgment of a Division Bench of the Madras High Court  dated
November 27, 1945, reversing the decision of the Subordinate
Judge of' Mayuram made in Original Suit No. 34 of 1943.
    There is no dispute about the material facts of the case
which lie within a short compass and the controversy centers
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 25th April 1905, leaving behind him  as
his  near  relations his adoptive mother  Valu  Ammal,   his
widow  Parbari  and  two  daughters Nagammal and  Gnanambal,
of  whom  Nagammal,who became a widow during the  testator's
life time had an infant daughter named Alamelu  Kothandarama
executed  his  last will on 13th March, 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  Gnanambal,
should she beget one before January., 1908, or in the alter-
native any of the sons  of his two nephews, if the widow  so
chose.
The  suit, out of which the appeal arises, was commenced  by
Raju Ayyar, who was a son of the testator's 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 testator's
estate  on  the  allegation that under  the  will  mentioned
above,  these properties were given to Nagarnmal, the   wid-
owed  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
952
plaintiff as the adopted son and heir of the deceased on the
death of Nagammal which took place on 3rd of January,  1943.
Gnanambal,  the  second daughter of the  testator,  was  the
first  and main defendant in the suit, and she resisted  the
plaintiff's claim primarily on the ground that there was  no
intestacy as regards the suit properties after the  termina-
tion  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. 5,000 to  Alamelu,  the
daughter of Nagammal.  Alamelu was made the second defendant
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.
    The first court accepted the contention of the defendant
No.  1 and dismissed the plaintiff's suit. On appeal to  the
High  Court, the judgment was reversed and  the  plaintiff's
claim  was  allowed.  The defendant No. 1 has  now  come  up
appeal to this court.
    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  the
third  paragraph  of his will, gave his widow  authority  to
adopt  a son. She was to adopt the son of Gnanambal, if  the
latter  got  a son previous to January 1908,  or  she  could
adopt any of the sons of the testator's nephews.   Paragraph
4 provides that if the first course is followed, that is, if
the  son of Gnanambal 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 son.  Paragraph 5, which is materi-
al for our present purposes 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 Gnanambal and her  chil-
dren on payment by the latter of Rs. 5,000 to Alamelu Nagam-
mal's daughter."
953
    By  the sixth paragraph the  Nallathukudi  and  Pungavur
villages together with certain house  property at  Mayavaram
are given to the testaor's 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 h.use absolutely to  Nagammal
for  her residence and paragraph 8 makes certain  provisions
for management of the properties.  In paragraph 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.  Pragraph
10 mentions certain charities, the expenses of which are  to
be derrayed from the income of the Nallathukudi  properties.
Paragraph 11 then says that in the event of the widow adopt-
ing any of the nephew's sons of the testator, such son shall
inherit the entire property at Kokkur and also the lands  of
Nallathukudi  after  the death of the  testator's  wife  and
mother.   By paragraph 12, the village of  Maruthanthanallur
is   given to Gnanambal and paragraph 13 provides that  "the
village of Kothangudi shall be enjoyed by Nagammal as stated
in  paragraph 5"  By paragraphs 15 and 16 the  remainder  in
the house at Mayavaram situated in the east row of Vellalar-
kovil  Street is given to Gnanambal after the death  of  the
testator's  wife and mother. Paragraph 18 provides for  cer-
tain  other charities. In paragraph 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
Gnanambal would be his adopted son without any formality and
inherit  all the properties subject to the  conditions  men-
tioned  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 Gnanambal shall inherit as  grand-
sons  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  him
claim upon paragraph 13 of the will which, according to him,
contains the enire disposition so far as the Kothangudi
954
property  is concerned.  That  village is given to   Nagarm-
mal for her life with no disposition of the remaining inter-
est.  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 inher-
itance.
    The defendant No. 1. on the other hand, relies on  para-
graph 5 of the will, which gives the Kothangudi village  and
the Injigudi house to Nagammal to he enjoyed by her so  long
as she lives and after her death they are to go to Gnanambal
and  her  children subject to the payment of a  sum  of  Rs.
5,000 to be paid to Alamelu, the daughter of Nagammal.
     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 nephew's son of the testa-
tor, paragraph 5 of the will did not come into operation  at
all.   The  disposition as regards Kothangudi  property  is,
therefore,  to be found exclusively in paragraph 13  of  the
will  and the actual words employed by the testator in  that
paragraph do not indicate that apart from Nagammal's  taking
a  life  estate in the Kothangudi village the  rest  of  the
provisions in regard to this property as laid down in  para-
graph  5 would also be incorporated into paragraph  13.   An
Obvious  difficulty,  according to the  learned  Judges,  in
accepting the construction sought to be put upon the will by
defendant No. 1  is that paragraph 5 speaks both of  Kothan-
gudi and Injigudi properties, whereas paragraph 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 Gnanambal was to pay  Rs.
5,000  to  Alamelu for the Kothangudi property  alone.   The
result  was that the plaintiff's claim was allowed.   It  is
the  propriety  of this decision that  has  been  challenged
before us in this appeal.
     In  course of the arguments, we have been  referred  by
the learned Counsel on both sides to quite a large
955
number of decided authorities,  both  English and Indian, in
support of their respective contentions. It is seldom  prof-
itable to compare the words of one will with those of anoth-
er  or  to attempt to find out to which of  the  wills  upon
which decisions have been: given in reported cases, the will
before  us approximates closely.  Cases are helpful only  in
so  far as they purport to lay down certain general  princi-
ples  of construction and at the present day  these  general
principles seem to be fairly well settled.
The cardinal maxim to be observed by courts in  constru-
ing  a will is to endeavour to ascertain the  intentions  of
the  testator.  This intention has to be gathered  primarily
from  the language of the document which is to be read as  a
whole without indulging in any conjecture or speculation  as
to  what the testator would have done if he had been  better
informed  or better advised.  In construing the language  of
the will as the Privy  Council observed in Venkata Narasimha
v. Parthasarathy (1), "the courts are entitled and bound  to
bear in mind other matters than merely the words used.  They
must  consider the surrounding circumstances,  the  position
of the testator, 'his  family relationship, the  probability
that  he  would use words in a particular  sense,  and  many
other  things  which  are often summed up  in  the  somewhat
picturesque figure 'The court is entitled to put itself into
the testator's armchair'  ......  But all this is solely  as
an aid to arriving at a right construction of the will,  and
to  ascertain the meaning of its language when used by  that
particular  testator in that document.  So soon as the  con-
struction is settled, the.duty of the court is to carry  out
the intentions as expressed, and none other.  The  court  is
in no case justified in adding to testamentary
dispositions......   In all cases it must loyally carry  out
the will as properly construed, and this duty  is universal,
and  is true alike of wills of every nationality  and  every
religion or rank of life."
    A question is sometimes raised as to whether in constru-
ing a will the  court  should  lean  against
(1) 42 I.A. 51 at  p.70.
956
intestacy.  The desire to avoid intestacy was considered  by
the  Privy Council in the case referred to above as  a  rule
based  on  English necessity and English habits  of  thought
which should not necessarily bind an Indian court.  It seems
that a presumption against intestacy may be raised if it  is
justified by the context of the document or the  surrounding
circumstances;  "but  it can be invoked only when  there  is
undoubted ambiguity in acertainment of the intentions of the
testator.   As Lord  Justice  Romer observed in Re  Edwards;
Jones v. Jones (1), "it cannot be that merely with a view to
avoiding  intestacy  you are to do otherwise  than  construe
plain words according to their plain meaning".  It is in the
light  of  the above principles that we  should  proceed  to
examine the contents of the will before us.
   The present will, which is the last of four  testamentary
document  executed  by the testator, appears  to  have  been
prepared with a great deal of care and circumspection.   The
testator  had clearly in mind the different situations  that
might arise in case his widow adopted either Gnanambal's son
or  a son of one of the nephews of the testator.  He  envis-
aged   also   the  possibility of the  widow  dying  without
making any adoption at all.  Besides the son to be  adopted,
the  only other relations who had natural  claims  upon  the
affection and bounty of the testator and for whom he desired
to make provisions were his  wife,  his adoptive mother, the
two datughters and the infant grand-daughter.  The interests
given to his wife, the adoptive mother and the eldest daugh-
ter, who were all widows, were for their life-time, except a
small  house  property which was given  absolutely  for  the
residence  of the eldest daughter. On the other  hand.,  the
bequests in favour of Gnanambal, who was a married daughter,
and the adopted son of the testator, were absolute in  their
character.  Besides these dispositions, there  were  certain
gifts for charity which were to be met out of the income  of
the properties given to the wife and the adoptive mother for
their lives.  One singular feature
(1) [1906]1 Ch. 570 at p. 574.
     957
in  the  will is that the testator took scrupulous  care  to
include in it every item of property that he owned.
    There  are two provisions in the will relating   Kothan-
gudi  property  to  which the dispute in  the  present  suit
relates.   One is in paragraph 5 which gives  this  property
along with the house at Injigudi to Nagammal, the  remainder
being given to the appellant subject to the payment of a sum
of  Rs.  5, 000 to Alamelu, the daughter  of  Nagammal.  The
other  is in paragraph 13, which merely says  that  Nagammal
was  to get it for life as stated in paragraph 5.  The  view
taken  by the High Court and which has been pressed for  our
acceptance  here by the learned Counsel for the  respondents
is  that paragraph 5 was meant to be operative only if  Gna-
nambal's  son  was adopted by the widow.   As that  was  not
done,  paragraphs 4 to 8 of the will, it is urged,  will  go
out  of the picture alttgether and it is not permissible  to
refer to them except to the extent that they were  impliedly
incorporated  in the subsequent paragraphs of the will.   We
do  not  think that this is the correct way of  reading  the
document. The testator  undoubtedly  contemplated  different
contingencies;  but a  reading of  the  whole  will does not
show  that  he wanted to make  separate  and  self-contained
provisions  with regard to each of the  contingencies   that
might  arise  and  that each  set  of  provisions  were   to
be   read  as exclusive of the other set or sets. That  does
not  appear  to be the scheme of the will.   The  testator's
main desire undoubtedly was that his widow should adopt  the
son  of  his daughter Gnanambal, and in the first  part  his
will after making provisions for his two daughters, his wife
and adoptive mother and also for certain charities, he  left
the rest of his properties to the son of Gnanambal that  was
to be adopted by his widow. In the second part of the  will,
which is comprised in paragraphs 11 to 16, the testator sets
out the modifications which he desires to make in the earli-
er  dispositions  in case a son of one of  his  nephews  was
adopted by the widow. It was not the intention of the testa-
tor that on the happening of the second contingency, all
958
the earlier provisions of the will would stand cancelled and
the  entire  dispositions of the testator's  property  would
have to be found within the four corners of paragraphs 11 to
16 of the will.  In our opinion, the provisions made for the
two daughters, the widow and the adoptive mother as made  in
paragraphs  5, 6 and 7 of the will and also  the  provisions
for charities and payment of debts contained in paragraphs 9
and  10  were  meant to be applicable under  all  the  three
contingencies  referred  to above.  This is clear  from  the
fact that provisions of paragraphs 7, 9 and 10 have not been
repeated  or incorporated  in paragraphs 11 to 16,  although
it cannot be suggested that they were not to take effect  on
the happening of the second contingency. Again in the  third
contingency contemplated by the testator, which is described
in paragraph 20, it is expressly stated that if no  adoption
is made, the eldest or  any  son  of  Gnanambal would inher-
it  the   properties   and  he  shall  take  the  properties
subject  to  the  conditions  mentioned in   the  will.  The
conditions  spoken of here undoubtedly refer to the   provi-
sions made  for  the  mother,  wife and the two daughters of
the  testator as well as in respect to payment of debts  and
carrying out of the charities specified in paragraph 10.
      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 paragraph 4 of  the  will,  the
adopted son was to get all the p. roperties of the  testator
with the exception of those given to the two daughters,  the
mother-  and the wife.  Under paragraph 11, if the  adoption
is  of a nephew's son of the testator, the adopted son  gets
only  the Kokkur properties and the reversionary  interestin
Nallathukudi village after the death of the testator's  wife
and mother. The village Maruthanthanallur which would go  to
the adopted son under paragraph 4 is taken away under  para-
graph  11 and is given to Gnanambal.  She is also given  the
remaining interest in the Mayavaram house which was given to
the  adopted son under paragraph 6.  Subject to the  changes
thus made, the provisions
959
of paragraphs 5, 6 and 7 would, in our opinion, still remain
operative  even if the person adopted was a nephew's son  of
the testator.  No change is made in paragraphs 11 to 16 with
regard  to  the provision in paragraph 5 of  the  will.   In
paragraph  13 it is only stated that the village  Kothangudi
shall  be enjoyed by Nagammal as stated in paragraph 5.   It
may  be conceded that this statement by itself does not  let
in  the  entire provision of paragraph 5, but  that  is  not
material  for our present purpose.  It is enough that  para-
graph  5  has not been changed or altered in any  way.   The
statement in paragraph 13 may, after all, be a loose expres-
sion which the testator used only for the purpose of  empha-
sising  that  the  Kothangudi village would  be  enjoyed  by
Nagammal  even if Gnanambal's 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 paragraph 5, particularly the benefit that
was meant to be given to Alamelu, was not repeated in  para-
graph  13.  It may be that the testator did not consider  it
necessary or it may be that it was due to inadvertance.   It
is  to be noted here that the testator did not mention  any-
where in  paragraphs 11 to 16 the small house that was given
absolutely to Nagamreal under paragraph 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  paragraph 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  testator's
affection.   The provision is in the will itself and  it  is
only  a question of interpretation as to whether it  is  ap-
plicable  in  the circumstances which have happened  in  the
present case.  The position, therefore, seems
960
to  be that the disposition made in paragraphs 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  immedi-
ately  on  the testator's death.  They were  not  contingent
gifts in the sense of being made dependent upon the adoption
of  Gnanambal's 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 paragraph  6
after  the death of the widow and the mother was taken  away
from  the  adopted son and given to Gnanambal  in  case  the
person  adopted was not her own son.  If the whole of  para-
graph  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 to Alamelu as has been stated by the High Court in
its judgment.
    Having  regard  to the meticulous care  with  which  the
testator seems to have attempted to provide for the  differ-
ent contingencies that might arise and the anxiety displayed
by him in making an effective disposition of all the proper-
ties he owned, it is not probable that he would omit to make
any provision regarding the future devolution of the Kothan-
gudi  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. 5,000 to Alamelu also cannot be explained
on any other hypothesis. It is 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.
    The  result is that the appeal is allowed, the  judgment
and decree of the of the High Court are set aside and  those
of the Subordinate Judge restored.  The appellant will  have
costs of all the courts.
                          Appeal allowed.
Agent for the appellant:      M.S. K. Aiyangar.
 Agent for respondent  No. 1:  M. S. Krishnamoorthi  Sastri.
     961
PETITIONER:
MOHINDER SINGH
        Vs.
RESPONDENT:
THE STATE
DATE OF JUDGMENT:
17/10/1950
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1953 AIR  415            1950 SCR  821
 CITATOR INFO :
 R          1963 SC 340  (19)
 D          1963 SC 612  (22)
 RF         1963 SC1511  (5)
 F          1975 SC1727  (14)
 F          1977 SC 472  (5)
ACT:
Criminal  trial--Murder--Ijuries caused by lethal  weap-
ons-Duty of prosecution--Importance of expert evidence--Duty
to   prove   whole  case--Evidence   wanting   on   material
point--Impropriety  of conviction--Proof of  alibi--Standard
of               proof--Supreme               Court-Criminal
appeal--Interference--Practice.
HEADNOTE:
In a case where death is due to injuries or wounds caused by
a  lethal  weapon, it has always been considered to  be  the