Case ID: 8

Judgment:
eal 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 vs 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 vs 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 respondent No. 1: M. section Krishnamoorthi Sastri.

Summary:
The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the infentions 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. The courts are however 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 construetion of the will	 and to ascertain the meaning of the language when used by that particular testator in that document. As soon as the construction is settled	 the duty of the court is to carry out the intsentions as expressed. 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 950 universal	 and is true alike of wills of every nationality and every religion or rank of life. 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 ambignity in ascertainment of the intentions of the testator. 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. A Hindu died leaving a widow	 a widowed daughter and a married daughter G	 after he had made a will giving authori ty to his widow to adopt a son of G should she beget one	 or in the alternative a son of one of his nephews. 4 of the will provided that if his widow adopted G 's son all his properties except the village of K and the house at I and other properties disposed of by the will shall pass to the adopted son; and para. 5 provided as follows: ' 'The whole of the village of K and the house a I	 my daughter N shall enjoy with life interest and after her the said property shall pass to my daughter G and her children on payment by the latter of Rs. 5	000 to A	 the daughter of N." Later on	 amongst the provisions which he wished to make if a son of a nephew was adopted	 there was a provision which ran as follows: "Para. 13. The village of K shall be enjoyed by N as stated in para. " A nephew 's son was adopted and he 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 vs Parthasarathy (41 I.A. 51) and Re Edward; Jones vs Jones 	 referred to.