In construing Will intention of testator is a polar star by which courts should be guided

 In construing the will, 'the arm-chair' rule is to be applied and the courts are expected to place themselves in 'arm-chair' of the testator and find out his intention. It has been stated that in construing the Will, the intention of the testator is a polar star by which the courts should be guided and it is the duty of those who have to expound the Will, if they can, ex fumo dare lucem. In other words the first thing for consideration always is what was the testator's intention at the time he made the Will and then the law carries out that intention into effect. The intention of a testator, no doubt, has to be agreeable to the rules of law and secondly, ought to be collected out of the words of the Will.1

1994(2)BomCR106, 1994CivilCC337, 1994MhLJ597

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal Nos. 3 and 36 of 1986

Decided On: 20.09.1993

Appellants: Anilkumar Narharrao Satarkar and Ors.
Vs.
Respondent: Shrinivas alias Digambar Achutrao Mudhalwadkar and Ors.

Hon'ble Judges/Coram:
B.N. Deshmukh and S.S. Dani, JJ.

1. These two First Appeals are being decided and disposed of by this common judgment.

2. Anilkumar, Arunkumar, and Shashikant are three sons of one Narharrao (defendant No. 8 in First Appeal No. 3 1986), and are real brothers inter se. Ramchandra and Achut are also real brothers and Achut is father of defendant Nos. 1 to 7 in First Appeal No. 3 of 1986. Ramchandra and Achut hail from Paithan and were having some ancestral properties. Ramchandra left Paithan and settled in Aurangabad and started his career as a Compounder but, then moved to Pimpri village where he practised in medicine while his brother Achut continued to stay at Paithan. Ramchandra married Jankabai and Sitabai but, still had no issue. Sitabai started residing with Ramchandra at Aurangabad. Sitabai purchased a house No. 5-22- 65/5m (City Survey No. 5499) at Paithangate, Aurangabad in 1951. Anilkumar, Arunkumar and Shashikant are related to Sitabai from her maternal side. Sitabai, on 28th Jaunary, 1969 executed her last Will bequeathing the property initially in favour of her husband Ramchandra and thereafter, to Anilkumar, Arunkumar and Shashikant. Sitabai died on 20th May, 1976. Ramchandra died on 20th August, 1976. At the time of the death of Sitabai and Ramchandra. Anilkumar, Arunkumar and Shashikant (plaintiffs/appellants in F.A. No. 3 of 1986) were by their side and were staying in the suit house. However, Achut, father of defendants 1 to 7 dispossessed these three plaintiffs in August, 1976 itself and, therefore, they were required to file the suit. One Bhimrao is the brother of deceased Sitabai and left behind him his daughter Tarabai. Narharrao defendant No. 8 was the grand son of Kondabai who was the sister of Sitabai. As Sitabai had no issue and as the three children-plaintiffs were residing in the suit house alongwith her, Sitabai developed love and affection towards the plaintiffs and out of it, executed the Will on 28th January, 1969. It is the case of the three plaintiffs that after the death of Ramchandra, they are the exclusive owners of the suit house inasmuch as, the property was a self-acquired property of Sitabai and as she herself did not desire to give the property to her brother Bhimrao and his heirs after the death of her husband Ramchandra. It is, therefore, the case that Ramchandra was having only life interest in the property under the said Will and was, therefore, not absolute and full owner of it. As such, after the death of Ramchandra, the property cannot devolve on the heirs of Ramchandra but can pass only to the plaintiffs because of the Will.

3. It is also the case that after the death of Ramchandra, defendants 1 to 4 came at the suit house so as to perform the last rites and took possession illegally when these three plaintiffs were minors at that time. The father of defendants 1 to 4 made false accusations against the present plaintiff No. 1 of administering poison to deceased Ramchandra and as such, executed heavy pressure so as to compromise Civil Suit No. 689 of 1976 filed by the father of defendants 1 to 4. It is, therefore, the case that the decree obtained in the Civil Suit was by coercion and undue influence and as such, is not binding on them. The plaintiffs, therefore, claimed the title to the suit house on the basis of the Will after death of Ramchandra and inasmuch as, the defendants refused to hand over the possession, they approached the Civil Court in Special Civil Suit No. 76 of 1981. The defendants 1 to 7 resisted the suit by their common written statement (Exh. 35) and it was the main defence that Sitabai was not the exclusive owner of the suit house but it was purchased out of the joint family property. It is further alleged that as such, Sitabai was not competent to execute any Will in respect of the suit house in favour of her husband Ramchandra. The compromise in the Civil Suit was bona fide and it is the specify defence that inasmuch as, Sitabai conferred the absolute ownership on her husband Ramchandra, no property could be claimed by the plaintiffs on the basis of the subsequent decree. On framing the necessary issues and on consideration of the evidence on record, the trial Court held the Will as valid in favour of the deceased Ramchandra and invalid in favour of the present plaintiffs. The trial Court also held Sitabai as the absolute and full owners of the property and as it was her self-acquired property, was competent to execute the Will in favour of her husband Ramchandra. As the trial Court refused to accept the case of the plaintiffs in respect of life interest in favour of the deceased Ramchandra, the plaintiffs were not held the owner of the property under the said Will and were, therefore hold disentitled to the possession. The trial Court, also further held the compromise in R.C.S. No. 689 of 1976 as obtained by coercion and misrepresentation but, in view of the full ownership bestowed on Ramchandra, negatived the claim of the plaintiffs. By the impugned order dated 3rd August, 1983, the Civil Judge, Senior Division, Aurangabad dismissed the suit and non-suited the plaintiffs. It is this dismissal of the suit that is being challenged in First Appeal No. 3 of 1986 by the original three plaintiffs. In First Appeal No. 3 of 1986, the original defendants, 1 to 3 and 5 to 7 have filed cross-objections challenging the findings of compromise decree in R.C.S. No. 689 of 1976. During the pendency of Special Civil Suit No. 76 of 1981 Anilkumar and Shashikant filed Misc. Civil Application No. 4 of 1977 under section 276 of Indian Succession Act for grant of probate on the basis of the said Will. However, as the plaintiffs were held disentitled to the properties on the basis of the will and as Ramchandra was held to be the full and exclusive owner of the property, the said application for probate also came to be rejected. It is against this order of rejection of probate that the two appellants-plaintiffs have filed first Appeal No. 36 of 1986. In as much as, these two appeals are between the same parties and arise out of the common order, both the appeals are being heard and decided by this common judgment. The crux of the matter is to decide as to who became the owner of the property mentioned in the Will after the death of Sitabai. As stated above it is the case of the plaintiffs that the deceased Ramchandra, husband of Sitabai was only having life interest in the estate and after his death, the three plaintiffs have become the owners because of the disposition of the property in their favour by Sitabai under the same Will. On the other hand, it is the case of the contesting defendants that Ramchandra became full and absolute owner of the property and as such, the property devolved after his death on them as heirs of deceased Ramchandra. It has, therefore to be ascertained and decided from the evidence on record as to whether Ramchandra became the full and absolute owner under the Will or had only the life interest in the suit property.

4. Before coming to this material controversy, certain admitted facts should be noted. The Civil Court has held deceased Sitabai as the absolute owner of the property and the suit property has been held to be her self-acquired property. This finding in also not disputed before us by the contesting defendants-respondents. Both the parties claimed title and interest on the property on the basis of the Will dated 28th January, 1969, and it is not disputed that this was the last Will of deceased Sitabai. It is also not disputed before us that if Ramchandra becomes full and absolute owner of the property, the plaintiffs cannot succeed to the estate on the basis of the Will, and if, on the other hand, the Will can be held, to confer only limited interest on Ramchandra, defendants 1 to 7 cannot claim the estate. It may be noted at this stage that so far as the cross-objections in First Appeal No. 3 of 1986 are concerned, they are not pressed on behalf of the respondents 1 to 3 and 5 to 7. As such, in this appeal, the questions in respect of the nature of the compromise decree in Civil Suit No. 689 of 1976 and its effect are not being considered.

5. In construing the will, 'the arm-chair' rule is to be applied and the courts are expected to place themselves in 'arm-chair' of the testator and find out his intention. It has been stated that in construing the Will, the intention of the testator is a polar star by which the courts should be guided and it is the duty of those who have to expound the Will, if they can, ex fumo dare lucem. In other words the first thing for consideration always is what was the testator's intention at the time he made the Will and then the law carries out that intention into effect. The intention of a testator, no doubt, has to be agreeable to the rules of law and secondly, ought to be collected out of the words of the Will. Therefore, in determining whether the estate-tail or a life estate only passes under the words of a given testamentary instrument, the general rule of interpretation is that, whereby the plain words, in themselves liable to no doubt, an estate-tail is given it is not allowed such estate to be altered and out down to a life estate unless clear words are used to plainly show such an intention. The rate of the respective claims of the three plaintiffs and the defendants 1 to 7, therefore, exclusively hangs on the wordings of the Will (Exh. 51). What is, therefore, to be decided in the case at hand is the true and correct meaning that can be given to the intention of the testator Sitabai on consideration of the wording used by her in the said Will. The recitals of para 2 of the Will are material and of prime importance:

"After my death, my husband Ramchandra Ganesh Mudhalwadkar shall be my heir and shall be the heir and the owner of the properties mentioned in this Will. After the death of my husband, Anilkumar aged 12 son of Narhari, Arunkumar aged 9 son of Narhari and Shashikant, aged 6 son of Narhari shall become the owners of my estate on the basis of this Will. By this Will, my properties which are described at the end is being enjoyed by my husband Ramchandra Ganesh Mudhalwadkar and after him, Anilkumar, Arunkumar and Shashikant."

These are the specific recitals in this document which are required to be interrelated in the present case. Two things clearly emerge out of these specific recitals. Firstly, Ramchandra was to become an absolute owner of the properties after her death and secondly, after his death, the sons of Narhari i.e. Anilkumar, Arunkumar and Shashikant were to become the owners. These two eventualities are specifically spelt out from the wordings used by the testator and as such, it is abundantly clear that a certain thing was to see the light of the day on the happening of a particular event. In other words it was contingent on the happening of a particular event. As per the specific words, a certain event was to take place after the death of Sitabai and another event was to emerge after the death of Ramchandra. It is an absolute ownership to Ramchandra in the first contingency and to these three plaintiffs in the second. At this juncture, section 124 of the Indian Succession Act, 1925 has to be considered. Section 124 reads thus,-

"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable."

To this section 124, as illustration (i) is given, as follows-

"A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect."

The specific wording used in the present Will, in our opinion, clearly brings the case under this Illustration (i). In the case at hand the property is firstly bequeathed to Ramchandra and after his death it is to go to the present plaintiffs. If this is so, when Ramchandra survives the testator, the three plaintiffs cannot succeed to the property. In other words, after the death of the testator i.e., Sitabai, Ramchandra takes the estate and as such, the legacy in favour of the plaintiffs does not take effect. It is clear that the legacy in favour of the plaintiffs can only take effect if Ramchandra predeceases Sitabai. It is not in dispute that Sitabai died on 20-5-1976 while Ramchandra breathed his last on 20-8-1976. This being so, the bequest in favour of the plaintiffs is contingent upon happening of a specific event namely death of Ramchandra and that too, during the life time of Sitabai. On the other hand, the bequest of the property of Sitabai in favour of Ramchandra takes effect immediately after her death.

6. The nature of the bequest in the present case has also to be considered with reference to the wording of the Will and the evidence on record. As stated above, Ramchandra has been described in the Will not only as a heir but as an absolute owner of the properties after the death of Sitabai. The words 'Waras' and 'Malak' meaning thereby a heir and owner respectively, are quite clear and unambiguous in proving the intention of the testator. Sitabai therefore, wanted Ramchandra to make absolute owner of the property after her death, and as such, she described him not only as her heir but an absolute owner. If Ramchandra is to be taken as a person having only a life interest on the basis of this Will, as contended by the plaintiffs, not only he would have been described accordingly, but in no case he would have been described as an absolute owner. Therefore, the first part of Illustration (i) of section 124 of the Indian Succession Act, 1925 comes in the way of the present plaintiffs as Ramchandra, after the death of Sitabai succeeded the estate as heir and absolute owner. This being so, a further bequest in favour of the three plaintiffs cannot be held effective. As a matter of fact, on conferring the absolute ownership of the estate on Ramchandra, the question of any further bequest by Sitabai in favour of three plaintiff does not arise at all and even if such a reference is made in such a contingency, it is of no consequence.

7. Shri Karmarkar, learned Counsel for the appellants-plaintiffs drew our attention to certain rulings. The first ruling is Gopala Menon v. Sivaraman Nair, MANU/SC/0361/1979 : AIR1979SC1345 , wherein the recitals in the Will that a property shall vest in wife with power of alienation, was construed to hold wife not as limited owner but an absolute one having a right to dispose of the property by her own Will. In para 4 of the judgment, the recitals of the Will are reproduced thus,-

"....shall vest in my wife, Sreedevi Amma, daughter of Moorkkath Madhavi Amma, with power of alienation."

On the basis of this recital, the intention of the testator to confer the limited estate on the wife came to be negatived and it was further held that a power of alienation to the wife nullifies the contention that the testator intended to confer only a life estate. If the principles mentioned in the said ruling are to apply to the facts of the present case, it has also to be held that the specific wordings in the Will that 'after my death, my husband' Ramchandra would become heir and absolute owner would negative the case of only life interest in his favour as contended by the plaintiffs. Another ruling relied on behalf of the appellants is reported in Raghbir Singh v. Budh Singh, MANU/DE/0214/1977 : AIR1978Delhi86 , in which, on considering the specific recitals of the Will, it was held that the Will itself recognised absolute estate in respect of the movables and at the same time, conferred life estate in respect of immovable property. The recitals of the Will quoted in para 3 of the said judgment are clearly distinguishable from the recitals mentioned in the present Will (Exh. 51). Another ruling relied on behalf of the appellants is Navneet Lal v. Gokul, MANU/SC/0328/1975: [1976]2SCR924 , in which, on considering the entire tenor of the Will and the accompanying circumstances, the intention of the testator was held to create life estate on wife and an absolute estate thereafter to another heir. On the basis of this ruling, Shri Karmarkar, learned Counsel for the appellants submitted that the facts involved in the said ruling are quite similar and at par with the facts involved in the present case and as such, it is only the life estate in favour of Ramchandra and an absolute estate in favour of the plaintiffs that has to be carved out. The submissions however, cannot be accepted. In the said ruling it is found that there were several features which run counter to the theory of absolute estate in favour of the wife and the prime feature was the apprehension by the testator that after his death, his brother and nephew would trouble and harass his wife. It is on the basis of these facts, that only life interest was held in favour of the wife of the testator and as such, a further bequest after her death in favour of other heirs than the reversioners was upheld. The observations made in para 24 of the said judgment squarely apply to the case at hand. In para 24 of the said ruling, Supreme Court ruled thus,

"A plenitude of absolute estate in favour of the wife will make the absolute bequest to Gokul void in law. No such repugnant interpretation detrimental to the interest of Gokul can be made in the light of the entire tenor of the instrument."

Coming to the facts of the present case, it may be reiterated that Sitabai conferred an absolute ownership on Ramchandra which takes place immediately after her death and as such, it makes a subsequent bequest in favour of the plaintiffs as void in law. The three plaintiffs can, therefore, succeed to the estate only in case Ramchandra is entitled to life interest in the properties and as Ramchandra has to be held an absolute owner, the property would not come to the shares of the present plaintiffs on the basis of the subsequent bequest in the Will but, would devolve on his own heirs.

8. Lastly, Shri Karmarkar, learned Counsel for the appellants relied on a ruling of the Supreme Court in S. Rajagopal Chettiar v. Hamasaveni Ammai, MANU/SC/0134/1992 : [1991]3SCR714a , wherein the daughter of the testator was held entitled only to a life estate as the daughter was to enjoy the property after life time of the testator and the property after the daughter's death was to go to her male children. On consideration of the recitals of in the Will, the Supreme Court, in para 3 of the said ruling, held that the testator did not want to give an absolute ownership in the property to his wife and thereafter, absolute right in favour of his daughter. This was so held because of the clear mention in the Will that after the wife, the property was to go to her male children automatically. The Court, therefore, ultimately held the intention of the testator was only to create life interest in favour of the daughter. Relying on this ruling, it is submitted for the appellants that in the case at hand also, there is a subsequent disposition of the property in favour of the plaintiffs and as such, the bequest in favour of Ramchandra must be held to create only a life interest in his favour. This would have been accepted by us if Ramchandra really can be held to have only a life interest but, in our opinion, the specific wording of the Will (Exh. 51) conferred an absolute ownership of the estate on Ramchandra and, therefore, nullifies any further disposition. The subsequent bequest of the property in favour of the three plaintiffs is, therefore, not only ineffective but void. In view of this, we, therefore, hold that on the happening of the first contingency i.e., the death of the testator, the absolute ownership in the property passes to Ramchandra and as Ramchandra did not predecease Sitabai, the legacy in favour of the present plaintiffs cannot take effect. The trial Court, in our opinion, was, therefore, right in holding that the Will was valid and operative as conferring the ownership in favour of Ramchandra and as such, was inoperative and void against the present plaintiffs. The plaintiffs, therefore, are rightly held as disentitled to claim any interest to the property on the basis of the Will (Exh. 51).

9. In construing the language of the Will, the courts are entitled and bound to consider all other surrounding circumstances, than merely the words used. In the present case, in addition to the specific recitals of the Will, we also find material evidence on record to negative the case of the plaintiffs. As stated above, Achut Ganesh filed Regular Civil Suit No. 689 of 1976 against Narhari, Anil and Devidas. The suit was in respect of same house involved in the present litigation and was for a declaration of title in favour of Achut and for consequential relief of permanent injunction restraining the then defendants from disturbing the possession of the plaintiff Achut. The said suit (Exh. 26) came to be filed on 27-8-1976 and ended in a compromise on 8-9-1976. As per the compromise decree, the suit house, initially standing in the name of Sitabai and thereafter, Ramchandra and lastly the plaintiff Achut was agreed not only to retain but was accepted as absolute owner of that property. Narhari, Anilkumar and Devidas (defendants to that suit) accepted in the said compromise as having no claim or interest in the property. As per the said compromise decree, the plaintiff Achut was also conferred a right to collect the rent from the tenants of the house. It may be noted at this juncture that in the present Will, the property is to go to Anilkumar, Arunkumar and Shashikant who were shown as minors by their guardian father Narhari, after the death of Ramchandra. Narhari was defendant No. 1 to Civil Suit No. 689 of 1976 while Anil was defendant No. 2 in his individual capacity on attaining majority. It is, therefore, clear that Arunkumar and Shashikant who were under the guardianship of Narhari were represented by their father while Anilkumar, on becoming major, himself contested the said suit and, as stated above, the suit ended in compromise wherein the present plaintiff Anilkumar and the father of Arunkumar and Shashikant accepted Achut as absolute owner of the property after the death of Sitabai. If it was a true state of affairs that the Will (Exh. 51) had bestowed only life estate in favour of Ramchandra and an absolute ownership to the present plaintiffs, it fails to understand as to how and why the present plaintiff No. 1 and father of plaintiffs Nos. 2 and 3 still accepted Achut as owner and resiled from defending the title of the suit house on the basis of the registered Will (Exh. 51). If, according to the plaintiffs they succeeded to the property after the death of Ramchandra, on the basis of this Will, it cannot be thought that the Will neither refer to the Will nor will try to protect their title to that suit house on this basis. The abstinence of the present plaintiffs from staking any claim of ownership to the house on the basis of this Will (Exh. 51) is eloquent by itself, and leads to irresistible conclusion that not only Sitabai intended to make Ramchandra an absolute owner but, the present plaintiffs also themselves treated Ramchandra as such after the death of Sitabai and never even thought of treating him as having only life interest in the estate. Therefore, even though the cross-objections filed on behalf of the contesting respondents in First Appeal No. 3 of 1986 are not pressed and as such, not required to be considered, the fact that in the earlier suit the present plaintiffs accepted Achut as owner of the property and did not consider Ramchandra as having only a life interest, is of considerable importance and in our opinion, affords a death blow to the case of the plaintiffs. Considering the specific recitals in the Will (Exh. 51) and the above accompanying circumstances, we are, therefore, of the opinion that the trial Court was right and justified in holding the true intention of the deceased testator Sitabai as to confer nothing less than the absolute ownership of the properties on her husband Ramchandra and as such, the present plaintiffs were disentitled to claim any relief on the basis of the subsequent bequest mentioned in the said Will. The suit of the plaintiffs has, therefore, been rightly dismissed and we do not find anything wrong or any infirmity or illegality either in the reasonings or findings of the trial Court. The plaintiffs are, therefore, rightly, in our opinion, non-suited and the First Appeal No. 3 of 1986 having no substance, has to be dismissed.

10. The natural consequence of the dismissal of the suit of the plaintiffs is the rejection of their application for probate on the basis of the will. The plaintiffs treated themselves to be the owners on the basis of the Will (Exh. 51) and so approached the Civil Court under section 276 of the Indian Succession Act, 1925 for grant of a probate. As the plaintiffs failed to prove their claim of ownership on the basis of the Will, the inevitable consequence was the rejection of the said application and, this being so, the companion First Appeal No. 36 of 1986 filed by the present plaintiffs is also devoid of substance and has to be met with the same rate.

11. In the result, First Appeal No. 3 of 1986 as well as the Cross-objections and First Appeal No. 36 of 1986 are hereby dismissed. The parties are however, directed to bear their respective costs throughout.

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