//
you're reading...
legal issues

Succession Act, 1925 – s.90 – Effect of, on interpretation of the Will – Held: In absence of a contrary intention in the Will, the description of the properties in the Will would be deemed to refer to and include the property answering that description at the death of the testator – The Will would then be deemed to speak from the date of the testator’s death – English Wills Act (U.K) – s.24. Will – Statutory presumption against intestacy – Held: While construing a Will, the Court should lean against any intestacy – However, the presumption against intestacy cannot be raised ignoring the intention in the Will. Interpretation of Statutes – Deeming provision – Interpretation and effect of – Legal fiction. Words and Phrases – “deemed” and “comprise” – Meaning of. Dispute arose between the parties over some properties bequeathed in terms of a Will. In the Will, seven items of property were bequeathed. Pursuant to an application filed by the appellants under Section 278 of the Indian Succession Act, 1925, the District Judge granted the letters of administration in respect of all the seven items of property in the Will. On appeal, the High Court affirmed the grant of letters of administration in respect of items 1 to 3. It declined to grant the letters of administration in respect of items 4 to 7 on the ground that on the date of the Will, the testator’s title over item nos.4 to 7 was not perfected; and that it was perfected only on the registration of the sale deed (executed in favour of the testator), which was after the execution of the Will. In the instant appeals, the question which arose for consideration was whether in view of the provisons of s.90 of the Indian Succession Act, 1925, the judgment of the High Court was erroneous and liable to be set aside. =Disposing of the appeals, the Court HELD:1.1. Section 90 of the Indian Succession Act, 1925 is based on Section 24 of the English Wills Act. Prior to the English Wills Act under the common law, testamentary disposition of real property spoke from the date of the Will. But the English Wills Act changed that by a statutory presumption to the effect, that unless a contrary intention appears from the recitals of the Will, the Will speaks from the date of the testator’s death. [Para 13] [1142-F] 1.2. Section 90 uses the legal fiction “deemed” and that is used with the specific purpose of raising a presumption against intestacy. On an analysis of the provisions of Section 90, it is clear that the property described in the Will shall be deemed to refer to and comprise the property answering that description at the death of the testator. In the absence of a contrary intention in the Will, the description of the properties in the Will shall be deemed to refer to and include the property answering that description at the death of the testator. [Paras 14, 16] [1142-G-H] Shorter Oxford Dictionary on Historical Principles, p.386; Webster’s Comprehensive Dictionary Encyclopedic Edition, p.269 and Law of Wills by Williams, 3rd edition, p.429, referred to. 2. When the legislature uses a deeming provision to create a legal fiction, it is always used to achieve a purpose. The obvious purpose herein is to avoid intestacy in respect of properties referred to and comprised in the Will. Once the purpose is ascertained, the Court must give full effect to the statutory fiction and the fiction is to be carried to its logical end. Going by this test, the High Court did not properly appreciate the purport of Section 90 in the context of the Will when it is common ground that the Will does not contain any contrary intention in respect of the bequest of items 4 to 7 of the properties. [Paras 17, 18, 19] [1143-E-H; 1144-A-C] State of Travancore-Cochin and others v. Shanmugha Vilas Cashewnut Factory, Quilon AIR 1953 SC 333 and State of Bombay v. Pandurang Vinayak and others AIR 1953 SC 244, relied on. East End Dwellings Co. Ld. v. Finsbury Borough Council 1952 AC 109, referred to. 3. On general principles also, a Will speaks only from the date of the death of the testator. In the present case, assuming that the testator had not acquired title in respect of half of the property, namely, items 4 to 7 of the property bequeathed by him in the Will on 8.5.1967, but the sale deed having been registered on 8.5.1967, the title reverts back to the date of execution of the sale deed on 2.5.67 under Section 47 of the Registration Act. And the testator died on 20.7.71. Therefore, much before his death, the testator acquired full title over items 4 to 7 of the property. Therefore, the High Court was in clear error in not appreciating the effect of Section 90 on the interpretation of the Will. [Para 21] [114- F-H] 4. It is one of the well established principles that while construing a Will, the Court should lean against any intestacy. The presumption against intestacy cannot be raised ignoring the intention in the Will. That is why Section 90 stipulates that the deeming clause will operate only where there is no contrary intention. In this case, it is common ground that no contrary intention could be discerned in the Will in respect of items 4 to 7. In construing a Will both the English Courts and the Supreme Court of India lean against any presumption favouring intestacy in the absence of a manifest contrary intention in the Will. The judgment of the High Court is thus set aside and that of the District Judge is restored. [Paras 32, 34 and 39] [1147-F-H; 1148-F-G; 1149-F] Ram Saran Lall and others v. Mst. Domini Kuer and others, AIR 1961 SC 1747, distinguished. Hamda Ammal v. Avadiappa Pathar and 3 others (1991) 1 SCC 715, and A. Jithendernath v. Jubilee Hills Coop. House Building Society and another (2006) 10 SCC 96, held inapplicable. Gnambal Ammal v. T Raju Ayyar and others, AIR 1951 SC 103; N. Kasturi v. D. Ponnammal and others, AIR 1961 SC 1302; Pearey Lal v. Rameshwar Das AIR 1963 SC 1703 and Navneet Lal alias Rangi v. Gokul and others AIR 1976 SC 794, relied on. Alavandar Gramani Vs. Danakoti Ammal and others (AIR 1927 Madras 383); Abdulsakur Haji Rahimtulla and others v. Abubakkar Haji Abba and others AIR 1930 Bombay 191; Rangoo Ramji Vs. Harisa and another, AIR 1932 Nagpur 163, referred to. Re Harrison Turner Vs. Hellard, (1885) 30 Chancery Division 390; Re Fleming’s Will Trusts Ennion Vs. Hampstead Old People’s Housing Trust Limited and Another (1974) 3 All ER 323 and Venkata Narasimha Appa Row vs. Parthasarthy Appa Row and another 41 Indian Appeals 51, referred to. Case Law Reference: AIR 1953 SC 333 relied on Para 17 AIR 1953 SC 244 relied on Para 18 1952 AC 109 referred to Para 18 (1885) 30 Chancery Division 390 referred to Para 22 (1974) 3 All ER 323) referred to Para 23 AIR 1927 Madras 383 referred to Para 26 AIR 1930 Bombay 191 referred to Para 27 AIR 1932 Nagpur 163 referred to Para 28 41 Indian Appeals 51 referred to Para 31 AIR 1951 SC 103 relied on Para 32 AIR 1961 SC 1302 relied on Para 33 AIR 1963 SC 1703 relied on Para 33 AIR 1976 SC 794 relied on Para 33 AIR 1961 SC 1747 distinguished Para 35 (1991) 1 SCC 715 held inapplicable Para 38 (2006) 10 SCC 96 held inapplicable Para 38 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7226 of 2002. From the Judgment & Order dated 6.12.2000 of the High Court of Kerala at Ernakulam in M.F.A. No. 44 of 1990. WITH C.A. No. 4432 of 2003 T.L. Vishwanatha Iyer, T.G. Narayanan Nair, K.N. Madhusoodanan, Romy Chacko, Jasaswini Mishra for the appearing parties.

REPORTABLE

Picture of the Kerala High Court Advocates Ass...

Image via Wikipedia

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7226 OF 2002

Ittianam & Others ..Appellant(s)

Versus
Cherichi alias Padmini ..Respondent(s)

WITH
CIVIL APPEAL NO.4432 OF 2003

J U D G M E N T
GANGULY, J.
CIVIL APPEAL NO.7226 OF 2002
1. This appeal is directed against the judgment of

the Division Bench of the Kerala High Court dated

6th December, 2000 rendered in Miscellaneous First

Appeal No. 44 of 1990.
1
2. The dispute is over some of properties bequeathed

by the Will dated 8.5.1967 by one Kakkassery

Ippuru.

3. The material facts on which there is not much

dispute are that the testator Ippuru’s first wife

Kunhiri died, leaving behind daughter Molutty and

son Vareed who died on 8.1.86. The wife and

children of Vareed, since deceased, are the

plaintiffs. The second wife of Ippuru, Kunjila,

is the 7th plaintiff. She has two daughters

Mariyamma, the 8th plaintiff and the other

daughter is Padmini @ Cherichi, the defendant and

respondent herein.

4. By a sale deed, being Exhibit-B1, dated 2.5.67,

Kunjila, the second wife of Ippuru, sold to

Ippuru half of her rights in respect of item Nos.

4 to 7 of the properties in the Will bequeathed

by Ippuru. The other half of the property

belonged to her son Vareed. Both the sale deed
2
and the Will were registered on 8.5.1967, Ippuru

died on 20.7.71.

5. In the Will of Ippuru, seven items of properties

were bequeathed and out of which items 1 to 3

were given to one Molutty, daughter of the

testator by his first wife. Items 4 to 7 of the

properties were previously owned in equal

moieties by Vareed and Kunjila, the second wife

of Ippuru. Kunjila, as noted above, sold her

share to Ippuru on 2.5.67 but the sale deed was

registered on 8.5.67, the same day when the Will

was registered.

6. After the death of Vareed on 1.8.1986, his wife

and children appellants, 1 to 5 herein, jointly

applied under Section 278 of the Indian

Succession Act (the Act) for grant of Letters of

Administration of the Will of the testator. That

petition was contested by the Padmini @ Cherichi,

one of the daughters of the testator’s second

wife. Thus the proceeding became contentious and
3
was registered as a suit being O.S. 10 of 1988 in

the District Court, Thrichur.

7. The District Judge granted the letters of

administration in respect of all the items of

property in the Will. An appeal was taken to the

High Court whereupon by the impugned judgment the

High Court upheld the genuineness of the Will but

modified the grant of letters of administration

only to items 1 to 3. The High Court declined to

grant the letters of administration in respect of

items 4 to 7 and the reasoning given by the High

Court inter alia was that on the date of the Will

i.e. 8.5.67 the testator’s title to half of the

property, namely over item Nos. 4 to 7 was not

perfected. It was perfected only on the

registration of sale deed, which is after the

execution of the Will, even though the sale deed

was executed on 2.5.1967. The correctness of the

finding of the High Court is questioned in this

appeal.
4
8. When the appeal was taken up for hearing on

25.2.2010, the learned counsel for the appellant

urged that in view of provisions of Section 90 of

the Act, the judgment of the High Court is

erroneous. But that point was not specifically

taken either before the High Court or in the

Special leave petition. As such the learned

counsel for the appellant prayed for leave to

file an application for urging additional

grounds.

9. Since the question is purely one of law and is

arising from the records of the case and can be

urged without raising any new factual

controversy, this Court granted leave to urge the

additional grounds. The respondents were granted

liberty to file its response to the application

for additional grounds.

10. Pursuant thereto, application for urging

additional grounds was filed and the respondent,

though was given opportunity to file response to
5
those grounds, did not choose to do so. But the

respondent’s counsel was heard on those grounds

and he sought to controvert those grounds orally.

11. Admittedly, the parties are Christians and are

governed by the Act. Along with the application

for additional grounds a translated copy of the

Will was also filed.

12. Section 90 of the Act provides:
“90. Words describing subject refer to
property answering description at
testator’s death. – The description
contained in a Will of property, the
subject of gift, shall, unless a contray
intention appears by the Will, be deemed
to refer to and comprise the property
answering that description at the death of
the testator.”

13. This Section is based on Section 24 of the

English Wills Act. Prior to the English Wills Act

under the common law, testamentary disposition of

real property spoke from the date of the Will.

But the English Wills Act changed that by a

statutory presumption to the effect, that unless
6
a contrary intention appears from the recitals of

the Will, the Will speaks from the date of the

testator’s death.

14. Section 90 of the Act uses the legal fiction

“deemed” and that is used with the specific

purpose of raising a presumption against

intestacy. Therefore, on an analysis of the

provisions of Section 90 it is clear that the

property described in the Will shall be deemed to

refer to and comprise the property answering that

description at the death of the testator.

15. In the context of Section 90, the word `comprise’

will obviously mean `to include, embrace, to

comprehend compendiously, to contain, to consist

of, to extend, cover” (See Shorter Oxford

Dictionary on Historical Principles, page 386).

In Webster’s Dictionary the word `comprise’ means

to “include and contain, consist of and embrace”.

(Webster’s Comprehensive Dictionary Encyclopedic

Edition, page 269).
7
16. Therefore, on a plain reading of the Section, the

meaning is clear. It is, that in the absence of a

contrary intention in the Will, the description

of the properties in the Will shall be deemed to

refer to and include the property answering that

description at the death of the testator.

17. It is well known when legislature uses a deeming

provision to create a legal fiction, it is always

used to achieve a purpose. In State of

Travancore-Cochin and others Vs. Shanmugha Vilas

Cashewnut Factory, Quilon, reported in AIR 1953

SC 333, the Constitution Bench opined, when a

legal fiction is created, one is led to ask at

once for what purpose it is created (see para 38

page 343).

18. In this case the obvious purpose is to avoid

intestacy in respect of properties referred to

and comprised in the Will. Once the purpose is

ascertained, the Court must give full effect to

the statutory fiction and the fiction is to be

8
carried to its logical end. In State of Bombay

Vs. Pandurang Vinayak and others, reported in AIR

1953 SC 244, this Court laid down the aforesaid

propositions at page 246 of the report. In doing

so, this Court relied on the famous dictum of

Lord Asquith which has virtually become locus

classicus on statutory interpretation of

`deeming’ provisions. Lord Asquith’s formulations

in East End Dwellings Co. Ld. Vs Finsbury Borough

Council, 1952 AC 109 are:
“If you are bidden to treat an imaginary
state of affairs as real, you must surely,
unless prohibited from doing so, also
imagine as real the consequences and
incidents which, if the putative state of
affairs had in fact existed, must
inevitably have flowed from or accompanied
it……The statute says that you must imagine
a certain state of affairs; it does not
say that having done so, you must cause or
permit your imagination to boggle when it
comes to the inevitable corollaries of
that state of affairs.”
19. Going by this test, in our judgment, the High

Court did not properly appreciate the purport of
9
Section 90. In the context of the Will when it is

common ground that the Will does not contain any

contrary intention in respect of the bequest of

items 4 to 7 of the properties.

20. The principle of Section 90 which, as noted

above, has been taken from Section 24 of the

English Wills Act has been very lucidly discussed

in Williams, Law of Wills (3rd Edition). At page

429 of the treaties, the learned author by

properly appreciating the deeming clause

commented:
“A Will must be construed with reference
to the property comprised within it, to
speak and to take effect as it has been
executed immediately before the date of
death of the testator and as if the
conditions of things to which it refers in
this respect is that existing immediately
before the date of the testator, unless a
contrary intention appears from the Will”.

21. On general principles also a Will speaks only

from the date of the death of the testator (See

AIR 1964 SC 136). In this case assuming but not

admitting that the testator had not acquired
10
title in respect of half of the property, namely,

items 4 to 7 of the property bequeathed by him in

the Will on 8.5.1967, but the sale deed having

been registered on 8.5.1967, the title reverts

back to the date of execution of the sale deed on

2.5.67 under Section 47 of the Registration Act.

And the testator died on 20.7.71. Therefore,

much before his death, the testator acquired full

title over items 4 to 7 of the property.

Therefore, the High Court was in clear error in

not appreciating the effect of Section 90 on the

interpretation of the Will.

22. It is one of the well established principles that

while construing a Will, the Court should lean

against any intestacy. This has been put beyond

any doubt by Lord Esher, Master of Rolls in Re

Harrison Turner Vs. Hellard, reported in (1885)

30 Chancery Division 390 wherein learned Master

of Rolls held:
“……when a testator has executed a will in
solemn form you must assume that he did
not intend to make it a solemn farce,-
that he did not intend to die intestate

11
when he has gone through the form of
making a will. You ought, if possible, to
read the will so as to lead to a testacy,
not an intestacy.”

23. The learned counsel for the appellant in support

of his argument on Section 90 of the Act relied

on a decision in the case of Re Fleming’s Will

Trusts Ennion Vs. Hampstead Old People’s Housing

Trust Limited and Another (1974) 3 All ER 323).

24. In that case by a Will made in September 1969,

the testator bequeathed to the first defendants

his leasehold house at 54 Narcissus Road when the

testator had his house under a lease term

expiring on 28th September, 2008 subject to

covenants to repair. In April 1971, the testator

purchased the freehold and that was registered

with acquisition of title.

25. The leasehold interest was unregistered and the

testator died in February, 1973. As a sole

executor of the Will, the plaintiff applied for

determination of interest that passed on to the

12
first defendants. The residuary beneficiaries

under the Will claimed that the first defendants

was only entitled to leasehold interest.

Repelling that contention, Templeman J, while

delivering the judgment held:
“In my judgment, a gift of property
discloses an intention to give the estate
and interest of the testator in that
property at his death; a mere reference in
the will to the estate and interest held
by the testator at the date of his will is
not sufficient to disclose a contrary
intention. It follows that the freehold in
the case passes to the first defendants.
(page 326 Placitum g)
26. The learned counsel for the appellants also

relied on the decision in the case of Alavandar

Gramani Vs. Danakoti Ammal and others (AIR 1927

Madras 383). Construing Section 90 of the Act,

the Division Bench of Madras High Court held:
“…Under Section 90 of the Succession
Act, XXXIX of 1925, there is a
presumption, unless a contrary intention
appears by the Will, that it comprises all
property as at the testator’s death…”
13
27. The learned counsel also relied on the decision

of Bombay High Court in the case of Abdulsakur

Haji Rahimtulla and others Vs. Abubakkar Haji

Abba and others reported in AIR 1930 Bombay 191.

At page 196 of the report, Bombay High Court

decided:
“…In this connection it is necessary to
remember certain general principles that
attach to wills. A will speaks from the
date of the death of the deceased. There
might be accretions to or diminutions from
the property of the testator as they
existed at the date of the will. Another
principle to remember in this connection
is that a testator is presumed to dispose
of all the property that he may die
possessed of and not only what he
possessed at the date of the will…”
28. Reliance was last placed on the decision of the

Nagpur High Court in the case of Rangoo Ramji Vs.

Harisa and another reported in AIR 1932 Nagpur

163. Explaining the purport of Section 90, the

High Court observed that Section 90 is in
14
accordance with Section 24 of the English Wills

Act of 1837. According to such principle “the

Will has to be construed with reference to the

real estate and personal estate comprised in it

to speak and to take effect, as if it had been

executed immediately before the death of the

testator, and as if the condition of things to

which it refers in this respect before the death

of the testator unless contrary intention appears

by the Will” (page 165 of the report). The

decision in Rangoo Ramji (supra) was based on the

Madras High Court decision in Gramani (supra).

29. All the decisions discussed above, namely those

of English Court and of the High Courts of

Madras, Bombay and Nagpur support the contention

of the appellants.

30. Faced with this argument the learned counsel for

the respondent wanted to rely on the observation

of the Privy Council and contended that this

leaning towards intestacy is purely a product of
15
British Jurisprudence based on English

necessities and English habit of thoughts and

there would be no justification in taking them as

guide in the case of Indian Wills.

31. The aforesaid observations were made by Lord

Moulton while considering the effect of adoption

in the context of an Indian Will in the case of

Venkata Narasimha Appa Row Vs. Parthasarthy Appa

Row and another reported in 41 Indian Appeals 51

(at page 71 of the report). These observations

were by way of obiter dicta by the learned judge

and were made in 1913 when the Act was not there.

32. Section 90 of the Act is on the principles of

English Law and this Court in Gnambal Ammal Vs. T

Raju Ayyar and others (AIR 1951 SC 103) speaking

through Justice B.K. Mukherjea (as His Lordship

then was) clarified the position. This Court

considered the decision of Privy Council in

Venkat Narasimha (supra) and held that the

presumption against intestacy may be raised if it
16
is justified from the context of the document or

the surrounding circumstances and where there is

ambiguity about the intention of the testator

(see para 11 page 106 of the report). It is true

that presumption against intestacy cannot be

raised ignoring the intention in the Will. That

is why Section 90 stipulates that the deeming

clause will operate only where there is no

contrary intention. In this case it is common

ground that no contrary intention could be

discerned in the Will in respect of items 4 to 7.

33. In subsequent decisions while discussing

presumption against intestacy this Court made

the position further clear in N. Kasturi Vs. D.

Ponnammal and others, reported in AIR 1961 SC

1302. Justice Gajendragadkar, as His Lordship

then was, speaking for the Bench, opined if two

constructions are reasonably possible and one of

them avoids intestacy while the other suggests

it, “the Court would certainly be justified in

preferring that construction which avoids

17
intestacy” and the decision rendered in Gnambal

Ammal (supra) was relied upon (para 15 page 1307

of the report). Same view was endorsed by this

Court in Pearey Lal Vs. Rameshwar Das reported in

AIR 1963 SC 1703 wherein Justice Subba Rao, as

His Lordship then was, speaking for the Bench

observed where one of the two reasonable

constructions would lead to intestacy that should

be discarded in favour of the construction which

prevents the hiatus (para 7 page 1706 of the

report). The same principle has been quoted with

approval by this Court in the case of Navneet Lal

alias Rangi Vs. Gokul and others reported in AIR

1976 SC 794. Speaking for the Bench, Justice

Goswami, at para 4 page 797 of the report, quoted

the aforesaid principle laid down in Pearey Lal

(supra).

34. Therefore, both the English Courts and this Court

in construing a Will lean against any presumption

favouring intestacy in the absence of a manifest

contrary intention in the Will. The argument on

18
behalf of the learned counsel for the respondent

has therefore no substance.

35. The learned counsel also relied on the decision

in the case of Ram Saran Lall and others Vs. Mst.

Domini Kuer and others, reported in AIR 1961 SC

1747.

36. A perusal of the decision in Ram Saran (supra)

makes it clear that the same was rendered on

totally different facts and against a completely

different legal background. In Ram Saran (supra),

parties were Hindus, but they were governed by

the Mohammedan Law of pre-emption as available to

them by custom. The main question discussed in

Ram Saran (supra) was when can the demand for

pre-emption be exercised. The majority opinion of

the Court, by a 3:2 verdict, decided that such

demand can be made only after completion of the

sale. The majority was of the view that a sale is

complete not only after registration of the sale

deed under Section 47 of the Registration Act but
19
it is complete only after the registered document

is copied in the Registration Office, as provided

under Section 61 of the Registration Act.

37. We fail to appreciate the relevance of the ratio

in Ram Saran (supra) to the facts of the present

case.

38. Two other judgments cited by the learned counsel

for the respondent rendered in the case of Hamda

Ammal Vs. Avadiappa Pathar and 3 others reported

in (1991) 1 SCC 715, and that of A. Jithendernath

Vs. Jubilee Hills Coop. House Building Society

and another reported in (2006) 10 SCC 96, are on

Section 47 of the Registration Act to the effect

that the title passes retrospectively with effect

from the date of execution and not from the date

of registration. These are accepted legal

principles on which there can be no debate but

they have no application to the facts of this

case.
20
39. For the reasons discussed above the appeal is

allowed. We are constrained to set aside the

judgment of the High Court and restore that of

the District Judge. No order as to costs.
CIVIL APPEAL NO.4432 OF 2003
40. For the reasons discussed above and in view of

the order passed in Civil Appeal No. 7226 of

2002, this appeal is dismissed. No order as to

costs.
…………………J.
(G.S. SINGHVI)
…………………J.
(ASOK KUMAR GANGULY)

New Delhi
July 27, 2010
21

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,891,076 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,906 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: