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Testator

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Indian Succession Act, 1925: Section 88. Will-Other Instilments-Rules of interpretation-Difference in-Inconsistent clauses in will-Later shall prevail over earlier. Legal Maxims : Maxim “cum duo inter sc pugnantia reperiuntur in testamento ultimum ratum est”-Meaning of. This petition has been filed on the ground that the Kerala High Court has not properly interpreted the will in question. =Dismissing the petition, this Court HELD : 1. The rules of interpretation of a “Will” are different from the rules which govern the interpretation of other documents say, for example, Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between earlier or the .subsequent part or specific clauses Inter-se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part. [37-A-B] Ramachandra Shenoy and Anr. \. Mm. Hilda Brite and Ors., AIR (1964) SC 1323; Named Lai v. Gokul and Ors., AIR (1976) SC 794 and Ramakrihorc Lal and Anr. v. Kamalnarayan, AIR (1963) SC 890, referred to. 2. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim “cum duo inter sc pugnantia reperiuntur in testarnento ultimum ratum est” which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier. This principle is also contained in Section 88 of the Indian Succession Act, 1925, However, this rule of interpretation can be invoked only if different clauses cannot be reconciled. [37-C-E; 38-A] Hammond v, Trehame, [1938] 3 All England Reports 308 and Rameshwar v. Balraj, AIR (1935) PC 187, referred to. CIVIL APPELLATE JURISDICTION : Special Leave Petition No. 4597 of 1990. From the Judgment and Order dated 6.11.89 of the High Court of Kerala in S.A. No. 750/80-G. K,V. Viswana than for M.T. George for the Petitioner. S. Balakrishnan and S, Prasad for the Respondent. =1995 AIR 2491, 1995( 3 )Suppl.SCR 35, 1995( 5 )SCC 444, 1995( 5 )SCALE23 , 1995( 7 )JT 164

CASE NO.: Special Leave Petition (civil) 4597 of 1990 PETITIONER: KAILVELIKKAL AMBUNH1 (DEAD) BY LRS. AND ORS. RESPONDENT: H.GANESH BHANDARY DATE OF JUDGMENT: 24/08/1995 BENCH: KULDIP SINGH & S. SAGHIR AHMAD JUDGMENT: JUDGMENT 1995 (3) Suppl. SCR 35 The Judgment of the Court was delivered by S, SAGHIR AHMAD, J. The only ground on which … Continue reading

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 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 … Continue reading

Evidently, the burden is on the propounder of the Will to prove the execution of the same. A Will is a compulsorily attestable document and it has to be proved that the executant of the Will was conscious and aware of the contents of the same. In this case evidently, the relationship of the plaintiffs with Kaneez Fiza was not accepted by the Courts. The original of the Will was not produced before the Court. Ex.A.4 is only certified copy of the Will and the reasons for not summoning or producing the original Will is not forthcoming. No permission was taken to dispense with the production of the original. If the original was marked in the earlier suit O.S.No.445 of 1974, it could have been easily filed when certified copy was obtained. The scribe of the Will was not examined. PW.2 is said to be aged about 55 years and a resident of Parbhani and he claims that Kaneez Fiza executed the Will. His evidence does not show that the contents of the Will were dictated by the testator and the reason for execution of the Will and that he signed along with the other attesters to the witnessing of the testator. He studied only up to 5th class and he does not know even the name of the husband of the Kaneez Fiza and he has not given evidence with regard to the Will earlier. So also the evidence of PW.4, who is said to be an Advocate and attester of the Will, is also not sufficient to establish the Will. He is not even able to give the name of the testator and he claims that it was referred in Ex.A.4. He does not even say that the contents of the Will were declared by the testator and that it was drafted in his presence and that he has signed to the witnessing of the testator. He does not even know the family particulars of Mohd. Thaqui and he claims to be accidentally present when he went to the Registrar’s Office and therefore, he attested Ex.A.4, except that he has no prior information. The evidence of PW.4 appears to be artificial. He was not even able to testify the soundness of the mind of the testator at the time of execution of the Will. If such is the evidence, the lower Court heard in holding that the evidence of PWs.2 and 4 establishes the execution of the Will. Therefore, it is quite clear that there is no proper proof even in the present suit about the execution of the Will and the legal requirement of soundness of mind and free Will of the testator and the declaration of the intention to Will away the property by the testator were not spoken either by PW.2 or PW.4. They are also not specific about the testators signing to their witnessing and they attesting the Will to the witnessing of the testator. =The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been raised and which dispute was heard and finally decided by the Court. Once the decision on question of title becomes final it operates as res judicata even if the value of the subject matter on which the former decision was pronounced was comparatively very trifling. When the decision was given by trial Court after contest it operates as res judicata even if appeal therefrom might have been dismissed on some preliminary grounds like limitation”

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CCC APPEAL No.225 OF 2001 and bt 09-06-2011 Smt.Askari Begum and others Md.Ayaz Khan and others Counsicl of Petitioner:— Counsil for Respondent:– :JUDGMENT: Both the appeals arise out of common property, which is a house property bearing No.22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an extent of … Continue reading

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