KASHIRAM Vs. BHURA
LAWS(MPH)-1980-8-11
HIGH COURT OF MADHYA PRADESH
Decided on August 22,1980

KASHIRAM Appellant
VERSUS
BHURA Respondents




JUDGEMENT

B.C.Varma, J. - (1.)This appeal by the plaintiff is directed against the judgment and decree, dated 2-12-1976, passed by the District Judge. Betul. in Civil Suit No. 32-A of 1971 dismissing his suit for declaration that the alienation of the suit property made by respondent; Sariabai (since deceased) in favour of the other respondents is not binding on him after her death, and also for possession.
(2.)One Tularam had a son Pancham who died on 6-8-1926. Pancham had three wives including one Punii. Sarjabai, original defendant No. 1, was the daughter of Punji. On 16-5-1907, Pancham executed a Will (copy of which is Ex. P-4) in favour of Sariabai whereby he bequeathed certain Sir lands and a house to her. Pancham adopted one Gopichand alias Korat as his son. Gopichand is dead and plaintiff/ appellant Kashiram is the son of Gopichand. On the death of Pancham, Sarjabai came in possession of the suit property as a legatee under the Will of Pancham. On 28-10-1971, she made a gift of the suit lands and the house in favour of respondents 2 to 9 as trustees of Gadhekar Tapti Dharamshala. Multai. The plaintiff's claim in the suit was that the Will, dated 16-5-1907 (Ex. P-4), created only a life interest in Sarjabai in the property bequeathed thereunder and, therefore, the tarnsfer made by her under the gift deed, dated 28-10-1971, in favour of respondents 2 to 9 was not binding on him beyond the lifetime of Sariabai and that he was entitled to be put in possession of that property after her death as its exclusive owner. The defence was that the Will conferred an absolute estate on Sariabai who was, therefore, quite competent to alienate the same absolutely. The defence found favour with the trial Court which dismissed the suit. Before this Court, the respondents/defendants have amended their written statement raising a plea that the lands in suit being Sir have vested in the State on the coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act, 1950, that malikmakbuza rights were conferred on her under Section 38 of the Abolition Act since she was in possession on the date of abolition and that as this grant in her favour was a fresh grant independent of the Will, it conferred an absolute heritable and transferable title in her. It was therefore, said that she was perfectly competent to alienate the lands. It may be mentioned that the learned counsel for the appellant did not dispute that the lands in question were Sir and that they were in possession of Sariabai at the time of coming into force of the Abolition of Proprietary Rights Act. It was also not disputed that Gopichand was the duly adopted son of Pancham.
(3.)Shri Dharmadhikari, learned counsel for the appellant, contended that the Will (Ex. P-4) only conferred a life estate on Sarjabai and upon her death the estate reverted to the only surviving reversioner, namely, the plaintiff. The decision on the point so raised shall turn one way or the other upon the construction of the Will. It will, therefore, be convenient to reproduce the relevant part of the Will:--..(Text in Malayalam not Printed).. From the expression used in this Will (Ex. P. 4), it is not free from difficulty to reach the real intention of the testator. However, the Court should make all possible efforts to find out the intention of the testator by reading the Will as a whole. The decided cases and the provisions contained in Sections 82 to 88 of the Indian Succession Act, 1925, lay down that as far as possible such construction as would give to every expression in the Will some effect rather than that which would render any of the expressions inoperative must be accepted. It is also the rule that the words occurring at more places than one in a Will should be presumed to be used always in the same sense unless a contrary intention appears from the Will. All parts of the Will should be construed in relation to each other. The circumstances under which the testator makes a Will, such as the extent of his property, the family and the like must also be taken into consideration. Referring to two earlier decisions in Pearey Lal v. Rameshwar Das AIR 1963 SC 1703 and Ramachandra Shenoy v. Hilda Brite, AIR 1964 SC 1323 the Supreme Court in Navneet Lal v. Gokul, AIR 1976 SC 794 has summed up the rule of construction relating to Wills in these terms (at P. 797) :
"In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. In construing the language of the Will the Court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense......... The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory. The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator."
In sub-paragraph (5) of paragraph 8 of the report, their Lordships have said;
"It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid, the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary, intention contained in the Will."
Yet another rule of construction of a Will as provided in Section 95 of the Indian Succession Act. 1925, is that where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him. In Ram Gopal v. Nand Lal. AIR 1951 SC 139 it has been ruled that there is no warrant for the proposition that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. This view has been reiterated in Nathoo Lal v. Durga Prasad. AIR 1954 SC 355.


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