Resolving contrary stipulations in 'Will': Principles restated

How does one know what a dead man wanted? More importantly, what do you do with a dead man's properties? Whom do you give and in what measure. These are questions which have always been fought and subject to the legislative policy, the properties devolve upon the survivors/heirs in the manner laid out by law. However even when the dead man has provided the manner in which he wanted his properties to be distributed, the devolution in not free from dispute. The document providing for the devolution ("wills") are to be read by others and thus interpretative issues come as to what the deceased really wanted. The problem becomes acute when contrary stipulations are made. 

A similar dispute arose before the Supreme Court [Sadaram Suryanarayana v. Kalla Surya Kantham, AIR 2011 SC 294] relating to interpretation of the will where the deceased mother on one hand provided her properties to vest unconditionally with her daughters, but simultaneously also stipulated that on their death the said properties should go only to her grand-daughters. In this background, the Supreme Court restated the principles relating to interpretation of contrary stipulations in a will in the following terms;

5. The English rendition of Para 6 of the Will executed by Smt. Kalla Jaggayyamma is as under:

“6) 2nd item Tiled house situated in New colony out of which Eastern wing 2 rooms shall devolves to my 2nd daughter Chandaram Appalanarasamma and the Western wing 2 rooms shall devolve upon my elder daughter Chandram Ramanamma with absolute rights of Sale, Gift, Mortgage etc., and this will come into force after my demise. After demise of my daughters the retained and remaining property shall devolve upon their female children only.”

6. It is evident from a plain reading of the above that the testatrix had bequeathed in absolute terms the property mentioned in clause (6) (supra) in favour of her daughters Chandaram Appalanarasamma and Chandaram Ramanamma with absolute rights of sale, gift, mortgage etc. That the bequest was in absolute terms was made abundantly clear by the use of the words “absolute rights of sale, gift, mortgage etc.” appearing in clause (6) above. To that extent there is no difficulty. What led to a forensic debate at the bar was the latter part of bequest under which the Testatrix has attempted to regulate the devolution of the property in question after the demise of her daughters. The Testatrix has desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only. The question is whether the Testatrix Smt. Kalla Jaggayyamma, had made two bequests one that vests the property absolutely in favour of her daughters and the other that purports to vest the very same property in their female offsprings. If so whether the two bequests can be reconciled and if they cannot be, which one ought to prevail. 

7. Before we address these questions we may briefly refer to the decisions noted above especially because the High Court seems to have seen a conflict in the legal position settled by those decisions.

8. In (Kunwar) Rameshwar Bakhsh Singh’s case (supra) the Privy Council held that where an absolute estate is created by a Will in favour of the devisee, other clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but must be held to be invalid. The following passage summed up the law on the subject: 

“Where an absolute estate is created by a Will in favour of the devisee, the clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.”

9. In Radha Sundar Dutta’s case (supra), this Court was dealing with a situation where there was a conflict between two clauses appearing in the Will. This Court ruled in favour of the earlier clause, holding that the later clause would give way to the former. This Court said:

“……….where there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa”.

10. The issue came up for consideration once again before a Constitution Bench of this Court in Ramkishore Lal’s case (supra). In that case too the Court was concerned with the approach to be adopted in a matter where a conflict arises between what is said in one part of the testament vis-à-vis what is stated in another part of the same document especially when in the earlier part the bequest is absolute but the latter part of the document gives a contrary direction about the very same property. This Court held that in the event of such a conflict the absolute title conferred upon the legatee by the earlier clauses appearing in the Will cannot be diluted or taken away and shall prevail over directions contained in the latter part of the disposition. The following passage from the decision is instructive:

“The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens?

It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo (1960) 3 SCR 604. It is clear, however, that an attempt should always be made to read the two parts of the documents harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.”

11. To the same effect is the decision of this Court in Mauleshwar Mani’s case (supra) where the question once again was whether an absolute interest created in the property by the Testatrix in the earlier part of the Will can be taken away or rendered ineffective by the subsequent bequest which is repugnant to the first bequest. Answering the question in the negative, this Court held that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to him to further bequeath the very same property in favour of the second set of persons. The following passage from the decision in this regard is apposite:

“In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid.  

xxx xxx xxx

We are, therefore, of the view that once the testator has given an absolute estate in favour of the first devisee it is not open to him to further bequeath the very same property in favour of the second set of persons.”

12. In Pearey Lal’s case (supra), this Court held that while interpreting a Will the Court must take the document as a whole with a view to harmonizing apparently conflicting stipulations. This Court recognized the following guiding principles in the matter of interpretation of Wills:

“(i) the intention of the testator by reading the will as a whole and if possible, such construction as would give to every expression some effect rather than that which could render any of the expression inoperative must be accepted;

(ii) another rule is that the words occurring more than once in a will shall be presumed to be used always in the same sense unless a contrary intention appears from the will;

(iii) all parts of a will should be construed in relation to each other;

(iv) 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;

(v) 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;

(vi) where one of the two reasonable construction would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.”

13. In Ramachandra Shenoy’s case (supra) this Court was dealing with a case where the Testatrix had made a Will in favour of her daughter and a gift over in favour of her (daughter’s) male children. The relevant portion of the Will was translated in English to the following effect:

“All these (properties) shall after me be enjoyed by my elder daughter Severina Sabina and after her lifetime by her male children too as permanent and absolute hukdars.”

The question was whether the Testatrix had made an absolute bequest to the daughter or created only a life interest followed by an absolute bequest in favour of the grandsons of the Testatrix. This Court held on an interpretation of the bequest that what was created in favour of the daughter was only a life estate and that the intention of the Testatrix was to make an absolute bequest in favour of her grandsons through her daughter. The following passage from the decision is in this regard apposite:

“It was common ground that under clause 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains of A's death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour Severina is established. 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. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words 'after her lifetime' occurring in clause 3(c) assume crucial importance. These words do indicate that the persons designated by the words that follow were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children.”

14. In Kaivelikkal Ambunhi’s case (supra), the Court applied the maximum “cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est” which means that in a will if there are two provisions the latter shall prevail over the earlier.

15. Time now to refer to the provisions of Indian Succession Act 1925, Chapter VI whereof deals with construction of Wills. Some of the principles of interpretation of Wills that are statutorily recognized in Chapter VI need special notice. For instance, Section 84 provides that if a clause is susceptible of two meanings, according to one of which it has some effect and according to the other it can have none, the former shall be preferred. So also, Section 85 provides that no part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction on the same. Section 86 provides that if the same word occurs in different parts of the same Will, they shall be taken to have been used everywhere in the same sense unless a contrary intention appears. Section 87 makes it clear that the intention of the Testator shall not be set aside merely because it cannot take effect to the full extent, and that effect is to be given to it as far as possible. Section 88 provides that if there are two clauses of gift in a Will, which are irreconcilable, so that they cannot possibly stand together, the last shall prevail.

16. It is evident from a careful reading of the provisions referred to above that while interpreting a Will, the Courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant. So also the Courts will interpret a Will to give effect to the intention of the Testator as far as the same is possible. Having said so, we must hasten to add that the decisions rendered by Courts touching interpretation of the Wills are seldom helpful except to the extent the same recognize or lay down a proposition of law of general application. That is so because each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language employed by the Testator. That indeed is the requirement of Section 82 of the Succession Act also inasmuch it provides that meaning of  any clause in a Will must be collected from the entire instrument and all parts shall be construed with reference to each other.

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