Gnambal Ammal vs T. Raju Ayyar - 1950 Supreme(SC) 55

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1950 Supreme(SC) 55

SUPREME COURT OF INDIA
21st December 1950
FAZL ALI, B.K. MUKHERJEA AND CHANDRASEKHARA AIYAR JJ.
Gnambal Ammal - Appellant
Versus
T. Raju Ayyar and others Respondents.
Appeal No. 13 of 1950.
Advocates appeared
Shri B. Somayya, Senior Advocate (Shri R. Ramamurti, Advocate, with him), instructed by Shri M.S. K. Aiyangar, Agent-for Appellant; Shri K.S. Krishnaswamy Aiyangar, Senior Advocate, (Shri K. Narsimha Aiyangar Advocate, with him) instructed by Shri M.S. Krishnamoorthi Sastri, Agent-for Respondent 1.

Advocates:
B.SOMALAYA, K.NARASIMHA AIYANGAR, K.S.KRISHNASWAMI AIYANGAR, M.S.K.AIYANGAR, M.S.KRISHNA MURTHY, R.RAMAMURTHI IYER

Headnote:Will-Construction of
       Held: "In Course of the arguments we have been referred by the learned counsel on both sides to quite a large number of decided authorities, both English and Indian, in support of their respective contentions. It is seldom profitable to compare the words of one will with those of another or to attempt to find out to which of the will, upon which decisions have been given in reported cases the will before us approximates closely. Cases are helpful only in so far as they purported to lay down certain general principles of construction and at the present day these general principles seem to be fairly well settled.
       The cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, 41 LA. 51 at p. 70; (21 I.C. 339 P.C.).
       "The Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. The court is entitled to put itself into the testators armchair..... But all this is solely as an aid to arriving at a right construction of the will, and, to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions. In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or ranks of life.
       "A question is sometime arised as to whether in construing a will the Court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian Court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances ; but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Romer L.j. observed in Re Edwards, Jones v. Jones, (1906) 1 Ch. 570 at p. 574 ; (75 L.J. Ch. 321].
       It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning."

Judgment

B. K. Mukherjea, J. :- This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated 27-11-1945, reversing the decision of the Subordinate Judge of Mayuram made in O. S. No. 34 of 1943.

2. There is no dispute about the material facts of this case which lie within a short compass and the controversy centres round one point only which turns upon the construction of a will left by one Kothandarama Ayyar to whom the properties in suit admittedly belonged. Kothandarama, who was a Hindu inhabitant of the District of Tanjore and owned considerable properties, died on 25-4-1905, leaving behind him as his near relations his adoptive mother, Vala Ammal, his widow, Parbati, and two daughters, Nagamal and Gnambal, of whom Nagammal, who became a widow during the testator s lifetime, had an infant daughter named Alamelu. Kothandarama executed his last will on 13-3-1905 and by this will, the genuineness of which is not disputed in the present litigation, he gave an authority to his widow to adopt unto him a son of his second daughter Gnambal, should she beget one before January 1908 or in the alternative any of the sons of his two nephews, if the widow so chose

3. The suit, out of which the appeal arises was commenced by Raju Ayyar, who was a son of one of the testator s nephews and was taken in adoption by the widow in terms of the will and it was for recovery of possession of certain properties, known as Kothangudi properties which formed part of the testator s estate on the allegation that under the will mentioned above, these properties were given to Nagammal, the widowed daughter of the testator for her life time, but as there was no disposition of the remaining interest after the death of the life tenant, the properties vested in the plaintiff as the adopted son and heir of the deceased or the death of Nagammal which took place on 3-1-1943. Gnambal, the second daughter of the testator, was the first and main defendant in the suit and she resisted the plaintiff s claim primarily on the ground that there was no intestacy as regards the suit properties after the termination of the life interest of Nagammal, and that under the terms of the will itself she was entitled to get these properties in absolute right after the death of Nagammal subject to payment of a sum of Rs. 5000 to Alamelu, the daughter of Nagammal. Alamelu was made defendant 2 in the suit and as she died when the suit was pending in the trial Court, her heirs were impleaded as defendants 3 to 9.

4. The first Court accepted the contention of defendant 1 and dismissed the plaintiff s suit. On appeal to the High Court, the judgment was reversed and the plaintiff s claim was allowed. Defendant 1 has now come up on appeal to this Court.

5. To appreciate the contentions that have been raised by the parties to this appeal, it would be convenient first of all to refer briefly to the relevant provisions of the will. After cancelling his previous wills, the testator in para. 3 of his will gave his widow authority to adopt a son sort. She was to adopt the son of Gnambal, if the latter got a son previous to January 1908, or she could adopt any of the sons of the testator s nephews. Paragraph provides that if the first course is followed, that is, if the son of Gnambal is adopted by the widow, then all the properties, movable and immovable, belonging to the testator excepting the village of Kothangudi, the house at Injigudi and the other properties which were disposed of by the will would go to such adopted Paragraph 5, which is material for our present purpose, runs as follows :

"The whole village of Kothangudi and the house at Injigudi, both of Nannilam Taluk, my daughter Nagammal shall enjoy with life interest and after her the said property shall pass to my daughter Gnanam and her children on payment by the latter of Rs. 5000 to Alamelu, Nagammal s daughter."

6. By para. 6 the Nallathukudi and Pungavur villages together with certain house

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