Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1963 Supreme(SC) 99

SUPREME COURT OF INDIA
1st April, 1963
S.K. DAS, A.K. SARKAR AND N. RAJAGOPALA AYYANGAR, JJ.
Ramachandra Shenoy and another, Appellants
Versus
Mrs. Hilda Brite and others, Respondents.
Civil Appeal No. 452 of 1959.
Advocates appeared
M/s. S. N. Andley and A. G. Ratnaparkhi, Advocates, for Appellants; Mr. A. V. Viswanatha Sastri, Senior Advocate, (Mr. G. Gopala Krishnan. Advocate of M/s. Gagrat and Co. and Mr. R. Ganapathy Iyer, Advocate with him), for Respondents Nos. 1 and 19. M/s. M. V. Goswami and B. C. Misra, Advocates, for Respondents Nos. 8 to 14.

Advocates:
A.G.Ratnaparkhi, A.V.VISHWANATHA SASTRI, B.C.MISHRA, G.GOPALAKRISHNAN, GAGRAT JANEDRA LAL, M.V.GOSWAMY, R.Ganapathy Iyer, S.N.ANDLEY

Where property is bequeathed to a person with words added that describe a class of persons, but do not denote them as direct objects of a distinct and independent gift, the first person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.

Headnote:
WILL - CONSTRUCTION - ABSOLUTE INTEREST OR LIFE INTEREST - BEQUEST TO DAUGHTER WITH WORDS "ENJOY PERMANENTLY AND WITH ABSOLUTE RIGHT" - SUBSEQUENT GIFT OVER TO MALE CHILDREN - WHETHER DAUGHTER TOOK ABSOLUTE INTEREST OR LIFE INTEREST.
Fact of the Case:

The testatrix, an Indian Christian lady, executed a will in 1907, bequeathing certain properties to her eldest daughter, Severina, and her male children. The relevant clause of the will provided that Severina shall "after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right." The question arose as to whether Severina took an absolute interest in the properties or only a life interest, with the remainder vesting in her male children.
Finding of the Court:

The Court held that Severina took only a life interest in the properties, with the remainder vesting in her male children. The Court interpreted the words "enjoy permanently and with absolute right" as applying to the interest of the male children, not to Severina's interest. The Court also considered the subsequent gift over to the male children and the use of the words "after her lifetime" as indicating that Severina's interest was intended to be limited to her life.
Issues: 1. Whether the bequest to Severina conferred an absolute interest or a life interest. 2. Whether the subsequent gift over to the male children was valid.
Ratio Decidendi: 1. The Court applied the rules of construction laid down in the Indian Succession Act, 1865, which was in force at the time the will was executed. 2. The Court held that the words "enjoy permanently and with absolute right" applied to the interest of the male children, not to Severina's interest. 3. The Court also considered the subsequent gift over to the male children and the use of the words "after her lifetime" as indicating that Severina's interest was intended to be limited to her life. 4. The Court held that the bequest to Severina was only of a life interest, with the remainder vesting in her male children.
Final Decision: The Court dismissed the appeal, upholding the construction of the will that Severina took only a life interest in the properties, with the remainder vesting in her male children.

Judgement

AYYANGAR, J. : This appeal by special leave raises for consideration a very short but by no means an easy question regarding the proper construction of a will.

2. The testatrix was an Indian Christian lady of the Roman Catholic faith Mrs. Mary Magdelene Coelho. She was a widow and was possessed of considerable properties in respect of which she had previously executed settlements in favour of her children. The will whose construction falls for determination was executed on July 25, 1907 and related to the properties still remaining with her after these settlements. She had originally four daughters, but by the date of the will only two of them were alive - her eldest Severina Sabina Brito and her second Mary Matilda Coelho. The other members of her family then alive and to whom it is necessary to refer were a grand-daughter-Julia Mary Margaret Fernandez by her deceased 4th daughter and four sons of the eldest daughter-Severina. It may be added that the third daughter who died before 1907 left no issue. We might now proceed to the terms of the will. The relevant clause whose interpretation is the subject of debate in this appeal is its Cl. 3 (c).

3. Clauses 1 and 2 are in the nature of an introduction, contain no disposition but are merely a narration of facts etc, and therefore not material to be set out. The dispositive portion of the will starts with Cl. 3. This consists of 3 sub-clauses. Sub-clauses (a) and (b) describe certain immovable properties which not having been included in the previous settlements, remained at the disposal of the testatrix and sub-cl. (c) proceeds to effectuate a disposition of these items and of all other movable properties that she might die possessed of.

4. We ought to mention that the original will is in the Canarese language and there has been some dispute as regards the correct translation of this relevant clause. We shall now set out the official translation which is included in the printed record and refer later to the other translations submitted to us and to the arguments based upon them. Clause 3 (c) which effects the disposition now to be construed reads:

"3 (c) All kinds of movable properties that shall be in my possession and authority at the time of my death, i. e., all kinds of movable properties inclusive of the amounts that shall be got from others and the cash;- all these my eldest daughter Severina Sobina Coelho shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right..... The rest of it is not very material and is omitted. There are a few other clauses in this will which have been referred to by learned counsel in their arguments before us and also in the Courts below as furnishing aids to the construction of the disposition in Cl. 3(c) . These are the Cls. 4 and 5 and they run:

"4. The bagaitu hithlu land.. ... ... and the house situated therein... and the buildings, shops, etc., attached thereto:- these my second daughter, Mary Matilda Coelho should enjoy up to her death only; and further, she should not alienate them in any manner by way of gift, sale, mortgage, etc. After the lifetime of the said daughter of mine, viz., Mary Matilda Coelho, the property should be enjoyed by the daughter of my fourth daughter, Mary Margaret, i. e. of Julia Mary Margenta Fernandez hereditarily and with permanent right. In the said property, the said Julia s father and his heirs have no manner of right whatsoever.

"5. If the said Julia does not marry or if she has no issues, the said Julia should enjoy the said property up to her death and thereafter this property of mine should be enjoyed by my eldest daughter, Severina Sobina Coelho and after her by her male descendants with permanent rights .

The short question for decision in the appeal is whether under Cl. 3(2) extracted above the interest which the eldest daughter Severina took under the bequest was absolute or whether she had merely a life interest with the absolu

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