IMPORTANT POINT
In construction of the Will for the purpose of considering the validity thereof, things must be seen as they were at the relevant time and not what they are now.

Headnote:Indian Succession Act, 1925 – Section 2(b) – Codicil – It is ‘an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part thereof’. (Para 22)
       Indian Succession Act, 1925 – Sections 82 and 88 – Construction of Will – The meaning of any clause in a will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other – In terms of Section 88 where two clauses of gifts in a Will are irreconcilable so that they cannot possibly stand together, the last shall prevail – In construction of the Will for the purpose of considering the validity thereof, things must be seen as they were at the relevant time and not what they are now – By Cl. 5 the testator bequeathed his right, title and interest of the immovable properties in favour of his son during the term of his life time – The Clause, in effect and substance, merely provided for conversion of the property – Such conversion of the property was to be made strictly in the manner as laid down therein. (Paras 23, 24, 27 and 28)
       Indian Succession Act, 1925 – Sections 113 ands 129 – The bequest to the legatee being not absolute and after his life time as the properties were to vest absolutely on such one of his sons and grandsons as he may by deed, Will or otherwise in writing appoint, Clause 5 is not void – Clause 5 also not void inasmuch as the bequest to the sons or the grandsons of the testator is not for a life time but it vests in them absolutely – Therefore Clause 5 of the will is not hit by Section 113 – Also, Clause 12 does not attract Section 129 since both the clauses 5 and 7 are valid. (Paras 27, 45 and 46)
       Will – Construction of – The word ‘devise’ in the context of Clause 7 does not appear to be appropriate – The testator probably meant to use the word ‘desire’ and not ‘devise’ – The testator was not bequeathing any property in favour of any person, he merely conferred a right upon the legatee and expressed his desire in regard to the legatee’s exercise of power of option – Clause 7, therefore, may not have any application for the purpose of construction of the Will. (Paras 32 and 33)
       Will – Construction of – Clause 12 of the Codicil did not substitute Clauses 5, 6 and 7 and it was to be read as a part of the Will; and by the said Codicil, the said Clauses of the Will were confirmed by the testator – Therefore the testator expressed his intention clearly that in the event the legatee does not have any issue or he does not adopt anybody as his son or otherwise appoint a person provided for in Clause 5, the bequest would be in favour of the Calcutta University. (Para 34)
       (1963) Supp 2 SCR 834; (1976) 1 SCC 630; (2003) 6 SCC 98; (2004) 2 SCC 321; (2006) 8 SCC 75; (2007) 1 SCC 546 – Referred to.
       AIR 1931 PC 307 – Distinguished.
       Facts of the case:
       Appellant No.1 is an existing company within the meaning of the provisions of the Companies Act, 1956. It claims its title in respect of the disputed premises by a lease executed by the Chamong Tea Company Limited as also purchase of a property by a deed of sale.
        The property in question admittedly belonged to Late Nerode Chandra Vasu Mullick. The legatee under the Will Shri Hamir Chandra Vasu Mullick through whom Appellant No.1 claims its right, title and interest was his son. The testator executed a Codicil on 4.03.1932. This Codicil, according to the testator, should be read as a part of his last Will and testament dated 4.03.1932 and thereby he also confirmed the said Will and testament.
       Soon after the execution of the Codicil, the testator died on 7.08.1942 leaving behind his widow, legatee and his daughter-in-law. The legatee under the Will separated from his wife. His wife is said to have remarried. Widow of the testator also passed away. Appellant No. 3 in that situation allegedly was asked to take care of the affairs of the properties.
       The legatee was appointed as the sole executor and trustee of the Will. Allegedly by a registered indenture dated 27.12.1966, the legatee let out the premises in question in favour of the appellant company, a portion of the premises No. 156, Bipin Behari Ganguly Street, Calcutta for a period of ten years with the option to renew the same for further four consecutive periods of 10 years each in all for fifty years from the said date on the terms and conditions mentioned therein.
       The legatee died on 18.11.1976 without any issue. He had not adopted any son also. He had also not made any appointment in terms of the said Will.
       Respondent University claiming its right in terms of Clause 12 of the aforementioned Codicil filed an application for grant of a Letters of Administration which was allowed.
       Findings of the Court :
       Clauses 5, 6, and 7 are valid. Sections 113 and 129 are not attracted.
       Bequeath to Calcutta University in terms of Clauses 5 and 12 is valid.

Judgement Key Points

Key Points: - Clause 5 bequeaths immovable property to Hamir Chandra Vasu Mullick for life with contingent absolutely vested remainder to his sons/grandsons by appointment, with default to eldest male descendants; and possibility of female issue in default (!) (!) - Codicil (12 March 1932) states that if Hamir Chandra has no issue, estate goes to the University of Calcutta; codicil read as part of Will and confirms testator’s intention for university bequest upon failure of issue (!) (!) (!) - High Court and Division Bench held Clauses 5 and 12 are not inconsistent; University is entitled to file suits; Clause 12 prevails over Will to the extent of the contingency (!) (!) (!) - Court's analysis on whether Clause 7 is meaningful (devise/desire) and its applicability; ultimately found Clause 7 does not affect validity of Clause 5 or 12; Codicil confirms bequest to University upon failure of issue (!) (!) (!) - Parliament sections: Clause 12 does not substitute Clauses 5, 6, 7; if legatee dies without issue, bequest to University vests; analysis rejects voiding under Sections 113 and 116; applies Section 129 on bequest to University upon failure of prior bequest (!) (!) (!) - Appellants’ contentions rejected; University’s locus to file suits recognized; appeal dismissed with costs (!) (!) (!)

What is the interpretation/construction of Clauses 5, 6, 7 and Clause 12 of the Codicil in the Will of Nerode Chandra Vasu Mullick, and whether the University of Calcutta's bequest under Clause 12 is valid under the Indian Succession Act?

What is the effect of the Codicil read with the Will on the contingency of the legatee having no issue or adopted son, and whether Clause 12 operates in place of Clause 5 when such contingency occurs?

What is the proper application of Sections 113, 116 and 129 of the Indian Succession Act in validating or defeating bequests to unborn issue and to the University of Calcutta?

JUDGMENT

S.B. SINHA, J. —

1.Construction/ interpretation of a Will executed by one Nerode Chandra Vasu Mullick on 04.03.1932 vis-à-vis certain provisions of the Indian Succession Act (for short “the Act”), viz., Sections 113, 116 and 129 falls for our consideration in this appeal which arises out of a judgment and decree passed by a Division Bench of the Calcutta High Court affirming a judgment and order dated 2.06.1992 passed by a learned Single Judge of the said Court in Suit No. 866 of 1979 on a preliminary issue raised by the appellants therein as to whether the respondents had any locus to file the suit in question.

2.Before embarking on the said questions, we may notice the admitted fact of the matter.

3.Appellant No. 1 is an existing company within the meaning of the provisions of the Companies Act, 1956. It claims its title in respect of the disputed premises by a lease executed by the Chamong Tea Company Limited as also purchase of a property by a deed of sale.

4.The property in question admittedly belonged to Late Nerode Chandra Vasu Mullick. The legatee under the Will Shri Hamir Chandra Vasu Mullick through whom Appellant No.1 claims its right, title and interest was his son.

5.The relevant clauses of the said Will are as under :

“5.I give all my immovable properties and the said debentures in the Hooghly Docking and Engineering Co. Ltd. to my son the said Hamir Chandra Mullick to hold and enjoy the same during the term of his natural life without impeachment of waste and on the determinator of his life Estate to such one of his sons and grandsons as he may by deed, will or otherwise in writing appoint absolutely and in default of such appointment to his eldest male descendants absolutely. If my son has no male issue, the power of appointment may be exercised by him in favour of his daughters or daughters son.

6.My son may sell or convert into money any of the properties mentioned in the last foregoing clause but it will be obligatory on him to invest the entire proceed thereof in the purchase of immovable properties in Calcutta on the suburbs.

7.My son shall have the right and I devise that he should settle the said immovable properties on one of his sons for such sons life with remainder to such son’s son.”

6.Indisputably, the testator executed a Codicil on 4.03.1932 in terms whereof inter alia it was provided :

“12.If my son has no issue, however distant or adopted son or any issue of such adopted son, my estate shall go to the University of Calcutta for advancement of learning. It is my Will and desire that the University should in that connection suitably perpetuate for the benefit of Hindus only the memory of (1) my father, Hem Chandra Vasu Mullick (2) my mother Vooban Mohini Vasu Mullick (3) my maternal grand father Narendra Kumar Dutt and (4) my maternal grandmother Golap Mohini Dutt and also use my residence no. 12, Wellington Square Calcutta as a Centre of learning to be called after my late father.”

7.We may, however, mention that the said Codicil, according to the testator, should be read as a part of his last Will and testament dated 4.03.1932 and thereby he also confirmed the said Will and testament.

8.Soon after the execution of the Codicil, the testator died on 7.08.1942 leaving behind his widow, legatee and his daughter-in-law. The legatee under the Will separated from his wife. His wife is said to have remarried. Widow of the testator also passed away. Appellant No. 3 in that situation allegedly was asked to take care of the affairs of the properties.

9.An application for grant of probate in terms of the Act was filed before the original side of the Calcutta High Court and by an order dated 15.01.1943, the legatee was appointed as the sole executor and trustee of the Will. Allegedly by a registered indenture dated 27.12.1966, the legatee let out the premises in question in favour of the appellant company, a portion of the premises No. 156, Bipin Behari Ganguly Street, Calcutta (hereinafter referred to as ‘the

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2007 Supreme(SC) 825

IMPORTANT POINTIn construction of the Will for the purpose of considering the validity thereof, things must be seen as they were at the relevant time and not what they are now.

What is the interpretation/construction of Clauses 5, 6, 7 and Clause 12 of the Codicil in the Will of Nerode Chandra Vasu Mullick, and whether the University of Calcutta's bequest under Clause 12 is valid under the Indian Succession Act?

What is the effect of the Codicil read with the Will on the contingency of the legatee having no issue or adopted son, and whether Clause 12 operates in place of Clause 5 when such contingency occurs?

What is the proper application of Sections 113, 116 and 129 of the Indian Succession Act in validating or defeating bequests to unborn issue and to the University of Calcutta?

Cases Referred (7)

IMPORTANT POINT
In construction of the Will for the purpose of considering the validity thereof, things must be seen as they were at the relevant time and not what they are now.