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2006 Supreme(Bom) 2029

IN THE HIGH COURT OF BOMBAY
(R. M. Lodha and S. A. Robde, JJ.)
LYLA DARIUS JEHANGIR Appellant.
vs.
BAKHTAWAR LENTIN and others Respondents.
Appeal Nos. 80, 81 of 2000, 163, 164, 508 of 2005 in Misc. Petition No. 13 of 1995 in T. and 1. J. Petition No. 598 of 1990, Notice of Motion Nos. 2566 of 1999, 3298 of 2003, O. S. Nos. 309 of 2000, 447 of 2003, Suit Nos. 686 of 2000 and 738 of 2003
decided on 12/13-12-2006. (O.O.C.J. Bombay)
Advocate Appeared
Appellant were represented by M. L. Palan, Ms. Neeta Solanki, Kiran Jain, Ms. Nadia Basiri instructed by M/s Kiran Jain and Co.
Respondents were represented by Rajeev Kumar, Ms. P. L. Bachani, Shilpi Thakkar instructed by I. R. Joshi and Co., J. B. Chinoy, R. L. Tolat instructed by M/s Harakchand and Co.

Headnote:(a) Indian Succession Act, 1925, Sections 119, 187 and 188-- Doctrine of election --Date of vesting of legacy when payment or possession postoned-- --Person holding the estate given by testatrix to beneficiary, as a guardian of such beneficiary, which was to be made over to beneficiary on attaining particular age--Such person holding estate would not be entitled to put different construction of such clause under will. (Para 36 to 40)

       (b) Indian Succession Act, 1925, Section 82--Construction of document i.e. Will deed--Clauses of will i.e. instrument are eloquent enough and intention of testatrix clearly discernible--Oral evidence would be of no use and help for construction of those clauses of will.

       (Para 35)

ORAL JUDGMENT

R. M. LODHA, J. :- This group of five Appeals is between the same parties and interconnected issues are raised therein and accordingly, by this common judgment, we shall dispose of these five Appeals.

2. The Appeal Nos. 163 of 2005 and 164 of 2005 are from Originating Summons Nos. 309 of 2000 and 447 of 2003 respectively. We shall first deal with Appeal No. 164 of 2003, since the fate of other appeals is dependant on the decision in this appeal. As a matter of fact the whole focus of Mr. M. L. Palan, the counsel for the appellants was on Appeal No. 164 of 2005, arising from originating Summons No. 447 of 2003. According to him, the decision in Appeal No. 164 of 2005 shall virtually decide all appeals.

3. By originating Summons No. 447 of 2003, the appellant prayed for determination of the following issues by the Court:

(a) Whether the bequeaths made in favour of the plaintiff by the deceased Pilloo under the said Will dated 12th April, 1989 inter alia under clauses 11, 13, 14, 15, 18, 24, 40 and 42 are absolute bequeaths to the plaintiff?

(b) Whether the directions of the deceased Pilloo inter alia in said Will including in clauses 11, 13, 14, 15, 18, 24, 40 and 42 of the said Will viz. to hold the shares/bequeathes of the plaintiff upon trust to be handed over to defendant on her attaining the age of 21 years are illegal and or in-operative or unenforceable against the plaintiff or binding upon the plaintiff or beyond the power and authority vested on the deceased Pilloo?

(c) Assuming without admitting that the directions in the said Will including in clauses 11, 13, 14, 15, 18,24,40 and 42 to hold shares of plaintiff upon trust to be handed over to defendant on her attaining the age of 21 years are legal and binding upon the plaintiff and/ or defendant. Whether plaintiff alone is entitled to enjoy all the bequeaths/ profit/ income and other benefits till defendant attained age of 21 years.

4. The answers to the aforesaid questions have to be found from the Will dated 12th April, 1989 executed by Pilloo M. Ghaswala, as her last testamentary disposition.

5. The Will indicates that Pilloo Ghaswala was the lady of wealth. Her estate comprised of immovable and movable properties. Pilloo had two daughters -Lyla and Anita. Lyla has one daughter by name Zenia. Anita is divorcee and issue less. Pilloo died on 7th October, 1989.

6. Before we turn to the Will which is to be construed by us, we deem it proper to refer to the relevant provisions of the Indian Succession Act, 1925, particularly Chapter VI of Part VI, which deals with the construction of Wills. Section 74 says that it is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.

Section 75 enables the Court to inquire into the questions as to the object or subject of a Will and for determination thereof, take evidence, if necessary.

While section 80 permits an extrinsic evidence to be taken where the words of a Will are unambiguous, but for its applications extrinsic evidence may be necessary. But section 81 makes extrinsic evidence inadmissible in case of patent ambiguity or deficiency.

Section 82 highlights that 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. 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 upon it. With regard to interpretation of words repeated in different parts of Will, section 86 provides that if the same words occur 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 provides the Testator's intention to be effectuated as far as possible. In a case where the inconsistent clauses of gifts in a Will are irreconcilable, section 88 says that the l

































































































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