M.R. Hariharan Nair, J.

The aspects on which the opinion of the third Judge is sought under Sec. 98 (2) of the Code of Civil Procedure are the following:

"(1) Whether the absolute right made under Clause (9) can be taken away by Clause (10)?

(2) Whether Clause (9) can be reconciled with Clause (9)?

(3) Whether Clause (9) can be reconciled with Clause (10)?

(4) Whether the intention expressed by the testator in Clause (10) is to out weight the disposition in Clause (9) ?"

2. The question is whether Clauses (9) and (10) of Ext. A3 Will are repugnant to each other and as to the ultimate effect of the conflict between the two Clauses. For brevity, I do not proposes to re-produce the relevant Clauses of the Will, the English verson of which is avaible in para-8 at page 5 of the dissenting judgment.

3. After stating in Clause (9) that the portions of the building, that is to say 4 rooms, hall and kitchen in the 2nd floor and the pathway specified in Clause (9) will go to all the 7 children of the testator equally with the power of alienation, what is mentioned in Clause (10) is that in case the testator's brother-in -law, who already holds the remaining parts of the building, demands a sale of the said portions after paying off Rs. 3,50,000/- with interest as detailed in para-3 of Ext.A1 dissolution deed and within five years of the testator's death, the said legatees should executive a sale deed for the said property after receiving a sum of Rs. 1,05,000/- from Vasudevan Nedunagadi, who is the testator's said brother -in- law.

4. In the nature of the case, I deem it necessary to refer to the manner in which the said Clauses have to be approached because in a case of Will, the construction to be adopted is governed by the special provisions in the Indian Succession Act, 1925 (for short 'the Act') and the normal rule of interpretation of documents, as much, may not be applicable.

5. Sec. 81 of the Act provides that where there is an ambiguity of deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted. Under Sec.81, the meaning of any clause in a Will is to be collected from the entire instument and all its parts are to be construed with reference to each other. As per Sec. 84, where a Clasue is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred. Under Sec.85 of the Act, no part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it. Sec.87 embodies a wholesome directive viz. , that the intention of the testator shall not be set aside only because it cannot take effect to the full extent; but effect is to be given to it as far as possible. Under Sec. 88, where two Clauses or gifts in a Will are irreconcilable so that they cannot possibly stand together, the last shall prevail. Under Sec. 95, where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him.

6. I am of the view that if the will in question is approached bearing in mind the said principles of construction, the one and the only possible view that can be taken is that what was given to the legatees under Clause(9) was not absolute grant; but a restricted one subject to the right of the brother-in-law to claim transfer under Clause (10).

7. The very important aspect to be taken note of in the matter of Ext. A3 will is the fact that the legatees therein are the 7 children of the testator who were his normal legal heirs. Even in the case of an intestacy, they would have obtained absolute rights with the power of alienation over the property in question. Why then was a Will executed ? According to me, the absence of the word 'absolutely' while describing the grant in favour of the legatees is significant in this regard. What was intended