The unsuccessful plaintiffs are the appellants in this appeal. The plaintiffs have filed the suit against the sole defendant namely Dr.Jayakumar Kallat praying for "partition to divide the suit property into 5 equal shares by metes and bounds with reference to good and bad soil by appointing a commissioner or otherwise allotting one such share to each of the plaintiffs (totalling four shares to the plaintiffs) excluding T.S. No.18/4A3 measuring an extent of 51 cents with the building or in the alternative allotting the said portion to the 4th plaintiff and for costs." The suit was dismissed by the Court below which resulted in the present appeal by the plaintiffs/appellants.
2. For the sake of convenience, the parties shall be referred to as Plaintiffs and defendants as they were arrayed before the Court below.
3. The Plaint averments are as follows:-
The Plaintiffs 1 to 3 and the defendant are the sons and daughter of Dr. Sankunni Kallat, who died in the year 1971. The mother of the plaintiffs and defendant died subsequently in the year 1981. The suit property described in Schedule A and B was the self acquired property of Dr. Sankunni Kallat, who executed a registered Will dated 18.07.1969 with respect to 'A' Schedule property consisting of hospital buildings and other buildings. As per the Will, the defendant shall enjoy the said property without power of alienation and the said properties must be used for hospital and clinic purpose. However, the defendant must improve the hospital out of the income derived from 'C' schedule properties besides he must provide necessary family expenses for the plaintiffs 1 and 2 whenever they come toPollachi. As far as the third plaintiff is concerned, the defendant must pay Rs.150/- per month towards his maintenance. In the Will, it was specifically stated that regarding the future mode of devolution, the plaintiffs and defendant shall decide it on their own. In other words, the intention of the testator was to improve the hospital, which is clearly reflected in the Will. The Testator himself was a Doctor by profession and he had earned name and fame by his hard work in the field. The defendant was given the right of management of the properties because he was the only person with medical qualification among his children.
4. According to the plaintiffs, the defendant has not fulfilled his obligations or fulfilled the wishes of the testator. The defendant did not maintain the property properly and he had lead a wayward life diverting the income of the hospital to his own personal comforts. Regarding the future devolution of the property, the plaintiffs and defendant met on 08.04.1987, but no amicable solution could be found as the defendant dominated the plaintiffs and he was not amenable to any proposal. It was further contended that as per the wishes of the testator, the defendant did not make any improvement in the hospital. On the other hand, from the income derived out of A schedule property, the defendant purchased a property and put up a nursing home on his own. The property acquired by the defendant out of the income derived from the A Schedule property is described as B Schedule in the plaint. Even though the B Schedule property stands in the name of the defendant, the plaintiffs also have a share in that because B Schedule property was purchased from and out of the income derived from the A Schedule property.
5. The Plaintiffs would further contend that the fourth plaintiff got a property of her own, but the defendant, in order to harass the fourth plaintiff, has issued a noticefor partition with respect to that property for which the fourth plaintiff issued suitable reply stating that she is the owner of that property. The Plaintiffs 1 to 3 also stood by the side of the fourth plaintiff and deprecated the defendant for having issued the notice, but this has infuriated the defendant and had led to further deterioration in the relationship between the parties. Since the defendant had not fulfilled the obligation of the testator by maintaining the A Schedule property in a proper manner and therefore the character of the property become the common property, the plaintiffs have got an equal right in the entire A and B Schedule properties and the plaintiffs are deemed to be in joint possession of the suit properties . The plaintiffs also demanded the defendantto partition the property by metes and bounds, but the same was not acceeded to by him, hence, the suit was filed.
6. The defendant filed written statement contending that the first plaintiff was given extensive education and even sent to United Kingdom for higher studies. He was well employed in Madras and then at Delhi. He is now leading a retired life. He has been given the main house in Palghat Road, Pollachi and also landed properties. He is well placed comfortably and leading a happy and comfortable life. The 2nd plaintiff was also given collegiate education and started his own factory at Madras. He has been provided with cash for starting and conducting his business. He has settled down at Madras. The 3rd plaintiff never left Pollachi. He is leading a easy life. He has been given half share in the main house and 14 acres of fertile agriculture land. He is attending to agriculture. He is paid the amount stipulated in the will. The 4th plaintiff was also given collegiate education and given in marriage in 1964 to an I.A.S. Officer. She has been well provided with copious jewels and household articles, a Car, Building and landed properties to the extent of 28 acres. Dr.Sankunni, the Testator, had also given several cash payments to the other sons from the funds of the defendant.
7. According to the defendant, Dr.Sankunni Kallat died on 07.04.1971 and as per the Will dated 18.07.1969, as he has already provided for his wife and children and that the defendant was practising along with him, he has executed the above said Will bequeathing the entire hospital properties and he has been given the right to take the possession of the property and use the same for running the hospital and clinic. As per the pious desire of the testator, he is maintaining the hospital and fulfilling the wishes of the testator. Therefore, the hospital and the other properties cannot be construed as a common properties and they are not liable for partition. The plaintiffs are not entitled to claim themselves as co-owner of the property. The defendant specifically point out the covenants contained in the Will executed by the testator, which is extracted hereunder.
"a. The testator Dr.Sankunni did not confer any right in the hospital properties to the plaintiff;
b. The hospital properties and the right to run the hospital and clinic were bequeathed to the defendant;
c. The will of Dr.Sankunni Kallat does not prohibit or stipulate that the defendant should not have any independent practice or have his income;
d. Even regarding the income from the Hospital, there is no condition that the defendant should spend the entire income only for the hospital and for the plaintiffs;
e. The will only provides that maintenance and improvement of the Hospital may be carried out from the income;
f. The testator also provides that during the period of stay of the plaintiffs at Pollachi, the family expenses are to be met from the income from the Hospital and also pay Rs.150/- to the 3rd plaintiff as he was leading an easy life. The plaintiffs are not given any right to partition."
8. The testator has categorically provided in the Will as to how the property has to be dealt with and utilised after his life time. The plaintiffs have no right to decide the manner in which the property has to be utilised, as alleged in the plaint. The power has been given only to the defendant to take a decision after consulting the other members and take necessary decision thereof. Here again the plaintiffs were given right to be consulted, but the ultimate decision is vested with the defendant. According to the defendant, the 4th defendant put up a construction in a portion of the hospital building. The defendant originally thought that portion of the property where construction was put up was not covered under the Will, later, he came to know that 51 cents of lands in T.S.No. 18/4/A3 is part and parcel of the hospital land covered under the Will dated 18.7.1969. Therefore, the defendant issued a notice dated 25.10.1988 calling upon the fourth plaintiff to remove the unauthorised and illegal construction. The fourth plaintiff is instrumental in projecting this defendant in bad taste and induced the plaintiffs 1 to 3 to seek for share in the property which were bequeathed to the defendant. According to the defendant, the plaintiffs have no share in the properties, there is no recital in the will which will entitle the plaintiffs to claim a share in the suit properties. The defendant had not led a wayward life or purchased the B Schedule property out of the income derived from A Schedule property, for his personal gain and comforts. The B Schedule property has been purchased out of his self earnings and income and therefore the plaintiffs are estopped from claiming any share in the 'B' schedule property.
9. The defendant has also filed additional written statement stating that 51 cents, which are part of T.S.18/4.3 with the building cannot be excluded from this suit nor can it be allotted to the 4th plaintiff in equity or otherwise. He would further claim that the partition cannot be claimed now and admitted the he can take possession of the properties and use it as a clinic and that the defendant cannot alineate or encumber the properties. He would also further contend that he is entitled to be in possession and enjoyment of the properties till his life time subject of course to the terms of the Will. As per the terms of the Will none of the plaintiffs have been given any right nor have they been given right of division of properties. He would finally contend that the plaintiffs have no claim for partition and the defendant is entitled to be in possession and enjoyment of the properties covered under the Will till his life time.
10. The plaintiffs have filed reply statement wherein they would state the Will gives only the right of management of the hospital buildings to the defendant. It specifically reads that it must be used for hospital and clinical purposes. But the defendant is keeping a major portion of the building vacant and has left the same in a dilapitated condition. He has not developed the hospital and he has not taken any care to meet the family expenses of the plaintiffs, on the other hand he has diverted the entire income for his personal use and has purchased a new plot and constructed a new hospital. Thus, the defendant had totally ignored or failed to fulfil the pious desire of the testator. The Will gives only a limited right of management to the defendant without power of alienation. The defendant is acting contrary to the wishes of the testator mentioned in the Will. Therefore, even during the life time of the defendant, the suit is maintabinable. The defendant is estopped from questioning the right of the 4th plaintiff in respect of the house in T.S.18/4A3 as the defendant himself was actively involved with the 4th plaintiff in the construction of the house. This fact has been admitted in several letters written by the defendant himself.
11. On the above said pleadings, the parties to the suit let in oral and documentary evidence. On behalf of the Plaintiffs, Exs. A1 to A32 were marked and the second and fourth plaintiffs have been examined as PWs 1 and 2. The defendant examined himself as DW1 and marked Exs. B1 to B7 on his side. The Trial Court has framed as many as 8 issues. After appreciating the oral and documentary evidence, the trial Court dismissed the suit, which gave rise to the present appeal suit at the instance of the plaintiffs.
12. Pending appeal, the first plaintiff Dr. Venugopal Kallat died on 06.02.2000. The third plaintiff Dr. Dharmaraj Kallat died on 05.01.1995. The defendant also died on 05.12.2006. Their respective legal heirs were brought on record.
14. Heard both parties. The learned senior counsel for the appellants pointed out the several clauses contained in the Will, Ex.B2 dated 18.07.1969 and submitted that as per the recitals in the Will, the defendant was looking after the medical professession along with the testator Dr.Sankunni Kallat in order to develop the clinic which Dr.Sankunni Kallat was running by then. Under those circumstances, Ex.B2, Will dated 18.07.1969 was executed by the testator specifically stating that the defendant can maintain the property and out of the income derived from the hospital property, he has to develop the hospital and look after the comforts of other children whenever they visit Pollachi and also make a monthly payment of Rs.150/- to his epileptic son, who has no avocation. He would further contend that this would clearly indicate that the testator only wanted the defendant to enjoy the property till his life time and during the course of his life time, the defendant can run the hospital and maintain it from the income derived from the hospital premises. Further as per the recital in the Will, the defendant was directed to develop the hospital and should also look after the other children whenever they visit Pollachi besides the income should be utilised for the purpose of other children namely, the plaintiffs. In other words, after the life time of the testator, the defendant shall take possession of the properties covered under the Will for hospital and clinic use and he should not alienate or encumber the property and out of the income from the hospital, he should develop the hospital and also look after the comforts of the other children. As far as the decision as to the mode of utilising the property in future, the testator had clearly expressed in the Will that the other children have to be consulted regarding the mode of utilisation of the property. Therefore, a collective reading of Ex.B2 would clearly reveal that the defendant has been given life time interest in the property and he has got no power of alienation. The defendant also, in his written statement or additional written statement had claimed any absolute right over the suit property.
15. According to the learned senior counsel for the appellant,in construing a document whether in English or in vernacular language, the fundamental rule is to ascertain the intention from the words used and the surrounding circumstances and in construing the language of the Will, the Court is entitled to sit in the armchair of the Testator. The Court shall also take into consideration the position of the testator, his family relationship, the probability that he would use the words in a particular sense to ascertain the intention of the testator. Further, the true intention of the testator has to be gathered not by attaching importance to isolated expression but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
16. According to the learned senior counsel for the plaintiffs, the intention of the testator was that the property should devolve to the entire members of the family and they would decide the future course of devolution of the property after the demise of the defendant. In this case, from the evidence let in on behalf of the plaintiffs, it is clearly established that the defendant has not been carring out the wishes of the testaor, the hospital is not been maintained properly and the income derived from the A schedule property has been utilised and spent for purchase of the 'B' Schedule property by the defendant, therefore, B Schedule property is also liable for partition as it was only purchased from and out of the income derived from the A schedule property. Furthermore, pending disposal of the appeal, the first defendant died and his legal representatives have brought on record. Moreover, there is no records to show that as per the direction of the testator, any consultation was made by the deceased defendant along with the plaintiffs or any nomination has been made. Further, when the property has not been utilised as per the wishes of the testator, it would automatically devolve upon the other family members namely the plaintiffs as legal heirs of Dr.Sankunni Kattla and therefore, definitely the plaintiffs are entitled for a share in the A and B schedule property. Consequently, each of the plaintiffs and the defendant would get 1/5 share in respect of the all the properties concerned.
17. The learned senior counsel also relied upon Section of the 82 of the Indian Succession Act to show that in a Will, the meaning of any clause is to be collected from the entire instrument and all its parts are to be construed with reference to each other. In this connection, he relied upon the decision reported in (Navneet Lal Vs. Gokul and others) 1976(1) SCC 630 wherein, the following principles were laid down by the Honourable Supreme Court:-
"1. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal vs. Nand Lal).
2. In Construing the language of the Will the Court is entitled to put itself into the Testator's armchair (Venkata Narasimha vs. Parthasarathy) and is bound to bear in mind also other matters that merely the words used. It must consider the surrounding circumstances the position of the Testator, his family relationship, the probability that he would use words in a particular sense....... 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. (Venkata Narasimha's case (supra) and Gnanambal Ammal Vs. T.Raju Ayyar).
3. The true intention of the Testator has to be gathered not by attaching importance to isolated expression but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradicotry. (Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer).
4. The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The Court will look at the circumstances under which the Testator makes his will, such as the state of his proper, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the Testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal Vs. Rameshwar Das).
5. It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferrring successive interests, if the first interest created is valid, the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy Vs. Mrs.Hilda Brite)."
18. Relying on the above decision, the learned senior counsel for the plaintiffs would contend that a collective reading of the principles laid down by the Honourable Supreme Court is applied to the facts of the case, it will clearly show that the defendant, who was given only the right to manage the property is bound to support the other family members out of the income derived from the A Schedule property and consequently, he has no absolute right in the suit properties. He would specifically point out that neither in the written statement nor in the evidence, the defendant has not anywhere stated that he claims the suit property as his own. Even in the written statement he claim himself as a common owner, meaning thereby, it is open to the plaintiffs to claim partition after his death. Therefore from the pleadings as well as the evidence, it is clear that the plaintiffs also got a right to get share in the suit property, but the court below has erroneously dismissed the suit. The learned senior counsel for the plaintiffs also relied upon the following decisions reported in (i) (Bajrang Factory Ltd., Vs. University of Calcutta) 2007 (7) SCC 183 (ii) (Shyamlal Kanti Guha Vs. Meena Bose) 2008 (8) SCC 115. Lastly, the learned senior counsel for the plaintiffs argued that if really the father wanted his son Dr.Jayakumar/ defendant to have the property as his absolute property, then, in the Will, he would not have imposed an obligation on the defendant to maintain the other family members, being the plaintiff or restricted his right only to enjoy the property till his life time without power of alienation. He also relied on
Section 138 of the Indian Succession Act and contend that the defendant has only life time interest in the suit property and therefore,
Section 138 of the Act has no application to this case.
19. On the contrary, the learned senior counsel appearing for the defendant contended that there is no condition imposed in the Will that the properties shall be enjoyed or possessed by the plaintiffs after the life time of the defendant. When there is no specific clause which will entitle the plaintiffs to stake a claim in the suit property, the suit itself is not maintainable. A reading of the recitals in the Will would make it amply clear that the future devolution of the property shall be discussed with the plaintiffs, however, the decision vests with the defendant, meaning thereby, it is for the defendant to either accept any proposal or take a decision of his own. Under those circumstances, the plaintiffs have no legal right to claim partition over the property left by the testator. The learned senior counsel appearing for the respondent also relied upon Section 138 of the Indian Sucession Act which would read as follows.
"138. Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person. -- Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction."
20. A cummulative reading of
Section 138 of the Indian Succession Act will make it clear that when there is no definite clause in the Will for enjoyment of the property in a particular manner, then the person in whose favour the property was bequeathed shall enjoy it as if there is no embargo for him to enjoy the property which was the subject matter of the Will. Moreover, the plaintiffs 1 to 3 were also given money or the property for their enjoyment by the testator and this was also admitted by the plaintiffs. The fourth plaintiff was given in marriage to an I.A.S. Officer and she was made to settle in life by the testator befitting to his status and position. Therefore, the intention of the testator has to be inferred that the A schedule property was exclusively meant for the defendant disentitling the plaintiffs from enjoying the same. As far as the allegations of the plaintiffs that the hospital was not maintained properly, there is no evidence on record to prove the same and the plaintiffs miserably failed to establish it before the Court below. The learned senior counsel for the defendant also relied on
Section 95 of the Indian Succession Act which reads as follows:-
"95. Bequest without words of limitation. -- 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."
21. The learned senior counsel for the defendant vehemently contended that the expressions used by the testator would convey that the defendant has a whole interest in the A Schedule property and not a restricted interest as alleged by the plaintiffs and therefore, if the intention of the testator is evaluated in the light of the facts and circumstances of the pleadings of the plaintiffs and the defendant, this Court can come to a conclusion that the Will was in favour of the defendant/respondent. The intention of the testator was to maintain the A schedule property properly and this was fulfilled by the defendant in letter and spirit. When that being so, the question of partition of the same even during the life time of the defendant will not arise. Of course, during the pendency of this appeal, the defendant died and even then, the plaintiffs or their family members cannot claim any right over the property bequeathed to the defendant by the testator. Since, there is no default clause mentioned in the Will, even if the defendant did not fulfil the wishes of the testator, as alleged by the plaintiffs, it will not entitle the plaintiffs to come forward with a suit for partition. Lastly, the learned senior counsel for the defendant would contend that the exclusive possession of the property vests with the defendant and after his death by his family members, the defendant is not liable for producing any accounts and the property shall not be subject to any charge. Therefore, the learned senior counsel for the defendant would contend that the decree and judgment passed by the court below is legal, valid and interference of this Court is not warranted.
22. On a careful consideration of this submissions made by both the Senior Counsel, first and foremost, in order to decide the issues involved in this appeal, it is necessary to look into the recitals in the Will, Ex.B2. In Ex.B2, it was stated by the testator that "vd; kidtp khjtp mk;khSf;F ehd; Kd;dnk Mjut[fs; vGjp itj;J ,Uf;fpnwd;/ nkny fz;l vd; kf;fSf;Fk; Kd;dnk Mjut[fs; vGjp itj;J ,Uf;fpnwd;. Therefore, the testator had stated that already, he has given certain benefits to his wards, especially nkny fz;l vd; kf;fs; which include plaintiffs. The will also include the defendant Dr.Jayakumar. Therefore, the testator has executed the necessary documents allotting properties to all his children prior to the execution of this Wil, Ex.B2 in favour of the defendant.
23. Then it has to be seen as to what is the necessity for writing this document and how the property covered under the Will, Ex.B2 should be utilized, how it should be enjoyed and how it should be devolved later on. The first two lines in the Will would categorically indicate that the testator wanted to give the property covered under the Will separately to the defendant .
ghyf;fhL nuhl;oy; ehd; brhe;j M!;gj;jphpa[k;. fpspdpf;Fk; elj;jp tUtjhy; mjw;fhf moapy;fz;l brhj;Jf;fspy; fl;olk;. nehahspfs; j';Fk; miwfs; fl;oapUf;fpnwd;/ jw;bghGJ vd; kf;fspy; 3yf;fkpl;l b$aFkhh; fy;yhl; vd;gtd; lhf;lh; bjhHpy; goj;J vd;Dld; Tlnt ,Ue;J bjhHpiy ftdpj;J tUfpwhd;/ mtDf;F bjhHpy; Kiwf;F gpw;fhyj;jpy; cjtpahf ,Uf;f ntz;oapUg;gjhYk; ehd; elj;Jk; fpspdpf;ifa[k; M!;gj;jphpiaa[k; mgptpUj;jp bra;a ntz;oapUg;gjhYk; moapy; fz;l brhj;ija[k; mitfspYs;s rfy fl;ol';fisa[k; nkw;go f!;g;gh bghs;shr;rp lt[dpy; ghyf;fhL nuhl;oy; trpf;Fk; vd; kfd; lhf;lh; b$aFkhh; fy;yhl; vd;gtd; vd; $Ptjpirf;F gpd;dpl;L RthjPdk; bra;J bfhz;L M!;gj;jphp cgnahfj;Jf;fhft[k; fpspdpf; cgnahfj;Jf;fhft[k; cgnahfpj;Jf; bfhs;s ntz;oaJ/ moapy;fz;l brhj;Jf;fis nkw;go lhf;lh; b$aFkhh; ve;j guhjPdj;Jf;Fk; cl;gLj;jhky; mitfspypUe;J tUk; tUk;goiaf; bfhz;L M!;gj;jphpia mgptpUj;jp bra;tJld; mitfspd; tUkhdj;jpypUe;J vd; ,ju kf;fshfpa nkny fz;lth;fs; bghs;shr;rpapy; te;J j';f tUk; fhyj;jpy; mth;fSila FLk;g bryt[fisa[k; Vw;Wf; bfhs;tJld; nkw;go tUk;goapypUe;J vd; kfd; jh;kuh$; fy;yhl; vd;gtd; Rf$Ptdkhf ,Ug;gjhy; mtd; $Ptjpirtiw mtDf;F khjhkhjk; E}w;W Ik;gJ (150) U:ghia bfhLj;Jtpl ntz;oaJ/ lhf;lh; b$aFkhh; $Ptjpirf;F gpd;dpl;L moapy;fz;l brhj;Jf;fs; ve;jtpjkhf cgnahfg;gLj;j ntz;oaJ vd;gjw;Fk; ghj;aijfisf;Fwpj;Jk; vd; ,ju kf;fisf; fye;J vd; FLk;g bkk;gh;fSf;Fs;nsna nkw;go lhf;lh; b$aFkhh; fy;yhl; vd;gtnd ehkpndl; bra;J jFe;j hpfhh;Lfs; bra;Jtpl ntz;oaJ/"
24. A reading of this portion would categorically indicate three things namely, the defendant, being a doctor by profession, has been practicising along with this father/testator and helping him in his profession as doctor and his intention was to develop the hospital and for that purpose, the defendant, after the demise of the father, can take possession of the property specifically for "M!;gj;jphp cgnahfj;Jf;fhft[k;. fpspdpf; cgnahfj;Jf;fhft[k; cgnahfpj;Jf; bfhs;sntz;oaJ/" The word "cgnahfpj;Jf; bfhs;sntz;oaJ" would mean use the property for the purpose of running the hospital. When the word used will denote only a permissive grant given to the person to utilize the property or enjoy the property for a specific purpose, as rightly pointed out by the plaintiffs, if really the intention of the testator was to give the property absolutely to the defendant, then the testator would have simply stated that on taking the possession, the defendant would be entitled to enjoy the property absolutely. The very word 'obsolutely' or 'enjoying the property' or 'taking the property' are all not mentioned in the Will. Therefore, I am unable to see any reason that the defendant shall have exclusive right over the property to the exclusion of the plaintiffs to claim right over the property. Then the next phase is very important. The next phrase would denote that "moapy;fz;l brhj;Jf;fis nkw;go lhf;lh; b$aFkhh; ve;j guhjPdj;Jf;Fk; cl;gLj;jhky; mitfspypUe;J tUk; tUk;goiaf; bfhz;L M!;gj;jphpia mgptpUj;jp bra;tJld; mitfspd; tUkhdj;jpypUe;J vd; ,ju kf;fshfpa nkny fz;lth;fs; bghs;shr;rpapy; te;J j';f tUk; fhyj;jpy; mth;fSila FLk;g bryt[fisa[k; Vw;Wf; bfhs;tJld; nkw;go tUk;goapypUe;J vd; kfd; jh;kuh$; fy;yhl; vd;gtd; Rf$Ptdkhf ,Ug;gjhy; mtd; $Ptjpirtiw mtDf;F khjhkhjk; E}w;W Ik;gJ (150) U:ghia bfhLj;Jtpl ntz;oaJ/" As per this portion in the will, the testator has categorically stated that first of all the defendant has no legal right either to encumber or sell the property. Therefore, there is a limited interest of enjoyment alone. The word guhjPdj;Jf;Fk cl;gLj;jhky;" means the defendant is restrained from selling or alienating or encumbering the property covered under the Will. Further, the testator has expressed his intention that from and out of the income from the hospital, not the hospital should be developed, but the defendant is under an obligation to look after the expenses of the family necessity and needs, whenever other children come to Pollachi, apart from giving a sum of Rs.150/- to the third plaintiff as he has no proper income of his own. Therefore, the testator has also stated as to how the income has to be utilized from and out of the earning in the hospital. He has also specifically stated that the other children are entitled to their maintenance during their visit to Pollachi and third plaintiff should be maintained from out of the income. Therefore, the income from the hospital is to be divided in favour of all the other children after adjusting it towards development of the hospital. Therefore, the income out of the hospital cannot be enjoyed by the defendant absolutely and it is subject to some restrictions, as imposed by the testator.
25. Then it has to be seen as to how the property should be enjoyed or utilized after life time of the defendant. The intention of the testator in this regard is very clear that the property shall be enjoyed by the defendant absolutely till his life time (Testator) and thereafter he (beneficiary) has got every legal right to take a decision for proper and convenient enjoyment of the property in consultation with the other children, being the plaintiffs. As stated supra, when the defendant has no right to alienate or encumber the suit property to third parties and he was under obligation to have consultation with the plaintiffs as to how the property could be utilised or put into use after his demise, the intention of the testator was only to safeguard the interest of all his children and the Will should not enure to the benefit of the defendant absolutely. A reading of this clause would clearly indicate that after the demise of the defendant, how the property should be enjoyed has to be decided and also who are the person to own it. The property has to be either divided by all the children of the deceased person equally or one person among them can be nominated and the property can be subjected to use in such a manner as may be decided by the plaintiffs. Here, taking the clue all the words cgnahfpf;fg;glntz;oaJ vd;gjw;Fk; ghj;jpaijfis Fwpj;Jk;" would definitely mean and include, who are the persons to own the property and enjoy the property after the death of the defendant and it has to be decided by all the members of the family. It is also include M!;gj;jphp cgnahfj;Jf;fhft[k; fpspdpf; cgnahfj;Jf;fhft[k; cgnahfpj;Jf; bfhs;s ntz;oaJ would mean after the death of the defendant, the other surviving legal heirs or one among them can continue the hospital. Even that questions could be decided by the family members and they could nominate one person for deciding the future utilisation of the property, only for the original purpose of running hospital or other purpose; whether the property should be owned by all the person together or some of them would also is to be decided and the right of consulting process was given to all the members. This will clearly indicate that the right to decide the future devolution of the property is not only vested with the defendant, but by all the other family members. Further, a member nominated by the defendant and other family members should execute such records for implementing the manner and utilisation of the property in future. Therefore, the testator was very clear in his intention that in the earlier clause he has never given the right absolutely to the defendant and in the latter clause he has given the discretion to the defendant and the plaintiffs to decide the future devolution of the property. Hence, the arguments of the learned senior counsel for the plaintiffs/appellants that the defendant is not having any exclusive right over the property and it is subject to certain restrictions and consequently, the plaintiffs are also having a right to claim partition is well founded.
26. Now that it is held that the intention of the testator was only to give a limited interest in the property to the defendant, the next question to be decided is whether by the recitals in the Will, Ex.B2, the property would revert back to the members of the family or the legatees of the Will. In this connection,
Section 82 of the Indian Succession Act has to be looked into, which reads as follows.
"82. Meaning of clause to be collected from entire 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."
27.
Section 82 would govern the present case. The meaning of any clause in a Will has to be collected from the entire instrument, and all its parts are to be construed with reference to each other. If
Section 82 is applied to the facts of the case, inthis case, the testator has not given absolute right to the defendant to spend the income derived from the A Schedule property, but the defendant was under an obligation to maintain the property as well as to take care of the other children of the testator. If that is so, then the other legal heirs of the deceased will be entitled to a share in the property in accordance with law. Therefore, the cumulative reading of the Will would clearly indicate that the plaintiffs are also entitled for partition, after taking into consideration, the last clause which categorically says that the future devolution of the property should be decided in consultation with the family members. In this connection, the decision of the Honourable Supreme Court, reported in (Navneet Lal v. Gokul) AIR 1976 Supreme Court Cases 794 is necessary to be extracted, which is as follows:-
8. From the earlier decisions of this Court the following principles, inter alia, are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed (Ram Gopal v. Nand Lal) (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense . . . . . 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. (Venkata Narasimha's case (supra) and Gnanambal Ammal v. T.Raju Ayyar) (3) The tue intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer).
(4) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any othe expressions inoperative. The Court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das).
28. In the decision in (Shyamal Kanti Guha v. Meena Bose) (2008) 8 Supreme Court Cases 115 it was stated as follows:-
20. Recently, this Court in Bajrang Factory Ltd. v. University of Calcutta held: (SCC p.198, para 39) "39. With a view to ascertain the intention of the maker of the will, not only the terms thereof are required to be taken into consideration but also all circumstances attending thereto. The will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same."
Therein the word "devise" was read as 'desire'. If this Court is to put itself into the testator's armchair to ascertain his intention from the words used in the will, it must take into consideration the surrounding circumstances, the position of the testator, his family relationship, and attach importance to isolated expressions so as to give effect to all the clauses in the will rather than making some of it inoperative.
21. This Court again in Anil Kak v. Sharada Raje held: (SCC p.708 para 37) "37. The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the will dated 04.11.1992 could be given effect to irrespective of the appendices. In construing a will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part."
22. There cannot be any doubt whatsoever that in the event of inconsistency between two parts in the will, the last shall prevail having regard to Section 88 of the Act, but, once it is possible to give effect to both the clauses which although apparently appear to be irreconcilable, the court should take recourse thereto.
23.
Section 119 of the Succession Act also speaks about postponement of the date of vesting of legacy when one of the brothers after the death of his sister became entitled to possess a dwelling house absolutely. In our opinion, the testator was of the opinion that the life interest should only be created in favour of his sister Meena Bose. This, however, would not mean as has been contended by Mr.Dave that the suit for partition was not maintainable. A suit for partition could be maintainable subject, of course, to the declaration that the interest of the respondent-plaintiff is confined to life interest only. To the aforementioned extent only this appeal succees."
(2008) 7 Supreme Court Cases 695 (Anil Kak v. Sharada Raje) "C. Sucession Act, 1925 S.87 Testator's intention How to be found out Held, it has to be found out from the entire will The will has to be read as a whole and endeavour should be made to give effect to each part of it Only when one part cannot be given effect to, having regard to another part, the principle of purposive construction or general principles of construction of deeds may be applied If a part is invalid, the entire document need not be invalidated."
29. Therefore, on a cummulative reading of the entire Will, Ex.B2, the only conclusion that can be arrived at is that the defendant was only given a life interest in the property without power of alienation and therefore, he cannot assert absolute ownership over the property. In fact, in the written statement, the defendant himself has admitted as follows:-
"10. The Testator has also categorically provided in the Will as to how the property is to be dealt with and utilised after the life time of the defendant. The plaintiffs have no right to decide the same. The power has been given to the defendant to take a decision after consulting the other members and make the necessary records therefor. Here again the plaintiffs have right to be consulted, but the ultimate decision is that of the plaintiff. The defendant has indeed written to all the plaintiffs and had talks and ascertained their views and opinion in the matter."
"4. The defendant submits that even as per the terms of the Will dated 18.07.69 executed by Dr.Sangunni, the plaintiffs cannot claim partition now. The Will clearly mentions that this defendant is entitled to take possession of the properties and use it as a clinic and that the defendant cannot alienate or encumber the properties.
5. This defendant is entitled to being possession and enjoyment of the properties till his lief time subject of course to the terms of the Will. As per the terms of the Will none of the plaintiff have been given any right in present nor have they given right of division of properties.
7. The terms of the Will are clear that the parties have no right to claim partition and that this defendant is entitled to be in possession and enjoyment till his life time. Contrary to the terms of the Will the plaintiff's claim for partition is misconceived and untenable."
30. The defendant himself in his written statement, Additional written statement and in the oral evidence has categorically admitted that " vd; je;ij ,wf;Fk; nghJ vdf;F jdpahf kUj;Jtkid ,y;iy. ehd; Maternity kw;Wk; other case-fis btspapy; attend gz;Dntd;/ ehd; g[J hospitaly; patients-fis admit bra;J tUfpd;nwd;/ 1969k; Mz;L capypy; fz;l hospital-I ,oj;J tpl;L g[J hospital-I fl;oapUf;f Koa[k;/ Mdhy; ahUk; xj;JiHg;g[ bfhLf;ftpy;iy/ Old hospital-I Staff quarters- Mf elj;Jfpd;nwd;/ mJ Rent Free. capy;go brhj;jpy; ahUf;Fk; chpikapy;iy/ kw;wth;fis consult bra;j gpd;dh; ehd; xUtiu Nominate bra;a ntz;Lk;/ capy;go ehd; elf;fj; jahh;/ Annual brytpid ehd; bfhLf;fj; jahuhf cs;nsd; kUj;Jtkid tUkhdj;jpypUe;J ehd; FLk;g bryt[ bfhLf;f ntz;Lk;" As per the admission of the DW1 himself capy;go ehd; elf;fj; jahh. Therefore nowhere he asserted that he is the absolute owner of the property. Hence, it is not open for the defendant in the appeal stage to argue that the defendant is the absolute owner of the property. It is also the admitted case in the written statement that defendant never claims absolute right in the property. Therefore on the reading of the evidence, pleadings and the interpretation of the Will, it is clear that the defendant has never asserted his right over the property. That being so, and taking into consideration the subsequent event that pending disposal of the appeal the defendant died and his legal heirs have come on record and they have also not stated anything about the election or nomination of one member among them or the preparation of any document to that effect, definitely, the plaintiffs, as the legatees and legal representatives of the deceased, are entitled to a share in suit the property. The lower court has not considered the aforesaid aspects properly and therefore, the decree and judgment passed by the court below has to be set aside. The points for consideration framed in the appeal are answered in favour of the plaintiffs and against the defendant.
32. In the result, the appeal suit is allowed, the decree and judgment passed by the Court below is set aside and the suit in O.S. No. 258 of 1991 filed by the plaintiffs is decreed as prayed for. No costs.
22.12.2009 Index : Yes Internet : Yes ogy/rsh B.RAJENDRAN, J. ogy/rsh A.S. No.1171/1994 22.12.2009