P. K. Vasudevan Nedungadi v. P. K. Santha Kovilamma
2002-03-08
R.BHASKARAN, S.SANKARASUBBAN
body2002
DigiLaw.ai
Judgment :- Sankarasubban, J. One T.V. Vasu Nedungadi and P.K. Vasudevan Nedungadi were successful in conducting partnership business. The Firm had acquired a reputation and the partnership acquired assets. 2. While so, the partners (who were brothers-in-law also) agreed to dissolve the Firm by deed of dissolution dated 30th June, 1981, which is produced as Ext. A1 in the case. By this dissolution deed, the Firm, Cochin Electric and Novelty Store stands dissolved with effect from 30th June, 1981. T.V. Vasu Nedungadi (Hereinafter called as T.V. Nedungadi') has gone out of the partnership and P.K. Vasudevan Nedungadi (hereinafter called as P.K. Nedungadi') continued the business. Ext. A1 detailed the terms of dissolution. Under Clause (3) P.K. Nedungadi has to pay Rs. 3.5 lakhs to T.V. Nedungadi or his nominees. It appears, T.V. Nedungadi expressed his desire that the amount of Rs. 3.5 lakhs shall be paid equally to his sons and daughters at the rate of Rs. 50,000/-. P.K. Nedungadi agreed to pay this amount within five years with 8% interest. 3. The partnership had as its assets buildings bearing Door Nos. 38/122-1 and 38/122-2. These buildings belong to both P.K. Nedungadi and T.V. Nedungadi. Under Clause (4) of the deed the second floor bearing Door No. 38/122-2 is to be owned by T.V. Nedungadi and possessed by him and the remaining portion of the building, viz., Door No. 38/122/1 and the first floor bearing Door No. 38/122-2 shall be owned and possessed by P.K. Nedungadi. This clause further states that the necessary documents for the same shall be executed as early as possible. Clause (5) states that P.K. Nedungadi shall take necessary steps to realise the second floor of the building bearing Door No. 38/122-2 from the mortgage of Nedungadi Bank Ltd., Ernakulam and release from the liability of T.V. Nedungadi for the overdraft account with Nedungadi Bank Ltd. 4. Ext. A2 is the partition deed executed between T.V. Nedungadi and P.K. Nedungadi. Under this partition deed, A schedule property, viz., the second floor of the building No. 38/122-2 was allotted to T.V. Nedungadi while the rest of the building was allotted to P.K. Nedungadi. Thus, we find, Clause (4) of Ext. A1 was implemented by the execution of Ext. A2 partition deed. Ext. A2 is dated 23.2.1983. 5. On 7.7.1982, T.V. Nedungadi executed a registered will bequeathing his properties.
Thus, we find, Clause (4) of Ext. A1 was implemented by the execution of Ext. A2 partition deed. Ext. A2 is dated 23.2.1983. 5. On 7.7.1982, T.V. Nedungadi executed a registered will bequeathing his properties. In Clause (9) of the Will, T.V. Nedungadi mentions about the properties in Ernakulam and the Firm and his partnership with P.K. Nedungadi. It says that the second floor of building No. 38/122-2 is his own and is in his possession and he can deal with it absolutely. The term in Clause (4) of the partnership is also mentioned in the will. Then the testator says that after his death, the building and the right over the way will vest in his seven children absolutely. Thereafter, Clause (10) comes. In Clause (10), he mentions about the dissolution deed dated 30th July, 1981 and about the payment of Rs. 3.5 lakhs to his children by P.K. Nedungadi. In that clause the executant states as follows : After P.K. Nedungadi pays Rs. 3.5 lakhs and within five years of his death, if P.K. Nedungadi offers to purchase the second floor from his sons, the sons shall sell the building to P.K. Nedungadi for a consideration of Rs. 1,05,000/- But if within the above period, P.K. Nedungadi dos not come to purchase the property, there will be no obligation on the children to sell the property. Now, the entire case depends upon the construction to be put to Clauses (9) and (10) of the Will. It appears, after the death of T.V. Nedungadi, P.K. Nedungadi approached the legatees under Ext. A3 will to purchase the building on payment of Rs. 1,05,000/-. But the legatees refused. But subsequently, three of the legatees sold their shares to P.K. Nedungadi. With the result, in the building which is the plaint schedule property, P.K. Nedungadi had obtained 3/7 share. 6. O.S. No. 781 of 1989 was filed by four of the children of T.V. Nedungadi against P.K. Nedungadi for partition of their 4/7 share over the plaint schedule building, whereas the other case, viz., O.S. No. 2 of 1990 was filed by P.K. Nedungadi for a declaration that the plaintiff is entitled to purchase the entire building and for directing the defendant to execute necessary documents to convey their rights over the plaint schedule property. Both the suits were tried together. 7. Exts.
Both the suits were tried together. 7. Exts. A1 to A10 were marked on the side of the plaintiff and Exts. B1and B2 were marked on the side of the defendant. One witness was examined on the side of the plaintiff. The court below, after considering the evidence and interpreting the documents, came to the conclusion that in so far as under Clause (9) of Ext. A3 will an absolute right has been created against the legatees, Clause (10) is repugnant to it and further held that at the most it only expressed the pious wish of the executor and in that view of the matter, the suit for partition was decreed while the suit for declaration was dismissed. It is against that these appeals have been filed. 8. During the pendency of the appeals, the appellant died and his legal representatives have been impleaded. In Jarman on Wills, Eighth Edition, Vol. 1, page (v) after referring to Perrin v. Morgan (1943) A.C. 399 - it is stated as follows : "This is undoubtedly one of the most important and interesting cases on the construction of wills in recent years, for not only did it remove what was justly described by Lord Greene, M.R., as "a blot upon our jurisprudence" (vide Re Morgan (1942) Ch. 346.) but, as was recognized in a fourth leader of The Times (vide "Humpty Dumpty's Testament" The Time, January 26, 1943, it raised in an acute form the question posed by Humpty Dumpty :- "The question is," said Alice, "whether you can make words mean so many different things". "The question is," said Humpty Dumpty, "which is to be Master - that's all". It has been stated that the rules of interpretation of a "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed.
"The question is," said Humpty Dumpty, "which is to be Master - that's all". It has been stated that the rules of interpretation of a "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter-se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of "will", the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last will which prevails. A will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim "cum duo inter se pugnantia reperiuntur in testamen to ultimum ratumest" which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier - vide Kalvelikkal Ambanhi (deed) by Lrs. & Others v. H. Ganesh Bhandary - JT 1995 (7) S.C. 164. 9. One of the important principles of construction is that as far as possible, there should be an attempt to reconcile the various provisions in the deed, because we are examining the last Will of a person and it is the duty of the court to see the intention of the testator is given effect to. The intention is to be gathered from the reading of the old documents. Of course, if an interpretation is against a particular provision of law, then that interpretation cannot be accepted. It may happen that in executing a Will the testator will foresee several contingencies. Unless we peruse the entire Will, we may not be able to find out the true intention of the party and earlier provision in the Will may denote that the property is given absolutely to a person.
It may happen that in executing a Will the testator will foresee several contingencies. Unless we peruse the entire Will, we may not be able to find out the true intention of the party and earlier provision in the Will may denote that the property is given absolutely to a person. But the subsequent Clause will indicate certain conditions for the enjoyment of the property. How these Clauses are to be reconciled? Whether the earlier absolute grant is to be implemented ignoring the conditions ? This always arises in interpreting a will. 10. One of the earlier cases is the decision reported in Reghunath prasad Singh and Another v. Deputy Commissioner, Partabgarh and others - A.I.R. 1929 Privy council 283. In that case, what happened was that one A died leaving a will bequeathing his property to P. The will provided that after the death of A his entire estate shall vest in P. It also further provided that P shall be the heir and successor. In subsequent Clause of the Will, certain conditions were imposed declaring that if the legatee or any of the successors of the legatee accepts any other religion, giving up the Hindu religion or contrary to the provisions of the will transfers the property bequeathed wholly or in part, and in consequence thereof he is suspended under the orders of the Government or by suit filed by the rightful heir after it had been fully proved, then conditions of provisions 5 shall at once attach to the inheritance. In dealing with this clause, Privy Council held as follows : "The question for determination has always been whether there are dispositive words creating an estate of inheritance, in the first instance; and, if so, whether the subsequent restrictive clauses are sufficient to displace the effect of such dispositive words or whether such subsequent clauses are merely repugnant to the absolute estate".
The court further held as follows : 'Their Lordships are of opinion that the words in the will "that the estate shall vest in Partab" and that he shall be the testator's "heir and successor" are clear dispositive words creating an absolute estate of inheritance in Partab, and they are further of opinion that the various clauses referred to above which were to come into operation after he had so inherited, must be regarded as an attempt to impose repugnant conditions upon the estate so created and are, therefore, void". The interpretation appears to be that if absolute gift is given by one clause, without changing the absolute nature, conditions cannot be imposed by later clause. 11. The question has arisen whether any restraint on alienations is void. In Mohammad Raza and Others v. Mt. Abbas Bandi Bibi - 1932 Privy Council 158 the question in issue was regarding family arrangement. In the Privy council Case a person was allowed to take property upon the express agreement that it shall not be alienated outside the family, those who seek to make title through a direct breach of this agreement can hardly support their claim by an appeal to the high sounding principles, such as justice, equity and good conscience. In dealing with this question, the Privy Council held as follows : "In compromise of conflicting claims what was evidently a family arrangement was come to, by which it was agreed that the widows (one of the parties to settlement) should take what she claimed upon certain conditions. One of these conditions was that she would not alienate the property outside the family". In dealing with the condition, the Privy council held that the terms of the compromise were binding, that the restriction as to alienation was only partial and that such a partial restriction was neither repugnant to law nor to justice, equity and good conscience. In Mohammad Raza and Others v. Mt.
In dealing with the condition, the Privy council held that the terms of the compromise were binding, that the restriction as to alienation was only partial and that such a partial restriction was neither repugnant to law nor to justice, equity and good conscience. In Mohammad Raza and Others v. Mt. Abbas Bendi Bibi A.I.R. 1932 privy council 158, the decision reported in A.I.R. 1929 Privy Council 283 was cited and distinction was made as follows : "It is in their Lorships' opinion, important in the present case to bear in mind that the document under which the appellants claim was not a deed of gift, or a conveyance , by one of the parties to the other, but was in the nature of a contract between them as to the terms upon which the ladies were to take. The title to that which Sughra Bibi took was in dispute between her and Afzal Husain. In compromise of their conflicting claims what was evidently a family arrangement was come to, by which it was agreed that she should take what she claimed upon certain conditions. One of these conditions was that she would not alienate the property outside the family. Their Lordships are asked by the appellants to say that the condition was not binding upon her, and that what she took she was free to transfer to them". Thereafter, the Privy Council held thus : "But apart from this it seems clear that after the passing of the Transfer of Property Act in 1882, a partial restriction upon the power of disposition would not, in the case of a transfer inter vivos, be regarded as repugnant. In view of the terms of this section, and in the absence of any authority suggesting that before the Act a different principle was applied by the Courts in India, their Lordships think that it would be impossible for them to assert that such an agreement as they are now considering was contrary to justice, equity and good conscience". 12. Trichinopoly Varthaga Sangam Ltd. v. T.N. Shanmughasundaram - A.I.R. 1939 Madras 769, was a case where a partition deed among father and his sons provided that certain houses which had been used as the family residence should be held by them as tenants-in-common.
12. Trichinopoly Varthaga Sangam Ltd. v. T.N. Shanmughasundaram - A.I.R. 1939 Madras 769, was a case where a partition deed among father and his sons provided that certain houses which had been used as the family residence should be held by them as tenants-in-common. The deed restrained the sons during as well as after the lifetime of the father from alienating their share to stranger to the family but gave a right to sell within the family at a maximum price which was far below the real value of the share of each son. There was no obligation to buy at that price. In that case, it was held that the restriction on alienation amounted to an absolute restriction and therefore was void under section 10. The decision reported in S. Narayana Doss v. Arumugathammal and Another- A.I.R 1958 Madras, 431, was a case where the question relates to the nature of the interest bequeathed to one shanmugathammal, the deceased wife of the plaintiff-appellant, under the will, Ext. A-1, executed by her father Velayutha Konar, on 11.2.1924. In that case, it was observed that if in such a case the daughter who having no issue at the time of the testator's death, takes only a life estate, has a child or children born to here thereafter the proviso which deprives the daughter who has no issue, of the power of alienation, would cease to be applicable, and the general clause conferring an absolute estate would come into operation on the birth of such issue and the life estate would get augmented into an absolute estate. 13. The above decision was upheld by the Division Bench decision reported in S. Narayana Doss (died) and another v. Arumugathammal & Another A.I.R. 1962 Madras 259.
13. The above decision was upheld by the Division Bench decision reported in S. Narayana Doss (died) and another v. Arumugathammal & Another A.I.R. 1962 Madras 259. In considering the question the question in issue, it was held that the paramount intention of the testator was to make a bequest of his properties in favour of his grand children by his daughters, that the daughter took only a life estate which was manifest by the later clause providing for succession in case the daughter died issueless and that the later clause devising the property could not be construed as in any way repugnant to the prima facie bequest made in favour of the daughter in the earlier portion and it was a defeasance clause limiting her rights and providing further succession in case she died issueless. In paragraph 6 of the above decision, it was stated thus:" In the matter of construction of a will no rule of law is more firmly established than that the court should ascertain the real intention of the testator appearing from the plain language of the entire instrument. One clause of the Will is as important as the other and the dominant intention of the testator can only be gathered from the cumulative effect of all the causes. Clear dispositive words of bequest conferring an absolute estate are often controlled and restricted by other clauses in the will cutting down the absolute character of the bequest. Such restrictive clauses cannot be construed to be a mere repugnancy and therefore treated as void". 14. After creating absolute estate in favour of a person, it is not legal to reduce the authority without altering the nature of the estate. In this context, we will refer to certain sections of the Indian Succession Act, which have been relied on by either side. Section 87 of the Indian succession Act says that the intention of the testators shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. Section 88 of the Indian Succession Act says that where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Section 88 of the Indian Succession Act says that where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. Illustration (ii) says that if a man at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail. Another Section is Section 138, which says that 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. This section corresponds to Section 11 of the Transfer of Property Act. Section 88 is given importance, especially Illustration (ii). The principle of the law enunciated in this section is one which is based on commonsense and is eminently reasonable. For when a testator bequeaths a certain property to A and later on, in the same will, gives the same property to B undoing the earlier gift to A and evidently with the intention of benefiting B, it follows that the inconsistency patent in the two dispositions can be resolved only by presuming that the testator had changed his mind with regard to the disposition of that particular property and finally desired that it should go to the later beneficiary mentioned by him in the will. But so far as the present case is concerned, it cannot be said that the second Illustration under Section 88 is applicable. Here, what happened was that under Clause (9), the property was absolutely given to the legatees, viz., the children. In clause (10) this absolute right is not taken away. What is stated is that if within 5 years, P.K. Nedungadi comes and asks for sale the property should be sold to him and if he does not come, the property belongs to him absolutely. According to us, the absolute nature of the dispossession under Clause (9) is not taken away by clause (10). Even in clause (10), the legatees are directed to sell. This direction pre-supposes that the legatees are absolute owners.
According to us, the absolute nature of the dispossession under Clause (9) is not taken away by clause (10). Even in clause (10), the legatees are directed to sell. This direction pre-supposes that the legatees are absolute owners. This is clear from clauses (9) and (10) that the legatees are the absolute owners of the building or the absolute owners of the proceeds which is to be obtained by the sale of the building. The question is whether this absolute nature can be taken away. Going by the decision in Reghunath Prasad Singh and Another v. Deputy Commissioner, Partabgarh and Others - A.I.R. 1929 Privy council 283, and the other decisions and also Section 138 of the Indian Succession Act, it can be said that clause (10) in fact is a restraint on alienation and that cannot be approved. 15. In this context, it is relevant to refer to the decision of the Calcutta High Court in Golak Behari v. Suradhani Dassi - A.I.R. 1939 Calcuta 226. In that case, their Lordships held as follows : "The distinction between a defeasance clause and a repugnant one is sometimes a nice one. Where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership, the clause is a repugnant one and is therefore void. If however the intention expressed or to be necessarily implied is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be the violation of any rule of law, the clause is a defeasance clause and would operate according to its tenor". In that case what happened was that Will in one clause confers absolute estate on sons. Subsequent clause provides that if any son dies without son his widow and daughters would not inherit but would only get maintenance. The question was whether the later clause was repugnant clause or defeasance clause.
In that case what happened was that Will in one clause confers absolute estate on sons. Subsequent clause provides that if any son dies without son his widow and daughters would not inherit but would only get maintenance. The question was whether the later clause was repugnant clause or defeasance clause. Dealing with the above clause, the court held as follows : "The execution by a subsequent clause of some of the heirs or only a class of heirs of the donee or legatee who has been given an absolute estate, an estate of inheritance, would not make the clause a defeasance clause but only a repugnant one, for a heritable estate must descend according to the law of the land or the personal law of the donee or legatee, as the case may be, and any provision made for excluding some of the heirs-at-law of the donee or legatee or a particular class of them would be regarded as an attempt by the donor or testator to legislate which cannot be permitted. The intention to terminate a gift or a bequest may be an expressed one or may be inferred by necessary implication. Where it is an absolute one an estate of inheritance having been conferred on the donee or legatee and the contingency is one which is to happen, if at all the moment the donee or legatee dies and not earlier, that intention would be the donee's or legatee's absolute estate is cut down by the words used by the donor". 14. In the Commentary on the Indian Succession Act by Sanjiva Row at page 481 it is stated as follows : "The introduction of a condition against alienation in a grant absolute in its terms has been declared to be equivalent to introducing an exception of the very thing which is of the essence of the grant. The section does not appear to contemplate any distinction between a partial restriction and a total restriction, and this led to a difference in the case-law on the question whether, when there is only a partial restraint on alienation, it can be said to be repugnant to the absolute estate granted. It is true that some times a restraint on alienation may indicate the limit. On a reading of Clause (9), it cannot be said that the estate is limited. In Jarman on Wills Eighth Edition, Vol.
It is true that some times a restraint on alienation may indicate the limit. On a reading of Clause (9), it cannot be said that the estate is limited. In Jarman on Wills Eighth Edition, Vol. II at page 1454, the following passage is relevant : "(vi) Repugnant conditions : "Conditions that are repugnant to the estate to which they are annexed, are", says Mr. Jarman, "absolutely void. Thus, if a testator, after giving an estate in fee, proceeds to qualify the devise by a proviso or condition , which is of such a nature as to be incompatible with the absolute dominion and ownership, the condition in nugatory, and the estate absolute. Such would, it is clear, be the fate of any clause providing that the land should for ever thereafter be let at a definite rent, or be cultivated in a certain manner; this being an attempt to control and abridge the exercise of those rights of enjoyment which are inseparably incident to the absolute ownership". 16. When I analyse the provision in the sale in question, I find that under Clause (9) an absolute right is given to the legatees. Clause (10) does not take away the absolute interest, but restricts the mode of enjoyment by directing that the property should be sold to a particular person within the stipulated time. I am of the view that the absolute nature of the gift is not reduced or limited one under clause (10). In that view, clause (10) is repugnant to clause (9) and hence, it cannot be acted upon. In the above view of the matter, I agree with the court below and I have to hold that the legatees are not bound to sell their shares to P.K. Nedungadi. Appeals are to be dismissed. Bhaskaran, J. I went through the judgment of my learned brother. With great respect, I do not agree with the same and my reasons are as follows. These two appeals were filed by P.K. Vasudevan Nedungadi, who was the plaintiff in O.S. No. 2 of 1990 and the defendant in O.S. No. 781 of 1989 on the file of the Sub court, Ernakulam. Afer his death, pending the appeals, his legal heirs have come on record.
These two appeals were filed by P.K. Vasudevan Nedungadi, who was the plaintiff in O.S. No. 2 of 1990 and the defendant in O.S. No. 781 of 1989 on the file of the Sub court, Ernakulam. Afer his death, pending the appeals, his legal heirs have come on record. O.S. No. 2 of 1990 was filed for a decree declaring that defendants 1 to 4 have no right in the plaint schedule property except to receive an amount of Rs. 60,000/- and for a direction to them to execute the sale deed in terms of the family arrangement in 1981 and the Will executed by deceased Vasu Nedungadi in 1982. O.S. No. 781 of 1989 is for partition of the same property into seven shares and separate possession of 4/7 shares to the plaintiffs. 2. The main question involved in the two suits was with regard to the interpretation of Ext. A3 Will executed by T.V. Vasu Nedungadi. Since there is no serious dispute with regard to other matters, it is sufficient to state in brief the background of the cases and the facts which led to the filing the cases. 3. T.V. Vasu Nedungadi and P.K. Vasudevan Nedungadi were brothers-in-law and were partners of a firm by name "Cochin Electric and Novelty Stores". The building and the site of the building were jointly owned by these two persons. By Ext. A1 dated 30-6-1981 they decided to dissolve the partnership and P.K. Vasudevan Nedungadi was to continue the business either solely or with other partners. The 2nd floor of the building was to be given to T.V. Vasu Nedungadi and the remaining portions to P.K. Vasudevan Nedungadi. Necessary documents were to be executed later. Out of the amounts due to T.V. Vasu Nedungadi and amount of Rs. 3,50,000/- was to be credited to the account of the seven children of Vasu Nedungadi at the rate of Rs. 50,000/- to each, and it was to be paid with 10% interest within five years. The balance amount due to Vasu nedungadi on dissolution of partnership will carry interest at 10%. Thereafter, Vasu Nedungadi executed Ext. A3 Will dated 7-7-1982. Clauses 9 and 10 of Ext. A3 Will are the subject-matter of interpretation in these two cases. By Caluse 9, Vasu Nedungadi gave the ownership of the 2nd floor of the building to his seven children.
Thereafter, Vasu Nedungadi executed Ext. A3 Will dated 7-7-1982. Clauses 9 and 10 of Ext. A3 Will are the subject-matter of interpretation in these two cases. By Caluse 9, Vasu Nedungadi gave the ownership of the 2nd floor of the building to his seven children. By clause 10, he stated that after P.K. Vasudevan Nedungadi gives Rs. 3,50,000/- to the testator's children and within five years of his death if P.K. Vasudevan Nedungadi demands sale of the second floor of the building obtained by the testator as per the dissolution deed and pays Rs. 1,05,000/- to the seven children they must execute a release deed to P.K. Vasudevan Nedungadi and if these amount is not paid within five years,they need not execute any release deed. P.K. Vasudevan Nedungadi paid Rs. 3,50,000/- as stipulated in the dissolution and demanded release of the rights of the children and the building on payment of Rs. 1,05,000/-. Only three of the children executed the release deed whereas the four of the remaining children filed O.S. No. 781 of 1989 for partition claiming that they are absolutely entitled to 4/7 right in the plaint schedule property. P.K. Vasudevan Nedungadi also filed O.S.No. 2 of 1990 for declaration that the four sons donot get absolute right in the property in as much as he has exercised the rights given to him under the Will of the owner to purchase their right by payment of money. 4. The trial court decreed the suit for partition and dismissed the suit for declaration and consequential direction by interpreting Ext. A3 Will. Three reasons are stated by the trial court for coming to the above conclusion. 5. The first reason stated is that Ext. A2 partition deed dated 23-2-1983 came into existence after Ext. A3 Will dated 7-7-1982. Nothing is stated in the partition deed about the provisions in the Will. Therefore, the testator had only expressed a pious wish in the Will. The second reason stated is that clause 10 of the Will is a repugnant clause and is unenforceable under S.11 of the Transfer of Property Act. It is also stated that the sale deed executed by the three children of Vasu Nedungadi was a negotiated settlement and it was not pursuant to the clause in Ext. A3 Will. On the above reasoning the trial court disposed of the two suits. 6.
It is also stated that the sale deed executed by the three children of Vasu Nedungadi was a negotiated settlement and it was not pursuant to the clause in Ext. A3 Will. On the above reasoning the trial court disposed of the two suits. 6. The reasoning of the court below that merely because nothing was stated in the partition deed about the recitals in the Will and therefore it is clear that the testator had only made a pious wish about the need for the children to sell their rights to P.K. Vasudevan Nedungadi is not possible of acceptance. It is also stated in the judgment that Ext. A2 in effect cancels Clause 10 of Ext. A3 Will. In Ext. A2 the children were not parties and it was executed only in furtherance of the provisions in Ext. A1 dissolution document wherein also the second floor of the building was allowed to be kept in the possession of Vasu Nedungadi and allotted to him but a registered document was to be executed later to release the right of P.K. Vasudevan Nedungadi over that portion. It was for that purpose alone Ext. A2 was executed. Moreover, merely because nothing is stated in the partition deed about the Will, will not show that there was intention for the testator that the clause in the Will is to be treated as a pious wish. There is nothing to indicate that Ext. A2 cancelled clause 10 of Ext. A3 Will. There was no reason for Vasu Nedungadi to think that his children will not comply with his directions in the Will. The learned counsel for the respondents also did not seriously try to support this reasoning of the trial court. 7. The more important question to be decided in the appeals is whether clause 10 in Ext. A3 Will is a repugnant clause or a defeasance clause and whether such a clause can be enforced at the instance of P.K. Vasudevan Nedungadi. According to the trial court, the clause is a repugnant clause and is unenforceable under Sec. 11 of the Transfer of Property Act. 8. We will first examine the two paragraphs in the Will. True translation of the two paragraphs of the will read as follows : "9. Myself and P.K. Vaudevan Nedungadi have a joint property and business in Ernakulam.
8. We will first examine the two paragraphs in the Will. True translation of the two paragraphs of the will read as follows : "9. Myself and P.K. Vaudevan Nedungadi have a joint property and business in Ernakulam. I have surrendered almost in whole the business to the partner. However, I have not surrendered the 2nd floor of the building in the property in 38/122-2 of Cochin corporation to the partner. That is in my possession and ownership. The entire remaining rights in the building except that of the pathway and the right of 2nd floor building is already given to the partner. In that floor, there are four rooms, one hall and a kitchen. I decide that the above place and the right of way will go to all my seven children equally with power of alienation. 10. If Vasudevan Nedungadi demands a sale of the 2nd floor after payment of Rs. 3,50,000/- with interest as detailed in para 3 of the dissolution deed and within five years of my death, my children must execute a sale deed for the above-said property after receiving Rs. 1,05,000/- If within the said five years Vasudevan Nedungadi does not purchase the property, my children will have no obligation to sell the same to him". 9. The learned counsel for the appellants brought to our notice the following provisions in the Indian Succession Act. 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.
9. The learned counsel for the appellants brought to our notice the following provisions in the Indian Succession Act. 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. Illustrations (i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted sense the words in which he describes what be gives to A. (ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to A, and in another part of his will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had said "I give Black Acre to B, and all the rest of my estate to A." 85. No part rejected, if it can be reasonably construed. - No part of a will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it. 88. The last of two inconsistent clauses prevails.- Where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. Illustrations (i) The testator by the first clause of his will leaves his estate of Ramnagar "to A", and by the last clause of his will leaves it "to B and not to A". B will have it. (ii)If a man at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for benefit of B, the latter disposition will prevail. He also laid emphasis on Illustration No. II to S. 88 and submitted that it is applicable to the present case. 10.
He also laid emphasis on Illustration No. II to S. 88 and submitted that it is applicable to the present case. 10. Apart from the above provisions, Sec. 74 of the Act also states that it is not necessary that any technical words or terms of art be used in a Will but it is enough if the intention of the Testator is clear from the words used in the Will. He also relied on various decisions which also we will advert to later. 11. The learned counsel for the respondents on the other hand submitted that there is no legacy created by the Will in favour of P.K. Vasdudevan Nedungadi and once the property is given absolutely to the children, further direction to sell the property to Sri. Nedungadi is only a direction with regard to the mode of enjoyment and is therefore unenforceable. According to him, if clause 10 is to operate as a defeasance clause, the Will should have contained a clause automatically vesting the property on the happening of certain events and not a direction to sell by the children. He also argued that Sec. 138 of the Indian Succession Act corresponds to Sec. 11 of the Transfer of Property Act and para 10 of Ext. A3 Will is a restriction on mode of enjoyment and hence unenforceable. The cardinal rule of interpretation of a Will is that as far as possible, the Court must give effect to all portions of a Will. If there are two inconsistent portions, it is the later portion which is treated as the last wish of the testator and therefore effect must be given to that. If however the later portion is against law and unenforceable and it only restricts the mode of enjoyment of the legacy the same can be ignored and the first part given effect to. The circumstances surrounding the execution of the Will must be borne in mind and the court must try sit in the Armchair of the testator to find out his intentions. In the light of the above principles, Ext. A3 Will is to be interpreted in this case. 12. The entire property with the business belonged to two persons who were brothers-in-law. Vasu Nedungadi surrendered his share of business after dissolving the partnership to Vasudevan Nedungadi on receipt of consideration by his children.
In the light of the above principles, Ext. A3 Will is to be interpreted in this case. 12. The entire property with the business belonged to two persons who were brothers-in-law. Vasu Nedungadi surrendered his share of business after dissolving the partnership to Vasudevan Nedungadi on receipt of consideration by his children. What remained was only his share of right in a portion of the building. That also he wanted to give to his brother-in-law on payment of consideration to his children. The amounts payable after dissolution of partnership (at least a sum of Rs. 3,50,000/- has to be paid to the children within five years of dissolution and the sale consideration of the building was to be paid within five years of his death. Therefore, it was his wish that his brother-in-law Vasudevan Nedungadi must be given the remaining portion of the building also, though not free of cost as he had directed receipt of money by the children. That wish is expressed in Ext. A3 Will. Is it not possible to gather the intention of the testator in directing the sale of the property to Vasudevan Nedungadi by his children on receipt of a specified amount? Is there anything illegal in such direction ? It is clear from the Will that the testator wanted to give Vasudevan Nedungadi an opportunity to purchase the building from the children on payment of consideration within a specified period. If no period was fixed, it was unenforceable as it would be too vague to be given effect to. 13. It will be in vain to look for authorities wherein similar provisions in a Will was interpreted. However, counsel on both sides brought to our notice various decisions which are to be referred to hereunder. In Narayana v. Arumngathammal (AIR 1958 Madras 431) the testator gave various item of properties to her daughters and said that if any of the children were to die issueless the property given to her will be taken by the other sister or sisters who have children. The Madras High Court stated that the testator intended the daughter who did not have any issue to enjoy the property as a life estate holder and she could get an absolute estate only when she gets a child born to her.
The Madras High Court stated that the testator intended the daughter who did not have any issue to enjoy the property as a life estate holder and she could get an absolute estate only when she gets a child born to her. This decision was upheld by the Division Bench in the decision reported in S.N. Doss v. Arumugathammal (AIR 1962 Madras 259). Their Lordships held that it is the dominant intention of the testator that is to be seen and the court must not be astute in discovering repugnant provisions and harmonious construction of the various clauses must be made as far as possible. 14. A Division Bench of this Court in P. Krishna v. Narayana (AIR 1962 Kerala 322) also took the same view. It was further held that where the intention is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said absolute estate would not be any violation of any rule of law the clause is a defeasance clause and would operate according to its tenor. The learned counsel for the appellants submitted that the provisions in the Will directing the children to execute a sale deed after receiving consideration of Rs. 1,05,000/- if paid within five years of his death cannot be said to be violation of any law. 15. The learned counsel for the appellants also submitted that the trial court has gone wrong in invoking the provisions contained in S. 11 of the Transfer of Property Act and stated that the Supreme Court in K. Ambunhi (dead) by Lrs. & Ors. V. H.G. Bhandary (1995 (7) JT 164) has clearly stated that the rules of interpretation of a Will are different from the rules which govern the interpretation of other documents like a sale deed or a gift deed. In the case of a Will, it is the later clause if it is inconsistent with the earlier clause which must prevail. Reliance was placed on Sec. 88 of the Indian Succession Act. This view is reiterated in Balwant Kaur v. Chanan Singh (AIR 2000 SC 1908). 16.
In the case of a Will, it is the later clause if it is inconsistent with the earlier clause which must prevail. Reliance was placed on Sec. 88 of the Indian Succession Act. This view is reiterated in Balwant Kaur v. Chanan Singh (AIR 2000 SC 1908). 16. The learned counsel for the respondents submitted that Sec. 138 of the Indian Succession Act is the same as Sec. 11 of the Transfer of Property Act and therefore the court below was justified in holding that the way in which the property must be enjoyed can not be stipulated by the Testator. 17. The main argument of the learned counsel for the respondents is that the direction in the Will is to the legatees to sell the properties to Vasudevan Nedungadi and there is no legacy in favour of Vasudevan Nedungadi. Therefore, it is submitted that what is meant under the Will is a direction on the enjoyment of the property after it is given to the children and therefore Sec. 138 of the Indian Succession Act applies to the facts of the case. Though it is true that Vasudevan Nedungadi is not given the property free of cost under the Will after giving the absolute right to the children the provision to give the property to Vasudevan Nedungadi on receipt of consideration by itself will not take away the right of Vasudevan Nedungadi to get the property on payment of the amount stipulated in the Will. As already noticed , it is not a restriction on enjoyment of property, but a total restriction on the ownership of the property on the happening of a specified contingency, viz, payment of consideration within five years of the death of the testator. In Talkeshwari Devi v. R.R.B. Prasad Singh (AIR 1972 SC 639), the Supreme Court has construed Ss. 124 and 131 of the Indian Succession Act and has held that the duty of the Court is to find out the intention of the testator and for that purpose the Will is to be read as a whole. In construing the Will, the words are to be interpreted not as in a Statute, but having regard to the intention of the testator which can be gathered from the surrounding circumstances.
In construing the Will, the words are to be interpreted not as in a Statute, but having regard to the intention of the testator which can be gathered from the surrounding circumstances. A conjoint reading of paragraphs 9 and 10 of the Will shows that what the testator wanted the children to be given was only the consideration of Rs. 1,05,000/- by Vasudevan Nedungadi for executing the sale deed in respect of the second floor of the building and the only condition was that Vasudevan Nedungadi must offer the amount within five years of the testator's death failing which the children will get absolute right in the property. Section 131 of the Indian Succession Act states that a bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person. The learned counsel for the respondents relied on the decision of a Privy Council in Raghunath v. Deputy commissioner, Partabgarh (AIR 1929 PC 283). In that case, the testator stated that after his death, the entire estate shall vests in P. In subsequent clauses, the testator put certain conditions like restrictions on alienations by the legatee on changing of religion etc. Construing those conditions, the Privy Council held that they are repugnant to the main clause and they are only to be ignored. It cannot be said that the clauses in the present Will are similar as in that case. 18. In Mohammad Raza v. Mt. Abbas Bandi (AIR 1932 pc 158) the question for consideration was whether the condition in the settlement deed that the property allotted to a member shall not be alienated outside the family is a repugnant clause. The Privy Council held that the clause was valid and it is neither repugnant nor violative of the principles of justice, equity and good conscience. In Jagar Nath v. Chhedi Dhobi (AIR 1973 Allahabad 307), the Allahabad High Copurt held that the condition in a sale deed restraining alienation by vendee before first offering the property for re-sale to the vendor is not vague and is enforceable as there is no prohibition altogether against alienation.
In Jagar Nath v. Chhedi Dhobi (AIR 1973 Allahabad 307), the Allahabad High Copurt held that the condition in a sale deed restraining alienation by vendee before first offering the property for re-sale to the vendor is not vague and is enforceable as there is no prohibition altogether against alienation. In Golak Behari v. Suradhani Dassi (AIR 1939 Calcutta 226), a Division Bench of the Calcutta High Court explained the difference between "defeasance Clause" and "repugnant clause" and held that where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership, the clause is a repugnant one and is therefore void. If, however, the intention expressed or to be necessarily implied is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be the violation of any rule of law, the clause is a defeasance clause and would operate according to its tenor. The same view was expressed by Sundaram Chetty, J. of the Madras High Court in Govindaraja v. Mangalam Pillai (AIR 1933 Madras 80). In that case, the owner of the property had executed a registered settlement deed in favour of his wife giving certain properties to her to hold and enjoy the same with all rights. The further clause in the settlement deed stated that in case there is no issue born to them, the property should go to the wife's brothers. It was contended in that case that having given absolute right to the wife, the subsequent clause was a repugnant clause and was unenforceable. Sundaram Chetty, J., after elaborate discussion of the Privy Council decisions, held that the subsequent clause is valid as the absolute estate was subject to the defeasance clause of happening of a contingency and that clause was not in violation of any rule of law and therefore the original estate is curtailed and the gift over must be taken to be valid and operative. 19.
19. In the light of the above discussion, the contention of the learned counsel for the respondents that there is no bequest in favour of Vasudevan Nedungadi and there is only a direction to sell the rights by the children to Vasudevan Nedungadi on receipt of certain amounts as consideration cannot be accepted. As already noted, it is the intention of the testator that has to be given effect to an it is clear from a reading of the Will that the testator intended Vasudevan Nedungadi to be a legatee under the Will on payment of a definite amount within a definite period of the death of the testator. There is nothing illegal in such a cluse. The fact that there is a direction to sell the property to Vasudevan Nedungadi on receipt of consideration makes Vasudevan Nedungadi a beneficiary under he Will and in case he is willing to pay the consideration, he is entitled for the benefit of the Will. 20. The further contention of the learned counsel for the respondents is that the caluse in the Will is an onerous gift and it is open to the legatee to refunse the benefit under the Will without prejudice to his accepting the other clause in the Will with respect to other properties is also unsustainable. Since they are also some of the legal heirs of Vasu Nedungadi, they prefer to take their shares as heirs and not as legatees under the Will. Though under s. 123 of the Indian Succession Act, the legatee is free to accept one of the bequests and refuse the other, that provision is not applicable in a case where the right is conferred on another person under the Will. The further contention of the learned counsel for the respondents is that the condition must be fulfilled strictly and in this case since all the children have to assign their right and only three of them have assigned, the condition is not fulfilled. It is also incapable of acceptance, as in such cases it is easy to defeat the provisions in a Will by non-cooperation by some of the legatees. There is no case for the respondents that Vasudevan Nedungadi was not willing to purchase the rights of the children in the property by payment of consideration shown in the Will.
It is also incapable of acceptance, as in such cases it is easy to defeat the provisions in a Will by non-cooperation by some of the legatees. There is no case for the respondents that Vasudevan Nedungadi was not willing to purchase the rights of the children in the property by payment of consideration shown in the Will. The reasoning of the lower court that the purchase from the three children was a negotiated sale is also unacceptable as it can be seen from the consideration shown in the sale deed that it was the share due to them as stipulated in the Will that was paid at the time of sale of their shares. The three children have thought it fit to respect the last wish of their father while the remaining children defy the same. 21. In the light of the above discussion, the judgment and decree of the lower court are set aside and O.S. No. 2 of 1990 is decreed declaring that defendants 1 to 4 have no right in the plaint schedule property except to receive the amount of Rs. 60,000/- from the legal heirs of the plaintiff. Defendants 1 to 4 are directed to execute the sale deed in favour of the legal heirs of P.K. Vasudevan Nedungadi who have been impleaded as additional appellants in A.S. No. 250 of 1993 conveying their rights in the plaint schedule property in O.S. No. 2 of 1990 on the file of the Sub Court, Ernakulam, in case they deposit Rs. 60,000/- for payment to defendants 1 to 4 within three months. A.S. No. 603 of 1991 is also allowed and O.S. No. 781 of 1989 filed by the respondents for partition is dismissed. The parties shall bear their respective costs in these appeals. 22. The question to be considered in this case is regarding the effect of clause (9) of Ext. A3 and clause (10) of the same document. Ext. A3 is a Will. Under Clause (9), the testator has given the subject matter of the suit to his children absolutely. By Clause (10), certain directions are given regarding the alienation of the building. The questions of law that arise are : (1) Whether the absolute right made under Clause (9) can be taken away by Clause (10)? (2) Whether Clause (10) is repugnant to clause (9)?
By Clause (10), certain directions are given regarding the alienation of the building. The questions of law that arise are : (1) Whether the absolute right made under Clause (9) can be taken away by Clause (10)? (2) Whether Clause (10) is repugnant to 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 outway the disposition in Clause (9)? In view of the difference of opinion between us, on the questions of law formulated above, the appeals are to be heard by a third Judge, under the Proviso to Section 98(2) of the Code of Civil procedure. Accordingly, we adjourn the appeals for being heard by a third Judge. Registry is directed to place the papers before the Honourable The Chief Justice for necessary orders. M.R. Hariharan Nair, J. OPINION 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 (10) is repugnant to 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 outweight 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 propose to re-produce the relevant Clauses of the Will, the English version of which is available 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.
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 execute a sale deed for the said property after receiving a sum of Rs. 1,05,000/- from Vasudevan Nedungadi, 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 such, may not be applicable. 5. Sec. 81 of the Act provides that where there is an ambiguity or 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 instrument and all its parts are to be construed with reference to each other. As per Sec. 84, where a Clause is susceptible of two meanings according to one of which i 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 of 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.
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 7children 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 was a restricted grant which would be subject to the exercise of the option of the brother-in-law, who was his long term associate as a partner in the Firm's business, though as on the date of the Will the partition had not been in existence. The testator appears to have restricted the normal succession and make it subject to a liability to execute a conveyance in favour of his former partner in case he came forward to pay the sum of Rs. 1,05,000/- within the time specified therein and subject to fulfilling the other conditions. It is to be mentioned here that 3 of the 7 children understood this in the right perspective and implemented the desire of their predecessor by executing conveyance of their undivided right over the property mentioned in Clause (9) in favour of the said brother-in-law (hereinafter referred to as the pre-emptor) and the Will has, thus, come into effect atleast as regards the said co-legatees. Onerous bequests are not unknown to law and Sec. 122 of the Act itself provides that where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully.
Onerous bequests are not unknown to law and Sec. 122 of the Act itself provides that where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully. If the said principle is applied to the Will in hand, the legatees can take the right of ownership only subject to the obligation viz., to execute a sale deed to the pre-emptor, if he comes forward with a demand and ready to comply with the obligations on his part and in time. 8. The question may arise as to the need for specifying that the legatees Will get rights on death. There are two purposes here, one is the possibility of the pre-emptor not complying with the conditions. The second is that if rights are to be conveyed to the pre-emptor, the legatees should themselves have the right. It is to enable them to execute the conveyance that in Clause (9) a right is conferred on them without describing it as absolute right, but specifying that it Will include the power of alienation without which they could not have conveyed the rights to the pre-emptor. It may perhaps be possible even to consider the pre-emptor as one of the beneficiaries or legatees contemplated in the Will itself though his rights are not absolute; but only subject to the fulfillment of the conditions imposed in Clause (10). There appears to be no bar for bequeathal of a right of pre-emption. Further, even assuming that there is some inconsistency between the two clauses and that the direction to execute conveyance is irreconcilabale with the right of alienation given under Clause (9), even then, Sec. 88 of the Act would apply and the last of the conditions viz., Clause (10) will prevail which again would enable the pre-emptor to get a sale deed as already obtained from 3 of the 7 legatees. 9. Even though the reference made to me can be answered as above even based on the said discussions made on first principles, I proceed to discuss about the provisions and authorities placed before me by the learned counsel. In fact, most of these already find their place in the two judgments written by the learned members of the Bench. 10.
Even though the reference made to me can be answered as above even based on the said discussions made on first principles, I proceed to discuss about the provisions and authorities placed before me by the learned counsel. In fact, most of these already find their place in the two judgments written by the learned members of the Bench. 10. Under Sec. 11 of the Transfer of Property Act where, on a transfer of property, an interest therein is created absolutely in favour of any person; but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. In other words, a restriction repugnant to the interest created would be void. The question arises whether the grant in favour of the pre-emptor is a repugnant clause? The difference between a repugnant provision and a defeasance clause is subtle. Where the intention of the transferor is to maintain the absolute estate conferred on the transferee; but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clause would be repugnant to the absolute transfer and therefore void. However, where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift must be taken to be valid and operative subject to the burden. 11. A condition imposed in a family arrangement that the property should be held without the right of alienation to a stranger came up for consideration in Mohammad Raza v. Mt. Abbas Bandi (AIR 1932 PC 158). It was held that the restriction was neither repugnant to law nor to justice, equity and good conscience and as such was valid. 12. In Anukul Chandra v. Gurupada (AIR 1936 Calcutta 643) earlier clause in the Will provided for a bequest of all the properties in favour of the son of the testator; but in the next clause the bequest was made subject to a liability for sheba of deities.
12. In Anukul Chandra v. Gurupada (AIR 1936 Calcutta 643) earlier clause in the Will provided for a bequest of all the properties in favour of the son of the testator; but in the next clause the bequest was made subject to a liability for sheba of deities. It was held that the second clause was not inconsistent with the earlier provision and an endeavour should be made to reconcile the apparently inconsistent clauses. In such cases, the second clause has to be taken as a proviso to the earlier part as held in Naryana v. Arumugathammal (AIR 1958 Madras 431) in which case both the clauses would have proper meaning and sense. In Raghunath v. Deputy Commissioner, Partabgarh (AIR 1929 PC 283) it was held that the question in such cases is as to what was the paramount intention of the testator as expressed in the Will. Reading the Will, as a whole, the testator's primary intention has to be gathered and given effect to. K. Ambunhi (dead) by Lrs. & Ors. V. H.G. Bhandary (JT 1995 (7) SC 164) provides that where there are inconsistent clauses, the last intention of the testator is to be given effect to that is to say, the latter clause should prevail over the former clause. 13. In Anthony Thommen v. Thommen Alexander and another ((1965) 2 KLR 283) it was held that the termination or the extinguishment of an estate is different from the imposing of restrictions on the mode of enjoyment of the estate and a nice distinction between a defeasance clause and a repugnant provision exists. If the intention of the testator or donor is to maintain an absolute estate and the restrictions are to restrict the mode of enjoyment or the manner in which the absolute powers should be exercised, the provision is a repugnant one. If the intention, on the other hand, is to terminate or extinguish the absolute estate then the provision would be a defeasance clause. Sec. 131 of the Indian Succession Act, it was held provides for the termination of a bequest on the happening of a specified uncertain event or on the non-happening of the same by a gift over. It was held that such a clause, though restrictive, would be only a defeasance clause and would be valid. 14.
Sec. 131 of the Indian Succession Act, it was held provides for the termination of a bequest on the happening of a specified uncertain event or on the non-happening of the same by a gift over. It was held that such a clause, though restrictive, would be only a defeasance clause and would be valid. 14. In S.N. Doss v. Arumughathammal (AIR 1962 Madras 259) it was held that in the matter of a Will, the court has to ascertain the real intention of the testator appearing from the plain language of the entire instrument; that one clause of the Will is as important as the other and the dominant intention has to be gathered from the cumulative effect of the clauses and that the courts should not be astute in discovering repugnant provisions in a Will merely because of a slight inconsistency between portions of the testamentary instrument. As far as possible a harmonious construction of all the provisions in the Will, should be arrived at as otherwise, was brushing aside of a particular clause on the ground of its repugnancy to another may result in creating a Will which was never contemplated by the testator. It was also held that the bequest conferring an absolute estate can be controlled and restricted by other clauses in the Will cutting down the absolute character of the bequest and that such restrictive clauses cannot be construed to be a mere repugnancy and treated as a void. 15.In view of the above provisions of law and for the reasons already mentioned, I am of the view that Clause (10) is not repugnant to Clause (9); and that the bequest in Clause (9) has to be read as controlled by clause (10). I therefore answer the 4 questions referred to me as follows : (1) What is given under Clause (9) to the legatees is not an absolute right; but a right to hold the property with power of alienation and controlled by Clause (10). (2) Clause (9) can be reconcile with Clause (9). (3) Clause (9) can be reconciled with clause (10). (4) The intention expressed by the testator in Clause (10) has to be given due weight and implemented and to that extent it outweighs the disposition in Clause (9). 16. The further question to be considered is whether the appeals have to be disposed of.
(3) Clause (9) can be reconciled with clause (10). (4) The intention expressed by the testator in Clause (10) has to be given due weight and implemented and to that extent it outweighs the disposition in Clause (9). 16. The further question to be considered is whether the appeals have to be disposed of. The proviso to Sec. 98(2) of the CPC Stipulates that where there is divergence of opinion between the two Judges forming a Bench on a question of law, the appeal has to be heard upon that point by another Judge or Judges and such point shall be decided according to the opinion of the majority of the judges who have heard the appeal including those who first heard it. The question arises whether it should be possible to the third Judge to dispose of the cases. Considering the above guidelines, I am of the view that it is not permissible for this court to dispose of the cases here. That power is available only to the Division Bench which heard the appeals. The cases were pending before the Division Bench and they have not yet been disposed of. When an opinion is given by the third Judge, it has necessarily to go to the Bench before which the cases were pending and it is for the learned Judges forming the bench to dispose of the cases one way or the other. I therefore direct that the records be placed before the Bench concerned which dealt with the appeals earlier along with my opinion as above, for appropriate disposal of the appeals. In view of the majority opinion, A.S. 250/93 which is filed against the judgment and decree in O.S.2/90 is allowed and the suit is decreed declaring that defendants 1 to 4 have no right in the plaint schedule property except to receive the amount of Rs. 60,000/- from the legal heirs of the plaintiff. Defendants 1 to 4 are directed to execute the sale deed in favour of the legal heirs of P.K. Vasudevan Nedungadi who have been impleaded as additional appellants in A.S. 250 of 1993 conveying their rights in the plaint schedule property in O.S. 2/90 on the file of the Sub court, Ernakulam, in case they deposit Rs. 60,000/- for payment to defendants 1 to 4 within three months.
60,000/- for payment to defendants 1 to 4 within three months. A.S. 603/1991 is also allowed and O.S. 781/89 filed by the respondents for partition is dismissed. The parties shall bear their respective costs in these appeals. In the case the defendants are not executing the documents, the plaintiffs can approach the court to get the document executed through court as a suit for specific performance.