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2004 DIGILAW 333 (KER)

Krishnan Nair v. Vasudeva Panicker

2004-07-20

PIUS C.KURIAKOSE

body2004
JUDGMENT : Pius C. Kuriakose, J. (Editors Note:-- Paras 1 to 10 omitted being narration of facts) 11. To answer the questions of law it will be necessary to read through Ext.B1 Will. The opening portion of the Will certainly show that the bequest made thereunder is bequest by the testator Velayudhan Nair in favour of his nieces and nephews, Paru Amma, Krishnan Nair, minor Velayudhan Nair and minor Sinnammu Amma and to the children of Paru Amma already begotten and may beget in future and the children of Sinnammu Amma to be begotten in future. It is in clause 2 of the Will that the testator deals specifically with the bequests. Reading of clause 2 shows that the bequest as regards item Nos. 1 to 9 properties is a bequest jointly in favour of parties 1 to 4 in the Will and in so far as item Nos. 10 and 11 the disputed properties are concerned the bequest is in favour of parties 1 and 4 absolutely. It is on the basis of the difference in the language employed by the testator regarding the bequest in respect of item Nos.1 to 9 and that in respect of item Nos.10 and 11 that it is contended by the appellants that as far as the disputed properties are concerned the bequest is absolutely in favour of Paru Amma and Sinnammu Amma alone and there is no bequest in favour of the children of Paru Amma and Sinnammu Amma. In my view a careful reading of the Will in entirety will reveal that there is no basis for such an interpretation. As already indicated, it is in the opening paragraph of the Will alone and importantly the opening paragraph alone deals with the bequests made under the Will generally that it is mentioned that the bequest is in favour also of the children of Paru Amma, existing and to be born and the children Sinnammu Amma to be born. The legatees are assigned numbers and Paru Amma is legatee number 1, Krishnan Nair, Paru Amma's brother is legatee No.2, Velayudhan Nair, another brother is legatee No.3 and Sinnammu Amma along with children already born and to be born to her sister and children to be born to herself is assigned No.4. The legatees are assigned numbers and Paru Amma is legatee number 1, Krishnan Nair, Paru Amma's brother is legatee No.2, Velayudhan Nair, another brother is legatee No.3 and Sinnammu Amma along with children already born and to be born to her sister and children to be born to herself is assigned No.4. When a question is asked as to which is the number assigned by the testator for the children of Paru Amma and Sinnammu Amma, only two answers are possible. No.4 or that they have not been assigned any separate number at all but are only identified with their mothers Sinnammu Amma and Paru Amma as persons having no separate identity apart from that of their mothers. This is where Sri.Krishnanunni's argument that the bequest under Ext.B1 Will in favour of Paru Amma and Sinnummu Amma is a bequest collectively in favour of the thavazhi consisting of Paru Amma and Sinnummu Amma assumes significance. There are several recitals in Ext.B1 Will which strongly support Mr.Krishnanunni's submission that the testator was a Marumakkathayee to the core. Of the 14 items which forms the subject matter of the Will the testator has bequeathed 9 + 2 = 11 items to his nieces and nephews while only three items are bequeathed in favour of his own wife and children. The testator's special affection for his nieces who alone will beget children to become members of Marumakkathayam tharavad is discernible in the special bequest of items 10 and 11 as distinguished from the common bequest in respect of items 1 to 9. The residuary legatees under Ext.B1 Will are significantly the nephews and nieces and not his own wife or children. The obligations to perform periodical religious rituals including the annual charity is cast on the nephews and nieces. The duty of conducting the testator's funeral and for bearing the expenses for the obsequies is cast not on the wife and children but on the nephews and nieces. While I construe the terms of Ext.B1 Will assuming the mind set of the testator, a staunch Marumakkathayee of yesteryears, I have no difficulty to conclude that the bequest in respect of item Nos. While I construe the terms of Ext.B1 Will assuming the mind set of the testator, a staunch Marumakkathayee of yesteryears, I have no difficulty to conclude that the bequest in respect of item Nos. 10 and 11 is a bequest not in favour of Paru Amma and Sinnammu Amma alone but instead is one in favour of the thavazhi of Paru Amma and Sinnammu Amma in the Marumakkathayam tharavad by name 'Neelattuparammalkandiyil' of which the testator was the karanavan. 12. Now I will consider the argument that the opening clause in the Will which says that the bequest is in favour of Paru Amma and Sinnammu Amma and their present and future children is in conflict with clause No.2 which says that the bequest as regards item Nos. 10 and 11 is in favour of Paru Amma and Sinnammu Amma alone and therefore S.88 of the Indian Succession Act should be applied and the second clause should be taken as the prevailing clause. The ratio which emerges from various binding judicial precedents such as Bajrang Bahadur's case (supra), Ramakrishorelal's case (supra), Ramaeshwar Bakhsh's case (supra) and Vasudeva Prabhu's case (supra) is that the cardinal rule to be followed while construing Wills and testaments which are solemn documents the endeavour should be to discern the real intention of the testator by reading of the clauses in the instruments together in a harmonious manner as far as possible and a conclusion that there is conflict between clauses inter se in a Will should be arrived at only when no other conclusions is possible. When Ext.B1 is read and construed in accordance with the above rule what I find is that there is no conflict between the opening clause of the Will and the succeeding clauses and the conflict if at all is only apparent. The bequest in favour of Sinnammu Amma and Paru Amma under Ext.B1 is in fact a bequest in favour of a group consisting of them and their present and prospective children. Ambunhi's case (supra) was decided on an entirely different fact situation. The Will which was the subject matter of that case had an initial clause which stated that a particular item of property was bequeathed absolutely in favour of Kannan one of the nephews of the testator. Ambunhi's case (supra) was decided on an entirely different fact situation. The Will which was the subject matter of that case had an initial clause which stated that a particular item of property was bequeathed absolutely in favour of Kannan one of the nephews of the testator. The very same Will contained a latter clause which was to the effect that the properties bequeathed in favour of Kannan as per the earlier clause shall be possessed and enjoyed as a thavazhi. The Supreme Court agreed with the High Court and held that S.88 of the Indian Succession Act squarely applied and it is the latter clause which would prevail over the former clause and held that the bequest is in favour of the thavazhi and not in favour of Kannan individually. Referring to various decisions such as Ramachandra Shenoy v. Mrs.Hilda Brite, AIR 1964 SC 1323 , Ramakrishnorelal v. Kamalnarayan, AIR 1963 SC 890 , the Supreme Court incidentally also ruled that the rule of interpretation provided by S.88 of the Indian Succession Act is a special rule for the interpretation of Wills as distinguished from the ordinary rule of interpretation of other documents such as gift deeds and mortgage deeds which is to the effect that in the event of an inconsistency between the earlier clause and latter clause inter se it is the earlier clause that will prevail over the latter clause. But in the case of Wills since the purpose of the construction is to gather the mind or intention of the testator which can vacillate even as he writes the Will, what is more important is his intention at the time of actual execution of the Will which comes towards the end of the Will. But in the very same decision the Supreme Court has cautioned after referring to Rameshwar Bakhsh's case (supra) that S.88 shall be resorted to only when the conflict between the earlier clause and latter clauses irreconcilable. I have already found that there is no real conflict between the earlier clause and latter clause on Ext.B1 Will. The apparent conflict is reconcilable. 13. Now I have to consider the argument which was advanced on the basis S.111 of the Indian Succession Act. I have already found that there is no real conflict between the earlier clause and latter clause on Ext.B1 Will. The apparent conflict is reconcilable. 13. Now I have to consider the argument which was advanced on the basis S.111 of the Indian Succession Act. S.111 deals with bequest to a described class and certainly says that, when the bequest is in favour of a described class of persons the thing bequeathed can go only to those of that class who are alive at the testator's death. According to Sri.Tom K.Thomas even if it is assumed that the bequest of items 10 and 11 is in favour of Paru Amma and Sinnammu Amma and their children in as much as they together constitute a class, the bequest can go only to those of that class who are alive at the time of the testator's death and cannot go to those who joined the class after the testator passed away. According to Mr. Krishnanunni the bequest in this case cannot be described as a bequest in favour of a class for the purpose of S.111. Children and grand children cannot belong to the same class; they can belong to only two different classes if one looks through the perspective of S.111, according to Mr.Krishnanunni. I have no difficulty to answer this question in favour of the respondents. In Janaki Amma's case (supra) a Division Bench of this Court has in clear terms held that a bequest in favour of children and another bequest in favour of grand children can be bequests in favour of a class for the purpose of S.111 while a bequest in favour of a child (daughter) and her children will not be bequest in favour of a class for the purpose of S.111. The Division Bench rightly noticed in that case that the decision of the Supreme Court in Narayanan v. Commr. of Income Tax, AIR 1967 SC 433 , was rendered in a case where the bequest was in favour of the grand children alone who undoubtedly will constitute a class by themselves. It thus follows that children born to Paru Amma and Sinnumma Amma after the demise of Velayudhan Nair also will be entitled to derive the benefit conferred upon their brothers or sisters who were born prior to the demise of Velayudhan Nair under Ext.B1 Will. 14. It thus follows that children born to Paru Amma and Sinnumma Amma after the demise of Velayudhan Nair also will be entitled to derive the benefit conferred upon their brothers or sisters who were born prior to the demise of Velayudhan Nair under Ext.B1 Will. 14. The result of the above discussion is that all the three substantial questions of law involved in this appeal and on which arguments have been advanced will be answered in favour of the respondents. The interpretation placed on Ext.B1 Will by the Courts below is correct. All the children of Paru Amma and Sinnammu Amma irrespective of their dates of birth will derive benefit under Ext.B1 Will and there is no real conflict between the clauses inter se in Ext.B1 Will. The appeal fails and the same is dismissed. In the circumstances of the case, the parties will however suffer their respective costs.