INTERPRETATION INTERPRETATION OF WILLS-Testamentary WILLS-Testamentary sucession (INDIAN SUCESSION ACT 1!" # APPLICATION Sucession is the transmission of property belonging to a person at his death to some other person or persons. Succession and Inheritance can be of two kinds – Testamentary or test testat atee inhe inheri rita tance nce whic which h means means inher inherit itanc ancee as per per the the Will of the the dece deceas ased ed and and Non Non Testamentary Testamentary or intestate succession, where the deceased dies without making a Will. Applicability of the Succession law to a person belonging to a particular community is eplained in the following diagram!
The law on testate succession is go"erned by the Indian Succession Act, #$%& for all communities ecept 'uslims. The law in relation to making of wills by 'uslims is go"erned by the rele"ant 'uslim Shariat (aw as applicable to the Shias and the Sunnis. With the eception of 'uslims, the Indian Succession Act, #$%& go"erns and has a common set of rules for persons of all religions. religions. )owe"er, the 'uslims 'uslims shall be bound by the Indian Succession Succession Act, #$%& for the purpose of testamentary succession, if the will relates to immo"able property situated within the State of West West *engal and within the +urisdiction of the 'adras an d *ombay )igh ourts. The law on intestate succession for different communities in India is go"erned by different succession laws applicable for that particular community. -or e.g. the )indu Succession Act, Indian Succession Act, Shariat laws etc. WILLS
eremy *entham in his book /Theory of (egislation0 wrote that the ob+ect of gi"ing power to the owner to dispose off his property by testamentary disposition is to cure the imperfection or inability of law to satisfy indi"idual demands which may be di"erse. )e states that /The law, not knowing individuals, cannot accommodate itself to the diversity of their wants. All that can be exacted from it is to offer the best possible chance of satisfying those
wants. It is for each proprietor, who can and who ought to know the particular circumstances in which those dependent upon him will be placed upon his death, to correct the imperfection of law in all those cases which it cannot foresee. The power to make a will is an instrument intrusted to the hand of the individual, to prevent the private calamities”#. calamities”#. Will is a translation of the (atin word 1"oluntas1, which was a term used in the tet of 2oman (aw to epress the intention of a testator. It is of significance that the abstract term has come to mean that document in which the intention is contained. The word 1testament1 is deri"ed from 1testatio menties1, it testifies the determination of the mind. It means, 1the legal declaration of a man1s intentions, which will be performed after his death1. A last Will and testament is defined to be 1the +ust sentence of our Will, touching what we would ha"e done after our death3. 4"ery testament is consummated by death, and an d until he dies, the Will of a testator is ambulatory. A 1Will 1Will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and re"ocable during his life3. This ambulatory character of a Will has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary disposition by a li"ing person1s deed, which might, indeed postpone the beneficial possession or e"en a "esting until the death of the disposer and yet would produce such postponement only by its epress terms under an irre"ocable instrument and a statement that a Will is final does not import an agreement not to change it. A Will is the aggregate of man1s testamentary intentions so far as they are manifested in writing, duly eecuted according to the Statute. A will is a de"ice or an instrument with the help of which an owner of the property makes a disposition that is to take effect after his death and which by its "ery nature re"ocable. The other reason for such power is that e"erybody likes to make sure that the life he has led has been meaningful and is concerned about his property after his death. If a person has power to dispose off his property during his lifetime, why he should not be gi"e the power to pro"ide for the scheme of de"olution of his property after his death. 2ule of natural +ustice also re5uires that he must also be gi"en power that the property he earned with hard labour is disposed disposed by him in accordance with his wished not only during his life, but after his death too. A person can ensure as to how his property should de"ol"e and to whom it shall de"ol"e, after his death, through a Will. This will also help him to ha"e authority o"er those who depend on him and he can use his authority to inculcate "irtue and control "ice in his dependent by fear that if his dictates are not followed then such dependant will not be getting any share in his property. If a person dies with withou outt lea"i lea"ing ng behi behind nd his his Will, ll, his his prope propert rty y woul would d de"ol de"ol"e "e by way of law law of inte intest stat atee succession succession and not testamentary testamentary succession i.e. in accordance accordance to the Will. Will. Will is an important important testamentary instrument through which a testator can gi"e away his property in accordance to his wishes. Will Will means a legal declaration declaration of the intention intention of a testator testator with respect respect to his property property which he desires to be carried into effect after his death. It can be re"oked or altered by the maker of it at any time he is competent to dispose of his property. 1Will1 1Will1 as defined defined under Section Section %6h7 of the Indian Succession Succession Act means 1the legal declaration of the testator with respect to his property which he desires to be carried into effect after his death1. The essential characteristic of a will, as is well known, is that it is a mere declaration of an intention so long as the testator is ali"e, a declaration which may be re"oked or "aried by the testator during his lifetime8 it is a disposition that re5uires the testator1s death for its consummation and is but ambulatory or without fied effect until the happening of this e"ent.
The document is a will if it contains specific words of be5uest to come into effect after the death of the testator. A will is a solemn solemn document. document. *y it, a dead man entrusts entrusts to the li"ing li"ing to carry out his wishes and since it is impossible that he can be called either to admit or deny his signatures or to eplain eplain the circumstan circumstances ces in which it was eecuted, duty of care is cast on the shoulders shoulders of the court while considering a probate case. A will made by a )indu, *uddhist, *uddhist, Sikh or ain is go"erned go"erned by the pro"isions pro"isions of the Indian Succession Act, #$%&. )owe"er 'uslims are not go"erned by the Indian Succession Act, #$%& and they can dispose their property according to 'uslim (aw ORI$IN OF WILL IN INDIA The origin of Will Will in India is shrouded in obscurity. It is still a moot point whether the *ritish introduced wills to )indus, or whether )indus adopted some form of will under the influence of 'uslims. It is certain that with the establishment of *ritish rule in India, the 4nglish (aw of wills was applied to )indu Wills, so far as practicable, under the doctrine of +ustice, e5uity e5uity and good consci conscience ence9. 9. Among Among the 'uslim 'uslimss wills wills ha"e ha"e been been recogni recogni:ed :ed from from the beginning. It seems some forms of wills wills did eist e"en in pre;Islamic Arabia. Arabia. In India Wills were well known to the 'ohammedans and contact with them during the 'ohammedan 'ohammedan rule, and later on with the 4uropean 4uropean countries, was probably responsible responsible for the practice of substituting informal written or oral testamentary instruments with formal testamentary instruments. The de"elopment of law relating to wills among )indus was mainly during the *ritish
& was enacted it was not applicable to )ind )indus us.. In #=?@, #=?@, the the )ind )indu u Wills ills Act was was pass passed ed to pro" pro"id idee for for rule ruless for for eecu eecuti tion on,, attestation, re"ocation, re"i"al, interpretation and probate. The )indu Wills Act was later was repealed and re;enacted in clause 6a7 and 6b7 of Section &? of Indian Succession Act, #$%&. The Indian Succession Act, #$%&, consolidating the laws of intestate 6with certain eceptions7 and testamentary succession supersedes the earlier Acts, and is applicable to all the Wills and codicils of )indus, *uddhists, Sikhs and ains . There is no Sanskrit tet dealing with this sub+ect. )owe"er a Sanskrit term ; 'arana Shasanam1 is mentioned in earlier writings. The reason for the scarcity of the Will in those days could be attributed to the )indu orthodo "iew that the children1s rights cannot be debated or 5uestioned. Becision of the
the country, country, namely, namely, the )indus and mohammadans, mohammadans, each of these communities communities had its own personallaws embodied in its sacred tets, but there were other smaller sections of the population whic which h belon belonged ged to neit neithe herr of thes thesee commu communi niti ties es and and in thos thosee case casess it was was not prop proper er to administer the laws of a religion to which they did not owe any adherence or commitment. Amongst such minor communities were the hristians and
1% Le+a, Dec,aration o) Intention ! The documents purporting to be a Will or a testament must be legal, i.e. in conformity con formity with the law and must be eecuted by a person p erson legally competent to make it. -urther the declaration of intention must be with respect to the testatorCs property. It is a legal document, which has a binding force upon the family. #@ Sec %6f7 of Indian of Indian !uccession Act, " !% Not Con)ine' to Proerty on,y ! In a Will, the testator be5ueaths or lea"es his property to the person or people he chooses to lea"e his assetsDbelongings. A )indu person by way of his Will can be5ueath all his property. The will can also be made to re"oke pre"ious will and also for appointment appointment of testamentar testamentary y guardian guardian for minor children##. children##. 9. 2e"ocable! 2e"ocable! A will is by its "ery nature re"ocable which the testator can either re"oke directly by making another will or by doing anything which has the effect of re"oking the will i.e. sell the property or make gift. .% To ta/e e))ect a)ter t0e 'eat0 o) testator The Will is enforceable only after the death of the testator. Till the death of the testator the beneficiary or the eecutor has no interest in the property. &. Re+istration not Comu,sory ! Ender section #= of the 2egistration Act the registration of a Will is not compulsory. Also, the S in #arain in #arain !ingh ". $amala %e"i#% %e"i#% has held that mere non; registration of the Will an inference cannot be drawn against the genuiness of the Will. )owe"er it is ad"isable to register it as it pro"ides strong legal e"idence about the "alidity of the Will. Fnce a Will is registered, it is placed in the safe custody of the 2egistrar and therefore cannot be tampered with, destroyed, mutilated or stolen. 2INDS OF WILL Con'itiona, Con'itiona, 3i,,s! A will may be made with the intention that it shall become operati"e only upon the happening of the specified e"ent. Such will not ha"e any effect if condition is not fulfilled. In &a'eshwar In &a'eshwar v. !ukhdev, !ukhdev, the operation of the Will was postponed till after the death of the testatorCs wife. The court held that if it is ambiguous whether the testator intended to make a Will conditional, the language of the documents as well as the circumstances are to be taken into consideration. 4oint Wi,,s an' 5utua, Wi,,s Two Two or more persons can make a +oint Will or mutual will. When two or more persons make Will by a single instrument, it may be referred to as +oint Will. Thus a +oint Will Will is a single instrument whereby two persons gi"e effect to their testamentary disp dispos osit itio ion. n. Fn the the othe otherr hand hand,, a mutu mutual al Will ill is one one of two two test testame ament ntary ary pape papers rs made made respecti"ely by two persons, each gi"ing the other similar rights in his property and being in fact identical, so far as they can be, for the purpose of carrying out of the intention of the two testators. In a +oint Will there is no reciprocity whereas mutual Wills are described as reciprocal Wills. A +oint will will does not take effect effect as one will but as separate separate will of the parties parties who made it. The +oint Will which is not the mutual will can be re"oked by either or o r both of the parties at anytime without the consent of other#9. Two or more persons may agree to make mutual Wills i.e. to confer on each other reciprocal benefits#G. In mutual Wills Wills the testators confer benefit on each other but if the legatees and testators are distinct, it is not a mutual Will. 'utual Wills are also known as reciprocal Wills and its re"ocation is possible during the lifetime of either testator. *ut if a testator has obtained 2eciprocity in the matter of be5uests under the Wills is the sigil and signet of a mutual Will. The testators should confer upon each other reciprocal benefits.3 A oint Will is a Will made by two or more testators contained in a single document, duly eecuted by each testator, disposing either
of their separate properties, or of their +oint property. It operates on the death of each testator as his Will Will disposing of his separate property, p roperty, and is in effect two or more Wills depending upon the number of testators. In case of mutual Wills, the testators eecute their separate Wills but reading of the two Wills would show reciprocity in the matter of be5uest i.e. testators confer, by their respecti"e wills, reciprocal benefits upon each other. It is reciprocal will where one testator is the legatee of the other. A will will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee8 that is to say, when the eecutants fill the roles of both testator and legatee towards each other. *ut where the legatees are distinct from the testators, there can be no 5uestion of a mutual Will6 Kochu Govindan Kaimal and Ors% Ors% 6 . Thayankoot Thekkot Lakshmi Amma 7AIR1"SC81 #
'utual Wills may be made, either by a +oint Will or by separate Wills, in pursuance of an agreement that they are not to be re"oked. Such an agreement may appear from the Wills, or may be pro"ed outside the Wills, Wills, but it is not established by the mere fact that the Wills Wills are in identical terms. If no such agreement is shown, each party remains free to re"oke his will. If there are separate Wills, or to re"oke the +oint Will, so far as it disposes of his property, and the fact that one party has died without re"oking property, and the fact that one party has died without re"oking the disposition of his property does not pre"ent the sur"i"or from re"oking the disposition which he has made notwithstanding that he has recei"ed benefits out of the estate of the deceased party. 4"en when there is such an agreement and one party has died after departing from it by re"oking or altering the Will, the sur"i"or ha"ing notice of the breach cannot claim to ha"e the later Will set aside, since the notice gi"es him the chance of altering the Will as regards his own property8 and the death of the deceased party is itself sufficient notice for this purpose. If, howe"er, the deceased has stood by the agreement and not re"oked or altered his Will, the sur"i"or is bound by it, and although probate will be granted of a later Will made by him in breach of the agreement, since a ourt of probate is only concerned with the last Will, Will, the personal representati"es of the sur"i"or ne"ertheless hold his estate in trust to gi"e effect to the pro"isions of the +oint Will Will or mutual Wills#?.3 Wills#?.3 Pri6i,e+e' Pri6i,e+e' an' Unri6i,e+e' Wi,,s ! & of Indian Succession Act, #$%& pro"ides that a Will made by a soldier or a airman or a mariner, when he is in actual ser"ice and is engaged in actual warfare, would be a pri"ileged Will. S.>> pro"ides for the mode of making and rules for eecuting pri"ileged Wills. Ss. >& and >> are special benefit then the claim against his property will lie. Where +oint Will is a single document containing the Wills of two persons, mutual Wills are separate wills of two persons. In the case of V. Sarada 6 . K.V. Narayana Narayana Menon7 Menon7 the court described t0e 'istinction et3een 9oint Wi,, Wi,, an' mutua, mutua, Wi,, Wi,, in t0e )o,,o3in+ )o,,o3in+ 3or's ! 3A +oint will, though for all apparent purposes, is a simple testamentary instrument, constitutes or unites in the testamentary disposition of two or more persons. The document only e"idences that two two or more more pers person onss ha"e ha"e eecu eecute ted d thei theirr Wills lls in a sing single le docum document ent.. 'utu 'utual al Wills ills as distinguished from +oint are described as reciprocal Wills pro"isions applicable to pri"ileged Wills lls wher wherea eass othe otherr sect sectio ions ns rela relati ting ng to Wills lls are are gene genera rall pro" pro"is isio ions ns whic which h will will be supplementary to Sections >& and >> in case of pri"ileged Wills. Section >9 of the Indian Succession Act, #$%& reads as follows! :;<% Execution o un!rivile"ed un!rivile"ed #ills #ills ; 4"ery testator, not being a soldier employed in an epedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall eecute his Will according to the following rules;
6a7 The testator shall sign or shall affi his mark to the Will, or it shall be signed by some other person in his presence and by his direction8 6b7 The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to gi"e effect to the writing as a Will8 6c7 The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affi his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has recei"ed from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.3 necessary.3 Whereas Sec% ;; ro6i'es t0e 5o'e o) ma/in+7 an' ru,es )or e&ecutin+7 ri6i,e+e' 3i,,s . It pro"ides special rules of eecution of the pri"ilege wills. It states that
TESTA5ENTAR= CAPACIT= S%" o) In'ian Succession Act7 1!" pro"ides for the capacity of person to make a will. It states that e"ery person who is of Sound mind not being a minor may dispose of his property by will. So there are two main re5uirements which a person must satisfy for making a will. These are ma+ority and soundness of mind. Soun' 5in' U>s% " o) ISA the eistence of a sound mind is a sine 5uo non for the "alidity of the Will. 'ost of the Wills are not made by young persons who are fully fit but are made by
persons who are aged and bed ridden. )ence, )ence , law does not epect that the testator should be in a perfect state of health, or that he should be able to gi"e complicated instructions as to how his property was to be distributed. A sound disposing mind implies sufficient sufficient capacity to deal with and understand the disposition of property in his Will Will – #7 the testator must understand that he is gi"ing g i"ing away his property to one or more ob+ects %7 he must understand and recollect the etent of his property. 97 he must also understand the persons and the etent of claims claims included as well as those who are ecluded from the Will. The testator must retain a degree of understanding to comprehend what he is doing, and ha"e "olition or power of choice. 4planation II pro"ides that the persons who are deaf, dumb or blind can prepare a Will if they are able to pro"e that they were aware of what they were doing. 4planation III pro"ides for persons who are mentally ill and insane. )owe"er subse5uent insanity does not make the Will in"alid i.e. if a person makes a Will while he is of sound mind and then subse5uently becomes beco mes insane the Will is "alid and is not rendered in"alid b y subse5uent insanity. -urther a person of unsound mind can make a Will during his lucid inter"al. A Will made by a person who is intoicated or is suffering from any other illness, which renders him incapable of knowing what he is doing, is in"alid. 5a9ority A minor who has not completed the age of #= years or %#yrs if any Juardian has been appointed by the ourt is not capable of making Wills. The onus of proof on determining whether the person was not a minor at the time of making a Will is on the person who has relied upon the Will. Will. 5arrie' ?in'u Women ! E&,anation I to S%" o) ISA pro"ides that a )indu married woman is capable of disposing by Will only that property which she can alienate during her lifetime. @ur'en O) Proo) Though the burden of proof to pro"e that the Will was made out of free "olition is on the person who propounds the Will, a Will that has been pro"ed to be duly signed and attested will be presumed to ha"e been made by a person of sound mind, unless pro"ed otherwise. -urther, a be5uest can be made to an infant, an idiot, a lunatic or other dis5ualified person as it is not necessary that the legatee should be capable of assenting it. In case of $. $. Venkatachala %yen"ar v. &.N. Thimtna'amma ( Ors)*. 7 AIR 1" SC ..< , the principles guiding the ourts for consideration of suspicious circumstances of a Will Will in 5uestion were discussed and they still stand the test of the day e"en today. It was obser"ed (!# There may, however, be cases in which the execution of the ill may be surrounded by suspicious circum circumsta stances nces.. The alleged alleged signatur signaturee of the testat testator or may be very very shaky shaky and doubtf doubtful ul and evidence in support of the propounder(s case that the signature in )uestion is the signature of the testator may not remove the doubt created by the appearance of the signature* the condition of the testator(s mind may appear to be very feeble and debilitated* and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator* the dispositions made in the ill may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the ill may otherwise indicate that the said dispositions may not be the result of the testator(s free will and mind. In such cases the Court would naturally n aturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last ill of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy* and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last ill of the testator. testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the ill ill propounded,
such pleas may have ha ve to be proved by the caveators* but, even without such pleas circumstances may raise a doubt d oubt as to whether whe ther the testator was a cting of his own free ill ill in executing the ill, and in such circumsta circumstances, nces, it would be a part of the initial onus to remove remove any such legitimate legitimate doubts in the matter. It was further obser"ed%@! +,)- Apart from the suspicious circumstances to which we have h ave 'ust referred in some cases, ca ses, the ills propounded disclose another infirmity. +ropounders themselves take a prominent part in the execution execution of the ills ills which confer on them them substa substanti ntial al benefi benefits ts.. If it is shown shown that that the propounder has taken a prominent part in the execution of the ill and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the ill and the propounder is re)uired to remove the said suspicion by clear and satisfactory evidence. It is in connection with ills ills that present such suspicious circumstances that decisions of nglish Courts often mention the test of the satisfaction of 'udicial conscience. It may be that the th e reference reference to 'udicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in ngland when they exercised 'urisdiction with reference to ills* but any ob'ection to the use of the word (conscience( in this context would, in our opinion be purely technical and academic, if not pedantic. The test merely emphasises that, in determining the )uestion as to whether an instrument produced before the Court is the last ill of the testator, the Court is deciding a solemn )uestion and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. ;% Restriction Restriction on Wi,,s ertain restrictions ha"e been imposed on certain categories of wills which has been declared declared "oid on the ground of public policy. policy. These are those wills which were made to person who are not in eistence at the time of making of will. The other kind is will creating perpetuity. Unorn Person ! Where a be5uest is made to a person by a particular description, and there is no person in eistence at the testator1s death who answers that description, the be5uest is "oid. S.##9 of Indian Succession Act, #$%& pro"ides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the be5uest must comprise of whole of the remaining interest of the testator. In So0er 6% A'ministrator-$enera, o) @en+a, a grandfather made the be5uest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The ourt upheld the transfer to an unborn person and the ourt held that since the "ested interest was transferred when the grandsons were born and only the en+oyment of possession was postponed till they achie"ed the age of twenty one the transfer was held to be "alid. In case of $iris0 Dutta 6% Data'in , the Will stated that the property was to be transferred to a female descendant 6who was unborn7 only if the person did not ha"e any male descendant. The ourt held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was "oid. -or a transfer to a unborn person to be held "alid, absolute interest needs to be transferred and it cannot be a limited interest. Ru,e a+ainst Peretuity Peretuity ! S.##G of the Indian Succession Act, #$%& pro"ides that no be5uest is "alid whereby the "esting of the thing be5ueathed may be delayed beyond the lifetime of one or more persons li"ing at the testator1s death and the minority of some person who shall be in eis eiste tenc ncee at the the epi epira rati tion on of that that peri period od,, and and to whom, whom, if he atta attain inss full full age, age, the the thin thing g be5ueathed is to belong. The rule against perpetuity pro"ides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on
the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity in"alidates any be5uest which delays "esting beyond the life or li"es;in;being and the minority of the donee who must be li"ing at the close of the last life. )ence property can be transferred to an unborn person pe rson who has to be born at the epiration of the interest created and the maimum permissible remoteness is of #= years i.e the age of minority in India IN*ALID WILLS Will, ll, or any part of Wi Will ll made, which has been caused by fraud or S%;1 o) ISA pro"ides that a Wi coercion or by such importunity, basically not by free will, will be "oid and the Will would be set aside. Frau'! S.#? of the Indian ontract Act pro"ides for fraud. Actual fraud can be committed through #7 misrepresentation %7 concealment. -raud in all cases implies a willful act on the part of anyone whereby, another is sought to be depri"ed by illegal or ine5uitable means, of which he is entitled to. *ut if a legatee by flattery, succeeds in persuading a testator to make a will in his fa"our that will be upheld unless it is tainted with fraud %9. Act defines coercion. Any force or fear of death, or of bodily hurt Coercion! S.#& of Indian ontract Act or imprisonment would in"alidate in"alidate a Will. In case of Chikam Ameera'u v. Chikam !heshama -, a man threatening to commit suicide induced his wife and son to gi"e him a release deed. It was held that e"en though suicide was not punishable by the Indian of Indian ontract Act is said to be eercised when the relations eisting between the two parties are such that one of the parties is in the position to dominate the will of the other and uses that position to obtain an unfair ad"antage o"er the other. )owe"er neither fiduciary relationship nor a dominating position would raise a presumption of undue influence in case of Wills as all influences are not unlawful. of Indian Succession Act, #$%& pro"ides that a be5uest upon an impossible condition is "oid. The conditions maybe condition precedent or condition subse5uent. I,,e+a, or Immora,! S.#%? of Indian Succession Act, #$%& pro"ides that a be5uest, which is based upon illegal or immoral condition, is "oid. The condition which is contrary, forbidden, forbidden, or defeats any pro"ision of law or is opposed to public policy, policy, then the be5uest would be in"alid. A condition absolutely restraining marriage would also make the be5uest "oid. S.#9= of ISA pro"ides that the direction pro"ided in the Will as to the manner in which the property be5ueathed is to be en+oyed then the direction would be "oid though the Will would be "alid.
RE*OCATION7 ALTERATION AND EBECUTION OF WILLS Re6ocation! S.>% of the Indian Succession Act deals with the characteristic of a Will being re"ocable or altered anytime during the lifetime of the testator. S. ?@ of the Act pro"ides the manner in which it can be re"oked. A mere mere intention to re"oke is not an effecti"e re"ocation. The re"ocation of the Will Will should be in writing and an epress re"ocation clause would re"oke all the prior Wills and codicils. If there is no epress clause to the effect then the former Will would become in"alid to the etent of its inconsistency with the latest Will, this is known as an implied re"ocation 6howe"er it should be shown that the differences are irreconcilable7. )owe"er if there is no inconsistency between the Wills then they cannot be considered as two separate Wills but the two must be read together to indicate the testamentary intention of the testator. 2e"ocation can also be made in writing through declaring an intention to re"oke and the writing must be signed by the testator and attested by two witnesses. The deed of re"ocation has to be eecuted in the same way as the Will itself. The Will maybe burnt or torn by the testator or by some other person in his presence and by his direction with the intention of re"oking the same. The burning of the Will must be actual and not symbolic. The burning must destroy the Will atleast to the etent of his entirety. -urther the Will need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of re"ocation. The Will can be re"oked epressly by another Will or codicil, by implied re"ocation, by some writing, by burning or tearing or by destroying otherwise. ancellati ancellation on of a Wi Will ll by drawing lines across it is not a mode of re"ocation. Sec >$ pro"ide that will is re"oked by the marriage of the testator but under the )indu (aw the Will is not re"oked by marriage or by subse5uent birth. A,teration! S.?# of ISA is applicable to alterations if they are made after the eecution of the Will but not before it. The said section pro"ides that any obliteration, obliteration, interlineations interlineations or any other alteration in a Will made after its eecution is inoperati"e unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses witnesses at the end of the Will or some other part referring to the alterations. The alterations if eecuted as re5uired by the section would be read as a part of the Will itself. )owe"er, if these re5uirements are not fulfilled then the alterations would be considered to be in"alid and the probate will be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be with regards to the alteration and must be in proimity of the alteration. -urther they should be in the Will itself and not in a separate distinct paper. *ut if the obliteration is such that the words cannot be deciphered then the Will would be considered as destroyed to that etent. E&ecution Fn the death of the testator, an eecutor of the Will 6eecutor is the legal representati"e for all purposes of a deceased person and all the property of a testator "ests in him. Whereas a trustee becomes a legal owner of the trust and his office and the property are blended together7 or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they ha"e any ob+ections to the Will. If there are no ob+ections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusi"e e"idence of the genuineness of a Will. It is only after this that the Will comes into effect.
CONSTRUCTION OF WILLS S%8. o) ISA pro"ides that a Will maybe made in any form and in any language. No technical words need to be used in making a Will but if technical words are used it is presumed that they are in used in their legal sense unless the contet indicates otherwise. Any want of technical words or accuracy in grammar is immaterial as long as the intention is clear. Another general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy i.e if two constructions are possible then the construction that a"oids intestacy should be followed. -urther there is another principle, which says that the construction that postpones the "esting of legacy in the property disposed should be a"oided. The intention of the testator should be decided after construing the Will as a whole and
not the clauses in isolation. In Ganaal Ammal 6 . T. /a'u Aiyar the Supreme ourt held that the cardinal maxim to be observed by the Court in construing a ill is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole. The primary duty of the court is to determine the intention of the testator from the Will itself by 6% Kashi Kashi /am held that reading of the Will. The S in &hura 6% that a construction which would advance the intention of the testator has be favoured and as far as possible effect is to be given to the testator/s intention unless it is contrary to law. The court should put itself in the armchair o the testator + emphasis emphasis added0. Gokul and ors Supreme ourt held that the court should consider the surrounding In Navneet Lal 6 . Gokul and circumstances, circumstances, the position of the testator, testator, his family relationships, the probability that he would use words in a particular sense. 1owever it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interpret in accordance with the express or implied intention of the testator expressed in the ill. It cannot recreate or make a ill for the testator. In Kalvelikkal Amunhi 6 . $. Ganesh &handary , it was obser"ed that a Will may contain se"eral clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is gi"en effect to and it is on this basis that the latter clause is held to pre"ail o"er the earlier clause. Sec.== of the Indian Succession Act, Act, #$%& pro"ide the same. -ollowing -ollowing principles ha"e been held to be well established in relation to the construction of wills as in 0ma 1evi Namiar and Others 6 . T.2. T.2. Sidhan +1ead- !. (!# SCC
technical words or terms of art be used in a S%8.% Wor'in+ Wor'in+ o) 3i,,% ;It is not necessary that any technical will, but only that the wording be such that the intentions of the testator can b e known therefrom. S%8"% S%8"% Inuiri Inuiries es to 'etermine 'etermine uestions uestions as to o9ect or su9ect su9ect o) 3i,,% 3i,,% ;-or the purpose of determining 5uestions as to what person or what property is denoted by any words used in a will, a ourt shall in5uire into e"ery material fact relating to the persons who claim to be interested under such will, the property which is claimed as the sub+ect of disposition, the circumstances of the testator and of his family, and into e"ery fact a knowledge of which may conduce to the right application of the words which the testator has used. Illustrations 6i7 A, A, by his will, will, be5ueaths #,@@@ rupees to his eldest son or to his youngest grandchild, grandchild, or to his cousin, 'ary. A ourt may make in5uiry in order to ascertain to what person the description in the will applies. 6ii7 A, by his will, lea"es to * 3my estate called *lack Acre3. It may be necessary to take e"idence in order to ascertain what is the sub+ect;matter of the be5uest8 that is to say, what estate of the testator1s is called *lack Acre. 6iii7 A, A, by his will, lea"es to * 3the estate estate which I purchased of 3. It may be necessary to take e"idence in order to ascertain what estate the testator purchased of . S%8;% 5isnomer or mis'escrition o) o9ect% ;6#7 Where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not pre"ent the legacy from taking effect. 6%7 A mistake in the name of a legatee may be corrected by a description of him, h im, and a mistake in the description of a legatee may be corrected by the name. Illustrations 6i7 A be5ueaths a legacy to 3Thomas, the second son of my brother ohn3. The testator has an only brother named ohn, who has no son named Thomas, but has a second son whose name is William. William. William will ha"e the legacy. legac y. 6ii7 A be5ueaths a legacy 3to Thomas, the second son of my brother ohn3. The testator has an only brother, named ohn, whose first son is named Thomas and whose second son is named William. William. Thomas will ha"e the legacy. 6iii7 The testator be5ueaths his property 3to A and *, the legitimate children of 3. has no legitimate child, but has two illegitimate children, A and *. The be5uest to A and * takes effect, although they are illegitimate. 6i"7 The testator gi"es his residuary estate to be di"ided among 3my se"en children3 and, proceeding to enumerate them, mentions si names only. This omission will not pre"ent the se"enth child from taking a share with the others. 6"7 The testator, ha"ing si grandchildren, makes a be5uest to 3my si grandchildren3 and, proceeding to mention them by their hristian names, mentions one twice o"er omitting another altogether The one whose name is not mentioned will take a share with the others. 6"i7 The testator be5ueaths 3#,@@@ rupees to each of the three children of A3. At the date of the will A has four children. 4ach of these four children will, if he sur"i"es the testator, recei"e a legacy of #,@@@ rupees. S%88% S%88% W0e W0en n 3or's 3or's may e su,ie'% su,ie'% ;Where any word material to the full epression of the meaning has been omitted, it may be supplied by the contet. Illustration The testator gi"es a legacy of 3fi"e hundred3 to his daughter A and a legacy of 3fi"e hundred rupees3 to his daughter *. A will will take a legacy of fi"e hundred rupees.
S%8% Re9ection o) erroneous articu,ars in 'escrition o) su9ect% ; If the thing which the testator intended to be5ueath can be sufficiently identified from the description of it gi"en in the will, but some p arts of the description do not apply, such parts of the description shall be re+ected as erroneous, and the be5uest shall take effect. I,,ustrations 6i7 A be5ueaths to * 3my marsh;lands lying in ( and in the occupation of K3. The testator had marsh;lands lying in ( but had no marsh;lands in the occupation of K. The words 3in the occupation of K3 shall be re+ected as erroneous, and the marsh;lands of the testator lying in ( will pass by the be5uest. 6ii7 The testator be5ueaths to A 3my :amindari of 2ampur3. )e had an estate at 2ampur but it was a talu5 and not a :amindari. The talu5 passes by this be5uest. S%8% W0en art o) 'escrition 'escrition may not e re9ecte' as erroneous% –If a will mentions se"eral circumstances as descripti"e of the thing which the testator intends to be5ueath, and there is any property of his in respect of which all those circumstances eist, the be5uest shall be considered as limited to such property, and it shall not be lawful to re+ect any part of the description as erroneous, because the testator had other property to which such part of the description does not apply. 4planation.;;In +udging whether a case falls within the meaning of this section, any words which would be liable to re+ection under section ?= shall be deemed to ha"e been struck out of the will. I,,ustrations 6i7 A be5ueaths to * 3my marsh;lands lying in ( and in the occupation of K3. The testator had marsh;lands lying in (, some of which were in the occupation of K, and some not in the occupation of K. The be5uest will be considered as limited to such of the testator1s marsh;lands lying in ( as were in the occupation of K. 6ii7 A be5ueaths to * 3my marsh;lands lying in ( and in the occupation of K, comprising #,@@@ bighas of lands3. The testator had marsh;lands lying in ( some of which were in the occupation of K and some not in the occupati occupation on of K. The measur measureme ement nt is wholly wholly inappli inapplicabl cablee to the marsh;lands of either class, or to the whole taken together. The measurement will be considered as struck out of the will, and such of the testator1s marsh;lands lying in ( as were in the occupation of K shall alone pass by the be5uest. S%% E&trinsic e6i'ence a'missi,e in cases o) atent ami+uity% ; Where the words of a will are unambiguous, but it is found by etrinsic e"idence that they admit of applications, one only of which can ha"e been intended by the testator, etrinsic e"idence may be taken to show which of these applications was intended. Illustrations 6i7 A man, ha"ing two cousins of the name of 'ary, be5ueaths a sum of money to 3my cousin 'ary3. It appears that there are two persons, each answering the description in the will. That description, therefore, admits of two applications, only one of which can ha"e been intended by the testator. 4"idence is admissible to show which of the two applications was intended. 6ii7 A, by his will, lea"es to * 3my estate called Sultanpur Lhurd3. It turns out that he had two estates called Sultanpur Lhurd. 4"idence is admissible to show which estate was intended. S%1% E&trinsic e6i'ence ina'missi,e in case o) atent ami+uity or 'e)iciency% ;Where there is an ambiguity or deficiency on the face of a will, no etrinsic e"idence as to the intentions of the testator shall be admitted.
Illustrations 6i7 A man has an aunt, aroline, and a cousin, 'ary, and has no aunt aun t of the name of 'ary. *y his will he be5ueaths #,@@@ rupees to 3my aunt, aroline3 and #,@@@ rupees to 3my cousin, 'ary3 and afterwards be5ueaths %,@@@ rupees to 3my before;mentioned aunt, 'ary3. There is no person to whom the description gi"en in the will can apply, and e"idence is not admissible to show who was meant by b y 3my beforementi beforementioned oned aunt, 'ary3. 'ary3. The be5uest is therefore therefore "oid for uncertainty uncertainty under section =$. 6ii7 A be5ueaths #,@@@ rupees to lea"ing a blank for the name of the legatee. 4"idence is not admissible to show what name the testator intended to insert. 6iii7 A be5ueaths to * rupees, or 3my estate of 3. 4"idence is not admissible to show what sum or what estate the testator intended to insert. S%!% 5eanin+ o) c,ause to e co,,ecte' )rom entire 3i,,% –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 6i7 The testator gi"es to * a specific fund or property at the death of A, and by a subse5uent clause gi"es the whole of his property to A. The effect of the se"eral clauses taken together is to "est the specific fund or property in A for life, and after his decease in *8 it appearing from the be5uest to * that the testator meant to use in a restricted sense the words in which he describes what he gi"es g i"es to A. 6ii7 Where a testator ha"ing an estate, one part of which is called *lack Acre, be5ueaths the whole of his estate to A, and in another part of his will be5ueaths *lack Acre to *, the latter be5uest is to be read as an eception ecep tion out of the first as if he had said 3I gi"e *lack Acre to *, and all the rest of my estate to A3. S%<% W0en 3or's may e un'erstoo' in restricte' sense7 an' 30en in sense 3i'er t0an usua,% ;Jeneral words may be understood in a restricted sense where it may be collected from the will that the testator meant to use them in a restricted sense8 and words may be understood in a wider sense than that which they the y usually bear, where it may be collected from the other words of the will that the testator meant to use them in such wider sense. I,,ustrations 6i7 A testato testatorr gi"es to A 3my farm in the occupation occupation of *,3 and to 3all my marsh;lands marsh;lands in (3.
S%"% No art re9ecte'7 i) can e it reasona,y construe'% ;No part of a will shall be re+ected as destitute of meaning if it is possible to put a reasonable construction upon it. S%;% Interretation Interretation o) 3or's reeate' reeate' in 'i))erent 'i))erent arts o) 3i,,% ; If the same words occur in different parts of the same will, they shall be taken to ha"e been used e"erywhere in the same sense, unless a contrary intention appears. S%8% Testators intention to e e))ectuate' as )ar as ossi,e% ; The intention of the testator shall not be set aside because it cannot take effect to the full etent, but effect is to be gi"en to it as far as possible. possible. Illustration The testator by a will made on his death;bed be5ueathed all his property to . B. for life and after his decease to a certain hospital. The intention of the testator cannot take effect to its full etent because the gift to the hospital is "oid under section ##=, but it will take effect so far as regards the gift to . B. S%% T0e ,ast o) t3o inconsistent c,auses re6ai,s% ;Where two clauses of gifts in a will are irreconcileable, so that they cannot possibly stand together, the last shall pre"ail. Illustrations 6i7 The testator by the first clause of his will lea"es his estate of 2amnagar 3to A,3 and by the last clause of his will lea"es it 3to * and not to A3. * will ha"e it. 6ii7 If a man, at the commencement of his will gi"es his house to A, and at the close of it directs that his house shall be sold and the proceeds in"ested for the benefit of *, the latter disposition will pre"ail T?E $OLDEN RULE IN INTERPRETIN$ A WILL The golden rule in interpreti interpreting ng a will is to gi"e effect effect to the testator1 testator1ss intention intention as ascertained from the language, which he has used. The o"erriding duty of a ourt is to construe the language which the testator has in fact employed gi"ing due weight to all the words and re+ecting none to which a meaning can reasonably be assigned. The ourt is entitled to put itself into the testator1s arm chair to construe a will and to form an opinion apart from the decided cases and then, to see whether those decisions re5uire any modification of that opinion and not to beckon by considering as to how far the will in 5uestion resemble other will upon which the decisions ha"e been gi"en. The proposition that the will has to be read as a whole cannot be disputed. Whether there is a will on the basis of the document, the probate ourt certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate p robate ourt is to see first whether prima facie, the document constituted a will. A bench comprising ustice 'arkandey Lat+u and ustice T.S. T.S. Thakur has eplained the law regarding the interpretation of contradictory stipulations in Wills.. The Supreme ourt has discussed the aforesaid concept in detail and ha"e culled out the principles of interpretation in"lo"ed in such cases. In (2un3ar# Rames03ar @a/0s0 Sin+0s case 6supra7 the
In Ra'0a Sun'ar Duttas case Duttas case 6supra7, this ourt was dealing with a situation where there was a conflict between two clauses appearing in the Will. This ourt ruled in fa"our of the earlier clause, holding that the later clause would gi"e way to the former. This ourt said! 3..........where there is a conflict between the earlier clause and the later clauses and it is not possible to gi"e effect to all of them, then the rule of construction is well established that it is the earlier clause that must o"erride the later clauses and not "ice "ersa3. The issue issue came came up for considerati consideration on once again before before a onstituti onstitution on *ench of this ourt in Ram/is0ore La,s case 6supra7. In that case too the ourt was concerned with the approach to be adopted in a matter where a conflict co nflict arises between what wh at is said in one part of the testament "is;;"is what is stated in another part of the same document especially when in the earlier part the be5uest is absolute but the latter part of the document gi"es a contrary direction about the "ery same property. This ourt held that in the e"ent of such a conflict the absolute title conferred upon the legatee by the earlier clauses appearing in the Will cannot be diluted or taken away and shall shall pre"ai pre"aill o"er o"er direct direction ionss contai contained ned in the latter latter part part of the dispos dispositi ition. on. The following passage from the decision is instructi"e! 3The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the ourt has to consider the rele"ant portion of the document as a s a whole and also to take into account the circumstances under which the particular words were used. Mery often the status and the training of the parties using the words ha"e to be taken into consideration. It has to be borne in mind that "ery many words are used in more than one sense and that sense differs in different circumstances. Again, e"en where a particular word has, to a trained con"eyancer, a clear and definite significance and one can be sure about the sense in which such con"eyancer would use it, it may not be reasonable and proper to gi"e the same strict interpretation of the word when used by one who is not so e5ually skilled in the art of con"eyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non;testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is gi"en absolutely to one person but later on, other directions about the same property are gi"en which conflict with and take away from the absolute title gi"en in the earlier portion. What is to be don e where this happens It is well settled that in case of such a conflict the earlier disposition of absolute title should pre"ail and the later directions of disposition should be disregarded as unsuccessfu unsuccessfull attempts attempts to restrict restrict the title title already gi"en. Also in Sa0ea'a 5o0'% 2am+ar S0a0 6% 4a+'is0 C0an'ra Deo D0aa, Deo (1;# < SCR ;. . It is clear, howe"er, that an attempt should always be made to read the two parts of the documents harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is gi"en is in clear and unambiguous terms and the later pro"isions trench on the same, that the later pro"isions ha"e to be held to be "oid.3 To the same effect is the decision of this ourt in 5au,es03ar 5anis case 6supra7 where the 5uestion once again was whether an absolute interest created in the property by the Testatri in the earlier part of the Will can be taken away or rendered ineffecti"e by the subse5uent be5uest which is repugnant to the first be5uest. Answering the 5uestion in the negati"e, this ourt held that once the testator has gi"en g i"en an absolute right and interest in his entire en tire property to a de"isee it is not open to him to further be5ueath the "ery same property in fa"our of the second set of persons. The following passage from the decision in this regard is ap posite!
3In "iew of the aforesaid aforesaid principles principles that once the testator testator has gi"en an absolute absolute right and interest in his entire property to a de"isee it is not open to the testator to further be5ueath the same property in fa"our of the second set of persons in the same will, a testator cannot create successi"e legatees in his will. The ob+ect behind is that once an absolute right is "ested in the first de"isee the testator cannot change the line of succession of the first de"isee. Where a testator ha"ing conferred an absolute right on anyone, the subse5uent be5uest for the same property in fa"our of other persons would be repugnant to the first be5uest in the will and has to be held in"alid.we are, therefore, of the "iew that once the testator has gi"en an absolute estate in fa"our of the first de"isee it is not open to him to further be5ueath the "ery same property in fa"our of the second set of persons.3 In Peare Pearey y La,s case 6supra7, this ourt held that while interpreting a Will the ourt must take the document as a whole with a "iew to harmoni:ing apparently conflicting stipulations. This ourt recogni:ed the following guiding principles in the matter of interpretation of Wills! 36i7 the intention of the testator by reading the will as a whole and if possible, such construction as would gi"e to e"ery epression some effect rather than that which could render any of the epression inoperati"e must be accepted8 6ii7 another rule is that the words occurring more than once in a will shall be presumed to be used always in the same sense unless a contrary intention appears from the will8 6iii7 all parts of a will should be construed in relation to each other8 6i"7 the court will look at the circumstances under which the testator makes his will, such as the state of his property property,, of his family and the like8 6"7 where apparently apparently conflicting conflicting dispositions dispositions can be reconciled by gi"ing full effect to e"ery word used in a document, such a construction should be accepted instead of a construction which would ha"e the effect of cutting down the clear meaning of the words used by the testator8 6"i7 where one of the two reasonable construction would lead to intestacy, that should be discarded in fa"our of a construction which does not create any such hiatus.3 In Ramac0an'ra S0enoys case 6supra7 this ourt was dealing with a case where the Testatri had made a Will in fa"our of her daughter and a gift o"er in fa"our of her 6daughter1s7 male children. The rele"ant portion of the Will was translated in 4nglish to the following effect! 3All these 6properties7 shall after me be en+oyed by my elder daughter Se"erina Sabina and after her lifetime by her male children too as permanent and absolute hukdars.3 The 5uestion was whether the Testatri Testatri had made an absolute be5uest to the daughter or created only a life interest followed by an absolute be5uest in fa"our of the grandsons of the Testatri. This ourt held on an interpretation of the be5uest that what was created in fa"our of the daughter was only a life estate and that the intention of the Testatri was to make an absolute be5uest in fa"our of her grandsons through her daughter. The following passage from the decision is in this regard apposite! 3It was common ground that under clause 96c7 the testatri intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their fa"our would be "oid because there could legally be no gift o"er after an absolute interest in fa"our of their mother. This is on the principle that where property is gi"en to A absolutely, then whate"er remains of A1s death must pass to his heirs or under his will and any attempt to se"er the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. *ut the initial 5uestion for consideration is whether on a proper construction of the will an absolute interest in fa"our Se"erina is established. It is one of the cardinal principles of construction of wills that to the etent that it is legally possible effect should be gi"en to e"ery disposition contained in the will
unless the law pre"ents effect being gi"en to it. Ff course, if there are two repugnant pro"isions conferring successi"e interests, if the first interest created is "alid the subse5uent interest cannot take effect but a ourt of construction will proceed to the farthest etent to a"oid repugnancy, so that effect could be gi"en as far as possible to e"ery testamentary intention contained in the will. It is for this his reaso eason n that hat wher wheree ther here is a be5u be5ues estt to A e"en e"en thou though gh it be in term termss apparently absolute followed by a gift of the same to * absolutely 3on3 or 3after3 or 3at3 A1s death, A is prima facie held to take a life interest and * an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in fa"our of *. In the present case if, as has to be admitted, the testatri did intend to confer c onfer an absolute interest in the male children of Se"erina the 5uestion is whether effect can or cannot be gi"en to it. If the inte intere rest st of Se"er Se"erin inaa were were held held to be abso absolu lute te no doubt doubt effe effect ct coul could d not be gi"en gi"en to the the said intention. *ut if there are words in the will which on a reasonable construction would denote that the interest of Se"erina was not intended to be absolute but was limited to her life only, it would be proper for the ourt to adopt such a construction, for that would gi"e effect to e"ery testamentary disposition contained in the will. It is in that contet that the words 1after her lifetime1 occurring in clause 96c7 assume crucial importance. These words do indicate that the persons designated by the words that follow were to take an interest after her, i.e., in succession and not +ointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the 5uality of the interest Se"erina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in fa"our of Se"erina was merely a life interest and that the remainder in absolute was conferred on her male children.3 In 2ai6e,i//a, Amun0is case 6supra7, the ourt applied the maimum 3cum duo inter se !u"nantia re!eriuntur in testamento ultimum ratum est 3 which means that in a will if there ?ammon' 6% are are two two pro"i pro"isi sion onss the the latt latter er shal shalll pre" pre"ai aill o"er o"er the the earl earlie ierr. As obser obser"e "ed d in ?ammon' Tre0arne7 (#$9= 697 All 42 9@=7, if in a Will there are two inconsistent pro"isions, latter shall pre"ail o"er the earlier clause. This is regulated by the well;known maim 3cum duo inter se pugantia reperiuntur in testamenta ultimum ratum est3. This principle principle is also contained in Section == of the Act which together with its illustrations, pro"ides as under! When referred to the pro"isions of Indian Succession Act #$%&, hapter MI whereof deals with construction of Wills. Some of the principles of interpretation of Wills that are statutorily recogni:ed in hapter MI need special notice. -or instance, Section =G pro"ides that if a clause is susceptible of two meanings, according to one of which it has some effect and according to the other it can ha"e none, the former shall be preferred. So also, Section =& pro"ides that no part of a Will Will shall be re+ected as destitute d estitute of meaning if it is possible to put a reasonable construction on the same. Section => pro"ides that if the same word occurs in different parts of the same Will, they shall be taken to ha"e been used e"erywhere in the same sense unless a contrary intention appears. Section =? makes it clear that the intention of the Testator shall not be set aside merely because it cannot take effect to the full etent, and that effect is to be gi"en to it as far as possible. Section == pro"ides that if there are two clauses of gift in a Will, Will, which are irreconcilable, so that they cannot possibly stand together, the last shall pre"ail. It is e"ident e"ident from from a carefu carefull readin reading g of the pro"is pro"ision ionss referr referred ed to abo"e abo"e that that while while interpreting a Will, Will, the ourts would as far as possible possible place an interpretation that would a"oid any part of a testament becoming redundant. So also the ourts will interpret a Will to gi"e effect to the intention of the Testator as far as the same is possible. )a"ing said so, we must hasten to add that the decisions rendered by ourts touching interpretation of the Wills are seldom helpful
ecept to the etent the same recogni:e or lay down a proposition of law of general application. That is so because each document has to be interpreted in the peculiar circumstances in which the same has been eecuted and keeping in "iew the language employed by the Testator. That indeed is the re5uirement of Section =% of the Succession Act also inasmuch it pro"ides that meaning of any clause in a Will must be collected from the entire instrument and all parts shall be construed with reference to each other. What is the intention of the testator has to be found out on a reading of the Will Will and there cannot be any hard and fast rule of uniform application to find out as to whether the grant was absolute or it was sub+ect to any condition or stipulation. The true intention of the testator has to be gathered not only by attaching importance to isolated epressions but by reading the Will as a whole with all the pro"isions and ignoring none of them as redundant or contradictory. As obser"ed in Na"neet (al1s case 6Supra7, although there is no binding rule that the ourt should a"oid intestacy at any cost, yet the ourt would be +ustified in preferring that construction of the Will which a"oids intestacy. Where the words are ambiguous attempt should be made to a"oid that construction which leads to intestacy. It is seldom seldom profitable profitable to compare compare the words of one Will Will with those of another another or to attempt to find out to which of the Wills, upon which decisions ha"e been gi"en in reported cases, the Will before the ourt approimates closely. ases are helpful only in so far as the purport to lay down certain general principles of construction and at the present these principles seem to be fairy well settled. The cardinal maim to be obser"ed by ourts in construing a Will is to endea"our to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as whole without indulging in any con+ecture or speculation as to what the testator would ha"e done if he had been better informed or better ad"ised 6See $nanma,s case 6supra7. In construing the Will the ourt must consider consider the surrounding surrounding circumstances. circumstances. The testator1s testator1s position, position, his family family relationsh relationship, ip, the probability that he would wou ld use his words in a particular sense and many other things summed up in the the pict pictur ures es5u 5uee phras phrase. e. The The our ourtt shou should ld put put itse itself lf in the the test testat ator or1s 1s armc armchai hairr 6See 6See *eeratta,in+am *eeratta,in+am 6% Ramet0 AI2 #$$@ S %%@#7. PRINCIPLES E*OL*ED E*OL*ED OUT OF DECISION OF SUPRE5E COURT -rom "arious decisions of the Supreme ourt e.g. 2am Jopal ". Nand (al 6AI2 #$ S #9$7,J #9$7,Jnam nambal bal Ammal Ammal ". 2a+u Ayyar Ayyar 6AI2 6AI2 #$ S #@97, #@97, 2a+ *a+ran *a+rang g *hadaur *hadaur Singh Singh ". Thakurain *akhtra+ Lher 6#$&9 S ?7, 9 S #?@97, 2amchandra ". )ilda *rite, 6AI2 #$>G S #9%97 and Na"neet (al ". Jokul 6AI2 #$?> S ?$G7, the following principles are well established! 6#7 In construing a document whether in 4nglish or in "ernacular the fundamental rule is to ascertain the intention from the words used8 the surrounding circumstances are to be considered8 but that is only for the purpose of finding out the intended meaning of the words which ha"e actually been employed. 6%7 In construing the language of the Will the ourt is entitled to put itself into the testator1s armchair 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. *ut all this is solely as an aid to arri"ing at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document.
697 The true intention of the testator has to be gathered not by attaching importance in isolated epressions but by reading the Will as a whole with all its pro"isions and ignoring none of them as redundant or contradictory. 6G7 The ourt must accept, if possible such construction as would gi"e to e"ery epression some effect rather than that which would render any of the epressions inoperati"e. The ourt will look at the circumstances under which the testator makes his Will, such as the state of his property of o f his family and the like. Where apparently conflicting dispositions can be reconciled by gi"ing full effect to e"ery e" ery word used in a document, such a construction should shou ld be accepted instead of a construction which would ha"e the effect of cutting down the clear meaning of the words used by the testator. -urther where one of the two reasonable constructions would lead to intestacy, that should be discarded in fa"our of a construction which does not create any such hiatus. 6&7 To the etent that it is legally possible, effect should be gi"en to e"ery disposition contained in the Will unless the law pre"ents effect being gi"en to it. Ff course, if there are two repugnant pro"isions conferring successi"e interests, if the first interest created is "alid the subse5uent interest cannot take effect but a ourt of construction will proceed to the farthest etent to a"oid repugnancy so that effect could be gi"en as far as possible to e"ery testamentary intention contained in the Will. It is to be noted that rules of interpretation of Will Will are different from rules which go"ern interpretation of other documents like sale deed, or a gift deed, or a mortgage deed or, for that matter, any other instrument by which interest in immo"able property is created. While in these documents, if there is any inconsistency between the earlier or the subse5uent part or specific clauses, inter se contained therein, the earlier part will pre"ail o "er the latter as against the rule of interpretation applicable to a Will under which the subse5uent part, clause or portion pre"ails o"er 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 be5uest already made in the earlier part or on an earlier occasion. Endoubtedly, it is the last Will which pre"ails. RULES $O*ERNIN$ T?E PROPOUNDIN$ OF A WILL The rules go"erning the propounding of a will are two. -irst, the onus probandi lies in e"ery case upon the party propounding the will and he must satisfy the conscience of the ourt that the instrument so propounded is the last will of the testator. Second, if a party acti"ely participates in the eecution of a will under which he takes a benefit, it is a circumstance to ecite the suspicion of the ourt and calls upon the court to be "igilant and :ealous in eamining the e"idence on record. The strict strict meaning meaning of the term 1onus probandi1 probandi1 is this, this, that if no e"idence e"idence is gi"en by the party on whom the burden is cast, ca st, the issue must be found against him. In all cases the onus is imposed on the party propounding the will. It is in general discharge by proof of capacity and the fact of eecution from which the knowledge of and assent to the contents of the instrument are assumed. The nature of proof re5uired to pro"e a will is not different from those re5uired to pro"e other documents ecept the re5uirement of attestation prescribed under Section >9 of the Indian Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What distinguishes a will from other document is that the testator would not be a"ailable to testify the same as his last will. This introduces an element of solemnity in the decision. 4"en then the ourt has to proceed with the en5uiry in the same manner as is done in respect of any other
document. The propounder is called upon to show by satisfactory e"idence that 6#7 the will was signed by the testator in the presence of two attesting witnesses8 6%7 at the rele"ant time he was in sound and disposing state of mind8 697 he understood the nature and effect i.e., the content of the disposition8 6G7 he put the signature to the document of his own free will. The onus of the propounder can be said to be discharged on proof of the abo"e essential facts. )owe"er, in a case surrounded by suspicious circumstances "i:.! the disposition may appear to be unnatural, improbable or unfair in the light of the rele"ant circumstances8 or there may be indications that the disposition was not the result of the testator1s free will and mind, such suspicious circumstances make the initial onus "ery hea"y8 and unless satisfactorily discharged, the ourt would be reluctant to treat the document as the last will of the testator. Where the propounder takes a prominent part in the eecution of the will conferring benefit upon him, that is a suspicious circumstance attending the eecution of the will8 the propounder is re5uired to remo"e the doubt by clear and satisfactory e"idence. In other words the propounder must satisfy the conscience of the ourt that the document is the last will and testament of the testator. Where the ca"eator alleges undue influence, fraud and coercion, the onus is on him to pro"e the same. 4"en if there is no such plea but b ut the circumstances gi"e rise to doubts, it is for the propounder to satisfy the conscience of the ourt. If the propounder is able to satisfy the conscience of the ourt, the ourt shall grant the probate, e"en if the will cuts off, wholly or in part, near relations. It is the will of the testator that is reflected in the will. *eing the testator1s own property, he has the liberty to deal with it absolutely. It is not for the ourt to find out +ustification or e5uity or otherwise in the action of the testator. It is not for the ourt to make it fair or to sermoni:e. It is not for the ourt to refuse the grant on account of the fact that the disposition is not +ust and fair or is unnatural or improbable when the conscience of the ourt is clear about the proof of the eecution of the will on the face of the e"idence, satisfactorily sufficient, to remo"e the suspicious circumstances. As the wills are too fre5uently made by the sick and dying, the degree of understanding and memory which the law re5uires is such as may be reasonably epected from persons in that condition. condition. therefore, therefore, it is wrong to suppose that those 5ualities 5ualities of mind should be possessed possessed by the testator in the highest degree, position or to the same etent as before the illness in order to enable him to "alidly make his will. Section &$ of the Indian Succession Act re5uires that the testator should ha"e a sound mind. The sound mind referred to does not mean that the testator should ha"e his mental faculty in their fullest "igour, but means that he should ha"e the capacity to understand the nature of his property8 memory to remember the relations and persons normally ha"ing claims on his bounty and has also a +udgment. As obser"ed by their (ordships of
understanding, the burden of pro"ing that it was eecuted under undue influence is on the party who alleges it. The #&@D#$>@ @ ! C0an'r 'ra a 5a9um 5a9um'ar 'ar 6% A/0i A/0i,, C0an' C0an'ra ra 5a9um' 5a9um'ar ar 'ANEDW*D@ AI2#$>@al& . 2elying upon the decision of the )on1ble Supreme ourt in the decision Nares0 C0aran Das$uta 6% Pares0C0aran Das$uta an' reported as Anr%'ANEDSD@##9D#$&G ! H#$&&#IT2#@9&6S7 it was obser"ed that it is elementary that law does not regard or characti:e e"ery interest which is brought to bear upon a testator as undue. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his fa"or and if the testator retains his mental capacity and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence. Not all importunities are undue influence. While making said obser"ation, the )on1ble Supreme ourt in Naresh haran Bas Jupta1s case 6supra7 5uoted the obser"ation of (ord = 6#7 < O B G=# 3but all influences are not unlawful.