TaxTMI 
TaxTMI 
2007 (5) TMI 693
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....e suit in question. 2. Before embarking on the said questions, we may notice the admitted fact of the matter. 3. Appellant No. 1 is an existing company within the meaning of the provisions of the Companies Act, 1956. It claims its title in respect of the disputed premises by a lease executed by the Chamong Tea Company Limited as also purchase of a property by a deed of sale. 4. The property in question admittedly belonged to Late Nerode Chandra Vasu Mullick. The legatee under the Will Shri Hamir Chandra Vasu Mullick through whom Appellant No. 1 claims its right, title and interest was his son. 5. The relevant clauses of the said Will are as under: 5. I give all my immovable properties and the said debentures in the Hooghly Docking and Engineering Co. Ltd. to my son the said Hamir Chandra Mullick to hold and enjoy the same during the term of his natural life without impeachment of waste and on the determinate of his life Estate to such one of his sons and grandsons as he may by deed, will or otherwise in writing appoint absolutely and in default of such appointment to his eldest male descendants absolutely. If my son has no male issue, the power of appointment m....
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....f 10 years each in all for fifty years from the said date on the terms and conditions mentioned therein. 10. It is not in dispute that Appellant No. 1 paid unto the legatee the agreed rent till 14.07.1973. The legatee, however, purported to have conveyed a portion of the said leasehold by a registered deed of sale in favour of one Chamong Tea Company Limited, subject to the said lease granted in favour of the appellants herein. 11. Indisputably, the legatee died on 18.11.1976 without any issue. He had not adopted any son also. He had also not made any appointment in terms of the said Will. 12. Respondent University claiming its right in terms of Clause 12 of the aforementioned Codicil filed an application for grant of a Letters of Administration and by reason of a judgment and order dated 22.08.1977, the said application was allowed. It is stated that pursuant to or in furtherance of the said order dated 22.08.1977 the Registrar of the Calcutta University took over possession of the said property. 13. Three suits came to be filed thereafter. One of the suit was filed by the appellants herein which was marked as Suit No. 390 of 1978 praying for the following reliefs: ....
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....elled and/or adjudged void as stated in paragraph 25 of the plaint. c) A declaration that the deed of lease dated 24th July 1972 in respect of premises No. 155, 155/1, 155/2, Bepin Behari Ganguly Street, Calcutta executed by the Chamong Tea Company Ltd. the defendant No. 1 in favour of Bajrang Factory Ltd. the defendant No. 2 is void or voidable and of no effect as stated in paragraph 26 of this plaint. d) That the aforesaid deed of lease dated 24th July 1972 executed by the Chamong Tea Company Ltd. The defendant No. 1 in favour of Bajrang Factory Ltd. The defendant No. 2 be delivered up as stated in paragraph 26 of this plaint. e) In the alternative a declaration that the said sale and said lease dated 29th May 1971 and 24th July 1972 respectively as referred to in prayers (a), (b)(c) and (d) are not valid beyond the life time of the said Hamir Chandra Vasu Mallick, deceased as stated in paragraph 25 and 26 of this plaint. f) A decree for declaration that the University of Calcutta is the absolute owner of the said premises g) Perpetual injunction restraining the defendants Nos. 1 and 2 from collecting rents, issue and profits from the ....
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....tee as contemplated would take the entire estate of the testator is an unfetter form. In view of the facts and circumstances of this case and in view of the various principles of law as laid down in the cases discussed above this Court is of the view that the preliminary point raised by the defendants in the suit must be answered in the negative in as much as this Court is of the view that the University of Calcutta is entitled to file the suits and proceed with the same. 18. Aggrieved by and dissatisfied therewith, the appellants preferred an intra-court appeal before the Division Bench of the Calcutta High Court. By reason of the impugned judgment dated 14.02.2003, the said appeal has been dismissed holding: After considering the respective submissions of the parties and the entire materials on record we do not find any reason to interfere with the impugned judgment and order of the Trial Court as we agree with the view of the Trial Court that the bequest of the property in favour of the University of Calcutta is not void and therefore the University is entitled to file the suit. It has been rightly contended by the learned Counsel appearing on behal....
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....nd the same comprised of the whole of the interest of the testator in the property bequeathed having been devised and bequeathed absolutely in favour of them. Since the bequests therefore comprised of the whole of the interest of the testator in the said property, such bequests will not be void. Consequently, not the provision of Section 116 of the Indian Succession Act but the provision of Section 129 of the said Act will apply and the bequests made in favour of the University of Calcutta shall take effect upon failure of the bequest made in favour of the unborn son of Hamir. 19. Mr. C.S. Sundaram, learned senior counsel appearing on behalf of the appellants in assailing the judgment and order passed by the Calcutta High Court would inter alia submit: (i) Clause 7 of the Will being inconsistent with the stipulations contained in Clause 5 thereof would prevail there over in view of the provisions contained in Section 88 of the Act. (ii) Clause 7 of the Will providing for a bequest in favour of an unborn person is clearly violative of Section 113 of the Act and in that view of the matter, the bequest which was to take effect on the failure of the prior bequest i....
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.... Act. (vi) Clause 7 of the Will furthermore would not operate qua the property but qua the option of the legatee. The Will so read, it was urged, that both Clauses 5 and 7 can be given effect to as it merely provided for a just pious hope or wishful thinking on the part of the testator. 21. The Act was enacted to consolidate the law applicable to intestate and testamentary succession. 22. "Codicil' has been defined to Section 2(b) of the Act to mean 'an instrument made in relation to a will, and explaining, altering or addition to its dispositions, and shall be deemed to form part thereof'. 23. Section 82 of the Act reads as under: 82. Meaning or 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. 24. Section 88 of the Act provides for a rule of construction of the Will stating that where two clauses of gifts in a Will are irreconcilable so that they cannot possibly stand together, the last shall prevail. This provision is itself a pointer to the fact that once it is possible to give effect to both the....
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....the beneficiary to the Will, no further question need be asked. Courts in the event of its findings that the transactions are illegal, would have to proceed on the basis that the same had not taken place at all. 30. At this juncture, this Court is not concerned with the other allegations made by the University as to whether the deed of sale executed by the legatee was invalid or not, inasmuch as the preliminary issue raised is confined to the question of validity of the will. 31. What would be the effect of a sale if the sale proceeds have not been applied for purchase of immovable property is also a question which would fall for consideration of the High Court at an appropriate stage. It goes without saying that it would be open to the High Court to consider as to whether a suo motu action or at the instance of the University can be taken as the conditions for grant of probate have been violated. We, however, need not apply our mind to the said question. 32. We may, furthermore, notice that the word 'devise' in the context of Clause 7 does not appear to be appropriate. The word 'devise' would inter alia mean a 'plan' or a 'scheme'. What pro....
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....ecame entitled to from the moneys invested on mortgage bonds or promissory notes passed under the bequest of the legacy or under the gift of all other immovable property. The Judicial Committee opined: ...It is well settled in England that by virtue of S.34, English Wills Act, the effect of confirming a Will by codicil is to be bring the Will down to the date of the codicil and to effect the same disposition of the testator's property as would have been effected if the testator had at the date of the codicil made a new will containing the same disposition as in the original will but with the alterations introduced by the codicil.... 39. In Pearley Lal v. Rameshwar Das AIR1963SC1703 , Subba Rao, J. opined: ...Where apparently conflicting disposition can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the c....
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....s under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. ( Ramachandra Shenoy v.....
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.... been the subject-matter of the bequest and in terms thereof the University of Calcutta became the beneficiary on the death of the original legatee. We do not find any reason as to why the same cannot be given effect to. We have indicated hereinbefore that it is possible to construe Clause 7 of the will and in fact a plain reading thereof would, thus, lead to the conclusion that it merely provides for an option given to the legatee to take recourse thereto. We have also indicated hereinbefore that the term 'device' in the context of Clause 7 does not carry any meaning and, therefore, the same for all intent and purport should be substituted by the word 'desire'. As a matter of fact, the appellant in the copy of the will supplied to us had also used the word 'desire' in place of the word 'device', which would also go to show that even the appellant understood Clause 7 in that fashion. Clause 7, if so read, will have no application to the properties which were to be substituted in place of the immovable properties belonging to the testator. The benefit of the sale proceeds, thus, in absence of any action on the part of the legatee in terms of Clause 7 ....