Mrs. Shirinbai Maneckshaw and Others vs Nargacebai J. Motishaw and Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 213 of 1953
Decision Date: 9 May 1956
Coram: Natwarlal H. Bhagwati, S.K. Das
In the matter of Mrs Shirinbai Maneckshaw and others versus Nargacebai J. Motishaw and others, the Supreme Court rendered its judgment on the ninth of May, 1956. The case was heard by a Bench that included Justice Natwarlal H. Bhagwati and Justice S. K. Das, with Chief Justice Sudhi Ranjan Das presiding. The reported citations for this decision are 1956 AIR 747 and 1956 SCR 591. The appeal concerned the construction of a holograph will made by a Parsi testator and raised questions of a substitutional bequest under the Indian Succession Act of 1925, specifically sections 67, 129 and 130.
The holograph will contained a clause in which the testator declared, “I hereby give, devise and bequeath to my so‑called mother Mrs Shirinbai … her heirs, executors and administrators, for her and their own use and benefit, absolutely and for ever all my estate and effects, both real and personal, whatsoever and wheresoever and of what nature and quality soever, and I hereby appoint the said Mrs Shirinbai Maneckshaw Bejonji Mistry, sole executrix of this my Will.” The will was signed by the testator and attested by two witnesses; one of the witnesses was the husband of Mrs Shirinbai. Acting as the sole executrix, Mrs Shirinbai obtained probate of the will from the High Court and subsequently took possession of the testator’s estate.
The heirs of the testator filed a suit in the Court of the Civil Judge seeking a declaration that the bequest made to Mrs Shirinbai was void under section 67 of the Indian Succession Act, on the ground that a gift to a mother who was not a legal heir was impermissible. They further claimed that, if the bequest were void, the estate should be deemed intestate and thus become divisible among the testator’s legal heirs. The trial judge held that the bequest to Mrs Shirinbai was indeed void under section 67 and that no gift could be sustained. Additionally, the trial judge concluded that the plaintiffs were not heirs of the testator and therefore lacked locus standi to maintain the suit.
The plaintiffs appealed the decision. The Allahabad High Court affirmed the trial judge’s findings that the bequest to Mrs Shirinbai was void and that the plaintiffs were not heirs. However, the High Court reversed the trial judge’s conclusion on the question of the plaintiffs’ status and decreed in favour of the plaintiffs, holding that they were indeed heirs of the testator. On further appeal to the Supreme Court, counsel for Mrs Shirinbai and her two daughters argued that a proper construction of the will revealed a substitutional bequest intended for the heirs, executors and administrators of Mrs Shirinbai. They contended that even if the primary bequest to Mrs Shirinbai failed under section 67, the secondary, substitutional bequest should take effect.
The Supreme Court examined the language of the will in its entirety, giving particular weight to the phrase “for her and their own use and benefit.” Considering the factual circumstances in which the testator executed the instrument, the Court concluded that there was no doubt the testator’s intention was to create a substitutional bequest. Although the primary purpose of the testator was to benefit Mrs Shirinbai, the wording unmistakably indicated an intention to prevent the estate from passing to the testator’s step‑relations under intestacy, should Mrs Shirinbai predecease the testator. Consequently, the Court held that the substitutional bequest should be given effect, subject to the operation of the relevant provisions of the Indian Succession Act.
The Court explained that the testator’s intention was to prevent his property from passing to his step‑relations by the rules of intestacy if the bequest to Mrs Shirinbai failed because she predeceased him. The Court referred to the authority in In re Mcelligott (L.R. [1944] Chancery 216) and noted that the earlier decision was dissenting. It observed that the will did not expressly state that the substitutional bequest would become operative only on the death of Mrs Shirinbai before the testator. Consequently, the provision did not fall within the illustration to section 130 of the Indian Succession Act and therefore that section was inapplicable. Instead, the Court held that section 129 of the Act governed the situation. As a result, the substitutional bequest in favour of the two daughters—who would have been the presumptive heirs of Mrs Shirinbai at the time of the testator’s death—was deemed to take effect, although it would fail with respect to the executors and administrators of Mrs Shirinbai’s estate.
The judgment was delivered in Civil Appeal No 213 of 1953, under the civil appellate jurisdiction, and arose from an appeal against the decree of the Allahabad High Court dated 30 July 1951 in First Appeal No 258 of 1943. That decree itself had reversed the judgment and decree of the Additional Civil Judge at Allahabad dated 8 March 1943 in Original Suit No 27 of 1940. The appeal was argued before the Court by counsel representing the appellants and respondents, with the judgment pronounced on 9 May 1956 by Chief Justice DAS. The factual backdrop involved the death of Cawashaw Dadabhoy Motishaw, a Parsi, on 10 November 1937 in Allahabad. At his death he left a step‑brother (Plaintiff No 1, now represented by his widow and children as Respondents 1), a step‑sister’s son (originally Defendant 4, later Plaintiff 2, now Respondents 9‑12), a step‑brother’s son (Defendant 2, now Respondents 13‑14), a step‑sister (Defendant 3, now Respondent 15), and a step‑sister’s daughter (Defendant 5, now Respondent 16). The testator was said to have owned considerable property in and near Allahabad. Prior to his death, on 11 March 1922, he executed a holographic will stating: “This is the last Will and testament of Mr Cawashaw Dadabhoy Motishaw, residing 20 Canning Road, Allahabad. I hereby give, devise and bequeath to my so‑called mother named Mrs Shirinbai Maneckshaw Bejonji Mistri, wife of Maneckshaw Bejonji Mistri alias Photographer residing 20 Canning Road, Allahabad, her heirs, executors and administrators, for her and their own use and benefit, absolutely and forever, all my estate and effects, both real and personal, whatsoever and wheresoever…”
The testator declared that Mrs Shirinbai Maneckshaw Bejonji Mistry, the wife of Mr Maneckshaw Bejonji Mistry and residing at 20 Canning Road, Allahabad, was his adopted mother by his own will and accord, and that no one in the world could dispute this adoption. He appointed Mrs Shirinbai as the sole executrix of his will. He affirmed that the will was made and written by him with his full mind, good heart, sound disposition and in a sound state of body and mind. He signed the document on the eleventh day of March, 1922. The will was attested by two witnesses, namely B Hirji and M B Mistry, the latter being the husband of Mrs Shirinbai. On 18 August 1939 Mrs Shirinbai applied to the High Court of Judicature at Allahabad for probate of the will, obtained probate, and subsequently took possession of the testator’s estate.
On 13 April 1940 the testator’s step‑brother, designated as Plaintiff No 1, instituted suit O S No 27 of 1940 in the Court of the Civil Judge of Allahabad against Mrs Shirinbai. The plaintiff sought a declaration that the bequest to Mrs Shirinbai was void under section 67 of the Indian Succession Act, that the whole estate was thus intestate, and that it should be divided among the legal heirs of the testator according to the personal law applicable to Parsis. The plaintiff also requested that the Court administer the estate, conduct necessary inquiries into the identity of the heirs, and order appropriate accounts. Several other persons claiming to be heirs of the testator were impleaded as pro forma defendants numbered 2, 3 and 4. Defendant No 4 was later re‑characterised as Plaintiff No 2. In her written statement, Mrs Shirinbai (Defendant No 1) denied that the plaintiffs or the pro forma defendants were the legal heirs of the testator. She argued that the provisions of section 67 were inapplicable to the facts of the case, that her own heirs under the will were the direct objects of a distinct and independent bequest, and consequently that no intestacy existed and the plaintiffs lacked locus standi to maintain the suit. On 23 September 1940, the two daughters of Mrs Shirinbai, on their own application, were ordered to be added as Defendants Nos 5 and 6. They filed separate written statements mirroring the content of their mother’s defence. The pro forma defendants naturally supported the plaintiffs, and the suit was contested solely by Mrs Shirinbai and her two daughters.
The Court noted that several questions had been presented for determination and that each of those questions had been finally resolved. The first question concerned whether the gift made to Mrs. Mistry was legally void. The second question asked whether Defendant No. 1 was the sole universal legatee under the will or whether the other defendants, namely Mrs. Patel and Mrs. Chinimini, also held legatee status. The third question examined whether Plaintiffs Nos. 1 and 2, or alternatively Defendants L. J. D. Motishaw, Mrs. A. K. Capoor and Mrs. H. S. N. Talati, were the lawful heirs of the deceased Mr. C. D. Motishaw and consequently entitled to succeed to his estate. The fourth question concerned whether the claim was barred by section 27 of the Indian Succession Act.
In hearing the matter, the Additional Civil Judge of Allahabad, who tried the suit, recorded his findings in the record. First, he held that the gift to Defendant No. 1 was made without any limitation and therefore conferred an absolute estate upon her; the gift did not extend to her heirs. Second, he observed that the husband of Defendant No. 1, namely Mr. M. B. Mistry, had attested the will and that, because of this, the gift to his wife was void under the provisions of section 67 of the Indian Succession Act. Third, he concluded that, under the law of succession applicable to Parsis – that is, section 56 of the Indian Succession Act read with Schedule II, Part 2 – the plaintiffs were not the heirs of the deceased and consequently had no right to maintain the suit. Relying on those findings, the judge concluded that the plaintiffs had failed to establish any heirship to the testator; therefore the suit was not maintainable and was dismissed with costs.
The plaintiffs appealed the judgment and decree of the Additional Civil Judge to the High Court of Judicature at Allahabad. By its decree dated 30 July 1951, the High Court affirmed the trial‑court findings on the first two points, holding that the gift to Mrs. Mistry was void. However, the High Court disagreed on the third point, finding that the plaintiffs and the pro‑forma defendants were in fact the heirs of the testator under the Parsi law of succession set out in section 56 of the Indian Succession Act read with Part 2 of Schedule II. Accordingly, the High Court allowed the appeal, decreed in favour of the plaintiffs, and ordered that the costs of both the trial court and the appellate proceedings be paid out of the estate of the deceased.
On 13 February 1953, the High Court, on an application filed by Shirinbai and her two daughters (Defendants Nos. 1, 5 and 6), issued a certificate pursuant to section 10 of the Code of Civil Procedure and article 133 of the Constitution. That certificate gave rise to the present appeal, which came before this Court for hearing. Counsel appearing for the appellant, Shri S. K. Dar, did not contest the High Court’s conclusion that the gift to Shirinbai was void under law, nor did he dispute the finding that the plaintiffs and the pro‑forma defendants were the lawful heirs of the testator under the intestate succession rules applicable to Parsis. His submission was limited to other aspects of the case.
In this appeal the counsel for the appellant rested his entire argument on a single proposition, namely that even if the bequest made to Shirinbai were held void under section 67 of the Indian Succession Act, the will as a whole would not fail and intestacy would not intervene because, on a proper construction, the will contained a substitutional bequest in favour of the heirs, executors and administrators of Shirinbai. He directed the Court’s attention to the precise wording of the bequest and frankly admitted that had the first sentence of the bequest concluded with the words “her heirs, executors and administrators” and had those words not been followed by “for her and their own use and benefit, absolutely and forever,” it could have been argued that the phrase “her heirs, executors and administrators” functioned as a limitation clause conferring an absolute estate upon Shirinbai. However, he contended that the immediate insertion of the words “for her and their own use and benefit, absolutely and forever” fundamentally altered that interpretation. He urged that the relevant language in the will should be read distributively, specifically: “I hereby give, devise and bequeath to my so‑called mother named Mrs Shirinbai Maneckshaw Bejonji Mistri … for her own use and benefit absolutely and forever and to her heirs, executors and administrators for their own use and benefit absolutely and forever.” Reading the clause in this manner, he argued, makes it clear that the reference to “her heirs, executors and administrators” does not qualify the estate granted to Shirinbai but instead operates as words of purchase, indicating that those persons are direct objects of the testator’s bounty and are themselves to receive an estate for their own use and benefit, absolutely and forever. Since the testator had already granted an absolute estate to Shirinbai for her own benefit, it was unnecessary for him to employ the words “her heirs, executors and administrators” as limiting language. The counsel further explained that the testator was aware of the possibility that Shirinbai might predecease him, which could cause the primary bequest to lapse, and he evidently did not intend that his estate thereby pass by intestacy to his step‑brothers and step‑sisters. To prevent that outcome, the testator fashioned a double bequest: one absolute bequest to Shirinbai for her own use and benefit, and a second absolute bequest to her heirs, executors and administrators for their own use and benefit. He asserted that the two bequests were successive, with the second taking effect upon the failure of the first, and that they were mutually exclusive and independent of each other. Consequently, even if the bequest to Shirinbai failed under section 67 because her husband, M B Mistry, had attested the will, the alternative bequest to her heirs, executors and administrators would, according to his construction, take effect under section 129 of the Indian Succession Act.
The other bequest to “her heirs, executors and administrators for their own use and benefit absolutely and forever” was held to take effect under section 129 of the Indian Succession Act. Counsel for the respondents opposed this interpretation vigorously. They argued that the testator made only a single bequest of an absolute estate to Shirinbai and that there was no alternative or substitutional bequest to her heirs, executors and administrators as separate objects of the testator’s bounty. Moreover, they submitted that the matter should be governed by section 130 rather than by section 129 of the Indian Succession Act. Whether section 129 or section 130 applies, the court explained, depends on the existence in the will of a substitutional bequest that is to become operative on the failure of a preceding bequest. If no substitutional bequest exists, then neither section may be invoked. Consequently, the court’s task was to construe the will and determine whether there is only a single bequest in favour of Shirinbai, as the respondents contended, or whether there is also a substitutional bequest that would take effect upon the failure of the bequest to Shirinbai, as the appellants asserted. In performing this construction, the court said it must observe the rules of construction set out in the Indian Succession Act. These rules require that the will be read as a whole, with all its parts interpreted in reference to one another (section 82), that if a clause can be understood in two ways, the meaning that gives the clause some effect is preferred over a meaning that renders it ineffective (section 84), and that no part of the will should be dismissed as meaningless if a reasonable construction can be placed upon it (section 85). The court further noted that it is not bound by the technical English‑law distinctions between realty and personalty when construing a will. Its duty is to ascertain the testator’s true intention from the language he employed, taking into account all surrounding circumstances. The will in this case is a holograph will, written entirely by the testator himself. The testator had settled in Allahabad, where he conducted business and acquired property. There was no evidence that he maintained any relationship with his step‑brothers or step‑sisters. The will itself shows that the testator regarded Shirinbai as his mother. It also indicates that Shirinbai, together with her husband, was residing at 20 Canning Road, Allahabad, the same address at which the testator lived. The bequest to Shirinbai was immediately followed by the words “her heirs, executors and administrators”. The court referred to Jarman, 8th edition, volume 2, page 1304, observing that an intention to create a substitutional gift can be inferred when the gift is to a person “or” his…
In the will there was no use of either the conjunction “or” or the conjunction “and” before the phrase “her heirs, executors and administrators”. Nevertheless, that absence did not resolve the question, because the words that followed – specifically “for her and their own use and benefit” – clearly showed that the testator intended to make a substitutional gift. The main purpose of the testator was to benefit Shirinbai. However, considering the language he employed, it was quite possible that he anticipated her dying before him, which would cause the gift to her to fail and the estate to pass to his step‑relations as if he had died intestate. The wording of the will unmistakably revealed the testator’s desire to avoid that outcome; therefore he provided that her heirs, executors and administrators should receive the gift as independent substitutes. If one assumes that the testator knew the details of English law – namely that adding the words “her heirs, executors and administrators” after a gift to a person would normally be treated merely as a limiting phrase that gave the person an absolute estate – then it becomes inexplicable why he would again insert the words “absolutely and forever”. Moreover, if his intention had been to treat “her heirs, executors and administrators” only as a limitation, it is puzzling why he also wrote “for her and their own use and benefit”. The clause granting “their own use and benefit” to “her heirs, executors and administrators” can be understood only as showing an intention to give a gift directly to those persons. If there had been no direct gift to those heirs, executors and administrators, the reference to “their own use and benefit” would have been out of place. Likewise, if the testator’s sole aim had been to give an absolute estate to Shirinbai and to have her heirs, executors and administrators claim only through her, then her death during the testator’s lifetime would have frustrated his objective of benefiting her absolutely. Consequently, the court was required to give effect to the phrase “for her and their own use and benefit” in accordance with the construction rule set out in the Succession Act. The language of the will left no doubt that the testator planned for the possibility that his gift to Shirinbai might fail because of her death before his, and therefore he created a substitutional bequest in favour of her heirs, executors and administrators. The court cited the case In re Mcelligott, in which a testator who died in 1941 directed his residuary personal estate to be given to his wife “and her heirs for her and”.
In the earlier decision concerning a widowed beneficiary, the will used the words “their use and benefit absolutely and forever.” A single judge held that neither Shelley’s case rule nor section 131 of the Law of Property Act 1925, which had abolished that rule, applied to the bequest and that the widow therefore possessed an absolute interest in the testator’s residuary estate. The present Court does not need to consider Shelley’s case rule or the provisions of the English Law of Property Act 1925, but it notes that the earlier judgment runs contrary to the argument advanced by counsel for the appellant. At the conclusion of his judgment, Justice Vaisey stated that the added words “for her and their use and benefit absolutely and forever” made no difference and shed no light on the issue. The earlier judgment offered no reason for disregarding those words, cited no authority, and the observation amounted to an unsubstantiated statement of personal view. That approach conflicts with the construction principle embodied in section 85 of the Indian Succession Act, which requires that the intent expressed by the testator’s language be given effect. In the circumstances of the present case, the Court believes that the words cannot be ignored, as they clearly reveal the testator’s intention, a conclusion supported by the authority reported in L.R. [1944] Chancery 216.
The parties also argued that if the testator’s intention were to make a direct gift to the heirs, executors and administrators, certain difficulties could arise. For example, if Shirinbai were to die leaving heirs and at the same time had executed her own will appointing a person other than an heir as her executor, it would be uncertain whether the heirs or the appointed executor should receive the gift. Such a contingency would raise serious questions of construction as to whether the heirs and the executor should take the benefit successively or jointly. The Court holds that this hypothetical difficulty does not affect the proper construction of the language used by the testator. A plain and fair reading of the entire will, together with the concluding statement that no one in the world has the right to dispute calling Shirinbai as his or her own mother, leads the Court to conclude that the testator intended first to bequeath the property to Shirinbai for her own use and benefit absolutely and forever, and that, upon the failure of that primary bequest, the property should pass to her heirs, executors and administrators for their own use and benefit absolutely and forever. Because this creates a substitutional bequest in favour of the heirs, executors and administrators, the Court must consider whether section 129 or section 130 of the Indian Succession Act applies. It appears that the testator contemplated the possibility that Shirinbai might predecease him and therefore fashioned a substitutional gift to address that contingency.
The Court observed that, on its face, the first bequest did not display an intention that the second bequest should become operative only if the first failed in a very specific way, namely the death of Shirinbai before the testator’s own death, as the illustrative will in section 130 required; consequently section 130 could not be applied to the present bequest. The Court therefore turned to section 129, holding that even though the bequest made to Shirinbai was rendered void under section 67 of the Indian Succession Act and did not fail in the manner the testator might have envisaged, the substitutional gift embedded in the will must nonetheless take effect. The Court noted that Shirinbai was alive at the time of the testator’s death, and therefore no person could be described as her heirs, executors or administrators at that moment, a circumstance that would ordinarily preclude the operation of the substitutional gift. While this point was unanswerable with respect to the executors and administrators, the Court explained that the term “heirs” is often employed in a flexible sense to include persons who are heirs‑presumptive at a particular point in time, which in the present case was the moment of the testator’s death. The Court referred to the principle that where a direct gift is made to an heir while the ancestor is still living, the strict technical meaning of “heir” may be displaced and the individual who is the heir‑presumptive at the relevant time may be treated as the intended beneficiary, citing Halsbury, Vol. 34, Art. 358, page 309. The Court further observed that there was no dispute that Shirinbai had two daughters at the testator’s death. It held that the inability of the bequest to the executors and administrators to take effect did not automatically invalidate the portion of the bequest directed to Shirinbai’s heirs. Accordingly, the Court concluded that a substitutional bequest did exist; although the specific gift to Shirinbai failed under section 6.7 of the Indian Succession Act, the persons who were her presumptive heirs at the date of the testator’s death were entitled to take under the will, meaning that the estate did not fall into intestacy and the plaintiffs had no right to maintain the suit. The appeal was allowed, the decrees of the lower courts were set aside, and the suit was dismissed. In the unusual circumstances of the case, the Court ordered that the costs of all parties and of the courts below be paid out of the estate.