N. Kasturi vs D. Ponnammal And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 373 of 1956

Decision Date: 23 February 1961

Coram: P.B. Gajendragadkar, K.N. Wanchoo

In the matter titled N. Kasturi versus D. Ponnammal and others, decided on 23 February 1961, the Supreme Court of India rendered its judgment under the authorship of P. B. Gajendragadkar, with the bench composed of Justice P. B. Gajendragadkar and Justice K. N. Wanchoo. The petitioner was N. Kasturi and the respondents were D. Ponnammal and other parties. The judgment bears the citation 1961 AIR 1302 and appears in the 1961 Supplement of the Supreme Court Reports at page 955.

The principal issue concerned a will executed on 28 April 1937 by a testator who died childless on 10 March 1939, leaving his widow alive at the time of his death. Clause 6 of the will expressed the testator’s desire to adopt a boy and directed that if he failed to adopt during his lifetime, his wife should adopt a person identified as K. The testator also granted his wife authority to adopt K in the event that K died before any adoption could be effected. Clause 11 stipulated that, except for properties potentially bequeathed to the testator’s wives, a son named M. A., a son named K. A., a daughter, and the widow for their use during their lifetimes, one‑half of the remaining family property would be held by the widow. Before any adoption, the widow was required to execute a document in favour of K. S., whereby K. S. would enjoy only the income from those properties during his lifetime, after which his heirs would obtain absolute rights. The widow was also required to arrange that the adopted son would similarly enjoy only the remaining half of the property.

Clause 12 of the will provided that, should the testator and his wife die without having made an adoption, or should the wife predecease the testator, or should the testator fail to adopt any boy, or if the boy adopted by the testator did not survive him, then K and K. S. would each receive an equal share of the entire estate. The clause further stated that if both the testator and his wife died without making an adoption as described, and if K. S. predeceased them, then M. A. and K. A. would inherit the whole estate.

No adoption was effected either by the testator before his death or subsequently by his widow. K instituted a suit seeking a declaration of his rights under the will, basing his claim on Clause 12 and arguing that, in the absence of any adoption, he possessed a vested interest in half of the properties, subject only to defeat by any later adoption. The Court held that, upon true construction, Clause 12 was intended to operate at the moment of the testator’s death and not at any later time. Accordingly, K could acquire an interest under that clause only if the widow died before the testator and no adoption had been made by the testator prior to his death. In the present circumstances, the Court concluded that K’s rights were confined to those provided by Clause 11, which could not vest until the widow adopted him, thereby indicating a postponement of vesting and leaving open the possibility of intestacy.

The Court observed that the testator predeceased the testator and that no adoption had been effected by the testator before his death. In that factual situation, the claimant K could rely only on clause eleven of the will, and the rights mentioned in that clause could not arise unless K was adopted by the testator’s widow. Consequently, the Court recognised that the vesting of any interest was postponed and that there existed a possibility of intestacy, a result that could not be avoided. The Court further held that the established rules for construing a will against a postponement of vesting and against avoidance of intestacy were not absolute. Accordingly, the Court could not approach the construction of the will with a preconceived requirement that intestacy must be avoided or that vesting must not be delayed. The Court stressed that the testator’s intention should be ascertained by construing the will in its entirety, giving the relevant clauses their plain grammatical meaning when read together. In support of this approach, the Court referred to the authorities Gnanambal Ammal v. T. Raju Ayyar and Others, A.I.R. 1951 S.C. 103 and Venkata Narasimha v. Parthasarathy, L.R. 41 I.A. 51.

The appeal, numbered Civil Appeal No. 373 of 1956, was filed in the Civil Appellate Jurisdiction against the judgment and decree dated 17 September 1952 of the Madras High Court in A.S. No. 270 of 1948. Counsel for the appellant comprised A.V. Viswanatha Sastri, A.V. Narayanaswami and M.S. Nar​asimhan, appearing for T.K. Sundara Raman. For respondent No. 1, the Attorney‑General M.C. Setalvad, together with R. Ramamurthi Iyer and B.K.B. Naidu, acted as counsel. Respondents Nos. 2 and 4, as well as the legal representatives of respondent No. 5, were represented by R. Ramamurthi Iyer and B.K.B. Naidu. The judgment was delivered on 23 February 1961 by Justice Gajendragadkar. The matter arose from a suit instituted by the appellant N. Kasturi before the Subordinate Judge at Madura, in which the appellant alleged that clause twelve of a will executed by the testator Diraviyam Pillai on 28 April 1937 conferred certain vested or contingent rights over the described property. Relying on those alleged rights, the appellant sought a declaration to protect his interest and to prevent the estate from being wasted or lost in the hands of the testator’s widow, respondent 1, Ponnammal, who was then in charge of the estate. The trial court construed the will against the appellant, held that no right was conferred upon him, and therefore dismissed the reliefs claimed in the plaint, although it was satisfied on the merits that the estate appeared to be wasted by its present holder. The appellant appealed to the Madras High Court, which affirmed the trial court’s construction and held that the appellant possessed no enforceable right under the will.

The High Court held that the appellant could not justify his claim for any of the reliefs set out in his plaint. On that determination the Court considered it unnecessary to examine the merits of the case presented by the appellant and defended by respondent one. Subsequently the appellant applied for and obtained a certificate from the High Court, and with that certificate he filed the present appeal before this Court. Consequently the sole question for our decision is whether the lower courts constructed the will unreasonably, as contended by Mr Viswanatha Sastri on behalf of the appellant. The testator had executed the contested will on April 28, 1937, and he subsequently died on March 10, 1939. During his lifetime he belonged to a joint and undivided Hindu family consisting solely of himself and his cousin, Thayumanaswami Pillai. Neither the testator nor his cousin had any son, and the cousin died on May 9, 1935. At the cousin’s death two widows survived him, namely respondent two Mangayarkarasi Ammal and respondent three Kanniammal, together with a widowed daughter, respondent four Pichai Ammal. The testator, as the surviving coparcener, became entitled by survivorship to the entire family property, which enabled him to make the will in question. The appellant is related to the testator as the great‑grandson of the testator’s sister’s daughter, whereas respondent five Kalyanasundaram had been treated as a foster son by the cousin. Respondent five died while the present appeal was pending, leaving two widows, two minor sons and two minor daughters, who have been entered as his heirs and legal representatives. These persons are mentioned in the will and appear to be the beneficiaries of the testator’s generosity in various respects. It is now necessary to examine the will in general and to read the specific clauses that are the subject of construction in the present appeal. Clause one states that the testator had earlier executed a will on June 12, 1935, which had been registered. The present will was made to cancel the earlier one and to make fresh arrangements concerning his property. Clause two explains that the testator and his senior cousin, the deceased Thayumanaswami Pillai, were members of an undivided Hindu family and consequently had acquired property and conducted a money‑lending business jointly in both of their names. The testator further declares that on his cousin’s death, as the sole surviving coparcener, he became the absolute owner of the entire property. Clause three records that the testator was then sixty‑four years old, that he and his wife, respondent one, had no children, and that he subsequently mentions other relatives in whom he had an interest. In clause four the testator points out

The testator declared that, given his circumstances, it was necessary to make arrangements regarding the family property so that the family affairs could be carried on according to his desire without any dispute or quarrel after his death. The Court noted that this case, like many others, demonstrates that the hope and expectation expressed by the testator—that the making of his will would prevent litigation and disputes—has not been fulfilled. Clause five was described as a preamble to the dispositive clauses of the will and it stated that his deceased cousin had expressed certain wishes concerning the properties during his lifetime, and that the testator, out of deference to those wishes, was making the arrangements set out in the will in accordance with them. Clause six began with a declaration that the testator wished to adopt a boy for the propagation of his family. The clause further provided that, if the testator did not adopt during his lifetime, his wife, respondent one, shall adopt the appellant. It also provided that, should the appellant die before being formally adopted, the testator authorised his wife to adopt, at her discretion, another suitable boy from his community. In addition, the testator anticipated the possible death of the boy adopted by his wife and authorised her to make any further necessary adoptions. Thus clause six expressed the testator’s desire to adopt himself and conferred authority on his wife to make such an adoption after his death in case he had not adopted during his lifetime. Clause seven dealt with the management of the estate if the adopted son happened to be a minor. It provided that during the minority of the adopted son his wife shall be his guardian and shall obtain advice only from the advisers specified by the testator for the management of the properties and other family affairs. Upon the adopted son attaining majority, the clause directed the wife to transfer the properties to him. The testator made clear that the adopted son shall enjoy the properties without subjecting them to usufructuary mortgage, simple mortgage, sale or any similar encumbrance, and that after his death his heir shall receive them with absolute rights. Consequently, the testator conferred a life estate on the adopted son and left the estate absolutely to the heirs of the adopted son. Clause eight appointed the testator’s wife as executor of his will in the event that he died without having made any adoption, and it conferred on her the powers necessary to carry out the provisions of the will in that connection. It also required her to obtain advice from the advisers named by the testator. Finally, the clause imposed on the executor the obligation to execute, in favour of respondents two, three, four and five, the necessary documents as stipulated.

In the will, the testator instructed that his wife shall adopt a boy in accordance with the permission he granted, manage the family properties until the boy reaches majority, and then transfer those properties to the boy when he becomes a adult. To fulfil these duties, the execution of the will required her to consult the advisers named in the will and to perform her tasks “duly and properly.” By inserting this provision, the testator expressed the purpose of his generosity and imposed on his wife the responsibility to carry out the dispositions laid out in the will. Clause 9 concerns the allocations made in favour of respondents 2, 3 and 4. Regarding respondent 4, the testator showed special concern because she had become a widow at a young age and he wished to ensure that she would receive a provision for her maintenance throughout her lifetime, consistent with the family’s status, so that she could support herself without difficulty. The direction contained in this clause indicates that the testator intended the three respondents to receive separate properties for their maintenance, with the condition that each of them could enjoy the income from those properties as they saw fit during their lives, but that they were prohibited from selling, mortgaging, or otherwise encumbering the properties by usufructuary mortgage, simple mortgage or any similar arrangement. Clause 10 deals with respondent 5. Respondent 5 is identified as the son of the first wife of the late Muthuswami Pillai, who was the husband of respondent 4 and the sister’s son of respondent 2. He had been treated by Thayumana Swami Pillai, the testator’s cousin, as the cousin’s “abhimanaputran” (foster son), and the cousin desired to give property to him, a desire that the testator accepted. In line with this wish, the testator made a disposition in favour of respondent 5 in the following clauses, and that is the effect of clause 10. The will then proceeds to the construction of clauses 11 and 12, which the Court reads in full. Clause 11 states that, apart from any properties that may be given in writing to the late Thayumanaswami Pillai’s wives and daughter, and similarly for the testator’s own wife, each of those parties shall enjoy the property allotted to her during her lifetime. Regarding one‑half of all the remaining family properties, the testator directs that, before making any adoption, his wife must execute a document in favour of Kalyanasundaram, containing suitable recitals that Kalyanasundaram shall be entitled only to the income derived from those properties during his lifetime and shall not be allowed to create any encumbrance, including sale, usufructuary mortgage, simple mortgage or any similar disposition. After Kalyanasundaram’s death, his heirs shall receive the properties with absolute rights. The testator further directs that his wife should arrange that his adopted son shall similarly receive and enjoy the remaining half of the property. Accordingly, his wife, Ponnammal, shall manage one half of the aforesaid properties until Kalyanasundaram reaches majority, and she shall transfer those properties to him promptly upon his attaining majority.

According to the provisions of the will, the testator directed that after his wife has managed one‑half of the family properties until the boy named Kalyanasundaram reaches majority, she must transfer to him the portion of the properties that is to be enjoyed by him in accordance with the terms previously specified. The will further provides that certain properties have been set apart for the benefit and maintenance of the late Thayumanaswami Pillai’s wives, his daughter Pichammal, and the testator’s own wife Ponnammal. The testator instructed that the documents creating these trusts must state that, upon the death of each of those benefactors, the properties allotted for each of them shall be divided equally between Kalyanasundaram and any boy who may be adopted by the testator or his wife. If, however, the benefactor dies leaving a male heir, that heir shall succeed to the deceased benefactor’s one‑half share. In the event that one of the benefactors dies without leaving a male heir and the other benefactor survives, the surviving benefactor shall acquire both one‑half shares.

Clause twelve sets out the contingency plan if the testator and his wife die without having adopted a boy, or if the wife predeceases the testator, or if the testator fails to adopt any boy, or if the boy he adopts does not survive him. Under such circumstances the testator stipulated that Kasturi and Kalyanasundaram shall each receive the entire estate of the testator in equal shares. Their enjoyment of the estate shall be governed by the same conditions mentioned in paragraph eleven and shall be subject to the maintenance provisions already described for the properties set aside for the wives, the daughter and the testator’s wife. The clause further contemplates a situation where both the testator and his wife die without any adoption as described, and additionally Kalyanasundaram predeceases them. In that case the will directs that Mangayarkarasi Ammal and Kanniammal shall receive all of the properties, enjoy them for the duration of their lives without placing any encumbrances on them, and, by virtue of the permission expressly granted by the testator, shall adopt a boy. The adopted boy shall thereafter succeed to the property in accordance with the same terms.

Before proceeding to interpret these clauses, the judgment briefly refers to the remaining provisions of the will. Clause thirteen deals with charitable dispositions that the testator had already made and with further arrangements he intended to effect in that regard, stating that any future charitable documents shall be acted upon as stipulated. Clause fourteen lists the advisers whose counsel the executrix is required to seek in carrying out the testator’s wishes. Clause fifteen provides that after the death of the testator’s wife, or if she dies before the will takes effect, respondent two shall become the executrix and guardian of respondent five, subject to the circumstances. If respondent two is also unavailable, respondent three shall assume the role of executrix and guardian. Clause sixteen directs that, should the testator die without having adopted a boy during his lifetime, the performance of his funeral rites shall be the responsibility of respondent five and the appellant, who are likewise required to perform the rites for the testator’s wife if she also dies without any adoption, as well as for respondents two and three.

In this case the testator’s will contained nineteen clauses, one of which required respondent five to perform the funeral rites of respondent four. Clause seventeen stipulated that if either respondent two or respondent three became the testatrix, she would manage the properties in consultation with the advisers named in the will. Clause eighteen provided that the will would become effective on the date of the testator’s death, and clause nineteen reserved to the testator the power to amend or supplement his will. The Court observed that the will, taken as a whole, was a reasonable instrument that sought to balance the claims of all family members for whom the testator felt responsible as the sole surviving coparcener. It was noted that the testator had diligently attempted to fulfill the wishes of his deceased cousin and that, on the whole, the provisions were fair and equitable. The question before the Court was whether the appellant could rely on clause twelve of the will to support the declaration and other reliefs he sought in the present suit. Both lower courts had answered this question in the negative. Counsel for the appellant argued that the construction of the two relevant clauses must be guided by two principles governing the interpretation of wills. The first principle, he said, required courts, wherever reasonably possible, to adopt an interpretation that avoids intestacy. The second principle, he maintained, required avoidance of any construction that postpones vesting of the estate after the testator’s death. To support the first principle, counsel for the appellant relied on the observation of Mookerjee, J. in Sarojini Dassi v. Gnanendranath Das & Others, where the judge, after examining the various dispositions in the will, concluded that taken together the testator intended to dispose of all his property and added that, if doubt existed, the will should be read, if possible, so as to produce a testate outcome rather than intestacy. The judge cited four English cases—In re Redfern, In re Harrison, Kirby Smith v. Parnell and In re Edwards—to reinforce that approach. For the second principle, counsel for the appellant referred to the Privy Council decision in Bickersteth & Another v. Shanu, which held that the established rule in construing devises of real estate is that they are deemed vested unless a condition precedent to vesting is expressed with reasonable clarity. Conversely, counsel for the respondent, the Attorney‑General, drew the Court’s attention to the decision of this Court in Gnanambal Ammal v. T. Raju Ayyar & Others, which the Court would later consider in its analysis.

In this case the Court observed that a presumption against intestacy may be raised only when the context of the document or the surrounding circumstances clearly justifies it, and that such a presumption is permissible solely where there is undeniable ambiguity in determining the testator’s intention. The Court referred to the earlier pronouncement of Mukherjea, J., who emphasized that the fundamental maxim for courts construing a will is to strive to ascertain the testator’s intention. That intention, the Court noted, must be derived primarily from the language of the will itself, which must be read as an integrated whole, without indulging in conjecture or speculation about what the testator might have done had he been better informed or better advised. In support of this approach Mukherjea, J. cited similar observations made by the Privy Council in Venkata Narasimha v. Parthasarathy (1). Concerning the principle that intestacy should be avoided, Mukherjea, J. explained that the desire to avoid intestacy originates from English habits of thought and should not necessarily bind an Indian court. Accordingly, the Court concluded that the rule formulated by Mr. Sastri, which seeks to construct a will against the avoidance of intestacy, cannot be treated as an absolute rule of overriding importance. When two constructions are reasonably possible—one producing intestacy and the other avoiding it—the Court would be justified in preferring the construction that avoids intestacy. This preference may be invoked even where the words used are ambiguous, by adopting a construction that removes the ambiguity in a manner that prevents intestacy. In the same vein, the Court held that the rule concerning postponement of vesting follows the identical reasoning. It is evident that a court cannot approach the task of construing a will with a preconceived notion that intestacy must be avoided or that vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be determined by construing the will as a whole and giving the relevant clauses their plain grammatical meaning considered together. The Court further noted that, in general, referring to the construction of other wills is not profitable or useful, because each will must be interpreted according to its own terms, and a fair and reasonable construction of its words may vary from will to will. Consequently, the relevant clauses must be examined carefully to decide which of the two rival constructions should be adopted. Mr. Sastri argued that clauses 11 and 12 are separate and independent clauses and they deal

In the present dispute, counsel for the appellant argued that clauses eleven and twelve of the will should be treated as two separate and distinct provisions. According to his submission, clause eleven deals with the legal position that would arise if the testator’s widow were to adopt the appellant after the testator’s death, whereas clause twelve addresses the situation that would occur if no adoption were ever made. He maintained that, in the absence of an adoption, a vested right in respect of one half of the property already existed in favour of the appellant. He described this right as a vested interest that could be defeated only by a later adoption, and he asserted that it was unrelated to any right that might be conferred upon the appellant if he were adopted under the terms of clause eleven. The appellant’s counsel therefore contended that the true meaning and effect of clause twelve lay in preserving this vested right, thereby avoiding both intestacy and any postponement of vesting.

Conversely, the respondents advanced a different construction, which had been accepted by the lower courts. They argued that clause twelve must be interpreted as operating at the moment of the testator’s death and not at any later time. Under this view, the moment the testator died, clause twelve ceased to have any effect, and the appellant’s rights should be determined solely by reference to clause eleven. They warned that if clause twelve were read in isolation, detached from clause eleven, the appellant’s position would appear stronger, but such an isolated reading would clash with established rules of construction. The Court noted that clauses six through eleven primarily deal with the prospect of an adoption that the testator expected his widow to make if he himself failed to adopt during his lifetime. Clause eleven, in particular, creates a vested interest in favour of respondent five, to be established before any adoption by respondent one takes place; it therefore operates as an independent grant. Following this, clause eleven also anticipates the possibility that the appellant might be adopted, and it delineates the rights that would arise on that basis, without requiring further analysis of the other bequests contained in the same clause.

Having set out the provisions of clause eleven on the premise that the widow might adopt, the Court explained that clause twelve was intended to address an alternative scenario that would arise only in the circumstances contemplated by clause eleven. Specifically, clause twelve was meant to take effect only at the instant of the testator’s death and not thereafter. If this interpretation were correct, the appellant would have no entitlement under clause twelve at all. The Court then identified serious difficulties in accepting the appellant’s construction. The opening segment of clause twelve refers to four possible contingencies: a joint adoption by the testator and his wife; the death of the wife during the testator’s lifetime; the testator’s failure to adopt during his own life; and the death of an adopted child before the testator’s own death. Accepting the appellant’s argument would require splitting the initial phrase of the clause into two separate parts, reading “myself and my wife” as “myself or my wife,” a reading the Court found inappropriate in context. Moreover, the contention that a joint adoption by the testator and his wife could not occur was considered overly academic and technical, given that Hindu law permits the testator to adopt and that, had the testator adopted during his life, his wife would have joined him in that adoption. Consequently, the Court concluded that the respondents’ interpretation, which integrates clause twelve with the broader scheme of the will and limits its operation to the moment of death, was more consistent with the principles of construction.

The Court noted that the first part of clause 12 listed four alternative situations: a joint adoption by the testator and his wife, the death of the wife during the testator’s lifetime, the failure of the testator to adopt during his lifetime, and the death of an adopted child before the testator’s own death. The Court explained that accepting the appellant’s argument would require splitting the first part of the clause into two separate provisions and interpreting the phrase “myself and my wife” as meaning “myself or my wife.” The Court found such a reading inappropriate in the given context. While acknowledging that the argument that Hindu law does not recognise joint adoption by husband and wife is overly academic, the Court observed that Hindu law does allow a testator to make an adoption and that, if the testator had adopted during his lifetime, his wife would have joined him, thereby recognising an adoptive mother (Iratigrihitrimata). Accordingly, the Court rejected the contention that the conjunction “and” should be read as “or” simply because joint adoption is not expressly described in Hindu law. This constituted the first difficulty in accepting the appellant’s construction. The Court identified a second difficulty: if “and” were read as “or,” the third situation mentioned in the first part of the clause—where the testator adopts the boy alone—would become redundant, because the testator’s solitary adoption is already covered by the first part of the clause. Counsel for the respondent fairly conceded that this redundancy would follow from his proposed construction, but argued that such redundancy need not necessarily invalidate the construction. A third difficulty pointed out by the Court concerned the effect of clause 12 on the right already vested in respondent 5 under clause 11. Under clause 11, respondent 5 had been given half of the estate pursuant to an agreement between the testator and his deceased cousin Thayumanaswami Pillai. Consequently, there was little reason to make a further disposition in favour of respondent 5 under clause 12. The Court observed that this difficulty was not seriously contested, and the only argument raised was that the testator, as an abundant precaution, reiterated the bequest to respondent 5 even though clause 11 had already provided for it. The Court then highlighted a further difficulty relating to the last part of clause 12. That portion provided that, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them, respondents 2 and 3 would take all the properties for the remainder of their lives, subject to the conditions specified. The Court reasoned that interpreting “all the properties” to mean every asset without exception would divest respondent 5 of his vested right under clause 11 if he died after the testator but before the widow, and no adoption had occurred, which would be plainly inconsistent with clause 11. Counsel for the respondent suggested that “all the properties” should be limited to those that would have passed to the appellant had he been adopted, i.e., half of the property allotted under clause 11. The Court found this limitation to be wholly unjustified. Thus, after considering these difficulties, the Court concluded that clauses 11 and 12 must be read together in a manner that preserves the vested rights already created and avoids the inconsistencies identified.

In the will the testator stipulated that if there was no adoption and if Kalyanasundaram died before the testator, then respondents 2 and 3 would take all the properties and enjoy them during their lifetime subject to the conditions specified in that clause. It is clear that if the expression “all the properties” is to be understood in its ordinary sense, meaning every one of the properties without exception, then the property already vested in respondent 5 under clause 11 would be taken away by the operation of this clause in the event that respondent 5 died after the testator but before the widow and neither the testator nor the widow made any adoption. Such a result would be plainly inconsistent with clause 11. Confronted with this difficulty, counsel for the appellant argued that the context required the phrase “all the properties” to be limited to those properties which would have passed to the appellant had he been adopted, that is, to the half of the property that clause 11 would have given him on the basis of his adoption. The Court found that imposing such a limitation on the words “all the properties” was wholly unjustified. Accordingly, having read clauses 11 and 12 together, the Court agreed with the High Court’s conclusion that clause 12 was intended to operate at the time of the testator’s death and not thereafter, and that the appellant could acquire an interest under clause 12 only if the testator’s widow predeceased the testator and no adoption occurred before the testator’s death. Because clause 12 was not intended to be operative at the relevant time, the appellant could not claim any right or title on its strength. Consequently, the appellant’s rights are derived solely from clause 11, and those rights cannot arise unless and until he is adopted by respondent 1. This view leaves open the possibility of intestacy and a postponement of vesting, a situation that cannot be avoided. The lower courts had taken this view, and after carefully considering the argument advanced on behalf of the appellant, the Court saw no reason to disturb that conclusion. The appeal therefore fails, no order as to costs is made, and the appeal is dismissed.