Ramachandra Shenoy And Another vs Mrs. Hilda Brite And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 452 of 1959

Decision Date: 01/04/1963

Coram: N. Rajagopala Ayyangar, S.K. Das, A.K. Sarkar

In the matter titled Ramachandra Shenoy and Another versus Mrs. Hilda Brite and Others, decided on 1 April 1963, the Supreme Court of India rendered its judgment under the authorship of Justice N Rajagopala Ayyangar, with Judges S K Das and A K Sarkar forming the bench. The petitioners, Ramachandra Shenoy and another individual, were opposed by respondents identified as Mrs. Hilda Brite and others. The citation for this decision appeared as 1964 AIR 1323 and 1964 SCR (2) 722, with related citator references including R 1976 SC 794 (8) and R 1985 SC 1359 (5). The case concerned the interpretation of a clause in a will concerning the construction of the phrase “shall enjoy permanently and with absolute right” and the expression “after her lifetime.”

The will in question was executed by Mrs. Mary Magdelene Coelho on 25 July 1907. Clause 3(c) of that will declared that all movable property in her possession at the time of her death, including amounts to be received and cash, should be enjoyed by her eldest daughter Severina Sobina Coelho after the testatrix’s death, and that after Severina’s lifetime, her male children should enjoy the property permanently and with absolute right. Mrs. Coelho died in February 1946, and in September 1946 a suit for partition and separate possession was filed by the widow and daughter of Denis, who was one of Severina’s sons. The plaintiffs argued that Severina’s interest under clause 3(c) was limited to a life interest, with the remainder in absolute right passing to her male issue. The defendants contended that clause 3(c) granted Severina an absolute interest, thereby causing the entire property to pass under the court‑ordered auction and rendering the partition claim untenable.

The trial court and the District Judge accepted the defendants’ argument, but the High Court reversed that decision, holding that Severina possessed only a life interest under clause 3(c). The appellants sought special leave to bring the matter before the Supreme Court, raising solely the issue of whether clause 3(c) conferred an absolute interest upon Severina or merely a life interest. The Supreme Court held that the only reasonable construction of clause 3(c) was that Severina’s interest was a life interest, with the absolute remainder vested in her male children. The Court explained that the use of the words “after her lifetime” demonstrated the intention to create a life interest, and that a fundamental principle of will construction requires giving effect to every disposition to the extent that the law permits. Additionally, each will must be interpreted based on its own language and the context in which its clauses appear. The judgment was delivered under civil appellate jurisdiction.

No. 452 of 1959 was the number assigned to this appeal, which was filed by special leave from the judgment and decree dated 25 August 1959 of the Madras High Court in S. C. No. 2371 of 1950. Counsel for the appellants were S. N. Andley and A. G. Ratnaparkhi. Counsel for respondents numbered 1 and 19 were A. V. Viswanatha Sastri, G. Gopalakrishnan and R. Ganapathy Iyer. Counsel for respondents numbered 8 to 14 were M. V. Goswami and B. C. Misra. The appeal was decided on 1 April 1963, and the judgment was delivered by Justice Ayyangar. The matter presented a short but difficult question concerning the correct interpretation of a will. The testatrix was an Indian Christian woman of the Roman Catholic faith, Mrs. Mary Magdalene Coelho, who was a widow and owned substantial property. Earlier in her life she had executed settlements that transferred portions of her estate to her children. The will that required construction had been executed on 25 July 1907 and dealt with the assets that remained in her possession after those earlier settlements. At the time the will was made she had originally four daughters, but only two survived: her eldest daughter Severina Sabina Brito and her second daughter Mary Matilda Coelho. The surviving members of her family who were relevant to the construction of the will were a granddaughter, Juli Mary Margaret Fernandez, who was the daughter of the deceased fourth daughter, and the four sons of the eldest daughter Severina. The third daughter had died before 1907 and left no issue. The Court then turned to the terms of the will.

The clause whose meaning was in dispute was clause 3(c). The introductory clauses 1 and 2 were merely factual statements and did not contain any disposition, so they were not reproduced. The operative part of the will began with clause 3, which was divided into three sub‑clauses. Sub‑clauses (a) and (b) identified certain immovable properties that had not been included in the earlier settlements and therefore remained subject to the testatrix’s discretion. Sub‑clause (c) effected the disposition of those identified immovable items together with all other movable property that the testatrix might own at her death. It was noted that the original will was drafted in the Canarese language and that there was a dispute about the proper translation of clause 3(c). The Court set out the official translation that appeared in the printed record and indicated that it would later consider alternative translations and the arguments based upon them. The official translation of clause 3(c) read as follows: “All kinds of movable properties that shall be in my possession and authority at the time of my death, i.e., all kinds of movable properties inclusive of the amounts that shall be got from others and the cash; all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and …”

The clause that had been extracted from the will read that the eldest daughter, Severina Sobina Coelho, would have “with absolute right……”. The remainder of that clause was considered immaterial and therefore omitted from the record. In addition to clause 3(c), the will contained clauses 4 and 5, which had been cited by counsel in the arguments before this Court and also in the lower courts as aids for interpreting clause 3(c). Clause 4 read: “The bagaitu hithlu land and the house situated therein … and the buildings, shops, etc. attached thereto – these my second daughter, Mary Matilda Coelho should enjoy up to her death only; and further, she should not alienate them in any manner by way of gift, sale, mortgage, etc. After the lifetime of the said daughter of my mine, viz., Mary Matilda Coelho, the property should be enjoyed by the daughter of my fourth daughter, Mary Margaret, i.e. of Julia Mary Margenta Fernandez hereditarily and with permanent right. In the said property, the said Julia’s father and his heirs have no manner of right whatsoever.” Clause 5 stated: “If the said Julia does not marry or if she has no issues, the said Julia should enjoy the said property up to her death and thereafter this property of mine should be enjoyed by my eldest daughter, Severina Sobina Coelho and after her by her male descendants with permanent rights.” The central issue for determination in the appeal was whether, under clause 3(c), the interest that Severina obtained was an absolute ownership right or merely a life interest, with an absolute remainder vested in her male issue.

To appreciate how the question arose, it was necessary to set out the procedural background. The appeal originated from a suit for partition and separate possession that had been filed in September 1946 by the widow and daughter of Denis, who was one of the sons of Mrs. Severina Sabina. The suit concerned a parcel of land measuring one acre and thirty‑seven cents together with the houses and structures standing thereon, which formed part of the property described in clause 3. Severina had died on 14 February 1946. The plaintiffs contended that, according to clause 3(c), Severina had acquired only a life interest in the said property and that the absolute remainder was intended to vest in her male descendants. The contesting defendants, who claimed under a purchaser at a court sale executed against Severina, argued that a proper construction of the clause gave Severina an absolute interest in the property; consequently, the property, and not merely her life interest, passed to the purchaser at the auction, rendering the partition claim untenable. Both the trial judge and the district judge on appeal accepted the defendants’ construction and dismissed the suit. On further appeal to the High Court, the learned judge reversed the decree, holding that Severina’s interest was limited to a life estate, a construction now challenged by the appellants.

In this case the single judge who had originally reversed the decree issued a new decree in favour of the suit, holding that the daughter Severina had been granted only a life interest in the property described in clause 3 of the testamentary instrument. The appellants, who are the contesting defendants, challenged the correctness of that construction before this Court. It is necessary to note that prior to the suit which is now before appeal there had been a number of other proceedings between the parties, but the Court found it unnecessary to set out those matters in detail. Moreover, several of the parties to those earlier proceedings died while the litigation was still pending and their legal representatives have been added to the record; however, reference to those deaths is also unnecessary because no issue in the present appeal depends upon them. The only question that remains for determination on appeal is whether, under clause 3(c), Severina – the eldest daughter of the testatrix – acquired an absolute title to the property or whether her interest was limited solely to a life estate, the remainder of the estate being devised to her male issue.

The testatrix was an Indian Christian, and consequently the interpretation of her will is governed by the rules of law and the principles of construction found in the Indian Succession Act X of 1865, which was the statute in force at the relevant time in 1907. Although the 1865 Act has since been repealed, every relevant provision of that Act was reenacted without alteration in the Succession Act of 1925. Because the 1865 Act was the operative legislation at the time the will was made, the Court will refer to its provisions and will treat it as “the Act.” The discussion begins by observing that this appeal does not involve any special rule of law; rather, it concerns only the general rules of construction set out in the Act for interpreting wills. Some of these rules merely restate the ordinary principles that apply to the construction of any document, whether testamentary, inter‑ vivos, or otherwise non‑dispositive, and would be applicable even in the absence of a specific statutory provision. For example, section 69 directs that the meaning of any clause in a will must be gathered from the entire instrument and that all its parts are to be read in relation to each other; section 72 provides that no portion of a will should be discarded as meaningless if a reasonable construction can be placed upon it; and section 73 states that when the same words appear in different parts of the same will, they are to be understood in the same sense unless the will indicates a contrary intention. The Court is particularly concerned with a smaller group of provisions, and relies primarily on sections 82 and 84 of the Act. Section 82 provides that a person to whom property is bequeathed is entitled to the whole interest the testator possessed in that property, unless the will indicates that only a restricted interest was intended. Section 84 deals with situations where words describe a class of persons but do not make them distinct objects of an independent gift, and similarly holds that the beneficiary receives the whole interest unless the will shows a contrary intention. These two sections form the foundation of the Court’s analysis of whether Severina’s interest was limited to a life estate or was absolute.

Section 82 of the Act states that where property is bequeathed to any person, that person is entitled to the whole interest of the testator in the property unless it appears from the will that only a restricted interest was intended for him. Section 84 provides that where property is bequeathed to a person and words are added which describe a class of persons, but do not denote them as direct objects of a distinct and independent gift, the person is likewise entitled to the whole interest of the testator unless a contrary intention appears by the will. The appellants’ counsel relied heavily upon section 84 and the illustrations that accompany it. The illustrations read as follows: (a) “A bequest is made to A and his children, to A and the heirs male of his body; in each of these cases, A takes the whole interest which the testator had in the property.” (b) “A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.” (c) “A bequest is made to A for life, and after his death to his issue. At the death of A the property belongs in equal shares to all persons who shall then answer the description of issue of A.” These examples were cited to demonstrate that, where the language of the will does not expressly limit the interest, the recipient receives the entire interest.

The counsel for the appellants submitted that clause 3(c) of the will unmistakably showed that the testatrix intended a gift to her eldest daughter, Severina, of the properties mentioned in clause 3. The dispute, according to the counsel, centred on whether the interest conveyed to Severina was limited to her lifetime or was an absolute interest. The counsel argued that under section 82 the presumption favours an absolute interest unless the will demonstrates a contrary intention, and that no such contrary intention was manifested. The counsel further contended that the law does not require any specific wording to create an absolute interest; the mere use of the word “enjoy” in the operative clause would ordinarily be sufficient. However, the testatrix, seeking to make her intention unmistakable, added the words “shall enjoy permanently and with absolute rights.” The counsel acknowledged that the will also contains provisions granting her male children an interest after her lifetime, using the same phrase “permanently and with absolute right.” If Severina’s interest were indeed absolute, any subsequent disposition to the male children would be invalid. The counsel therefore argued that the language of clause 3(c), when read alongside the vocabulary used elsewhere in the will, supports a conclusion that Severina was intended to receive an absolute interest in the property.

In clause 4 the testatrix clearly intended to give only a life‑interest. That clause stipulated that the second daughter, Matilda Coelho, could enjoy the property only until her death and also imposed a restriction prohibiting any alienation of the interest. The absence of such limiting provisions in the bequest to the eldest daughter, Severina, under clause 3(c) was, according to counsel, a clear indication that the legatee was meant to receive an absolute interest. Counsel further observed that the bequest fell within the class of dispositions described in section 84, particularly the illustration (a) to that section. It was these submissions that formed the basis on which both the trial judge and the district judge on appeal accepted the construction advanced by the appellants. Ultimately, the central issue in construing clause 3(c) was whether the phrase “shall enjoy permanently and with absolute right” applied to Severina’s interest or was limited solely to the interest of her male children who were to succeed her after her lifetime. Counsel for the appellants challenged the correctness of the translation recorded in the paper‑book, pointing out that the Canarese original used the word “enjoy” only once, referring jointly to the daughter and her male children, and that the words “permanently with absolute rights” qualified the nature of the enjoyment for both.

The court noted that it would consider other translations of the relevant terms but emphasized that this should not be taken as encouragement to relax the established rule that, except in exceptional circumstances, any dispute over the accuracy of an official translation must be resolved by obtaining a fresh translation from the Court’s officers on a timely application. In the present matter, the court permitted counsel to place before it the alternative translations because the translation appearing in the paper‑book, although recorded by the High Court, had not been adopted by the trial judge. The trial judge had obtained a new translation from the Official Translator of the High Court, which was reproduced in the judgment now under appeal, and had also prepared his own translation of the passage. After setting out the original wording, the trial judge rendered the clause as: “after me my eldest daughter S. Coelho and after her lifetime her male children also with permanent and full rights shall enjoy.” The single judge of the High Court accepted the following as the correct rendering: “All these (properties) shall after me be enjoyed by my eldest daughter Severina Sabina and after her lifetime by her male children too as permanent and absolute hukdars.” The court observed that these translations were substantially alike, but differed from the paper‑book version in that the verb “enjoy” occurred only once in the former translations, whereas it appeared twice in the paper‑book. Counsel argued that because “enjoy” was singular, the subsequent qualification “as permanent and absolute hukdars” should govern both the daughter’s and her male children’s interests. The court considered these arguments in determining the appropriate construction of the bequest.

In the High Court, the single judge accepted as the correct translation the wording that all the properties shall, after the testatrix’s death, be enjoyed by her eldest daughter Severina Sabina and, after the lifetime of that daughter, be enjoyed by her male children as permanent and absolute hukdars. The Court noted that this translation differed only slightly from another translation that read “S. Coelho and after her lifetime her male children also with permanent and full rights shall enjoy.” The Court observed that, compared with the translation appearing in the paper‑book, the High Court translation used the verb “enjoy” only once, whereas the paper‑book version employed it twice – once in relation to the daughter and again in relation to the daughter’s male issue. Learned counsel argued that because the verb “enjoy” occurred only once, the phrase “as permanent and absolute hukdars” that follows should govern both the daughter’s enjoyment and that of her male children. The Court rejected this inference, stating that the inference was not inevitable. The Court further explained that the translation prepared by the learned judge was nearer to the original spirit of the document, having been supplied together with the original Canarese text and a literal translation by Mr Viswanatha Sastri. The Court reasoned that if the bequest to Severina was expressed as a right to “enjoy” and the testatrix subsequently added that after Severina’s lifetime her male issue were to have “permanent and absolute rights,” the contrast in language indicated a distinction between the nature of Severina’s interest and that of the subsequent male issue.

The Court noted that counsel placed special emphasis on the words “too” or “also” appearing toward the end of the clause, contending that these words meant that Severina’s enjoyment was also “permanent” and accompanied by an absolute right. The Court found that reading the word “also” as extending the description of permanence to Severina’s enjoyment was unsupported by the text and the literal translation of the original language. The Court concluded that the only words governing the bequest to Severina were that she “shall after my death enjoy” the property, and that the remainder of the clause dealt with the disposition after her lifetime. Consequently, the dominant intention of the testatrix appeared to be to grant a permanent and absolute remainder to the male issue of her daughter after the daughter’s lifetime, a construction that the language of the document could sustain. Counsel further relied on section 84, arguing that the male issue of Severina were not “direct objects of a distinct and independent gift.” Applying section 84, the Court acknowledged that property was indeed bequeathed to a person – namely the daughter – but pointed out that the critical question was whether the subsequent reference to the male children constituted a separate gift or merely defined the nature of the interest granted to the first taker.

The Court examined whether the words that followed and referred to the male children enjoying “permanently and with absolute rights” functioned to designate those children as direct objects of a distinct and independent gift, or whether the words merely described the character of the interest that the first taker, Severina, was to obtain. In other words, the Court asked whether the terminology concerning the male children represented words of purchase, conferring a separate vested right, or words of limitation, indicating the nature of the interest granted to Severina.

To resolve this issue, the Court referred to the illustrations provided in section 84 of the statute. Illustration (a) described a bequest made to a first taker and his descendants. When the subsequent beneficiaries were the descendants of the first taker, the presumption was that the reference to those persons was intended to describe the quality of the first taker’s estate, not to create independent gifts for the later beneficiaries. Illustration (b) dealt with a situation where the later legatees were intended to be direct beneficiaries and were directed to take the interest together with the first taker; in that case, the interest of the first taker was reduced to a joint interest so that the subsequently named legatees could share the legacy. Illustration (c) covered cases where the later taker was a descendant of the first taker but the testator did not provide for the later taker to take the interest together with the first taker. Here, the use of the words “after the first taker’s death” created successive interests. Even if the second taker was the issue of the first, the first taker’s interest was limited to life because the language “after his or her lifetime” signaled that a life interest was intended, and that a subsequent interest would vest after that life estate ended.

Applying these principles, the Court concluded that the present case fell within illustration (c). Consequently, the bequest to Severina was held to be a mere life interest, as made clear by the expression “after her lifetime.” The Court then considered clause 4 of the will, which it regarded as strong evidence of the testatrix’s vocabulary when she intended to create a life interest. The clause contained two notable provisions: first, it stipulated that the legatee—the second daughter—“should enjoy up to her death only”; second, it expressly prohibited any alienation of the interest by gift, sale, mortgage or similar mechanisms, thereby emphasizing the limited nature of the interest conferred. The Court observed that there was no substantive distinction between the phrase “enjoy up to her death” and a provision that directs an enjoyment by a legatee while simultaneously making a gift over of the property; both phrases indicated a limitation of the interest to the life of the legatee rather than an absolute, transferable right.

In examining clause 4 of the will, the Court observed that the clause granted an absolute interest to the first legatee conditioned upon “after the death” of that legatee, and that the prohibition against alienation contained in the same clause did not materially affect the interpretation of the testatrix’s language. The Court noted that when clause 5 was considered, it plainly created a life interest for the testatrix’s granddaughter Julia by employing the words “enjoy the property up to her death” and did not repeat the alienation restriction found in clause 4. From this comparison, the Court concluded that the expressions “after the lifetime” and “after the death” were intended by the draftsperson of the will to denote a terminable interest, namely a life interest, and that clause 3(c) likewise employed the phrase “after her lifetime” to convey the same meaning. The Court further identified another factor supporting this construction: it was undisputed that under clause 3(c) the testatrix intended to give an absolute and permanent interest to the male children of her daughter. However, if the appellants’ argument were accepted, the legacy to those male children would be void because a gift could not be made after an absolute interest had vested in their mother. The Court explained that the principle governing such situations held that where property was given absolutely to A, the residue upon A’s death passed to A’s heirs or under A’s own will, and any attempt to separate the incident of the absolute interest by directing a different disposition would be invalid as it conflicted with the nature of the absolute interest created. The central question, therefore, was whether a proper construction of the will established an absolute interest in favour of Severina. The Court reiterated the cardinal rule of will construction that, so far as legally possible, effect must be given to every disposition contained in a will unless the law precludes it. Accordingly, when two provisions appear to conflict by granting successive interests, the Court strives to uphold the first valid interest and to give effect to the subsequent one only to the extent that it does not create repugnancy. Consequently, when a bequest to A appears absolute and is followed by a gift of the same property to B “on,” “after,” or “at” A’s death, the presumption is that A receives a life interest while B takes a remainder, effectively limiting A’s apparently absolute interest to accommodate B’s subsequent interest. In the present case, the Court acknowledged that the testatrix indeed intended to confer an absolute interest to the male children of Severina, and the issue then turned on whether such an intention could be given effect. If Severina’s interest were held to be absolute, the intended benefit to her male children could not be realised; however, if the wording of the will was interpreted to show that Severina’s interest was limited to her lifetime, the Court could give effect to both testamentary dispositions, thereby preserving the testatrix’s overall intent.

The Court observed that if the interest granted to Severina were intended to be absolute, then the intention could not be given effect. However, the Court held that where the language of the will, on a reasonable construction, showed that the interest of Severina was not meant to be absolute but was limited to her lifetime, it would be appropriate for the Court to adopt that construction, because such an interpretation would give effect to every testamentary disposition contained in the will. In this regard the words “after her lifetime” occurring in clause 3(c) were considered to be of crucial importance. The Court explained that those words signified that the persons named thereafter were to take an interest only after Severina’s death, that is, successively and not jointly with her. Accordingly, unless the words referring to the interest given to the male children were interpreted merely as words of limitation—describing the nature of the interest that Severina herself would hold—and not as words of purchase, the only reasonable construction of the clause was to hold that Severina was granted a life interest only and that the remainder in absolute was vested in her male children. This interpretation was the one adopted by the learned Single judge of the High Court, and the Court affirmed that it was correct. Numerous authorities were cited by counsel on both sides, but the Court noted that in the construction of a will, precedents are of limited assistance because each will must be construed according to its own terms and the surrounding circumstances. Consequently, the Court did not feel it necessary to refer to those decisions. The appeal therefore failed and was dismissed with costs, and the decree of dismissal of the appeal was affirmed.