1995 JTR(SC) 852
1995 AIR(SC) 2491 ; 1995 AIR(SCW) 3667 ; 1995 2 AllCJ 982 ; 1995 3 CCC(SC) 362 ; 1995 2 CivCC 326 ; 1995 2 CTC 389 ; 1995 3 CurCC(SC) 362 ; 1995 60 DLT 832 ; 1995 2 HinduLR 513 ; 1995 7 JT 164 ; 1995 13 LCD 1092 ; 1995 3 RRR 519 ; 1995 5 Scale 23 ; 1995 5 SCC 444 ; 1995 Supp3 SCR 35 ; 1995 WBLR 406 ; 1995 KHC 387
SUPREME COURT OF INDIA
KULDIP SINGH AND S. SAGHIR AHMAD, JJ.
Kaivelikkal Ambunhi (dead) by LRs. and others, Petitioners
Versus
H. Ganesh Bhandary, Respondent.
Spl. Leave Petn. (C) No. 4597 of 1990
Decided on 24-8-1995.
Act Referred :SUCCESSION ACT : S.88
(A) Section 88 of the Indian Succession Act, 1925 governs the interpretation of wills and provides that when two clauses or gifts in a will are irreconcilable, the later clause shall prevail over the earlier one. This provision applies directly to the present case where the testators will contained an earlier clause creating an absolute estate in favor of a nephew through the daughter of a direct sister, and a subsequent clause introducing a different mode of enjoyment termed as "Tavazhi" for the same properties. The High Court correctly relied on this principle to determine the testators intention.
(B) The key legal principles are that the rules of interpretation for wills differ from other instruments, and in the case of inconsistent provisions, the last intention of the testator prevails under the maxim 'cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est.' The court emphasized that a will may contain several clauses and the latter clause will prevail over the earlier one if they cannot be reconciled.
Facts of the case:
The testator created a will in which an earlier part bequeathed certain properties (Schedule A properties) in absolute manner to Kannan, son of his direct sister Vellachi. A subsequent recital referred to these same properties to be possessed and enjoyed as a "Tavazhi". The question was whether the earlier absolute bequest stood displaced by the later recital or whether the earlier clause should prevail.
Findings of Court:
The High Court correctly interpreted the will by giving effect to the later clause, relying on the principle that the last intention of the testator prevails in case of inconsistency. The court held that the subsequent recital indicating that the properties shall be enjoyed as "Tavazhi" represents the testators last intention and prevails over the earlier absolute bequest.
Issues:
Whether a subsequent recital in a will can override an earlier absolute bequest when the properties are the same, and whether the principles under Section 88 of the Indian Succession, 1925 apply to determine the testators intention.
Ratio Decidendi:
The court applied Section 88 of the Indian Succession Act, 1925, and held that where there are two inconsistent clauses in a will, the latter clause prevails as it represents the last intention of the testator, thereby giving effect to the subsequent recital over the earlier absolute bequest.
Result:
The special leave petition is dismissed and the judgment of the High Court is upheld.
(A) Section 88 of the Indian Succession Act, 1925 governs the interpretation of wills and provides that when two clauses or gifts in a will are irreconcilable, the later clause shall prevail over the earlier one. This provision applies directly to the present case where the testators will contained an earlier clause creating an absolute estate in favor of a nephew through the daughter of a direct sister, and a subsequent clause introducing a different mode of enjoyment termed as "Tavazhi" for the same properties. The High Court correctly relied on this principle to determine the testators intention.
(B) The key legal principles are that the rules of interpretation for wills differ from other instruments, and in the case of inconsistent provisions, the last intention of the testator prevails under the maxim 'cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est.' The court emphasized that a will may contain several clauses and the latter clause will prevail over the earlier one if they cannot be reconciled.
Facts of the case:
The testator created a will in which an earlier part bequeathed certain properties (Schedule A properties) in absolute manner to Kannan, son of his direct sister Vellachi. A subsequent recital referred to these same properties to be possessed and enjoyed as a "Tavazhi". The question was whether the earlier absolute bequest stood displaced by the later recital or whether the earlier clause should prevail.
Findings of Court:
The High Court correctly interpreted the will by giving effect to the later clause, relying on the principle that the last intention of the testator prevails in case of inconsistency. The court held that the subsequent recital indicating that the properties shall be enjoyed as "Tavazhi" represents the testators last intention and prevails over the earlier absolute bequest.
Issues:
Whether a subsequent recital in a will can override an earlier absolute bequest when the properties are the same, and whether the principles under Section 88 of the Indian Succession, 1925 apply to determine the testators intention.
Ratio Decidendi:
The court applied Section 88 of the Indian Succession Act, 1925, and held that where there are two inconsistent clauses in a will, the latter clause prevails as it represents the last intention of the testator, thereby giving effect to the subsequent recital over the earlier absolute bequest.
Result:
The special leave petition is dismissed and the judgment of the High Court is upheld.
Interpretation - This case was relied upon by the High Court for principles of interpretation of wills.
Interpretation - This case was referred to for principles of interpreting a testator's intentions in a will.
Interpretation - This case was referred to for principles of interpreting a testator's intentions in a will.
Will - This English case was cited for the principle that in a will, the latter of two inconsistent clauses prevails.
Will - This Privy Council case was cited for the rule that inconsistency between clauses must be irreconcilable before the latter clause prevails.
Will - This Privy Council decision was quoted for the rule that the principle of the latter clause prevailing applies only if clauses cannot be reconciled.
Judgement
S. SAGHIR AHMAD, J. :- The only ground on which the judgment of the High Court is questioned before us is that the Will in question was not properly interpreted and that the testator having created an absolute estate in favour of Kannan, son of his direct sister, Vellachi, it was not open to the High Court to rely upon the subsequent recital that Schedule A properties which as per the earlier part of the Will had already been bequeathed in favour of Kannan shall be possessed and enjoyed as a "Tavazhi".
2. In interpreting the Will, the High Court has relied upon a number of decisions of this Court including Ramachandra Shenoy v. Mrs. Hilda Brite, AIR 1964 SC 1323, Navneet Lal v. Gokul, AIR 1976 SC 794 and Ramakishorelal v. Kamalnarayan, AIR 1963 SC 890, in which the principles of interpretation, as also the principles on the basis of which the true intentions of the testator can be gathered, have been set out.
3. The rules of interpretation of the "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of "Will", the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or an earlier occasion. Undoubtedly, it is the last Will which prevails.
4. A will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim "cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est" which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier (See : Hammond v. Treharne, (1938 3 All ER 308).
5. This principle is also contained in Section 88 of the Indian Succession Act, 1925 which, together with its illustrations, provides as under :-
"The last of two inconsistent clauses prevails :-
Where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of Ramnagar "to A", and by the last clause of his Will leaves it "to B and not to A". B will have it.
(ii) If a man at the commencement of his Will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for benefit of B, the latter disposition will prevail."
6. It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled. (See : Rameshwar v. Balraj, AIR 1935 PC 187).
7. We do not find any infirmity in the judgment passed by the Kerala High Court and the special leave petition which has been heard after notice to the respondent, is hereby dismissed.
Petition dismissed.
For Citation: AIR 1995 SC 2491 = 1995(7) JT 164 = 1995(3) CCC 362 = 1995(5) SCC 444 = 1995(5) Scale 23 = 1995(2) HLR 513