PETITIONER:
MRS. SHIRINBAI MANECKSHAW & OTHERS
Vs.
RESPONDENT:
NARGACEBAI J. MOTISHAW & OTHERS.
DATE OF JUDGMENT:
09/05/1956
BENCH:
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
DAS, S.K.
CITATION:
1956 AIR 747 1956 SCR 591
ACT
Will-Construction-Substitutional bequest, Validity
of Indian Succession Act (XXXIX of 1925), ss. 67, 129, 130.
HEADNOTE
A Parsi testator by a holograph will provided, "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 her the said Mrs.
Shirinbai Maneckshaw Bejonji Mistry, sole executrix of this
my Will................. The will was attested by two
witnesses one of whom was the husband of Mrs. Shirinbai.
Mrs. Shirinbai as the sole executrix obtained probate of the
said will from the High -Court and took possession of the
estate. A suit was brought by the heirs of the testator in
the Court of the Civil Judge for a declaration that the
bequest in favour of Mrs. Shirinbai was void in law by
operation of s. 67 of the Indian Succession Act and that the
estate of the testator had, therefore, become divisible
amongst his heirs as on intestacy. The trial- Judge hold
that the bequest in favour of Mrs. Shirinbai was void under
s. 67 of the Indian Succession Act and there wag no gift
over but that the plaintiffs were not the heirs of the
testator and, consequently, they could not maintain the
suit. On appeal by the plaintiffs, the High Court agreed
with the first two findings of the trial Judge, but reversed
his decision and decreed the suit holding that the
plaintiffs were the heirs of the testator. It was contended
on behalf of Mrs. Shirinbai and her two daughters in this
appeal that on a true construction of the will there was a
substitutional bequest in favour of the heirs, executors and
administrators of Mrs. Shirin-
592
bai and that even if the bequest to her failed by operation
of s. 67 of the Act, the other bequest must take effect.
Held, that on a proper construction of the will as a whole
and the words "for her and their own use and benefit" used
by the testator and having regard to the facts and the
circumstances in which he executed it, there could be no
doubt that the intention of the testator was to create a
substitutional bequest. Although his primary intention was
to benefit Mrs. Shirinbai, the language he used unmistakably
showed that be intended to prevent his estate from passing
on to his step relations as on intestacy, should the bequest
in favour of Mrs. Shirinbai fail by reason of her
predeceasing him.
In re Mcelligott, (L.R. [1944] Chancery 216), dissented
from.
That as the will did not in terms state that the
substitutional bequest was to take effect only in the event
of Mrs. Shirinbai predeceasing the testator, and so did not
come under the illustration to s. 130 of the Indian
Succession Act, that section had no application and s. 129
of the Act would apply.
That the result was that the substitutional bequest in
favour of the two daughters, who were presumptive heirs of
Mrs. Shirinbai when the testator died, would take effect
although it must fail so far as her executors and
administrators were concerned.
JUDGMENT
CIVIL APPELLATE JURISDICTIO1N: Civil Appeal No. 213 of 1953.
On appeal from the judgment and decree dated the 30th July
1951 -of Allahabad High Court in First Appeal No. 258 of
1943 arising out of the judgment and the decree dated the
8th March 1943 of the Court ,of Additional Civil Judge at
Allahabad in Original Suit No. 27 of 1940.
S. K. Dar, B. S. Shastri, R. C. Ghatak and C. P. Lal for
the appellants.
S. P. Sinha and R. Patnaik for respondents Nos. 1, 9 to13
and 15.
I. N. Shroff for respondent No. 16.
1956. May 9. The Judgment of the Court was delivered by
DAS C. J.-This is an appeal from the judgment and decree of
the High Court of Judicature at Allahabad dated -the 30th
July 1951 reversing the judgment and decree of the.
Additional Civil Judge of
593
Allahabad dated the 8th March 1943 passed in Suit No. 27 of
1940. The relevant facts are as follows:
One Cawashaw Dadabhoy Motishaw, a Parsi, (hereinafter
referred to as the testator) died at Allahabad on the 10th
November 1937 leaving him surviving a step-brother
(Plaintiff No. 1) now - represented by his widow and
children, being Respondents Nos. 1 to a step-sister’s son
(originally Defendant No. 4, subsequently transposed as
Plaintiff No. 2) now represented by Respondents Nos. 9 to
12, a stepbrother’s son (Defendant No. 2) now represented by
Respondents Nos. 13 and 14, a step-sister (Defendant No. 3)
now Respondent No. 15 and a step-sister’s daughter
(Defendant No. 5) now Respondent No. 16. He is said to have
left considerable properties which he acquired in or near
Allahabad. Prior to his death the testator had on the 11th
March 1922 executed a holograph will in the following
terms:-
"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 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 her the said Mrs.
Shirinbai Maneckshaw Bejonji Mistry, sole executrix of this
my Will. Mrs. Shirinbai, the wife of Mr. Maneckshaw Bejonji
Mistry, residing 20, Canning Road., Allahabad, is my adopted
mother by my own will and accord and for which no one in the
world has the right to dispute about he, calling my own
mother. This will has been made and written by myself with
all my full mind with good heart and disposition and in
sound state of my body and mind. In witness thereof I have
hereunto set my hand this 11th day of March one thousand
nine hundred and twenty two (1922)".
77
594
There were two attesting witnesses to the will, namely, B.
Hirji and M. B. Mistry who was the husband of Mrs. Shirinbai
(Defendant No. 1). Shirinbai applied for and on the 18th
August 1939 obtained probate of the said will from the High
Court of Judicature at Allahabad and took possession of the
estate.
On the 13th April 1940 the testator’s step-brother
(Plaintiff No. 1) filed a suit, being 0. S. No. 27 of 1940,
in the Court of the Civil Judge of Allahabad against
Shirnbai praying for a declaration that the bequest in
favour of Shirinbai -was void in law, and that there was an
intestacy in respect of the whole estate of the testator
which became divisible amongst the heirs of the testator,
for an enquiry as to who were the heirs of the testator
according to the personal law applicable to Parsis, for
administration of the estate by and under the direction of
the Court and for necessary accounts and enquiries. The
contention of the plaintiff was that the bequest to Shirin-
bai was void under section 67 of the Indian Succession Act.
Certain other persons who also claimed to be the heirs of
the testator were impleaded as pro forma defendants Nos. 2,
3 and 4. Defendant No. 4 was later on transposed to the
category of plaintiffs as plaintiff No. 2. Shirinbai,
defendant No’ 1, filed a written statement denying that the
plaintiffs or the pro forma defendants were the legal heirs
of the testator and pleaded inter alia that the provisions
of section 67 of the Indian Succession Act were not appli-
cable to the facts and circumstances of the case and that in
any case her heirs were under the will made the direct
objects of a distinct and independent bequest and that
consequently there was no intestacy and the plaintiffs had
no locus standi to maintain the suit. Subsequently the two
daughters of Shirinibai were, on their own application,
ordered on the 23rd September 1940 to be added as defendants
Nos. 5 and 6. A separate written statement was filed on
behalf of those added defendants on the same lines as that
of their mother. The pro forma defendants naturally
supported the plaintiffs and the suit was contested only by
Shirinbai and her two daughters.
595
The following issues, amongst others, were raised and
settled, namely,
I) Is the bequest made in favour of Mrs. Mistry void in law?
II) Is the defendant No. 1 the universal legatee under the
will or are the other defendants, viz. Mrs. Patel and Mrs.
Chinimini also legatees under the Will?
III) Are the plaintiffs Nos. 1 and 2 or defendants L. J. D.
Motishaw, Mrs. A. K. Capoor, and Mrs. H. S. N. Talati
heirs of the deceased Mr. C. D. Motishaw and are they
entitled to succeed to the property left by the deceased?
IV) Is the claim barred by section 27 of the Indian
Succession Act?"
The Additional Civil Judge of Allahabad who tried the suit
recorded the folio -wing findings:-
"I) That the bequest in favour of defendant No. I was
without any limitation and conferred an absolute estate on
her and there was no gift over to her heirs.
II) That the - husband of defendant No. 1, namely Mr. M. B.
Mistry having attested the will, the bequest made to her was
void in view of the provisions of section 67 of the Indian
Succession Act.
111) That under the law of succession applicable to Parsis,
namely section 56 of the Indian Succession Act read with
Schedule II, Part 2, the plaintiffs were not the heirs of
the deceased and were not entitled to maintain the suit".
As upon the aforesaid findings the plaintiffs failed to
establish their title as heirs of the testator the suit was
held to be not maintainable at their instance and was
accordingly dismissed with costs.
The plaintiffs appealed from the judgment and decree of the
Additional Civil Judge to the High Court of Judicature at
Allababad. by its judgment and decree dated the 30th July
1951 the High Court agreed with findings 1 and 2 of the
trial court but held that the plaintiffs and the pro forma
defendants were the heirs of the testator under the law of
succession applicable to Parsis as laid down in section 56
of
596
the Indian Succession Act read with Part 2 of Schedule 11
thereto. The result was that the High Court allowed the
appeal and decreed the suit but directed the costs of the
parties in both Courts to be paid out of the estate of the
testator. On the 13th February 1953 on the application of
Shirinbai and her two daughters (Defendants Nos. 1, 5 and 6)
the High Court granted a certificate under section I 10, C.
P. C. and article 133 of the Constitution. Hence the pre-
sent appeal which has come up before us for hearing.
Shri S. K. Dar appearing in support of the appeal has not
questioned the propriety of the High Court’s decision that
the bequest in favour of Shirinbai is void in law or that
the plaintiffs and the pro forma defendants supporting them
are the heirs of the testator under the law of intestate
succession applicable to Parsis but he has rested his whole
argument on one point, namely, that even if the bequest to
Shirinbai is void under section 67 of the Indian Succession
Act, the entire will does not fail and no intestacy
intervenes because on a true construction of the will there
is a substitutional bequest in favour of the heirs,
executors and administrators of Shirinbai. He draws our
attention to the terms on which the be-, quest is made. He
frankly concedes that if the first sentence of the bequest
stopped with the words "her heirs, executors and
administrators" and those words had not been followed by the
words "for her and their own use and benefit, absolutely and
forever" then it might have been said that the words "her
heirs, executors and administrators" were words of
limitation conferring an absolute estate on her; but those
words are followed immediately by the words "for her and
their own use and benefit, absolutely and forever" which
completely alter the position. Says learned counsel that
the relevant words used in the will for making the bequest
under consideration should be read distributively, viz. "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
597
their own use and benefit absolutely and forever". So read
it becomes immediately apparent that the words "her heirs,
executors and administrators" can have no reference to the
estate given to Shirinbai and cannot be regarded as words of
limitation of Shirinbai’s estate but are clearly words of
purchase indicating that they are the direct objects of the
testator’s bounty and that an estate is given to them for
their own use and benefit, absolutely and forever. The
testator having given the estate to Shirinbai for her own
use and benefit absolutely and forever, it was not necessary
for him to use the words "her heirs, executors and
administrators" as words of limitation in order to confer an
absolute estate on her. The testator, it is said, knew that
there was a possibility of Shirinbai dying before his own
death and the bequest in her favour lapsing and evidently
did not intend that his estate should pass as on intestacy
to his step-brothers and step-sisters. Indeed he made this
will to prevent that possibility and to effectively secure
that object he made a double bequest, one in favour of
Shirinbai for herown use and benefit absolutely and forever
and the other, to her heirs, executors and administrators
for their own use and benefit absolutely and forever. The
two bequests were evidently successive and the bequest to
the heirs, executors and administrators was to take effect
on the failure of the bequest to Shirinbai. The two
bequests, it is said, were mutually exclusive and
independent of each other and even if the bequest to
Shirinbai failed under section 67 of the Indian Succession
Act by reason of her husband M. B. Mistry having attested
the will, the other bequest to ’her heirs, executors and
administrators for their own use and benefit absolutely and
forever’ must take effect under section 129 of the Indian
Succession Act. Learned counsel for the respondents
strenuously oppose this construction of the bequest and
maintain that there was only one bequest to Shirinbai of an
absolute estate and there was no alternative or
substitutional bequest to her heirs, executors and
administrators as independent objects of the testator’s
bounty. In any event
598
they contend that the case should rather be governed by
section 130 than by section 129 of the Indian Succession
Act.
The applicability of either section 129 or section 130 of
the Indian Succession Act will depend upon whether there is
in the will a substitutional bequest which is to take effect
on the failure of a prior bequest. If there is no
substitutional ’bequest then neither of the two sections can
come into play. Our task is, therefore, to construe the
will and ascertain whether there is a single bequest in
favour of Shirinbai as contended by the respondents or there
is also a substitutional bequest to take effect on the
failure of the bequest to Shirinbai as contended by learned
counsel for the appellants.
In construing the will we have to bear in mind the rules of
construction embodied in the Indian Succession Act, namely
that the will should be read as a whole and all its parts
are to be construed with reference to each other (section
82), that if a clause is susceptible of two meanings
according to one of which it has some effect and according
to the other of which it can have none, the former is to be
preferred (section 84) and finally that no part of the will
is to be rejected as destitute of meaning if it is possible
to put a reasonable construction -upon it (section 85). In
construing a will we are not fettered by the technical rules
of English law founded on the difference between realty and
personalty. Our duty is to ascertain the true intention of
the testator from the language used by him, regard being had
to all the surrounding circumstances.
The will is a holograph will written, by the testator
himself He was a person who bad settled down in Allahabad
where he was carrying on business and had acquired his
properties. There is no evidence that he maintained any
connection with his step-brothers and stepsisters. As will
appear from the will itself, the testator regarded Shirinbai
as his mother. It also appears from the will that Shirinbai
with her husband was residing at 20, Canning Road,
Allahabad, where the testator himself was also residing.
The bequest
599
to her wag immediately followed ’by the words "her heirs,
executors and administrators". According to Jarman, 8th
edition, volume 2 page 1304, an intention to create a
substitutional gift can be inferred when the gift is to a
person "or" his issue, children, etc. or sometimes to a
person "and" his issue, children, etc. In this case neither
of the two conjunctions appears in the will before the words
"her heirs, executors and administrators". But this does
not conclude the matter, for the words following, viz. "for
her and their own use and benefit" are clearly indicative of
an intention to create a substitutional bequest. The
primary intention of the testator was evidently to benefit
Shirinbai but it is quite likely, in view of the language
used by him, that he had in view the possibility of her
predeceasing him and the bequest to her lapsing and the
estate passing to his step relations as on intestacy. The
language used by the testator unmistakably evinces an
intention on his part to prevent that contingency and he
accordingly made a provision for her heirs, executors and
administrators as independent objects of a substitutional
bequest. If it is to be assumed that the testator was
familiar with the niceties of English law that in a bequest
to a person the addition of the words "her heirs, executors
and administrators" would only be regarded as words of
limitation conferring an absolute estate on that person,
then it is not intelligible why he should again use the
words "absolutely and forever". Further,, if the intention
of the testator was to use the words "her heirs, executors
and administrators" as words of limitation, then it is not
understandable why he should have used the words’ "for her
and their own use and benefit". The provision for the "own
use and benefit" of "her heirs, executors and admini-
strators" is only compatible with an intention of making a
bequest in favour of her heirs, executors and
administrators. If there was to be no direct gift to her
heirs, executors and administrators, then the question of
"their own use and benefit" was wholly out of place. If the
intention of the testator was only to give an absolute
estate to Shirinbai and that
600
her heirs, executors and administrators were only to claim
through her and not independently of her, then the death of
Shirinbai during the life-time of the testator would have
defeated his object, namely, to benefit Shirinbai
absolutely. -If, therefore, we are. to give effect to the
words "for her and their own use and benefit", as we must
according to the rule of construction embodied in the
Succession Act to which reference has been made., there can
be no getting away from the fact, apparent on the language
of the will, that the testator intended to provide for the
contingency of the bequest to Shirinbai failing by reason of
her death in the life-time of the testator by making a
substitutional bequest in favour of her heirs, executors and
administrators. In In re, Mcelligott(1) a testator, who
died in 1941, directed by his will that his residuary estate
which consisted only of personal estate be given to his wife
"and her heirs for her and their use and benefit absolutely
and forever". It was held by a single Judge that neither
the rule in Shelley’s case nor section 131 of the Law of
Property Act) 1925, which abolished that rule, had any
application to the bequest and that the widow was entitled
to an absolute interest in the residuary estate of the
testator. We are, of course, not concerned either with the
rule in Shelley’s case or with the provisions of the English
Law of Property Act, 1925, but the decision may be said to
be against the contention of learned counsel for the
appellant, for at the end of his judgment Vaisey, J. said
that the super-added words "for her and their use and
benefit absolutely and forever" did not in his view make any
difference or throw any light on the matter. There is no
reason given why no effect should be given to those words
and no reference is made to any decided case and the
observation of the learned Judge is no more than a bald
statement of his view unsupported by any reason or judicial
decision. It runs counter to the rule of construction
embodied in section 85 of the Indian Succession Act. In our
view these words, on the facts of this case, cannot be
ignored and they
(1) L.R. [1944] Chancery 216.
601
clearly indicate the intention of the testator as mentioned
above.
It is also argued that if the intention of the testator was
to make a direct gift to the heirs, executors and
administrators, then difficulties may arise. Suppose, it is
said, that Shirinbai died leaving heirs and at the same time
after having made a will of her own appointing somebody
other than an heir as her executor. Who will be the
recipient of the gift-the heirs or the executor? On the
happening of the contingency thus contemplated, serious
questions of construction may arise as to whether the heirs
and the executor are to take successively or jointly. But
that difficulty can have no bearing on the construction to
be put upon the language used by the testator. On a fair
and plain reading of the will as a whole and in view of the
language used towards the end of the will about no one in
the world having the right to dispute about his calling
Shirinbai as his own mother, we are of opinion that the
testator intended to make a bequest first to Shirinbai, for
her own use and benefit absolutely and forever and on
failure of that bequest, to make a bequest to her heirs,
executors and administrators for their own use and benefit
absolutely and forever.
There being thus a substitutional bequest in favour of the
heirs, executors and administrators the question arises
whether section 129 or section 130 of the Indian Succession
Act will apply. It may well be that the testator had in his
contemplation the possibility of Shirinbai predeceasing him
and he was, therefore, making a substitutional gift,
Nevertheless, the bequest ex facie and in terms does not
show an intention that the second bequest was to take effect
only in the event of the first bequest failing in a
particular manner, namely, the death of Shirinbai before the
death of the testator, as the will in the illustration to
section 130 did and consequently section 130 cannot apply to
this bequest. In the circumstances section 129 comes into
play and although the bequest to Shirinbai became void under
section 67 of the Indian Succession Act and did not
78
602
fail in the manner which was perhaps in the,contemplation of
the testator the substitutional bequest must take effect.
It is pointed out that Shirinbai being alive at the time of
testator’s death, there can be no person answering the
description of her heirs, executors and administrators and
therefore the substitutional gift cannot take effect. This
argument is unanswerable in so far as the executors and
administrators are concerned but in many cases the word
"heirs" has been used in a lax way to comprise persons who
may be said to be heirs presumptive at a particular point of
time which in this case. was the death of the testator. In
cases of a direct gift to the heir where the ancestor is
living, since no one can be the heir of a living person, the
technical meaning may be displaced and the person who is
heir presumptive at the relevant time may be so designated
(see Halsbury, Vol. 34, Art. 358, page 309). There is no
dispute that at the death of the testator Shirinbai bad two
daughters. The fact that the bequest to the executors and
administrators cannot take effect is no ground for holding
that the request to the heirs of Shirinbai must also fall
with it.
In our view there was a substitutional bequest an although
the request to Shirinbai failed by reason of the provisions
of ’section 6.7 of the Indian Succession Act, those who were
her Presumptive heirs at the date of the testator’s death
are entitled to take under this will and consequently there
was no intestacy and the plaintiffs had no right whatever to
maintain the suit.. We accordingly allow this appeal, set
aside the decrees of the lower Courts and dismiss the suit.
In the peculiar circumstances of this case however we order
that the costs of all the parties here as well as in the
Courts below will come out of the estate. 603.