CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2577 of 1969.
From the Judgment and Order dated 18-7-1967 of the Allahabad High Court in First Appeal No. 166/60.
M. V. Goswami for the Appellant.
Mohan Behari Lal and Vishnu Mathur for Respondent No. 1.
The Judgment of the Court was delivered by
The question in the appeal is about the construction of a will. The facts which are now not in dispute before us are as follows : The testator, Pearey Lal Singh Bhatia died on 30-3-52 leaving behind him a will dated 8-4-1944, a widow Lakshmi Devi being his second wife, a son Om Prakash by Lakshmi Devi and the widow and daughters (Manmohini, Raj Kumari and Pramod Kumari respectively) of a pre-deceased son by a pre-deceased first wife. Manmohini and her daughter Raj Kumari had left the family house and moved away to Mathura while Pramod Kumari stayed on with her grand-father and was brought up by him. Lakshmi Devi, widow of Pearey Lal Singh, died in 1958. We are now concerned with the title to a sum of Rs. 16,490/- lying in deposit with the State Bank of India and the District Cooperative Bank, Bulandshahr. Om Prakash claims the amount under the will dated 8-4-1944. The will, a registered one, was in the following terms:-
"I, Pyare Lal Singh, son of Babu Ghanshyam Narain
Saheb, by caste Kshatriya Bhatia, resident of Mohalla
Sheopuri, Bulandshahr, do declare as follows:-
"I, the executant, am owner in possession of the
property specified as given below in Schedules ‘A’, ‘B’
and ‘C’. The
property given in Schedules ‘B’ and ‘C’ has been
purchased by me the executant, with my own funds in the
name of my wife Smt. Laksmi Devi and my son Om Prakash.
In fact I, the executant, am the owner of it as well.
The entire movable and immovable property, owned and
possessed by me, is my self, acquired property and is
not ancestral property, and I the executant, have all
sorts of rights to make transfers in respect thereof.
Now I, the executant, am about sixty years of age and I
have a wife, Lakshmi Devi, a son, Om Prakash, and two
dear grand-daughters, Raj Kumari and Pramod Kumari,
daughters of my first son Krishna Chandra Singh,
M.A.,LL.B., who has already died in June, 1932, leaving
behind his widowed wife Smt. Man Mohini Devi, besides
these two daughters aforesaid. Both the daughters of my
deceased son aforesaid, who are my grand-daughters, are
still minors. By way of prudence and for future
management I, the executant, make a will as under :-
That I, the executant, till I am alive, shall
remain owner of my entire movable and immovable
property, cash etc., which I possess at present or
which may be added to it during my life time and which
I, the executant, leave behind at the time of my death.
After my death, if my wife Smt. Laxmi Devi remains
alive, she will become owner of my entire estate with
life interest, but she shall have no power to transfer
any movable and immovable property. If my wife Smt.
Lakshmi Devi predeceases me, then under such
circumstances, after my death my son Om Prakash, who
has now appeared at the examinations of the X class of
the English School and who is 18 years of age, shall
become permanent owner in possession of my entire
estate and he shall be bound by the conditions laid
down in this will. I and my wife shall be duty-bound to
maintain and perform marriage etc. of my grand-daughter
Pramod Kumari and my son Om Prakash and it will
incumbent upon me and my wife to discharge that duty.
My second grand-daughter Raj Kumari lives with her
mother at Mathura. After the death of her father, she
or her mother did not come to me and remained under the
guidance of her maternal grand-father and grand-mother.
Therefore, it is the duty of the mother of my grand-
daughter Rajkumari, who is a teacher in a girl’s school
in Mathura City, to maintain her and perform her
marriage. Even then I lay down for her as well that
a sum upto Rs. 2000/- may be given or spent for her
marriage. Appropriate expenses are to be incurred over
the education and marriage of my second grand-daughter
Pramod Kumari and my son Om Prakash, who are living
with me and are getting education. My daughter-in-law
Smt. Manmohini Devi aforesaid or her daughters
aforesaid or my any other relation shall not have any
right or share in my any estate under any
circumstances. Only the expenses of maintenance,
marriage etc. of my both the grand-daughters aforesaid
and later on the expenses of their bringing here and
sending off shall be met according to custom in
accordance with the directions given above. It is also
my will that after my death, a sum of about Rs. 20/-
per mensem out of the income from rent of shops and
houses and other field property may be sent for
charitable purposes in the following manner :-
I shall continue to do all the charitable acts
aforesaid during my life time. After my death, if my
wife remains alive, she shall, and after her death my
son Om Prakash, may he live long, shall be duty-bound
to continue this charitable act. I have strong hopes
that my wife Lakshmi Devi and my son Om Prakash shall
execute this will of mine in every way and in this way
they shall cause benediction to my soul, and that they
shall make additions to my estate and shall not allow
it to be under charge or to decrease in any way."
The testator, it is seen, noticed the existence of five possible heirs : his wife, Lakshmi Devi, his son Om Praksh, his deceased son Krishna Chandra’s widow, Manmohini and Krishna Chandra’s daughters, Raj Kumari and Pramod Kumari. He was desirous that Pramod Kumari should be brought up by himself and his wife and that they should also perform her marriage. He was also desirous that a sum of Rs. 2000/should be set apart for the marriage of Raj Kumari. Apart from that, he did make it clear that Man Mohini, Raj Kumari and Pramod Kumari should have no right or interest in any of his properties under any circumstances. On his death his properties were to go to his wife Lakshmi Devi who was to have a life interest in them. If his wife Lakshmi Devi predeceased him, the properties were to go to his son Om Prakash. Directions were given for the carrying out of certain charitable objects. His wife Lakshmi Devi and after her death, his son Om Prakash were enjoined to perform the charitable acts. A reading of the whole of the will clearly shows that it was the intention of the testator that his son Om Prakash and none else was to be the ultimate owner of the properties. No doubt, the testator while specifying that Om Prakash was to take the properties in case Lakshmi Devi predeceased the testator, did not specify that Om Prakash should take the properties after the death of Lakshmi Devi in case Lakshmi Devi survived the testator to enjoy the life estates given to her under the will. But this is a case where the testator’s intention to give the properties to Om Prakash in case Lakshmi Devi predeceased the testator was so patently and reasonably certain, ‘no speculation but a compelling conviction’, that the court would be justified in exercising its curial draughtsmanship for the testator and supplying the specific words missing from the will. The Court has undoubted jurisdiction to do so.
In William Abbott v. Eliza Middleton(1), the testaor gave an annuity of &2000 to his widow, and set apart, out of his personal property, a sum sufficient to provide for its payment. He directed that, on the death of his widow, the sum so set apart was to go to his son George for his life and on his death to George’s children, but he directed, "in case of my son dying before his mother, then and in that case the principal sum to be divided among the children of my daughter". On the date of the will, George was not married. He married subsequent to the will and had a son. He died before the testator. The testator’s widow died soon thereafter. A question arose whether George’s son was entitled to take the sum after the death of the testator’s widow. He could so take if the words "without leaving any child" could be supplied after the word "dying" in the deposition relating to the final gift over. The Lord Chancellor observed, "where there is an uncertainty as to the meaning of any part of a will, the right of a Court of construction even to introduce words, in case of necessity, is clearly stated by Lord St. Leonards, in the passage quoted from Eden v. Wilson(2), and declared the right of George’s son to the sum.
Re Smith(3), re Cory(4) and re Riley’s Will Trusts(5), are other instructive cases where words have been supplied by Courts because of "so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed".
In Jarman On Wills, 8th Edn. 592, it is said :-
"Where it is clear on the face of a will that the
testator has not accurately or completely expressed his
meaning by the words he has used, and it is also clear
what are the words which he has omitted, those words
may be supplied in order to effectuate the intention,
as collected from the context."
As already observed by us, we do not have the slightest doubt in the present case that it was the clear and unambiguous intention of the testator that his son Om Prakash should succeed to his estate after the death of Lakshmi Devi. Necessary words to that effect can and must be read into the will.
The learned trial Judge, on a strict and narrow construction of the will, came to the conclusion that Om Prakash was not entitled to succeed, under the will, on the death of Lakshmi Devi and that the amount had to be divided among Om Prakash, Man Mohini, Raj Kumari and Pramod Kumari. On appeal, the High Court of Allahabad held that on a true construction of the will Om Prakash alone was entitled to the amount. In the view that we have taken, we agree with the conclusion of the High Court.
Before the High Court, Pramod Kumari filed an application for reception of additional evidence. The principal additional evidence sought to be adduced was an alleged letter said to have been written by late Pearey Lal Singh to the bank nominating Pramod Kumari as the person entitled to the amount in deposit with the Bank. The letter itself was not filed along with the application but a request was made to summon the letter from the Bank. The High Court rejected the application. The application to the High Court was made very many years after the suit had been filed, and also quite some years after the appeal had been filed before the High Court, and we do not think that we will be justified in interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage. The appeal is therefore dismissed but in the circumstances with no order as to costs. S.R. Appeal dismissed.