The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention, the bench said.
The Supreme Court, in Dr KS Palanisami vs Hindu community in general and citizens of Gobichettipalayam, has observed that courts are not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the Will.
In the instant case, a Will was executed mutually and jointly by a husband and wife, wherein they intended to set apart the property for charity. One of the clauses in the Will provided that on the death of any of the spouse, the survivor shall enjoy the entire properties absolutely with all the rights. The husband died and later the wife had alienated some of the properties. The high court, declaring these transfers as null and void, had opined that the expression ‘absolutely’ in the Will should be read to mean that the surviving testator would have only the life interest.
In this context, an apex court bench comprising Justice AK Sikri and Justice Ashok Bhushan observed: “The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention. On the reading of the Will, the intendment of testator/testatrix is clear that survivor shall have absolute right of enjoyment of properties.”
The court further observed: “Giving absolute right to the survivor during his lifetime to deal with the properties in no manner cannot be said to be right given in disregard of object of trust. The charitable purpose of the Will is not lost even if the survivor is given absolute right. The obligation of survivor to act in furtherance of object as agreed by both the testators survives and binds the survivor. Although the Will was irrevocable after the death of survivor but the Will expressly granted absolute right to survivor.”
Read the Judgment here.