A clause in a Will absolutely bequeathed property to a person. However, a subsequent clause in the very same Will stated that he will be divested of the property if he died without children and that the property so bequeathed to him will revert to another person. How to give effect to these clauses of a Will?
A Division Bench of the High Court of Kerala was confronted with this intricate issue. The court was considering a first appeal, challenging the dismissal of a suit for recovery of possession. The recovery was sought by the plaintiff from his brother, upon whom the property had devolved as per the above-mentioned clause. The plaintiff’s case was that the brother had divorced his wife and was remaining childless. Therefore, he contended that the subsequent clause in the Will should take effect, and the property should revert to the plaintiff. The plaintiff also challenged a sale deed executed by his brother, alienating the property to a third party.
The plaintiff contended that the last of the two inconsistent clauses in Ext.A1 Will should prevail when they cannot possibly stand together basing on Section 88 of the Succession Act, 1925. On the other hand, the defendant contended that the subsequent disposition of the very same property to the plaintiff under the same Will has to be treated as invalid.
The judgment authored by Justice V Chitambaresh, on sharing bench with Justice KP Jyothindranath, opened with a quote from F Osborn: What you leave at your death, let it be without controversy, else the lawyers will be your heirs.
To settle the issue, the court invoked the principle settled by a constitutional bench of the Supreme Court in Ramkishorelal and another v. Kamalnarayan (AIR 1963 SC 890). It was stated there that if an earlier portion of a document gives absolute title, then later portions of the very same document cannot give inconsistent directions to take away the absolute title given by the earlier portion.
The Supreme Court adopted the same view in Sadaram Suryanarayana v. Kalla Surya Kantham [(2010) 13 SCC 147] and in Mauleshwar Mani and others v. Jagdish Prasad and others (AIR 2002 SC 727) to state that any subsequent bequeath which is repugnant to the first bequeath would be invalid.
The court noted that there was absolute bequest in the first part, and hence subsequent disposition in Ext.A1 Will altering the bequest in favour of the plaintiffs on the first defendant dying issueless is liable to be ignored as having no validity in the eye of law.
The contingency of the first defendant dying issueless was not treated by the Court as a ‘defeasance clause’, which can defeat the vesting of title on him.
The intention of the testator was obviously to maintain an absolute state in favour of the first defendant with power to encumber or alienate the property and hence not a defeasance clause. The first defendant is only about 40 years of age and time is enough for him to beget children or even adopt one though there is no such necessity for him to obtain the property absolutely under Ext.A1 Will, observed the court.
The plea of the plaintiff that last of the inconsistent clauses should take effect as per Section 88 of Succession Act was also not accepted. The court said the plea could have been accepted had there been a simultaneous and irreconcilable bequest in the Will in which case the last clause would prevail. But, the last clause in the Will spoke of subsequent divestiture of the property after the bequest in favour of the first defendant and was liable to be ignored.
Effect of attester of Will being its beneficiary
The second defendant in the case was the mother of the plaintiff and first defendant, who was given life estate over the property. She was also one of the attesting witnesses to the Will. Explaining the effect of attester of Will being a beneficiary of the same, the court said the bequest in favour of such attester will be void as per Section 67 of the Succession Act. But, that by itself will not make the attestation invalid and the voidness of Will is only to the extent of the benefit conferred on the attester.
Noting the above reasons, the court dismissed the appeal.
G Keerthivas appeared for the appellant. Zohra and senior advocate Bechu Kurian Thomas appeared for the respondents/defendants.