“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-X]

Justice V Ramkumar

23 Jun 2023 5:30 AM GMT

  • “Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-X]

    Q.46 Where a Will contains two inconsistent clauses, which clause will ordinarily prevail over the other ? Is it the earlier clause or the latter clause which will prevail ? Ans. If both the inconsistent clauses cannot stand together, then the last inconsistent clause will prevail over the earlier clause. This is the rule contained in Section 88 of the Indian Succession...

    Q.46 Where a Will contains two inconsistent clauses, which clause will ordinarily prevail over the other ? Is it the earlier clause or the latter clause which will prevail ?

    Ans. If both the inconsistent clauses cannot stand together, then the last inconsistent clause will prevail over the earlier clause. This is the rule contained in Section 88 of the Indian Succession Act, 1925. Section 88 reads as follows:-

    “88: The last of two inconsistent clauses prevails

    Where two clauses of gifts in a Will are irreconcileable, so that they cannot possibly stand together, the last shall prevail.


    • 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.
    • 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 the benefit of B, the latter disposition will prevail.”

    This Rule of interpretation of a Will is different from the rule of interpretation of any other instrument or deed where, in the event of two conflicting recitals, the earlier one will prevail. But every endeavour should be made by the Court to give effect to both the clauses which apparently appear to be irreconcilable. (Vide para 10 of Shyamal Kanti Guha v. Meena Bose (2008) 8 SCC 115 – S. B. Sinha, Lokeshwar Singh Panta – JJ.)

    Section 88 of the Act is very important in this context. It says that the last of the two inconsistent clauses will prevail in the case of a Will. This is a departure from the rule of interpretation of all deeds other than Wills.

    Q.47 Should Section 88 of the Indian Succession Act be read in isolation ?

    Ans. No. Section 88 should not be read in isolation but should be read along with Sections 82 and 84 to 87. (Vide Sadaram Suryanarayana v. Kalla Surya Kantham (2010) 13 SCC 147 = AIR 2010 SC 294 - Markandey Katju, T.S. Thakur - JJ). The rule of last intention contained in Section 88 of the Indian

    Succession Act is applicable only when the Will contains two bequests which are inconsistent with each other. (Vide Bhavani M. S. v. M. S. Raghu Nandan (2020) 5 SCC 361 = AIR 2020 SC 1441 = 2020 KHC 6268 (SC) Mohan M. Shantanagoudar, R. Subhash Reddy - JJ. In a case where there is a conflict between one part of the Will and another part, it was observed by the Supreme Court as follows :-

    “A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in a case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given”.

    (Vide Ramkishorelal v. Kamalnarayan AIR 1963 SC 890 – 5 Judges - B. P. Sinha – CJI, P. B. Gajendragadkar, K. N. Wanchoo;, K. C. Das Gupta, J. C. Shah - JJ).

    Q.48 What is the value of precedents in the constructions of Wills ?

    Ans.   On the value of precedents in the construction of Wills, it has been held that no decision on the construction of a Will can be of use in construing another document unless all the important recitals are similar. (Vide Pearey Lal v. Rameshwar Das AIR 1963 SC 1703 - 4 Judges - S. J. Imam, J. L. Kapur, K. Subba Rao, J. R. Mudholkar - JJ; Ramachandra Shenoy v. Hilda Brite AIR 1964 SC 1323 = 1964 KHC 561 (SC) – 3 Judges - S. K. Das, A. K. Sarkar, N. Rajagopala Ayyangar – JJ.

    But, in N. Kasturi v. D. Ponnammal AIR 1961 SC 1302 - P. B. Gajendragadkar, K. N. Wanchoo – JJ, a two Judge Bench of the Apex Court made a note of caution as follows:-

    “15. On the other hand, the learned Attorney General has invited our attention to a decision of this Court is Gnambal Ammal v. T. Raju Ayyar AIR (V 38) 1951 SC 103 in which this Court has definitely ruled that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. Mukherjea, J., as he then was observed that the cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised; and in support of this view the learned judge cited similar observations made by the Privy Council in Venkata Narasimha v. Parthasarathy, 41 Ind App 51 at p. 70 (PC). In dealing with the principle that intestacy should be avoided, Mukherjea, J. said that the desire to avoid intestacy was based on English habits of thought which should not necessary bind an Indian court. Therefore, there can be little doubt that what Mr. Sastri formulates as a rule of construction against the avoidance of intestacy cannot be treated as an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the court would certainly by justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly, in regard to the rule that vesting should not be postponed the position is exactly the same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together. In construing a will it is generally not profitable or useful to refer to the construction of other wills because the construction of each will must necessarily depend upon the terms used by the will considered as a whole and the result which follows on a fair and reasonable construction of the said words must vary from will to will. Therefore, we must look at the relevant clauses carefully and decide which of the two rival constructions should be accepted.”

    Q.49 What is meant by Armchair Rule of Interpretation of Wills ?

    Ans. The armchair rule was originally set out in Boyes v. Cook (1880) 14 Ch D 53 – James, Brett, Cotton – JJ, where the High Court of Justice of England and Wales stated that –

    the Court may place itself in the testator’s armchair and consider the circumstances by which he was surrounded when he made his Will to assist the Court in arriving at his intention”.

    The above rule which is reflected in Section 87 of the Act, was followed by the Supreme Court of India in H. Venkatachala Iyengar v. B. N. Thimmajamma AIR 1959 SC 443 = 1959 KHC 498 (SC) – 3 Judges - T. L. Venkatarama Ayyar, P. B. Gajendragadkar, A. K. Sarkar - JJ and subsequent decisions. The High Court of Kerala also followed the armchair rule in Pappoo v. Kuruvilla 1994 2 KLT 278 = 1994 KHC 338 = ILR 1994 (3) Ker. 373 – K. Sreedharan - J; Bhagwan Krishan Gupta (2) v. Prabha Gupta (2009) 11 SCC 33 = AIR 2009 SC 1631 S. B. Sinha, V. S. Sirpurakr - JJ; Sebastian P.C v. P.C.Chacko 2016 (2) KLJ 368 = 2016 KHC 386 = ILR 2016 (2) Ker. 386 (DB) – Antony Dominic, A. Hariprasad – JJ.

    Q.50 Can a Hindu make a bequest to unborn persons ?

    Ans. As at present, no. Although there is no authority in Hindu Law to justify the doctrine enunciated for the first time by the Judicial Committee in Tagore v. Tagore I A (1872) Supp. 47 = 9 Beng. L.R. 337 = 18 W.R. 359 (PC) – Mihir Kumar Jha – J, that a Hindu cannot make a gift or bequest for the benefit of unborn persons, since the above doctrine has been holding the field for a great length of time, this is a proper case where the maxim “communis error facit jus” (a common or universal error often repeated, makes law) should be applied. Hence, the bequest in favour of unborn sons was held to be void. (Vide Raman Nadar Viswanathan Nadar v. Snehappoo Rasalamma (1969) 3 SCC 42 – 3 Judges - Shah, Ramaswami, Grover - JJ).

    NOTE BY VRK: It is high time that the Supreme Court corrected the error by applying the maxim “communis error non facit jus” (a common error does not make law.

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