# Kast1tri v. Ponnannnal

- **Citation:** [1961] 3 S.C.R. 955
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** P. B. Gajendragadkar, IC N. WANcHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kast1tri-v-ponnannnal-1954
- **Pages:** 15

## Headnote

Will-Construction-Bequest to Kin the absence of adoptionTestator's intention to adopt K-Authority to adopt given lo widow
-No adoption made-K's rights, whether vested interest subject to
defeasance by subsequent adoption.
A testator, who was childless, executed a will on April 28,
1937, and died on March IO, 1939, leaving him surviving his
. ·•
widow. In cl. 6 of the will he expressed his desire to adopt a boy
and stated that in case he did not make an adoption during his
life-time his wife shall adopt K. He also conferred authorityQo hi~
~~2
1961
Kast1tri
v.
Ponnannnal
956
SUPREME COURT REPORTS
[1961]
wife to make an adoption in case K died before being adopted.
By cl. II of the will he provided that exclusive of the properties
that might be given for T's wives, M. A. and. K. A., and daughter
and for his wife for being enjoyed by each during her lifetime, in
respect of one-half of all the remaining properties of his family,
his wife shall before making an adoption, execute in favour of
K. S. a document under which he shall enjoy only the income
from those properties during his lifetime and that alter his lifetime his heirs shall get them with absolute rights, and she shall
also make an arrangement to the effect that his adopted son
similarly got and enjoyed only the remaining half. Clause 12
provided:
"Should myself and my wife die without making an
adoption or should my wife predecease me or in case I do not
adopt any boy or in case the boy adopted by me is not alive at
the time of my death, the above K an<l the above K. S. shall get
·the whole of my properties in equal shares ...... Should myself
and my wife die without making an ad0ption as stated above and
should the above K. S, predecease us, the above M. A. and K . .-\.
shall get all the properties ...... "
No adoption was made either by the testator before his
death or by his widow thereafter. K instituted a suit for a
declaration of his rights under the will basing his claim under
cl. r2 on the footing that under that clause when no adoption
was made and until it was so made he had a vested interest
in respect of half the properties subject to defeasance by subsequent adoption.
Held, that on a true construction of the will dated April 28,
r937, cl. 12 was intended to operate at the time of the death of
the testatot and not later and that K would get an interest nnder
that clause only if the widow of the testator pre-deceased thr
testator and there was no adoption by the testator before his
death.
In the circumstances K's rights were provided for by
cl. II only and those rights could not come into existence unless
and until he was adopted by the widow. On this view there was
a postponement of vesting and a possibility of intestacy, but that
cannot be avoided.
The rules of construction of a will against a postponement
of vesting and avoidance of intestacy are not absolute and the
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 should be ascertained by construing the will as a whole and giving the relevant clauses in the
will their plain grammatical meaning considered together.
Gnanambal Ammal \'. T. Raju Ayyar and Others, A.LR. 1951
S.C. ro3 and V enkata N arasimha v. Parthasarathy, L. R. 41 I.A.
5r, referred to.
C1v1L
APPELLATE
,Ju~ISDICTION:
Civil
Appeal
No. 373 of 1956,
• ••
I
(
3 S.C.R.
SUPREME COURT REPORTS
957
Appeal from the judgment and decree dated
September 17, 1952, of the Madras High Court in
A. S. No. 270 of 1948.
z96r
..
A. V. Viswanatha Sastri, A. V. Narayanaswami and
Ponnan .. ••l
M. 8. Narasimhan for T. K. Snndara Ra.man, for the
appellant.
M. C. Setalvad, Attorney-General, R. Ramamurthi Iyer
and B. K. B. Naidu, for respondent No. l.
R. Ramamurthi Iyer and B. K. B. Naid·u, for respondents Nos. 2 and 4 and the legal representatives of
respondent No. 5.
1961. February 23. The Judgment of the Court was
delivered by
GA,JENDRAGADKAR

## Text

'
3 S.C.R.
SUPREME COURT REPORTS
955
1961
This aspect of the matter was completely ignored
by the trial court and the appellate court, and so the
Jib•• C1"'ndr•
High Court was right in correcting the error which had
Sarma,Doloi
crept irito the concurrent decisions of the courts below.
. v.
. .
Besides, the High Court was also right in holding Anand•R••• K•l•I•
that in a case of this kind where the appellant urged G . d-dA 1
that the lands could be alienated only to a specified aJ•• raga "' •
class of persons, the onus was on the appellant and
not on the respondents to prove the contrary. Failure
to put the onus on the appellant introduced a serious·
infirmity in the approach adopted by the courts below
in dealing with this question. · That . was another
infirmity in their decision. It is also clear that the
evidence adduced by the appellant in support of his
case to which reference has been made by the first two
courts is entirely unsatisfactory, and, even if it· is
believed, in law it would be insufficient to sustain the
plea that there was a limitation on the transferability
of the lands in question. We are also satisfied that
the declaration granted by the District Court was
futile. Therefore, in our opinion, the view taken by
the High Court is absolutely correct and the grievance
made by the appellant against the validity of the said
conclusion cannot be sustained.
In the result the appeals fail and are dismissed with
costs.
Appeals dismissed.
N. KASTURI
v.
D. PONN AM.MAL AND OTHERS.
(P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)
Will-Construction-Bequest to Kin the absence of adoptionTestator's intention to adopt K-Authority to adopt given lo widow
-No adoption made-K's rights, whether vested interest subject to
defeasance by subsequent adoption.
A testator, who was childless, executed a will on April 28,
1937, and died on March IO, 1939, leaving him surviving his
. ·•
widow. In cl. 6 of the will he expressed his desire to adopt a boy
and stated that in case he did not make an adoption during his
life-time his wife shall adopt K. He also conferred authorityQo hi~
~~2
1961
Kast1tri
v.
Ponnannnal
956
SUPREME COURT REPORTS
[1961]
wife to make an adoption in case K died before being adopted.
By cl. II of the will he provided that exclusive of the properties
that might be given for T's wives, M. A. and. K. A., and daughter
and for his wife for being enjoyed by each during her lifetime, in
respect of one-half of all the remaining properties of his family,
his wife shall before making an adoption, execute in favour of
K. S. a document under which he shall enjoy only the income
from those properties during his lifetime and that alter his lifetime his heirs shall get them with absolute rights, and she shall
also make an arrangement to the effect that his adopted son
similarly got and enjoyed only the remaining half. Clause 12
provided:
"Should myself and my wife die without making an
adoption or should my wife predecease me or in case I do not
adopt any boy or in case the boy adopted by me is not alive at
the time of my death, the above K an<l the above K. S. shall get
·the whole of my properties in equal shares ...... Should myself
and my wife die without making an ad0ption as stated above and
should the above K. S, predecease us, the above M. A. and K . .-\.
shall get all the properties ...... "
No adoption was made either by the testator before his
death or by his widow thereafter. K instituted a suit for a
declaration of his rights under the will basing his claim under
cl. r2 on the footing that under that clause when no adoption
was made and until it was so made he had a vested interest
in respect of half the properties subject to defeasance by subsequent adoption.
Held, that on a true construction of the will dated April 28,
r937, cl. 12 was intended to operate at the time of the death of
the testatot and not later and that K would get an interest nnder
that clause only if the widow of the testator pre-deceased thr
testator and there was no adoption by the testator before his
death.
In the circumstances K's rights were provided for by
cl. II only and those rights could not come into existence unless
and until he was adopted by the widow. On this view there was
a postponement of vesting and a possibility of intestacy, but that
cannot be avoided.
The rules of construction of a will against a postponement
of vesting and avoidance of intestacy are not absolute and the
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 should be ascertained by construing the will as a whole and giving the relevant clauses in the
will their plain grammatical meaning considered together.
Gnanambal Ammal \'. T. Raju Ayyar and Others, A.LR. 1951
S.C. ro3 and V enkata N arasimha v. Parthasarathy, L. R. 41 I.A.
5r, referred to.
C1v1L
APPELLATE
,Ju~ISDICTION:
Civil
Appeal
No. 373 of 1956,
• ••
I
(
3 S.C.R.
SUPREME COURT REPORTS
957
Appeal from the judgment and decree dated
September 17, 1952, of the Madras High Court in
A. S. No. 270 of 1948.
z96r
..
A. V. Viswanatha Sastri, A. V. Narayanaswami and
Ponnan .. ••l
M. 8. Narasimhan for T. K. Snndara Ra.man, for the
appellant.
M. C. Setalvad, Attorney-General, R. Ramamurthi Iyer
and B. K. B. Naidu, for respondent No. l.
R. Ramamurthi Iyer and B. K. B. Naid·u, for respondents Nos. 2 and 4 and the legal representatives of
respondent No. 5.
1961. February 23. The Judgment of the Court was
delivered by
GA,JENDRAGADKAR, J.-T.his appeal raisas a short&ajendragadkar J.
question about the coustruct,ion of a will executed by
the testator, Diraviyam Pillai, on April 28, 1937, and
it arises from a suit instituted by the appellant
N. Kasturi in the Court of the Subordinate Judge at
Madura. In his suit the appellant alleged that under
cl. 12 of the will certaiu rights either vested or contingent had been conferred on him in regard to the
property as therein described, and it was in pursuance
of the said rights that he claimed a declaration with
a view to protect his interest and safeguard the estate
from being wasted by, and lost in the hands of, the
testator's widow, respondent 1, Ponnammal, who was
in charge of the said estate. The trial court construed
the will against the appellant and held that it conferred
no right on him and so he co1,1ld not claim any of the
reliefs set out in his plaint. Incidentally, on the merits
the trial court was satisfied that a case had been made
out by the appellant and that it did appear that the
estate .was being wasted by its present holder, respondent 1.
The appellant then took the matter before the
Madras High Court by his appeal. The High Court
has agreed with the trial court in the construction of
&he will. It has held that the appellant had no right
under the will which would justify his claim for any
of the reliefs set out in his plaint. On that finding the
High Court thought it unnecessary to consider the
merits of the case set out by the appellant and denied
958
SUPREME COURT REPORTS
[1961]
z9fiz
by respondent 1. The appellant then applied for and
K.VN•i
obtained a certificate from the High Court, and it
v.
is with the said certificate that he has come to this
P .. """'"""
court by his present appeal ; and so, the only question
which falls for our decision is: Have the courts below
G•i••d••gadh• J. put an unreasonable construction on the will as
Mr. Viswanatha Sastri for the appellant contends?
As we have already seen the testator executed the
will on April 28, 1937, and he died on March 10, 1939.
During his lifetime the testator was a member of a
joint and undivided Hindu family consisting of himself and his cousin, Thayumanaswami Pillai. Neither
of them had any son. At his death which took place
on May 9, 1935, Thayumanaswami Pillai left behind
him two widows, respondent 2, Mangayarkarasi Ammal
and· respondent 3, Kanniammal, and a widowed
daughter by the former, respondent 4, Pichai Ammal.
The testator who survived his cousin became entitled
to the whole of the family property by survivorship;
and it is as such that he made, and was competent to
make, the will in question. The appellant is the sister's
daughter's grandson of the testator, whereas Kalyanasundaram, respondent 5, was treated as a foster-son
by the testator's cousin, Thayumanaswami Pillai.
Respondent 5 died pending the appeal before this
Court leaving behind him two widows, two minor sons
and two minor daughters who have been brought on
the record as his heirs and legal representatives. These
are the persons who have been mentioned in the will
and who appear to be the objects of the testator's
bounty in one way or another.
It is now necessary to refer to the will in general
and read the two clauses which specifically fall to be
construed in the present appeal. Clause l of the will
refers to the fact that the testator had alread v executed a will on June 12, 1935, and had register~ed it.
The present will was executed by him with ·a view to
cancel his earlier will and with the object of making
fresh arrangements in regard to his property as specified in the present will.
Clause 2 of the will states that the testator and his
senior cousin, the deceased Thayumanaswami Pillai,
... '
3 S.C.R.
SUPHEME COURT REPORTS
959
were members of an undivided Hindu family and as
'¢'
such had acquired property and carried on money.
K.,,..,;
lending business in the names of both of them. The
v.
testator adds that on the death of his cousin, as the
P ... , '"'
sole surviving coparcener he became the absolute c; .
-. -
owner of the whole of the property.
"J<Wllf"4NIJ.
Clause 3 recites that the testator was then 6{ years
of age and that he and his wife, respondent 1, had no
issue. Then he refers to his other relations in w horn
he was interested.
In cl. 4 the testator points out that circumstanced
as he was it was necessary to make arrangements with
regard to the family property "so that the family
affairs may be carried on according to my desire without any dispute or quarrel whatever in the family
after my lifetime." This case, like matty ot.hers,
illustrates that the hope and expectation expressed by
the testator that the making of his will should prevent
litigation and disputes has not come true.
Clause 5 is in the nature of a preamble to the dis.
positive clauses of the will and is as follows. It says
that his deceased cousin had expressed some desire
during his lifetime regarding the properties, and the
testator out of deference to his wishes was making the
arrangements set out in the will agreeably to the said
wishes and in accordance therewith.
Clause 6 begins with the declaration that the testator
wanted to adopt a boy for the propagation of his
family ; and it says that in case the testator did not
make an adoption during his lifetime his wife, respondent 1, shall adopt the appellant. Then the clause sa.ys
that ·should the a. ppella.nt die providentially before he
is ta.ken in adoption the testator permitted a.nd authorised his wife to a.dop~ as she pleases another good and
suitable boy from amongst his community ; and a.s a
precaution the testator also deals with the possibility
of the death of the boy so adopted by his wife and
authorises her to make subsequent adoptions if necessary. Thus cl. 6 of the will expresses the testator's
desire to make an adoption himself and confers authority on his wife to make such an adoption after his
death in case be does not adopt in his lifetime.
960
SUPREME COURT REPORTS
[1961)
19'1
Clause 7 provides for the management of the estate
if the adopted son happens to be a minor. It lays
Kad#Yi
d
h
d
"'·
own t at during the minority of the adopte son
p....,,,,.mai
his wife shall he his guardian and shall take only the
advice necessary for the management of the properGlljlM••f"'l~••f· ties and also regarding other family affairs from the
advisers specified by him in his will.
On the adopted
son attaining majority she is directed to hand over
the properties to him.
The testator makes it clear
that the adopted son shall enjoy the properties thu8
received by him without subjecting them to usufructuary mortgage, simple mortgage, sale, etc., and after
his death his heir shall get them with absolute rights.
Thus the testator has conferred on his adopted son
a life estate and left the estate absolutely to the heirs
of the adopted son.
By cl. 8 the testator makes his wife the executrix of
his will in case he died without making any adoption;
and it confers on her the powers to carry out the provisions of the will in t·hat connection and ta.ke the
necessary advice from advisers specified by him. This
clause enjoins upon tc1A executrix the obligation to
execute in favour of respondents 2, 3, 4 and 5 the
necessary documents as mentioned in detail under the
following clauses, to adopt a hoy in accordance with
the permission given by him, to manage the properties
till the boy attains majority and to hand over to him
the properties on his attaining majority. In discharging her obligations set out in this clause she has heeu
asked to consult the advisers and carry out her duties
"duly and properly." In this clause the testator has
indicated the objects of his bounty and has imposed
upon his executrix the obligations to carry out the
dispositions specified in the will.
Clause 9 deals with the dispositions in favour of
respondents 2, 3 and 4. In respect of respondent 4 the
testator has expressed his special solicitude because
she had become a widow while young and he was keen
that a provision should be made for her maintenance
during her lifetime consistent with the status of the
family so that she might maintain herself without
difficulty. The direction contained in this clause shows
.. '
...
-
3 S.C.R.
SUPREME COURT REPORTS
961
that the testator wanted the three respondents to
'¢1
receive properties separately for their maintenance
Kasturi
with the condition that they shall enjoy the income of
v.
the said properties as they liked during their lifetime
Po•nam""'I
without subjecting them to sale, usufructuary mort-
--
gage, simple mortgage, etc.
Gaje•dragadllor f.
Cla.use 10 Jeals with respondent 5. Respondent 5 is
the son of the first wife of the late Muthuswami Pillai
who was the husband of respondent 4 and sister's son
of respondent 2. He had been treated by Thayumana.
swami Pillai, the cou8in of the testator, as his
abhimanaputran (foster son) and the said cousin had
the desire to give properties to him with which desire
the testator had agreed. In accordance with this
desire the testator proceeded to make a disJilOsition in
favour of respondent 5 in the succeeding clauses. That
is the effect of cl. 10. Clauses 11 and 12 are the clauses
which fa.II to be construed and so we will now read
them in extenso ;
"Cl. 11. Exclusive of the properties that may be
given in writing, as stated above, to the late
Thayumanaswarui Pilla.i's wives and daughter and
similarly for herself, that is to say, for my wife, for
being enjoyed by each during her lifetime, in respect
of one-half of all the remaining properties of my
family, my wife shall, before making an adoption,
execute in favour of the above Kalyanasundaram a
document with suitable recitals to the effect that he
shall enjoy only the income that may be derived
therefrom during his lifetime without subjecting
them to any encumbrances whatever, that is to !lily,
without effecting any sale, usufructuary mortgage,
simple mortgage, etc., and that after his lifetime,
his heirs shall get them with absolute rights and, she
shall a.ls<;> make an arrangement to the effect that
my adopted son similarly gets and enjoys only the
remaining half. My wife Ponna.mmal herself shall
also manage one-half of the properties aforesaid till
Kalyanasundaram attains majority, and a.a soon· as
he attains majority, she shall hand over to him the
properties due to him for being enjoyed by him
.. ooording to the terms mentioned a.hove, Whereas
Kasturi
v.
962
SUPRE:YIE COURT REPORTS
[11161)
properties have been set apart, as stated above for
the late Thayumanaswami Pillai's wives, daughter
Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents
that after their respective lifetime, the
:~bove
properties shall be taken in equal shares by t.he
aboye Kalyanasundaram and the boy that may be
adopted by me or my wife, or that on the death of
the respective persons their respective male heirs, if
any, shall succeed to their respective one-half share
and that should any one of them die without a ma.le
heir and the other alone survive such survivor alone
shall take both the shares.
Cl. 12. Should myself and 'my wife die without
making an adoption or should my wife predecease
me or in case I do not adopt any boy 01· in case the
boy adopted by me is not alive at the time of my
death, the above Kasturi and the above Ka.lvanasnndaram shall get and take the whole of my
properties in equal shares for being enjoyed according to the terms mentioned in paragraph 11 above
and subject to the conditions regarding the properties to be set apart for maintenance as stated above.
Should myself and my wife die without making an
adoption as stated above and should the above
Kalyanasundaram
predecease
us,
the
above
Mangayarkarasi Ammal and Kanuiammal shall get
all the properties and enjoy them during their lifetime without subjecting them to any encumbrances
whatever and by virtne of the permission hereby
granted by me to them to adopt a boy, they shall
adopt a boy and that adopted boy shall succeed to
them."
Before proceeding to construe these clauses we may
refer briefly to the remaining clauses of the will.
Clause 13 refers to the charitable dispositions. already
made by the testator and the arrangements made by
him in that behalf. It adds " even as regards the
other charities which I intend to do hereafter, the
respective documents shall be acted upon. " Clause 14
names th" advisers in consultation with whom the
e)!:ecut!'ix has l_wou "~ked hy llw t.<,stu.tor to earry out.
•
j
I
I t
-
'
' .
3 S.C.R.
SUPREME COURT REPORTS
963
the terms of his will.
Under cl. 15 the testator
r96r
Provides that aft.er his wife's death or in the event of
J(asturi
his wife dying even at the outset when his will takes
v.
effect respondent 2 shall be the executrix and guardian
Ponnammal
of respondent 5 "suitably to circumstances. " In case
--
she also is not alive at the relevant time respondent 3 Gafendyagadka, J.
should be the executrix and guardian. Clause 16
provides that in case the testator dies without making
an adoption during his lifetime his ob8equies shall be
performed by respondent 5 and the appellant; the
said two persons are also required to perform the
obsequies of his wife if she dies without making any
adoption as well as obsequies of respondents 2 and 3.
Respondent 5 is required to perform the obsequies of
respondent 4.
Under cl. 17 the testator has provided
that in case respondent 2 or 3 became the testatrix she
shall manage the properties in consultation with the
advisers specified in the will.
By cl. 18 the testator
provided that his will will take effect from the date of
his death, and by cl. 19 the testator reserved the power
to alter his will or to add to it. It would thus be seen
that this will which contains 19 clauses is a very
reasonable will and it seeks to do justice to the claims
of all persons belonging to the family in whom the
testator was interested and in respect of whom as the
sole surviving coparcener he recognised his responsibilities. He bas scrupulously attempted to carry out
the desires of bis deceased cousin, and on the whole its
terms are very fair and reasonable. The question
which arises for our decision is: Does the appellant get
any right undAr cl. 12 of the will which would justify
bis claim for a declaration and other appropriate
reliefs made by him in the present suit? As we have
already indicated, both the courts below have answered
this question against the appellant.
Mr. Sastri contends that in construing the two
relevant clauses it is necessary to bear in mind two
principles which govern the construction of wills. The
first principle is that so far as is i:easonably possible
courts should adopt that construction of the will which
would a.void intestacy; and the second principle is
that the construction which postpones the vesting of
123
964
SUPREME COURT REPORTS
[ 1961]
'96'
the estate after the death of the testator should be
Kasturi
avoided. Iu support of the first principle Mr. Sastri
v.
has relied on the observation of Mookerjee, J., in
Ponnammal
Sarojini Dassi v. Gnanendranath Das & Others etc. (1 ).
-
On a construction of the several dispositions contained
cajendragadkar J. in the will with which t,he learned judge was dealing
he came to the conclusion that taken together the
said dispositions show that the testator internkd to
dispose of all his properties, and then he added " if
there is any doubt, we ought if possible to read the
will so as to lead to a testacy, not to an intestacy."
In support of this conclusion the learned judge
referred to four English decisions, In re Redfern ('),
In re Harrison('),
Kirby Smith v. Parnell(') and
In re Edwards('). In support of the second principle
enunciated by Mr. Sastri he has relied on
the
decision of the Privy Council in Bickersteth & Another
v. Shanu ('). In that case the Privy Council held that
the established rule for construing devises of real
estate is that they are held to be vested unless a
condition precedent to the' vesting is expressed with
reasonable clearness.
On the other hand, the learned Attorney-Genera.I
has invited our attention to a decision of this
Court in Gnanambal Ammal v. T. Raju Ayyar &
Others('), 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 ascertainmeut of the intentions of the testator. Mukherjea, J.,
as he then was, observed that the cardinal maxim to
be observed by courts in constraing a will is to endeavour to ascertain the intentions of the testator. This
intention has to be gathered primarily from the langu.
age of the document which is to be read as a who].,
without indulging in any conjecture or speculation as
to what the testator would have done if he had been
(1) (1916) 23 Cal. L.J. 241, 255.
!>) (1877) 6 Ch, D. 133.
(3) (188,5) 30 Ch. D, 390,
<r> A.LR. 1 9~1 s.~. 10~.
(4) [1903] 1 Ch. 483.
(5) [1906] I Ch. 570.
(6) (1936] A.C. 290.
t
I
. '
3 S.C.R.
SUPREME COUliT REPORTS
965
better informed or better advised; and in support
1961
of this view the learned judge cited similar observaKasturi
tions made by the Privy Council in Venkata Narasimha
v.
v. Parthasarathy (1).
In dealing with the principle
Ponnammaz
that intestacy should be avoided, Mukherjca, J. said
. -
that the desire to avoid intestacy was based on Eng- Ga1endragadkar J.
lish habits of thought which should not necessarily
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 tis 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 be 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 wiJJ 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 u~ed 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.
Mr. Sast,ri argued that els. 11 and 12 are separate
and independent clauses and they deal with two
(1) (1913) L.R. 41 I.A. 51. 70.
966
SUPREME COURT REPORTS
[1961]
z96z
separate and different positions. According to him,
cl. 11 deals with the position which would have arisen
J(asluri
v.
if an adoption had been made by the widow of the
Ponnammat
testator, whereas cl. 12 deals with the position which
. --
would arise where no adoption is made. His arguGa;•ndragadkar J. ment is that when no adoption is made and until it is
so made there is a vested right in respect of half the
properties in the appellant whieh right no doubt may
be defeated if an adoption is subsequently made. He
contends that this is a vested right subject to defeasance by subsequent adoption, and this right has
nothing to do with the right which would be conferred on the appellant if he is adopted as contemplated
by cl. 11. That according to the appellant is the tenor
and the effect of cl. 12, and that is how the appellant
avoids intestacy and postponement of vesting.
The respondents' case, howeyer, is, and that is the
case which has been accepted by the courts below,
that cl. 12 should be construed as operating at the
time of the death of the testator and not later, and
according to this argument, as soon as the testator
died the said clause ceased to be applicable and the
rights of the appellant fall to be considered only under
cl. 11. If cl. 12 had to he construed by itself separately and in isolation from cl. 11 much could have
been said in favour of the contention urged by the
appellant; but, in our opinion, it would be plainly
inconsistent with all the rules of construction to take
cl. 12 by itself and isolate it from the rest of the will.
Clauses 6 to 11 deal primarily with the adoption which
the testator contemplated would be made by his
widow in case he did not make an adoption in his
lifetime. Clause 11 confers a vested interest on
respondent 5. This has to be done before respondent 1
makes any adoption and indeed it is an independent
bequest by itself. Then the said clause contemplates
the appellant as a possible ELdoptee and then deals
with his rights on that footing. With the other
bequests made by the said cla.use we are not directly
concerned. Having thus made the provisions in cl. 11
on the basis that his widow may adopt, cl. 12 deals
with an alternative situation which would arise in
t
{
t
-1
'.;..
3 S.C.R.
SUPREME COURT REPORTS
967
cases contemplated by the said clause, and it is
z96z
intended to be operative only at the time of the death
Kasturi
of the testator and not otherwise. If that be the true
v.
position then the appellant would not be entitled to
Ponnammal
any right under cl. 12 at all.
.
Now as a matter of construction there are some Ga1end.agadkar l
,
serious difficulties in the way of accepting the appellant's case. The first part of cl. 12 refers to four
possible cases, joint adoption by the testator and his
wife, the death of his wife during the lifetime of the
testator, the failure of the testator to make an adoption during his life time on his own, and the death of
the adoptee by the testator before his death. If the
appellant's argument was accepted the first part of
the clause would have to be split up into two and
would have to be read as covering the failure of the
testator or that of his wife to make an adoption. In
other words, the expression " myself and my wife "
has to be read as "myself or my wife ", and in the
context that seems inappropriate. The argument
that there cannot be a joint adoption by the testator
and his wife is, in our opinion, too academic and
technical. It is perfectly true that under Hindu law
the adoption has to be made and can be made to the
testator, but it is equally true that if the testator had
made an adoption during his lifetime his wife would
have joined him and there is little doubt that Hindu
law does in that sense recognizes an adoptive mother
(' pratigrihitrimata' (')) (Vide: Annapurni Noohiar v.
Forbe;i (10). Therefore, it does not sound reasonable
to contend that since joint adoption by husband and
wife is unknown to Hindu law the word "and"
should be read as " or" in the relevant clause. That
is the first diffieulty in accepting the appellant's
construction.
The second difficulty is that if the word "and" is
read as "or" the third case contemplated in the first
part of the clause of the testator adopting the boy
himself alone would be superfluous. The adoption by
the testator himself acting alone is already covered in
(9) :Mayne on Hindu Law & Usage, t Jtb Edn., pp 2-1-1. 1-fS·
(10) (1899) 26 I.A 246, 253.
Kasturi
v.
Po11naninu.l/
968
SUPREME COURT REPORTS
[1961]
the first part of the clause. Mr. Sastri fairly conceded
that this superfluity would follow on his construction; but, he argued, that that need not necessarily
defeat his construction.
The third difficulty in accepting the said construcGaJend.agadhar J. tion is that the right which has already vested under
cl. 11 in respondent 5 is again vested by cl. 12. As
we have already seen, under cl. 11 respondent 5 was
given half the estate in pursuance of the agreement
between the testator and his deceased cousin Thayumanaswami Pillai. Therefore, there is hardly any
occasion or necessity to make a disposition in favour
of respondent 5 once again under cl.12. The presence
of this difficulty also is not seriously disputed. The
only argument in respect of this difficulty was that as
an abundant precaution the testator repeated the
bequest in favour of respondent 5 though the said
bequest had been completely provided for under cl.11.
There is still one more difficuHy in accepting the
appellant's construction, and that is in regard to the
last part of cl. 12.
Under this clause, if the testator
and his wife died without making any adoption and if
Kalyanasundaram predeceased them respondents 2 and
3 were tu take all the properties and enjoy them during their lifetime subject to the conditions specified in
the clause. Now, it is obvious that if the expression
"all the properties " means, as it must, all of them
without any exception, then what is already vested
in respondent 5 is divested by this clause in case he
dies after the testator but before his widow and
neither of them has made any adoption, and that
would be plainly inconsistent with cl. II. Faced with
this difficulty Mr. Sastri suggested that the context
requires that "all the properties·" would. mean all
the properties which would have gone to the appellant
if he had been adopted; that is tp say, half the properties given to him under cl. 11 on the basis of his
adoption. Such a limitation on the meaning .of the
words "all the properties" seems to us to be whdl.Iy
unjustified. Therefore, we are satisfied that reading
els. II and 12 together
the High
Court was
right in holding that cl. 12 was intended to operate
,
!
'
' '
3 S.C.R.
SUPREME COURT REPORTS
969
at the time of the de'.l.th of the testator and not later
1961
and that the appellant would get an interest under
Kastud
cl. 12 only if the widow of the testator pre.deceased
v.
the testator and there is no adoption by the testator
Ponnammal
before his death. If that be so, the appellant cannot
claim any right or title on the strength of cl. 12 be- Gajend,agadkar I·
cause at the relevant time it was not intended to be
operative at all. In the circumstances the appellant's
rights are provided for by cl. 11 alone, and those
rights cannot come into existence unless and until he
is adopted by respondent 1. On that view there is a
possibility of intestacy and there is postponement of
vesting; but that cannot be avoided. That is the
view taken by the courts below, and having carefully
considered the argument urged before us by Mr. Sastri
on behalf of the appellant we see no reason to interfere with the said conclusion.
Th.e result is the appeal fails; there would be no
ordQr as tu c.osts.
Appeal dismissed.
STATE OF JAMMU KASHMIR
v.
MIR GULAM RASUL.
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Fundamental rights-Equality before law-Breach of law, if
amounts to violation of equal protection of law-Writ Petition-No
fundamental right involved-Duty of High Court-Constitution of
India, Arts. I4, 32(2A).
The Government of J ammu and Kashmir on the basis of the
report of the commission of enquiry set up by it demoted the
respondent who had been suspended earlier .. The respondent
moved the Jammu and Kashmir High Court under Art. 32(2A)
of the Constitution of India as applied to the State of Jammu and
Kashmir for a writ, inter alia, questioning the validity of the
order suspending and demoting him, alleging violation of rules of
natural justice by the commission of enquiry and breach of
statutes and rules of service. Articles 226 and 3n(2) of the Constitution of India had not been applied to the State of Jammu
Ftbrttary 23