WILL

A Will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at the time of death. A will can be made by anyone above 21 years of age in India. A will is a statement made by a testator in the written form stating the manner in which his estate/property must be distributed after his death. A will being a testamentary document comes into effect after the death of the testator and if the person dies without writing any Will then he is said to be have died intestate. The person in whose favor the testator bestows the benefits called beneficiary or legatee. A will is otherwise called as Testament.

Golden rule for interpretation of will if there is inconsistency between earlier and latter part of will.

To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will.

In Kalvelikkal Ambunhi v. H. Ganesh Bhandary (AIR 1995 SC 2491), it was observed that a Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. As observed in Hammond v. Treharne, (1938 (3) All ER.

If in a Will there are two inconsistent provisions, latter shall prevail over the earlier clause. This is regulated by the well-known maxim "cum duo inter se pugantia reperiuntur in testamenta ultimum ratum est". This principle is also contained in Section 88 of the Act which together with its illustrations, provides as under:

"88. The last of two inconsistent clauses prevails.

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

Illustrations

(i) 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.

(ii) 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 can be invoked if different clauses cannot be reconciled. (See Rameshwar v. Balraj, AIR 1935 PC 187). It is to be noted that rules of interpretation of Will are different from rules which govern interpretation of other documents like sale deed, or a gift deed, or a mortgage deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents, if there is any inconsistency between the earlier or the subsequent part or specific clauses, inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of Will the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails.

Supreme Court of India

Uma Devi Nambiar & Ors vs T.C. Sidhan (Dead) on 11 December, 2003

Bench: Doraiswamy Raju, Arijit Pasayat

Citation; AIR2004SC1772, (2004)2SCC321

When crave for materialistic possessions outweighs personal love and affection, the inevitable result is passing long times in the corridors of Courts and the case at hand is no exception. In a proceeding initiated under Sections 192 to 195 of the Indian Succession Act 1925 (for short the 'Act') validity and genuineness of a Will was decided by the District Court, Kozhikode and the Kerala High Court refused to interfere under Section 115 of the Code of Civil Procedure 1908 (for short the 'Code'), negativing appellants' plea that such adjudication was not permissible in the said proceeding.

The background in which the litigation has reached this Court is essentially as follows:

The petitioner No.1 had initiated proceedings under Sections 192 to 195 of the Act, aggrieved by the action of the respondent in allegedly taking illegal possession of the petitioner's palatial ancestral home situate in the heart of the city of Calicut on U.K. Sankunni Road (a road named after the petitioner's father Late Shri U.K. Sankunni). The said proceedings being under Part VII of the Act were summary in nature, confined only to the issue of possession of the ancestral family home and the two garages. It has been judicially recognized that in such proceedings where the issue is one of possession, the question of title cannot be gone into in detail. According to her, the respondent (Dr. T.C. Sidhan) propounded a forged Will in the said proceedings and sought adjudication of the same, to which the petitioner no.1, objected to. In fact, petitioner no. 1 had filed a separate application (I.A. No. 2976 of 2000) objecting to the adjudication of the alleged Will since the District Court exercising summary powers had no jurisdiction to do so. The petitioner no.1 reiterated her objections even at the time when the witnesses were produced by the respondent (Dr. T.C. Sidhan). Notwithstanding all these, the District Court proceeded to adjudicate on the genuineness of the Will and solely on that ground gave possession of the property to the respondent. The District Court justified this assumption of jurisdiction by citing consent of parties. This was, according to petitioners clearly incorrect and on the contrary the petitioner no.1 had objected to the said course of action. Original respondent Dr. T.C. Sidhan has died in the meantime, his legal representatives have been impleaded.

The petitioner no.1, therefore, filed a revision before the High Court raising again the fundamental issue of lack of jurisdiction on the part of the District Judge, adverting to the specific objections raised in respect of the lack of jurisdiction of the District Court to consider title. The High Court, agreed with the contention that the claim of the respondent had to be decided in appropriate proceedings before the appropriate forum. The High Court adverting to the submissions on the question of jurisdiction, held as follows:

"In this case, the revision petitioner has no contention that the lower court had no jurisdiction to pass the impugned order. The only contention is that the order passed by the lower court is illegal as it had exercised jurisdiction which is no vested in the court, in so far as considering the genuineness, legality and validity of the Will propounded by the 1st Respondent in the above summary proceedings, wherein the jurisdiction of the lower court was invoked only for the settlement of the dispute regarding actual possession.


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