S. Ravindra Bhat, J.

1.These are two connected suits; CS (OS) No. 185/2009 is a suit for declaration and permanent injunction by Uma and Shashi Sharma (first and the second plaintiff, hereafter referred to collectively as the daughters), both daughters of Late Rajinder Lal against their brothers (the four defendants), in respect of property bearing House No. F-3/30, Krishna Nagar, Shahdra, Delhi (hereafter suit premises). CS (OS) No. 337/2009 (hereafter the partition suit) claims a decree for partition and permanent injunction; it is filed by Hemant Bhanot son of Late Rajinder Lal against his three brothers (Kamal Kumar, Upinder Kumar and Rajesh Kumar; the brothers being collectively referred to as the brothers). With consent of Counsel for parties, the two suits were heard together, as the only issue involved was the interpretation of a Will of the late Balwant Rani (hereafter called the testatrix).

2. The daughters suit avers that the parties father, Late Rajinder Lal was the son of the testatrix, absolute owner of the suit premises, during her lifetime. The daughters contend that after her demise (in 1989) the Late Rajinder Lal inherited it, and and upon his demise (in 2001) it devolved equally upon the children of Rajinder Lal, i.e. the parties in the two suits. It is stated that though the testatrix had two sons (Rajinder Lal and Krishna Gopal), but on account of some disputes with the other son, she executed a Will favouring the branch of Rajinder Lal (hereafter, the Will). The will was registered with the Sub-Registrar as Document No. 250, Book No. 3, Volume 93 at pages 73-75.

3. It is not in dispute that Rajinder Lal, after the death of the testatrix, preferred a probate petition (No. 2 of 1990) before this Court; however, during its pendency, Rajinder Lal expired survived by his children (plaintiffs and defendants in these two suits). An application made by third defendant for impleadment of legal representatives was allowed by order dated 5.11.2003. By order dated, 12.10.2006, the third defendant was appointed as an Administrator in respect of suit premises and probate was granted in favour of the original petitioner, Late Rajinder Lal, entitling the parties to this suit to their respective share in the suit property.

4. The parties claim to be in joint possession of the suit premises, however, only the fourth defendant is residing in it, as other parties own residential houses. It is stated that all the parties to this suit shared the charges with the third defendant in hope of getting their respective shares. The daughters allege that after letters of administration were issued in favour of the third defendant, they were informed by the fourth defendant that the sons do not wish to give them (the daughters) a share in the suit premises. On 11.12.2008, therefore, the daughters allege to have served a legal notice upon the sons demanding that they should not to sell or create any third party interest in the said property without their prior consent. In response to which dated 11.12.2008, the defendants claimed that the plaintiffs were not the legal heirs of Rajinder Lal. The plaintiffs claim to have gained knowledge of the defendants surreptitious plans of creating third party interest in the suit premises, therefore, they approach the Court to seek a legal remedy.

5. On 12.2.2009, Hemant Kumar (third defendant in the sisters suit) filed the suit for partitions and permanent injunction against his three brothers in respect of the same property, i.e. the suit premises. Placing reliance on the Will, it is claimed that the plaintiff and the defendants are the beneficiaries under the will, to the exclusion of their sisters. It is claimed that in the Probate petition 2/1990 the brothers, i.e. parties in this suit, were impleaded as legal representatives of the original petitioners, and probate was granted and Letters of Administration was issued to Hemant Kumar. It is claimed that the brothers are entitled to a 1/4th share each, in the suit premises. It is claimed that the parties are in joint possession of the suit premises. According to the site plan annexed with the plaint, the third defendant is occupying more than his share in the suit premises, which is shown in red. The plaintiff, Hemant Kumar sent a legal notice dated 6.10.2008 to the defendants, and also claimed damages for Rs. 50,000/- from the third defendant. In his response the third defendant allegedly showed adamancy, and wanted to remain in possession of the excess portion. The plaintiff- Hemant Kumar, alleges knowledge of the defendants intention to create third party interest in the suit premises. Based on these averments, partition by metes and bounds of the suit premises is sought. The sisters, i.e. plaintiffs in suit No. 185/2009 were not made a party to this suit.

6. By order dated 19.2.2010, CS(OS) 337/2009, the partition suit, was directed to be listed along with CS(OS) 185/2009, (the sisters injunction suit) as both the suits were in regard to the same property and amongst the members of the same family. In the sisters suit the first and third defendants filed a joint written statement and the second and the fourth defendants filed two separate written statements. All the defendants raised a preliminary objection as to maintainability of the suit, on the ground of improper verification. The sisters/plaintiffs, acknowledging the mistake/omission, stated that it was a clerical error and unintentional, not affecting the merits of this case and the defect can be cured at any stage.

7. The contesting brother defendants submit that the Will only gave Rajinder Lal and his wife Padmawati, a life estate directing that the property shall ultimately devolve on their sons, i.e. the defendants. The other heirs were specifically excluded from inheriting the suit premises, as such the sisters cannot be treated as the legal heirs of the testatrix. Further, it is stated that even in the Probate case No. 2/1990 the sons only were impleaded as legal representatives of the original petitioner Rajinder Lal; they are thus clearly the only beneficiaries under the Will. It is also denied that the parties to suit are in joint possession of the suit premises, while stating that the same is in joint possession of the defendants and the plaintiffs have never borne any charges with respect to the suit premises. As such, say these defendants (i.e. the sons), the plaintiffs (i.e. the daughters) have no cause of action.

8. The fourth defendant in his written statement states that according to the will the children of Rajinder Lal are entitled to equal shares in the suit premises. Further, he admits that the plaintiffs and the defendants are in joint possession of the suit premises. He elaborates this stating that

There are two shops, 5 rooms, two stores, two kitchen, open courtyard and a passage. One shop is occupied by the answering defendant himself and another by defendant No. 3 which shop has been rented out to some one and he is usurping the rental above. Room on the ground floor is occupied by the younger sister i.e. plaintiff No. 2 and larger room on the first floor is occupied by the plaintiff No. 1 herself. Only two small rooms on the first floor one kitchen and one store are in possession of the answering defendant which is less than his respective share in suit property.

The defendant further does not deny that the first three defendants are attempting to create third party rights in the suit premises. Nonetheless, the defendant claims that the suit is liable to be dismissed with costs.

9. In Suit No. 337/2009 the first two defendants were proceeded ex parte by order dated 12.1.2010. The third defendant (who is the fourth defendant in CS(OS) No. 185/2009) has filed a written statement stating that as per order dated 28.1.2009 in suit No. 185/2009, this Court has directed all parties to maintain status quo in respect of the suit property; the parties to this suit are parties to the said suit, as well. He admits that grand-daughters (i.e. plaintiffs in CS(OS) No. 185/2009) of the testatrix are also beneficiaries under the Will, he specifically denied that the only the parties to CS(OS) No. 337/2009 are beneficiaries under the Will. The parties and their Counsel had agreed that since the principal dispute pertains to the correct interpretation of the Will, and no other factual issues arise for resolution, they would not insist upon leading oral evidence, and that the Court could decide the questions arising, on the documents and pleadings in the two suits.

10. The issues which arise for the Courts consideration and decision, are:

(1) Whether on a correct interpretation of the testatrixs Will, the daughters establish that they have any right, title or interest in the suit property;

(2) If the answer to the above issue is in the affirmative, what are the share(s) of the respective parties to the two suits;

(3) Relief.

Analysis and Findings

Issue Nos. 1 and 2

11. These two issues are taken up together for consideration, as they are inter-related. It is seen that the will is contentious in both suits and its interpretation is determinative of the rights of the parties to the two suits. The certified copy of will is supplied as Ex. PW-2/1 in CS(OS) 185/2009; the relevant portions of the will read as under:

I, Smt. Balwant Rani w/o Late Shri Meher Chand aged about 82 years r/o F-3/30, Krishna Nagar, Shahdra, Delhi-51, do hereby state that I am conscious that due to old age, I may pass any day, I am making my last Will. This Will I am making without duress and pressure.

That I am absolute owner of House No. F-3/30, Krishna Nagar, Shahdara, Delhi. The land was purchased from D.L.F. by me. I got constructed house in 1957 by selling my jewellery and also received financial help from my elder son Rajinder Lal for this purpose. My Late husband Shri Meher Chand and my second son Shri Krishan Gopal and other family members did not help me in this venture.

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I wish and declare accordingly that Shri Rajindra Lal and his wife Smt. Padma Wati shall be the beneficiaries and legaties of my this Will. My other children relations and their heirs shall have no right in the property at F-3/30, Krishna Nagar and in my th share in property Nos. 55 and 55A, Moti Nagar, New Delhi. These properties shall devolve on shri Rajinder Lal his wife and their children. In case of death of any one of the above legaties, the survivor shall be the sole owner of the above properties and shall have the right to mortgage, dispose of the property, and in case of both surviving they can jointly do the same. After their death, their sons will have the right to enjoy the property in equal share to the exclusion of my other sons, daughter, relations and their children.

I hereby give, bequeath absolutely forever to my above named son and daughter-in-law their sons successors, and survivors.

12. The sons, i.e. defendants in CS(OS) No. 185/2009 are placing reliance on these parts of the Will to say that they become the sole beneficiaries under the Will, after the demise of their parents, to the exclusion of their sisters. They argue that what was bequeathed to their parents, was a life interest and not an absolute interest, with the ultimate intention of the testatrix being that the property should finally devolve upon them. Strong reliance is placed on the expression sons of Rajinder Lal and his wife, which occurs in two places, in the Will, for this argument. This argument is unacceptable in view of the clear tenor of the Will that in case of death of either Rajinder Lal or Padma Wati, the survivor shall be the sole owner and shall have the right to mortgage and/or dispose of the property and during their life-time, they could do so, jointly. Had The testatrixs intention been otherwise she would never have given the right to dispose of the property or mortgage it, to her son and his wife. The law is settled, and the Court need not delve deep into the issue. Therefore, the above argument, in the considered opinion of this Court, does not survive.

13. The daughters rely on that part of the Will where the testatrix expresses her desire in saying that These properties shall devolve on Shri Rajinder Lal his wife and their children. It is argued that the term children includes both sons and daughters of the original beneficiaries, and the sons cannot claim exclusive rights over the suit premises. Thus, it is argued that the said property is to be equally shared by plaintiffs and the defendants. The Counsel for the sons argues that although the expression children is used in an earlier part of the Will, but later the expression is sons, which curtails the ambit of the children limiting it only to sons. He argues that this latter expression clarifies the intention of the testator.

14. The Indian Succession Act, 1925 (hereafter called the Succession Act) regulates testamentary succession. It contains provisions which guide the Courts about the interpretation of testamentary instruments, such as Wills and codicils. Unlike in England, where Courts developed rules of construction and principles governing succession intestate as well as testamentary, over the centuries, through the evolutionary process of common law, Courts in this country are guided by specific provisions. In this, the Succession Act is remarkably nuanced and takes care of various contingencies. It not only provisions for rules of interpretations, but visualizes situations where testators intentions can be seemingly confusing, even conflicting, and guides the Court about the correct approach to be adopted. The relevant provisions of the, dealing with such rules of construction, are extracted below:

82. Meaning of clause to be collected from entire Will.The meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other.

Illustrations

(i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted sense the words in which he describes what he gives to A.

(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to A, and in another part of his Will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had said, I give Black Acre to B, and all the rest of my estate to A.

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84. Which of two possible constructions preferred.Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred.

85. No part rejected, if can be it reasonably construed.No part of a will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.

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87. Testators intention to be effectuated as far as possible.The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.

Illustration

The testator by a will made on his death-bed bequeathed all his property to C. D. for life and after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent because the gift to the hospital is void under Section 118, but it will take effect so far as regards the gift to C. D.

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.

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.

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95. Bequest without words of limitation.Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him.

Section 97 is in the following terms:

Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the Will.

Illustration (i) is as follows

A bequest is made to A and his children, to A and his children by his present wife, to A and his heirs, to A and the heirs of his body, to A and the heirs male of his body, to A and the heirs female of his body, to A and his issue, to A and his family, to A and his descendants, to A and his representatives......in each of these cases, A takes the whole interest which the testator had in the property.

15. Both parties had referred to the decision in Gnambal Ammal v. Raju Ayyar, AIR 1951 SC 103 [LQ/SC/1950/35] . It was held by the Supreme Court, in that judgment, that:

The cardinal maxim to be observed by Courts in constructing 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. In constructing the language of the Will as the Privy Council observed in Venkata Narasimha v. Parthasarthy [42 I.A. 51 at p. 70], the Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure The Court is entitled to put itself into the testators armchair..... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions..... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.

A question is sometimes raised as to whether in construing a Will the Court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian Court. It seems 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. As Lord Justice Romer observed in Re Edwards; Jones v. Jones, [[1906] 1 Ch. 570 at p. 574], it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning. It is in the light of the above principles that we should proceed to examine the contents of the Will before us.

16. These principles were applied, and revisited in several later judgments. In Uma Devi Nambiar and Ors. v. T.C. Sidhan (Dead), III (2004) SLT 754=II (2004) CLT 303 (SC)=(2004) 2 SCC 321 [LQ/SC/2003/1259] , after considering the same principles, and noticing the previous decisions, the Supreme Court observed that:

From various decisions of this Court e.g. Ram Gopal v. Nand Lal, AIR 1951 SC 139 [LQ/SC/1950/38] . Gnambal Ammal v. Raju Ayyar, AIR 1951 SC 103 [LQ/SC/1950/35] , Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kher, AIR 1953 SC 7 [LQ/SC/1952/66] ; Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703 [LQ/SC/1962/418] ; Ramchandra v. Hilda Brite, AIR 1964 SC 1323 [LQ/SC/1963/90 ;] ">AIR 1964 SC 1323 [LQ/SC/1963/90 ;] [LQ/SC/1963/90 ;] and Navneet Lal v. Gokul, (1976) 1 SCC 630 [LQ/SC/1975/511] , the following principles are well established

(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.

(2) In construing the language of the Will the Court is entitled to put itself into the testators armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document.

(3) The true intention of the testator has to be gathered not by attaching importance in isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.

(4) The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.

(5) 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.

11. In Kalvelikal Ambunhi v. H. Ganesh Bhandary, AIR1995 SC 2491, it is 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 308, 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 testamentary ultimum ratumestest. This principle is also contained in Section 88 of thewhich 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 give 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.

12. This rule of interpretation can be invoked if different clauses cannot be reconciled (see Rameshwar v. Balrai, AIR 1935 PC 187 [LQ/PC/1935/58] ). 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 of 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.

13. What is the intention of the testator has to be found out on a reading of the Will and there cannot be any hard and fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation. The true intention of the testator has to be gathered not only by attaching importance to isolated expressions but by reading the Will as a whole with all the provisions and ignoring none of them as redundant or contradictory. As observed in Navneet Lals case (supra), although there is no binding rule that the Court should avoid intestacy at any cost, yet the Court would be justified in preferring that construction of the Will which avoids intestacy. Where the words are ambiguous attempt should be made to avoid that construction which leads to intestacy.

17. In the present case, the text of the Will (which concededly was probated, by this Court, in a previous proceeding) indicates the following elements:

(1) Rajender Lal and his wife were constituted as the heirs of the testatrix (shall be the beneficiaries and legaties of my this Will);

(2) The other children of the testatrix were disinherited, and not nominated as legatees (My other children relations and their heirs shall have no right in the property);

(3) Rajinder Lal and his wife, and their children were to be the beneficiaries entitled to the suit properties, to the exclusion of other heirs (sons) of the testatrix (These properties shall devolve on shri Rajender Lal his wife and their children);

(4) Rajinder Lal and his wife had the right to mortgage, transfer or alienate the estate, i.e. the suit property, and in the event of death of either, the survivor was to get the estate (In case of death of any one of the above legaties, the survivor shall be the sole owner of the above properties and shall have the right to mortgage, dispose of the property, and in case of both surviving they can jointly do the same);

(5) After death of both (Rajinder Lal and his wife) their sons, survivors and successors were to be the legatees (After their death, their sons will have the right to enjoy the property in equal share to the exclusion of my other sons, daughter, relations and their children..I hereby given, bequeath absolutely for ever to my above named son and daughter-in-law their sons successors, and survivors. ..).

18. The rival arguments of the parties are that on the one hand, the daughters contend that the testatrix intended that Rajinder Lal, his wife and children were nominated as heirs, and therefore, took the estate, absolutely and in equal shares, upon her death. The sons, on the other hand, contend that the estate which devolved on Rajinder Lal and his wife, was limited to their life, and that they, to the exclusion of their sisters, and to the exclusion of other heirs of the testatrix, are entitled to the suit property. The question is about the true intention of the testatrix to be gathered from the text of the Will, its internal indications, and the surrounding circumstances, if any.

19. In Administrator of Madras v. Money, 15 Mad. 448 a testator executed a Will bequething some properties to the legatees and added that the same shall be inherited by any child or children. It was held that this was in effect a gift to the legatees and their children as heirs. It was a bequest to a person with the addition of words which describe a class of persons but did not denote them as direct objects of a distinct and independent gift and by operation of the principle of Section 97 of the Succession Act, 1925 the legatee took the entire interest of the testator therein. The Court held that:

In my opinion, this being an absolute gift to the children of Mrs. Wilkins share and share alike, and the subsequent direction that the property shall not be sold until the youngest attains 18 years of age being of no legal effect, the children who survived the testator took each an equal share in the property which vested in them on the death of the Testator..... The postponement of the power of disposition over the property being of no legal effect there remains only the absolute gift to the children of Mrs. Wilkins jointly share and share alike.

In Agnes Harriet v. Murray, AIR 1925 Oudh 24 and Dadabhai v.Cowasji, AIR 1923 Bom. 177 [LQ/BomHC/1922/147] it was held that a bequest to certain legatees and their children from generation to generation conferred absolute interest on the legatees. In the judgment reported as Dowager Rani Lalitha Kumari Devi and Ors. v. The Raja of Vizianagaram and Ors., AIR 1954 Mad. 19 [LQ/MadHC/1952/146] , the Will in question, materially, stated that:

Whereas I, the above said Anandagajapathiraj Maharajah of Vizianagaram have at present no issue either male or female I do hereby appoint Chittibabu Viziaramaraj and his male issue to be my legal heir, successor and representative and I do hereby bequeath to the said Chittibabu Viziaramaraj all the property movable and immovable of the Samasthanam as well as my personal property together with all rights, titles, privileges, honours and insignia of the family which I now possess or may hereafter acquire.

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(4) If I should beget a son or a daughter he or she shall be my legal heir and shall be entitled to all the property above described and this Will shall be null and void provided he or she survives me.

(5) In the event of the above said Chittibabu Viziaramaraj predecease me or me surviving dies without being adopted or without issue male or female Her Highness my mother or my sister whichever of the two may then be living shall have full power to appoint my successor and if both be living Her Highness my mother alone shall execute the right and after the demise of both without a successor being appointed by either of them the ruling power shall select a proper boy to be my heir and successor with the permission of my Nyaties.

On an appeal, where it was contended that the Will conferred on Chittibabu an estate in tail male and such an estate was unknown to Hindu law and the bequest must therefore be deemed to be only of a life estate to Chittibabu, the Court observed, construing Section 97, particularly the Illustration (i) to the provision, that:

In each of these cases A takes the whole interest which the testator had in the property. No doubt this section does not apply directly to Hindu Wills. But it lays down a general principle of interpretation which could equally be applied to a Will by a Hindu. This and the other general principles laid down in the Succession Act are not based on any conceptions alien to Hindu law. They are all of them based on common sense, logic and a spirit of beneficent construction [vide also Damodara Moothan v. Ammu Amma, AIR 1944 Mad 22 [LQ/MadHC/1943/162] (B)]. The learned trial Judge relied upon the ruling of the Privy Council in 16 Cal 383 (PC) (A). I do not think that the construction placed upon the language of a particular Will taken as a whole materially helps to construe another Will in which the language is different.

It was held that:

A powerful reason for holding that the testator did not intend to create an estate in tail male is that the provisions of the Will clearly show that he was not averse to the succession of female heirs. Thus in para 1 he refers to his not having female issue and in para 4 he states that if he should beget a son or a daughter he or she should be his legal heir. In para 5 again the power of appointing a successor is conferred on his mother and sister only if Chittibabu should die without issue male or female. In para 7 it is provided that the allowances mentioned in the will should be paid by whoever was in possession of the estate whether it be he or she. In the face of these indications it is impossible to argue that the intention of the testator was to create an estate in tail male. It was also urged that the restriction on the power of alienation imposed on the holders of the estate for all times is an indication that an estate in tail was intended but if that was the intention there was no need to impose that restriction as no holder of the estate in tail has power to alienate the property so as to bind the successors. It is more consistent with the grant of an absolute estate and is nothing more than the expression of a pious wish not unusual among testators that their properties should remain intact in the hands of their successors.

70. Another material consideration which militates against the contention put forward by the respondents is that the testator appears to have used the word issue in the sense of children and not descendants. If male issue in para 1 of the Will does not mean male descendants, then there can be no estate in tail and the foundation on which the argument of the respondents rests will be gone. In para 1 the testator says that he has no issue, male or female and in para 4 that if he should have a son or a daughter, he or she shall be his heir. In this context issue must mean only child and not descendants because the daughters daughter will not be an heir. Again in para 5, the appointment of a successor is provided if Chittibabu is to die without issue male or female. Here also the word must signify only children. Thus there is ample indication in the Will that the testator used the word issue in the limited sense of the children of the first generation. If that is so, then there can be no question of estate in tail

20. The effect of a bequest made to a person, followed by general description of a class of persons, was considered in Pullayya v. Veeraghavamma, AIR 1954 AP 2 [LQ/TelHC/1954/15] , where it was held that:

Section 97 of the Succession Act does not apply directly to Wills by Hindus, but it lays down a general principle of interpretation of Wills, which could equally be applied to a Will by a Hindu, though if the clear intentions of the, testator appeared otherwise, the section could not be applied.

Similarly, the Andhra Pradesh High Court, in Sham Kumar v. Ayyagari Krishna Murthy and Ors., 2003 (6) ALT 331 [LQ/APHC/2002/66] held, while considering Section 97, and the effect of Section 138, that:

19. It is true that the Will provides for devolution of properties according to the wishes of the Testator and in a way the line of Succession as provided under the Personal Law is given a go-bye. A Testator is entitled to stipulate the chain of succession or the stages through which the property should pass until it vests absolutely in an individual or set of individuals. Law gives the right and liberty to the Testator to that extent. However, at a point where the property is to vest absolutely in a person or a set of individuals, the freedom of the Testator is circumscribed; in that he cannot restrict the method and manner of exercise of rights of ownership by the persons in whom the property vests absolutely. Law recognizes absolute vestiture and not the conditions circumscribing the enjoyment of the property by the persons in whom it vested absolutely

21. The two clearest textual indications about the testatrixs intention are discernable from one, the debarment of her other children, (i.e. other than the Rajinder Lal branch) from the estate, and, two, that Rajinder Lal and his wife were to inherit the estate, and had the right to mortgage, or transfer it. This latter indication, in this Courts opinion, informs that the testatrix did not intend a life estate, to Rajinder Lal and his wife; the rule of construction to be pressed here, is indicated in Section 95, which is that in the absence of any words of limitation (rather, in this case, the position being to the contrary, the testatrix clarifying the right of Rajinder Lal and his wife to transfer or encumber the property or estate) the first named two legatees, took an absolute estate, which vested in them. If any doubts exist about this interpretation, the intention to be gathered, on a reading of the Will, with Section 97 is dispelled. Illustration (i) states that when a legatee is named specifically, and others of a description or class, follow such nomination, the legatee takes the estate absolutely, and that the subsequent words would not limit his estate, or limit the absolute enjoyment to the property. Viewed from this statutory perspective, the Court is compelled to reject the sons contention that a limited, or life estate devolved on Rajinder Lal and his wife (i.e. their mother), in terms of the Will, and that they, as their sons were entitled to the exclusion of the sisters to absolute and equal share in the suit property. The matter can be viewed in another manner. The reference, in the Will, to Rajinder Lal and his wife, and the right of either to succeed, as survivor, and, to cap it, importantly with the absolute right of either or both, to transfer or encumber the property is carried further when the reference to the legatees, is always in the context of these two heirs; the others follow by description. It is for this reason, that the rule prescribed in Section 97 aptly guides the interpretation of the Will, in these cases. The mere reference to sons in two parts of the Will the last with a further reference to their survivors and successors, only underscores the testatrixs anxiety that Rajinder Lals branch to the exclusion of her other heirs was entitled to the property.

22. So far as the daughters contention that all children took the estate, absolutely, because of the reference to them, with Rajinder Lal (and his wife) is concerned, the Court is of the opinion that this too, cannot be accepted for the same reason, i.e. application of Section 97. In any case, the end result as far as the daughters are concerned, would be the same, because with the death of Rajinder Lal and his wife, the estate devolved on all the parties, through intestacy, as none of them claims that either of them (i.e. Rajinder Lal or his wife) devised any bequest, or testamentary instrument. Issue No. 1, is therefore answered in favour of the daughters; it is held that they are, along with their brothers, entitled to the estate of the testatrix, being the children of late Rajinder Lal and his wife, who were alive when the estate opened for succession.

23. As regards the second issue, it is held that there is no dispute that the properties were the acquisition of the testatrix, and she held them absolutely. Her other heirs were disinherited from her estate. Rajinder Lal and his wife succeeded to the property and enjoyed it during their life time. After the death, it devolved equally on all their children, who are Class I heirs, on account of intestate succession. Therefore, on an application of the rules indicated in Section 8 of the Hindu Succession Act, 1956, they are entitled to equal shares in the suit property. It is accordingly held that the parties in both the proceedings, are held entitled to one sixth undivided share each, in the suit property.

Issue No. 3

24. In view of the above findings, the daughters suit, i.e. CS (OS) No. 185/2009 has to succeed in full. Accordingly a decree for declaration, to the effect that the plaintiffs are entitled to equal shares, with the defendants, in the suit property, (F-3/30, Krishna Nagar, Shahdra, Delhi) and a consequential permanent injunction, restraining the defendant sons or their representatives, or anyone acting on their behalf, from alienation, transferring or parting with possession of the same, or any part thereof, is issued.

25. So far as CS (OS) 337/2009 is concerned, the findings on the two issues are determinative of this aspect. It is noteworthy here, that the sons did not intentionally implead the daughters in this proceeding. Yet, they did not dispute that the subject matter of the two proceedings were common, and since they are parties in the other suit, the findings there would bind them. In the circumstances, that the daughters were not impleaded here is not significant, since their interests have been noticed, and indeed, they have been heard in the common hearings. In these circumstances, it is held that the parties in CS (OS) 337/2009, along with the plaintiffs in CS (OS) 185/2009 are entitled to equal, undivided one sixth share in the suit property. A preliminary decree to that effect shall be drawn. Shri Ravi Awasthi, Advocate (Mobile No.9891207152) is hereby appointed as Local Commissioner to inspect the premises, and report to the Court, about the actual physical possession in respect of the said property (F-3/30, Krishna Nagar, Shahdra) as well as indicate the dimensions of the property, and recommend the most convenient mode for partitioning it, through metes and bounds. The Commissioner shall, after inspecting the premises, and ascertaining the views of the parties, file a report, within eight weeks. The Commissioner shall be paid Rs. 50,000/- (Rupees fifty thousand) as fees; the parties in both suits, shall bear the fees, in equal proportions. List the Suit, CS (OS) 337/2009, for directions towards preparing final decree, on 25th August, 2010.

26. The decrees in the two suits shall be drawn in terms of the directions indicated in the two previous paragraphs of this judgment. In the circumstances, there shall be no order on costs.