BAJRANG FACTORY LTD. AND ANR versus UNIVERSITY OF CALCUTTA AND ORS

Citation: [2007] 7 S.C.R. 363 · Decided: 18-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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BAJRANG FACTORY LID. AND ANR 
A 
v. 
UNIVERSITY OF CALCUTT A AND ORS 
MAY 18, 2007 
[S.B SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Indian Succession Act, 1925-Sections 113, 116, 129-/nterpretation 
of will-Father bequeathing immoveable property in favour of son with 
stipulations that (a) it was for his natural life, and thereafter to his sons/ C 
grandsons as he may appoint absolutely, in default thereof to his eldest male 
descendants absolutely, and if the son did not have male issue, he could 
appoint his daughters or daughters' son (b) be could sell off those property 
subject to investment of entire money there from for purchase of immovable 
properties as specified in the will (c) he had right and testator/father 'devised' 
that he should settle said properties on one of his sons for such sons life with D 
remainder to such son's son-Subsequent to will, testator/father executing a 
Codicil, to be read as a part of his last Will, providing that if his son did 
not have any issue, distant or adopted son or any issue of such adopted son, 
his estate shall go to a University for advancement of learning and suitably 
perpetuate for benefit of his elders-On death of testator and on being E 
appointed sole executor of will, son letting out premises and also conveying 
a portion of said leasehold-Son/legatee died without any issue or adopting 
any son, and he did not make any appointment in terms of the Will, whereupon 
University filed suit claiming its right in terms of will-Maintainability of 
suit and validity of will-Held-Bequeath to sons/grandsons of testator was 
not void under Section 1I3 as it vested in them absolutely and was not for F 
a life time; it was more so as in default of eldest male descendants absolutely, 
his son/legatee could appoint his daughters/daughters' sons-Power to 
transfer bequeathed property was not absolute, but merely provided for 
conversion thereof strictly in manner as laid down-Use of word 'devise' was 
inappropriate, and testator probably meant to use word 'desire'; said clause G 
could neither be said to bequeath any property nor be applied/or construction 
of Will or to properties which were to be substituted in place of immovable 
properties belonging to testator-Clause in Codicil was not void under 
Section 129; it did not substitute clauses in the will and could be read 
therein immediately after clause providing for appointment of daughters or H 
363 
364 
SUPREME COURT REPORTS 
[2007) 7 S.C.R. 
A daughters' son of legatee-The bequeath was not void and University had 
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locus standi to file the suit. 
Will-Interpretation of-Held-For ascertaining intention of maker of 
will not only terms thereof are to be considered but also circumstances 
B 
attending thereto-It must be considered as a whole for said purpose and not 
merely particular part thereof-If read in its entirety it can be given effect 
to, nothing should be read therein to invalidate it-Section 88 of Indian 
Succession Act, 1925 providing that in case of two irreconcilable clauses in 
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Will the last prevails is a pointer to fact that once it is possible to give effect 
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to apparently irreconcilable clauses, court should take recourse thereto-
c Only because a part of it is invalid, it cannot be invalidated entirely, if 
former forms a severable part-A/so, for its construction and validity Court 
must see things as they were at relevant time and not what they_ are today. 
The impugned property belonged to NC. The legatee under his Will was 
his son HC. After death of NC, on an application for grant of probate, the 
D High Court appointed HC as the sole executor and trustee of the Will. He, 
allegedly by a registered indenture, let out the impugned premises in favour 
of the appellant company for a period often years with the option to renewal 
J. 
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He also, purportedly conveyed a portion of the said leasehold by a registered 
deed of sale in favour of CT, a company, subject to the lease granted in favour 
E of the appellants. 
The Will of NC, inter alia had following clauses:- "(5) I give all my 
immovable properties ••• to my son ••• to hold and enjoy the same during the 
term of his natural life without impeachment of waste and on the determinator 
of bis life Estate to such one of bis sons and grandsons as he may by deed, 
F will or otherwise in writing appoint absolutely and in default of such 
appointment to his eldest male descendants absolutely. If my son has no male 
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issue, 

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