ITTIANAM AND ORS. versus CHERICHI @ PADMINI

Citation: [2010] 8 S.C.R. 1135 · Decided: 27-07-2010 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Disposed off

Judgment (excerpt)

[2010] 8 S.C.R 1135 
ITIIANAM AND ORS. 
v. 
CHERICHI @ PADMINI 
(Civil Appeal No. 7226 of 2002) 
JULY 27, 2010 
[G.S~ SINGHVI AND ASOK KUMAR GANGULY, JJ.] 
Succession Act, 1925 - s. 90 - Effect of; on interpretatiort 
A 
B 
of the Will - Held: In absence of a contrary intention in the 
Will, the description of the properties in the Will would be 
C 
deemed to refer to and include the property answering that 
description at the death of the testator - The Will would then 
be deemed to speak from the date of the testator's death -
English Wills Act (U.K) - s.24. 
Will - Statutory presumption against intestacy - Held: 
While construing a Will, the Court should lean against any 
intestacy - However, the presumption against intestacy 
cannot be raised ignoring the intention in the Will. 
D 
Interpretation of Statutes -
Deeming provision -
E 
Interpretation and effect of - Legal fiction. 
Words and Phrases - "deemed" and "comprise" -
Meaning of: 
F 
Dispute arose between the parties over some 
properties bequeathed in terms ofa Will. In the Will, seven 
items of property were bequeathed. Pursuant to an 
application filed by the appellants under Section 278 of 
the Indian Succession Act, 1925, the District Judge 
granted the letters of administration in respect of all the 
G 
seven items of property in the Will, · . 
On appeal, the High Court affirmed the grant of letters 
of administration in respect of items 1 to 3. It declined to 
1135 
H 
1136 
SUPREME COURT REPORTS 
[2010] 8 S.C.R. 
A grant the letters of administration in respect of items 4 to 
7 on the ground that on the date of the Will, the testator's 
title over item nos.4 to 7 was not perfected; and that it 
was perfected only on the registration of the sale deed 
(executed in favour of the testator), which was after the 
8 execution of the Will. 
c 
In the instant appeals, the question which arose for 
consideration was whether in view of the provisons of 
s.90 of the Indian Succession Act, 1925, the judgment of 
the High Court was erroneous and liable to be set aside. 
Disposing of the appeals, the Court 
HELD:1.1. Section 90 of the Indian Succession Act, 
1925 is based on Section 24 of the English Wills Act. Prior 
to the English Wills Act under the common law, 
D testamentary disposition of real property spoke from the 
date of the Will. But the English Wills Act changed that 
by a statutory presumption to the effect, that unless a 
contrary intention appears from the recitals of the Will, the 
Will speaks from the date of the testator's death. [Para 13) 
E [1142-F] 
1.2. Section 90 uses the legal fiction "deemed" and 
that is used with the specific purpose of raising a 
presumption against intestacy. On an analysis of the 
F provisions of Section 90, it is clear that the property 
described in the Will shall be deemed to refer to and 
comprise the property answering that description at the 
death of the testator. In the absence of a contrary 
intention in the Will, the description of the properties in 
G the Will shall be deemed to refer to and include the 
property answering that description at the death of the 
testator. [Paras 14, 16) [1142-G-H; 1143-C] 
Shorter Oxford Dictionary on Historical Principles, p.386; 
Webster's Comprehensive Dictionary Encyclopedic Edition, 
H 
ITIIANAM AND ORS. v .. CHERICHI @ PADMINI 
1137 
p.269 and Law of Wills by Williams, 3rd edition, p.429, 
A 
referred:to. 
2. When the legislature uses a deeming provision to 
create a legal fiction, it is always. used to achieve a 
purpose. The obvious purpose herein is to avoid 
intestacy in respect of properties referred to and 
.comprised in the Will. Once the purpose is ascertained, 
the Court must,give full.effect to the statutory fiction and 
B 
the fiction is to be carried to its logical end. Going by this 
test, the High Court. did not properly appreciate the 0 
purport of Section 90 in.the context of the Will when it is 
common ground that the Will does not contain any 
contrary intention in respect of the bequest of items 4 to 
7 of the properties. [Paras 17, 18, 19) [1143~E-H; 1144-A-
C] 
State of Travancore-Cochin and others v. Shanmugha 
Vilas Cashewnut Factory, Qui/on AIR 1953 SC 333 and State 
of_Bombay v. Pandurang Vinayak and others AIR 1953 SC 
.244, relied on. 
D 
E 
East End Dwellings Co. Ld. v. Finsbury Borough Council 
1952 AC 109, referred to. 
3. On general principles also, a Will speaks only from 
the date of.the·death of the testator. In the present case, 
ass

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