LexSHYAMAL KANTI GUHA (D) THROUGH LRS & ORS. versus MEENA BOSE
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[2008] 8 S.C.R. 639 ,A SHYAMAL KANT! GUHA (D) THROUGH LRS & ORS. A V. MEENA BOSE (Civil Appeal No.3571 Of 2008) MAY 14, 2008 B [S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.] Will: .... Interpretation of - Suit for partition filed by sister of the testator for declaration of title in respect of 50% of the property c in question and for partition - Construing the Will particularly clauses (10) and (11) thereof, Courts below held that bequeath in favour of Respondent-plaintiff (the sister) was absolute and . thus the suit should be decreed - On appeal, held: The testa- tor was of the opinion that the life interest should only be ere- D ated in favour of his sister-respondent - This, however, would not mean that the suit for partition was not maintainable - A suit for partition could be maintainable subject, of course, to the declaration that the interest of the Respondent-plaintiff is confined to life interest only - Indian Succession Act, 1925 - E s.119. Inconsistency between two parts of the Will - Held: The I.. last part shall prevail, but, once it is possible to give effect to ~ both the parts which although apparently appears to be irrec- oncilable, the Court should take recourse thereto - Indian Sue- F cession Act, 1925 - s. 88. Words and Phrases - "bequeath", "devise" and "occupy" - Meaning of - Discussed. The right, title and interest of the parties to the suit in G question arise out of a Will. The properties involved in the suit belonged to the testator. The parties hereto are a brother, sister and the heirs and legal representatives of the testator. A suit for partition was filed by the sister of 639 H 640 SUPREME COURT REPORTS [2008] 8 S.C.R. A the testator for declaration of title in respect of 50% of the property in question and for partition.· Construing the Will particularly clauses (10) and (11) thereof, the Courts below held that bequeath in favour of B the respondent-plaintiff (the sister) was absolute and thus the suit should be decreed. In appeal to this Court, it was contended by the ap- ·~ pellant thatthe intention of the testator was to confer only a life interest upon the plaintiff - respondent. It was urged c that the very fact that in the event of the death of the sis- ter, the appellant's predecessor-in-title (the brother) was to occupy the said premises absolutely and furthermore in view of the fact that clause (10) applied only in the event that both the brothers or the sister died during his life time, D the question of the sister's acquiring a permanent inter- est in the suit property did not and could not arise. Respondent, however, submitted that the words 'give, bequeath and devise' on the one hand and the word 'occupy' on the other, ought to be assigned different mean- E ings and so done the bequeath under the Will in her favour must be held to be absolute. Partly allowing the appeal, the Court HE:L0:1.1. Although construction of clause (6) of the F Will is in question, indisputably the said clause for the purpose of ascertaining the intention of the testator must be interpreted having regard to other terms of the said Will. A bare perusal of the entire Will goes to show that the testator was aware of the nature of the bequest. He G wanted to give much more to his brother than others. [Para 4] [646-B,C] 1.2. Intentionally different words like 'give', 'bequeath' and 'devise' had been used in all the relevant clauses, namely, clauses (6) to (11). Even the word 'absolutely' has H been freely used. The testator envisioned two situations. SHYAMAL KANT! GUHA & ORS. v. MEENA 641 BOSE Death of his sister-Respondent and his own death. Given A a plain meaning; whereas clause (6) was to apply in the case of Respondent, clause (10) applied if he expired. Clause (10)cannot be read in isolation. It must be read subject to the other terms contained in clauses (6) to (9) as the words 'as per above terms' have been used therein. B [Para 5) [646-C,D,E] 1.3. A Will should be construed by a Court indisputably placing itself on the arm-chair of the testator. The endeav- our of the Court should be to give effect to his intention. The intention of the testator can be culled out not only upon C reading the Will in its entirety, but also the background facts and circumstances of the case. [Para 6) [646-G,H, 647-A] 1.4. In the present case, both the Courts below pro- ceeded on the basis that the word 'occupy' would mean 0 p
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