PRAMOD KUMARI BHATIA versus OM PRAKASH BHATIA AND ORS.

PRAMOD KUMAR! BHATIA

OM PRAKASH BHATIA AND ORS.

November 15, 1979

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.)

Will-Teslamtntary Will, con.struction of-Jurisdiction of the Court in cxercisinR its curial c!raught.~nurnship for the ffl~tator to supply the specific words from the Will,. explained.

Evidence-Additional evidence reception of by the High Court-Supre1ne Court cannot interfere with the discretionary power of the Iligh Court, when the application is very much belated.

The lestator Pearcy Lal Singh Bhatia died on 30-3-1952 leaving behind him Will dated 8-4-44, widow Lakshmi Devi being his second wife, son Om Praka5b by Lakshmi Devi, and t!;ie widow and daughters (Mamnohini, Raj Kuma!i aDd Pramod Kumari respectively) of pre-deseased son by pre-dece38Cd fll'St wife. Manmohini, the daughter-in-law of the testator and her daughter Raj Kumari had left the family house and moved away to_ Mathura, V..'hile Pramod Kumari stayed in with her grand father and was brought by up him. Lakshmi Devi, widow of Pearey Lal Singh died in 1958.

The "1Jit filed by Om Prakash for title to sum of Rs. 16,490/-lying in deposit with two banks was dismissed by the trial J udgc, who on strict and narrow construction of the will came to the conclusion that Om Prakash was not entitled to •ucceed under the will and that on the death of Lakshmi Devi the amount bad to be divided among Om Prakash, Man Mohini, Raj Kumari and Pramod Kumari. On appeal the High Court of Allahabad held that on true comtruction of the will Om Prakash alone was entitled to the amount.

Dismissing the appeal by special leave, the Court,

HEID : I. reading of the whole of the will clearly shows the unambi-guous intention of the testator that his son Om Prakash should succeed to his estate after the death of Lakshmi Devi and none else was to be the owner of the properties. [57 A]

The testator noticed the existence of five possible heirs : his wife, Lakshmi DcVi; his sOill Om Prakash, his deceased son Krishna Chandra's widow, Man-n1ohini and Krishna Chandra's daughters, Raj Kumari and Pramod Kumari. He was desirous that Pra·mod Kumari Should be brought up by himself and his wife and that they should also perform her marriage. He was also desirous that sum of Rs. 2000 /- should be set apart for the marriage of Raj Kumari. Apart from that, he did make it clear thait Man Mohini, Raj Kumari and Pramocl Kumari should have no right or interest in any of bis properties under any circumstances. On his death his properties were to go to his wife Lakshmi Devi who 1llao to have life interest in them. If his wife Lakshmi Devi pre-decease<l him, the properties were to go to his son Om Prakash. [56 F-HJ

2. No doubt, the testator while specifying that Om Prakash was to take the properties in case Lakshmi Devi predeceased the testator, did not specify I.bat Om Prakash should take the properties after the death of Lakshmi Devi ·in case Lakshmi Devi survived the testator to enjoy the• life estate given to her under the will. But this is case where the testator's intention to give the -pro· perties to Om Prakash in case Lakshmi Devi predeceased the testator was so patently and reasonably certain, 'no speculation but compelling conviction', that the Court would be justified in exercising its curial draughtsmanship for the testator. and supplying th~ specific \VOrds missing from the will. 1be Court bas undoubted jurisdiction to do so. Therefore necessary words to that effect can and must be read into will. [57 A-C, 58 CJ

William Abbott v. Eliza Middleton, 7 H.L.C. 68 Eden v. Wilson, 4 H.L.C. 284, Re Smith (1947 2 All England Law Reports 708), Re Cory (1955 I W.L.R. 725 Re. Riley's Will Trusts (1962 I W.L.R. 344); quoted with approval.

3. Supreme Court cannot interfere with the discretion exercised by the liigh Court in refusing to receive additional evidence for which an application was made after several years. [58 F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2577 of 1969. From the Judgment and Order dated 18-7-1967 of the Allahabad High Court in First Appeal No. 166/60.

M. V. Goswami for the Appellant.

Mohan Beltari Lal and Vishnu Mathur for Respondent No. 1.

The Judgment of the Court was delivered· by

CHINNAPPA REDDY, J.-The question in the appeal is about thCJ co'nstruction of will. The facts which are now not in dispute before · us are as follows : The testator, Pearey Lal Singh Bhatia died on 30-3-52 leaving behind him will dated 8-4-1944, widow Lakshmi Dovi being his second wife, son Om Prakash by LakShmi Devi, and the widow and daughters (Manmohini, Raj Kumari and Pramod Kumari respectively) of pre-deceased son by pre-deceased first wife. Manmohini. and her daughter Raj Kumari had left the family house and moved away to Mathura while Pramod Kumari stayed on with her grand-father and was brought up by him. Lakshmi Devi, widow of Pearey Lal Singh, died in 1958. We are now concerned with the title to •um of Rs. 16,490/- lying in deposit with the State Bank of India and the District Cooperative Bank, Bulandshahr. Om Prakash claims the amount und·or the will dated 8-4-1944. The will, registered one, was in the following terms :-

"I, Pyare Lal Singh, so'n of Babu Ghanshyam Narain Saheb, by caste Kshatriya Bhatia, resident of Mohalla Sheopuri, Bulandshahr, do declare hs follows :-

"I, the executant, am owner in possession of the property specified as given below in Schedules 'A', 'B' and 'C'. The

property given in Schedules 'B' and 'C' has been purchased by me the executant, with my own funds in the 'name of my wife Smt. Lakshmi Devi and my son Om Prakash. In fact I, the executant, am the owner of it as well. Th~ entire movable and immovable property, owned and possessed by me, is my self, acqnired property and is not ancestral pro-perty, and I the cxccuta'nt, ha.ve all sorts of rights to make transfers in respect thereof. NowI, the executant, am about sixty years of age and I have wife, Lakshmi Devi, son, Om Prakash, and two dear grand-daughters, Raj Kumari and Pramod Kumari, daughters of my first son Krishna Chandra Singh, M.A.,LL.B., who has already died in June, 1932, . leaving behind his widowed wife Smt. Man Moh?ni D~vi, besides these two daughters aforesaid. Both the daughters of my deceased son aforesaid,' who are my grand-daughters, are still minors. By way of prudence and for future manage-ment I, the executant, make will as under :-That I, the executant, till I am alive, shall remain owner of my entire movable and immovable property, cash etc., which I possess at present or which may be added to it duri'.ng nly life time and which I, the eirecutant, leave behind at the time of my death. After my death, if my wife Smt. Laxmi Devi remains alive, she will become owner of my entire estate with life interest, but she shall have no power to transf~ any movable and immovable property. If my wife Smt. Lakshmi Devi predeceases me, then under such circum-stances, after my death my son Om Prakash, who has now appeared at the examination of the X class of the English School and who is 18 years of age, shall become permanent -0wner in possession of my entire estate and he shall be bound by the conditions laid down in this will. I and my wife shall be duty-bound to maintain and perform marriage etc. of my grand-daughter Pramod Kumari and my son Om Prakash and it will be incumbent .upon me and my wife to discharge that duty. My second grand-daughter Raj Kumari lives with her mother at Mathura. After the death of her father, she or her mother did nat come to me and remained under the guidance of her matemai grand-father and grand-mother. Therefore, it is the duty of the mother of my grand-daughter Rajkumari, who. is teacher in girl's school in Mathura City, to mailltain her and perform her marriage. Even then I Jay down for her as well that

[1980] 2 s.c.R.

slim upto Rs. 2000 ;- may be given or spent for her lnarri-age. Appropriate expenses are to be incurred over the edlica-tion alld marriage of my second grand-daughter Pramod Kumari and my son Om Prakash, who are living With me and are getting education. My daughter-in-law Smt. Manmohini Devi aforesaid or her daughters aforesaid or my any other relation shall not have any right or share in my any estate under any circumstances. Only the expensee of maintenance, marriage etc. of my both the grand-daughters aforesaid and later on the expenses of th~ir bringing here µnd sending off shall be met according to custom in accord-ance with the directions give·n above. It is also niy will that after my death, sum of about Rs. 20 /- per mensem out of the income from rent of shops and houses and other field property may be spent for charitable purposes in the follow-ing manner:-

I shall continue to do all the charitable acfa afore&Ud during my life time. After my death, if my wife remains alive, she shall, and after her death my son Om Prakash, may he live long, shall be duty-bound to continue this chari-table act. I have strong hopes that my wife Lakshmi Devi and my son Om Prakash shall execute this will of mine ill every way and in this way they shall cause benediction w my soul, and that they shall make additions to my estate and shall not allow it to be under charge or to decrease in auy waJ."

The testator, it is seen, noticed the existence of five possible heirs : his wife, Lakshmi Devi, his so\1 Om Prakash, his deceased son :KriBhna Chandra's widow, Manmohini and Krishna Chandra's daughters, Raj Kumari and Pramod Kumari. lk was desirous that Pramod Kumari should be brought up by himself and his wife and that they should also pefrorm her marriage. He was also desirous that snm of Rs. 2000 /- should be se.t apart for the marriage of Raj Kumari. Apart from that, he did make it clear that Man Mohini, Raj· Kumari and Pramod Knmari should have no right or interest in any df his pro-perties under any circumstances. On his death his properties were to go to his wife Lakshmi Devi who was to have life interest in II them. If his wife Lakshmi D~vi predeceased hinl, the properties were to go to his son Om Prakash. Directions were given for the cartying out of certain charitable obj ecti. His wife Lakshmi Devi and after

her death, his son Om Prakash were enjoined to perform the chari-table acts. reading: of the whole of the will clearly shows that it was the intention of the testator that his son Om PrakaSh and none else was to be the ultimate owner of the properties. No doubt, the testator while specifying that Om Prakash was to take the properties in case Lakshmi Devi predeceased the testator, did not specify that Om Prakash should take the properties after th~ death of Lakshmi Devi in case Lakshmi Devi survived the testator to enjoy the life estates given to her under the will. But this is case where the testa-tor's intention to give the properties to Om Prakash in case Lakshmi Devi predeceased the testator was so patently aud reasonably certain, 'no speculation but compelling conviction', that the court would be justified in exercising its curial draughtsmanship for the testator and supplying the specific words missing from the will. The Court has undoubted jurisdiction to do so.

In William Abbott v. Eliza Middleton(!), the testaor gave an annuity of £2000 to his widow, and set apart, out of· his per~onal property, sum sufficient to provide for its payment. He directed that, on the death of his widow, the s.m so set apart was to go to his son George for his life and on his death to George's children, but he directed, "in case of my son dying before his mother, then and in that case the principal sum to be divided among the children of my daughter". On the date of the will, George was. not married. He married subsequent to the will and had son. He died before the testator. The testator's widow died soon thereafter. question arose whether George's son was entitled to take the sum after the .death of the testator's widow. He could so take if the words "with-out leaving any child" could be supplied after the word "dying" in the deposition relating to the final gift over. The Lord Chancellor observed, "where there is an uncertainty as to the meaning of any part of will, the right of Court of construction even to introduce words, in case of necessity, is clearly stated by Lord St. Leonards, in the passage quoted from Eden v. Wilson('), and declared the right of George's son to the sum.

Re Smith(•), re Cory(4) 'and re Riley's Will Trusts(•), are other 'instructive cases where words have been supplied by Courts because ol "so strong probability of intention, that au intention contrary to that which is imputed to the testator canoot be supposed".

(1) 7 H.L.C. 68. (2) 4 H.L.C. 284. (3) [1947] 2 All E.R. 708 • (4) [1955] I.W.L.R. 725. (5) [1962] I W.L.R. 344. 5-868SCl/79

In Jarman On Wills, 8th Edn. 592, it is said :-

"Where it is clear 9n the face of will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context."

As already observed by us, we do not have the slightest doubt in the present case that it was th~ clear and unambiguous intention of the testator that his son Om Prakash should succeed to his estate after the death of Lakshmi Devi. Necessary words to that effect can and must b~ read into the will.

The learned trial Judge, on strict and qarrow constnt:tion oX the will, came to the conclusion that Om Prakash. was not entitled to succeed, under the will, on the death of Lakshmi Devi and that the amount had to be divided among Om Prakash, Man Mohini, Raj Kumari and Pramod Kumari. On appeal, the High Court of Allaha-D bad held that on true construction of the will Oin Prakash alone was entitled to the amount. , In the view that we have taken, we a)J'ee with the conclusion of the High Court.

Before the High Court, Pramod Kumari filed an application for reception of additional evidence. The principal additional evidence sought to be adduced was an alleg~d Jet\er said to have been written by lat·~ Pearey Lal Si'ngh to the bank nominating Pramod Kumari as the person entitled to the amount in deposit with the Bank. The , letter itself was not filed along with the application but i\equest was made to summon the Jetter from the Bank. The High Court rejected the application. The application to the High Court was made very many years after the suit had been filed, and also quite some years after the appeal had been filed before the High Court, and we do not think that we will be justified in interfering with the discretion exer-cised by the High Court in refusing to receive addition~! ev.idence at that stage. The appeal is therefore dismissed but in the circumstances with no order as to costs.

Appeal dimisscd.