9911796707
TMI Blog2010 (7) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.67, Kunjila, the second wife of Ippuru, sold to Ippuru half of her rights in respect of item Nos. 4 to 7 of the properties in the Will bequeathed by Ippuru. The other half of the property belonged to her son Vareed. Both the sale deed and the Will were registered on 8.5.1967, Ippuru died on 20.7.71. 5. In the Will of Ippuru, seven items of properties were bequeathed and out of which items 1 to 3 were given to one Molutty, daughter of the testator by his first wife. Items 4 to 7 of the properties were previously owned in equal moieties by Vareed and Kunjila, the second wife of Ippuru. Kunjila, as noted above, sold her share to Ippuru on 2.5.67 but the sale deed was registered on 8.5.67, the same day when the Will was registered. 6. After the death of Vareed on 1.8.1986, his wife and children appellants, 1 to 5 herein, jointly applied under Section 278 of the Indian Succession Act (the Act) for grant of Letters of Administration of the Will of the testator. That petition was contested by the Padmini @ Cherichi, one of the daughters of the testator's second wife. Thus the proceeding became contentious and was registered as a suit being O.S. 10 of 1988 in the District Court, Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; 13. This Section is based on Section 24 of the English Wills Act. Prior to the English Wills Act under the common law, 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. 14. Section 90 of the Act uses the legal fiction "deemed" and that is used with the specific purpose of raising a presumption against intestacy. Therefore, on an analysis of the 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. 15. In the context of Section 90, the word `comprise' will obviously mean `to include, embrace, to comprehend compendiously, to contain, to consist of, to extend, cover" (See Shorter Oxford Dictionary on Historical Principles, page 386). In Webster's Dictionary the word `comprise' means to "include and contain, consist of and embrace". (Webster's Comprehensive Dictionary Encyc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). At page 429 of the treaties, the learned author by properly appreciating the deeming clause commented: "A Will must be construed with reference to the property comprised within it, to speak and to take effect as it has been executed immediately before the date of death of the testator and as if the conditions of things to which it refers in this respect is that existing immediately before the date of the testator, unless a contrary intention appears from the Will". 21. On general principles also a Will speaks only from the date of the death of the testator (See AIR 1964 SC 136). In this case assuming but not admitting that the testator had not acquired title in respect of half of the property, namely, items 4 to 7 of the property bequeathed by him in the Will on 8.5.1967, but the sale deed having been registered on 8.5.1967, the title reverts back to the date of execution of the sale deed on 2.5.67 under Section 47 of the Registration Act. And the testator died on 20.7.71. Therefore, much before his death, the testator acquired full title over items 4 to 7 of the property. Therefore, the High Court was in clear error in not appreciating the effect of Section 90 on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary intention appears by the Will, that it comprises all property as at the testator's death..." 27. The learned counsel also relied on the decision of Bombay High Court in the case of Abdulsakur Haji Rahimtulla and others Vs. Abubakkar Haji Abba and others reported in AIR 1930 Bombay 191. At page 196 of the report, Bombay High Court decided: "...In this connection it is necessary to remember certain general principles that attach to wills. A will speaks from the date of the death of the deceased. There might be accretions to or diminutions from the property of the testator as they existed at the date of the will. Another principle to remember in this connection is that a testator is presumed to dispose of all the property that he may die possessed of and not only what he possessed at the date of the will..." 28. Reliance was last placed on the decision of the Nagpur High Court in the case of Rangoo Ramji Vs. Harisa and another reported in AIR 1932 Nagpur 163. Explaining the purport of Section 90, the High Court observed that Section 90 is in accordance with Section 24 of the English Wills Act of 1837. According to such principle "the Will has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in N. Kasturi Vs. D. Ponnammal and others, reported in AIR 1961 SC 1302. Justice Gajendragadkar, as His Lordship then was, speaking for the Bench, opined if two constructions are reasonably possible and one of them avoids intestacy while the other suggests it, "the Court would certainly be justified in preferring that construction which avoids intestacy" and the decision rendered in Gnambal Ammal (supra) was relied upon (para 15 page 1307 of the report). Same view was endorsed by this Court in Pearey Lal Vs. Rameshwar Das reported in AIR 1963 SC 1703 wherein Justice Subba Rao, as His Lordship then was, speaking for the Bench observed where one of the two reasonable constructions would lead to intestacy that should be discarded in favour of the construction which prevents the hiatus (para 7 page 1706 of the report). The same principle has been quoted with approval by this Court in the case of Navneet Lal alias Rangi Vs. Gokul and others reported in AIR 1976 SC 794. Speaking for the Bench, Justice Goswami, at para 4 page 797 of the report, quoted the aforesaid principle laid down in Pearey Lal (supra). 34. Therefore, both the English Courts and this Court in construing a W ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
