Interpretation of Wills

Saji Koduvath, Advocate, Kottayam.

Relevant Provisions as to Interpretation of a Will

  • 1. Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
  • 2. Sec. 100 of the Evidence Act deals with interpretation of Will. It reads as under:
    • 100. Saving of provisions of Indian Succession Act relating to wills -Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills
  • 3. Section 74 of the Indian Succession Act, 1925, contains the armchair rule. It reads- ·       
    • 74. Wording of will— It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.
  • Sec. 74 of the Indian Succession Act conveys – intention of the testator is important. Court ascertains it putting itself into the testator’s armchair.

Cardinal principles as to interpretation of a Will

Cardinal principles as to interpretation of a Will are laid down in the following decisions:

  • Ram Gopal v. Nand Lal (AIR 1951 SC 139), 
  • Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103), 
  • Raj Bajrang Bhadaur Singh v. Thakurain Bakhtraj Kher (AIR 1953 SC 7), 
  • Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703),
  • Ramchandra v. Hilda Brite, (AIR 1964 SC 1323,
  • Navneet Lal v. Gokul (AIR 1976 SC 794),
  • Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321

The Principles recognised in these decisions are the following:

  • (1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Also: Narendra Gopal Vidyarthi vs Rajat Vidyarthi: (2009) 3 SCC 287)
  • (2) In construing the language of the Will the Court is entitled to put itself into the testator’s armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document. (Also: Venkata Narasimha v. Parthasarthy, (1913) 41 IA 51: 15 Bom LR 1010; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287; Veerattalingam v. Rameth AIR 1990 SC 2201)
  • (3) The true intention of the testator has to be gathered not by attaching importance in isolated expressions, but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.(Also: Bajrang Factory Ltd. v. University of Calucutta (2007) 7 SCC 183)
  • (4) The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.
  • (5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will.

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Construction of Wills – True shade of meaning

  • The meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning. (Sasiman Chowdhurain v. Shib Narayan Chowdhury,49 IA 25, 35 : 66 IC 193 : 24 Bom LR 576; Musammat Surajmani v. Rahi Nath Ojha, 35 IA 17 : ILR 30 All 84 : 10 Bom LR 59; Navneet Lal v. Gokul, AIR 1976 SC 794)

In Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103, BK Mukherjea, J., held as under:

  • “The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. (See also: Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321).
  • In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, (1913) 42 I.A. 51 at p.70.
    • ‘The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, ‘his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ‘The court is entitled to put itself into the testator’s armchair’ …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So, soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.’ (See also: Navneet Lal v. Gokul, (1976) 1 SCC 630; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287)
  • A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; But it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards; Jones v. Jones, [1906]1 Ch. 570 at p. 574:
    • ‘It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning’.”

It is pointed out in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon 2018-1 Ker HC 412, 2018-2 Ker LT 553, A. Hariprasad, J., as under:

  • “The ‘Arm Chair Rule’ was originally propounded in Boyes v. Cook ((1880) 14 Ch.D 53). The Rules reads thus:
  • “Armchair Rule.-Although, a will always speaks from the date of the death of the testator, in construing the will, the court of construction should determine the facts and circumstances respecting the testator’s property and his family and other persons and things as at the date of the will, in order to give effect to the words used in the will when the meaning and applications of his words cannot be ascertained without taking evidence of such facts and circumstances. For this purpose, evidence is received to enable the court to ascertain all the persons and facts known to the testator when he made the will. The court, it has been said, puts itself into the testator’s armchair.”

In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy (1913) 41 Ind App 51, held as under:

  • “The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ’ The court is entitled to put itself into the testator’s armchair …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.” (Quoted in Gnanambal Ammal  v. T. Raju Ayyar, AIR 1951 SC 103, B.K. Mukherjea, Fazal Ali, N. Chandrasekhara Aiyar, JJ.) (Referred to in: Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115, S.B. Sinha; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287; Navneet Lal alias Rangi v. Gokul   (1976) 1 SCC 630.

Lakshmana Nadar v. R. Ramier, AIR 1953 SC 304, M C Mahajan, SR Das, JJ.

  • The Court’s primary duty when it considers a will is to ascertain from the language employed by the testator “what were his intentions” keeping in view the surrounding circumstance, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.

In Ramachandra Shenoy v. Mrs. Hilda Brite (1964) 2 SCR 722, our Apex Court held as under:

  • “It was common ground that under clause 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains of A’s death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it.” (Quoted in: Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115).
  • See also: Bhura v. Kashi Ram, AIR 1994 SC 1202:  (1994) 2 SCC 111, Arunkumar v. Shriniwas, (2003) 6 SCC 98)

The said principle was reiterated in Navneet Lal alias Rangi v. Gokul   (1976-1 SCC 630) as under:

  • “8. From the earlier decisions of this Court the following principles, inter alia, are well established: (1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal, AIR 1951 SC 139).”  See also: Shyamal Kanti Guha (D) Through LRs. & Ors. v. Meena Bose [2008 (9) SCALE 363],

Golden rule of interpretation

It is interesting to note that the golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey Vs. Pearson, 1857 (6) HLC 61, in the matter of construction of a Will. (See: Ms. Eera Through Dr. Manjula v.  State  (Govt. of NCT of Delhi), (2017) 15 SCC 133). It requires giving effect to the actual meaning of the words used in statutes and other documents.  This rule gives effect to the literal or ordinary meaning of the words used.

Construction of Will – Not by attaching importance to isolated expressions

The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, 1953 SCR 232, 240 : AIR 1953 SC 7;  Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287; Navneet Lal v. Gokul [(1976) 1 SCC 630; Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183); Anil Kak v. Kumari Sharda Raje & Ors. [2008 (6) SCALE 597.

In Halsbury’s Laws of England, Fourth edition, Volume 50, page 332-33, it is stated :

  • ‘462. Leading principle of construction: The leading principle of construction which is applicable to all wills without qualification and overrides every other rule of construction is that the testator’s intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention’.”(Quoted in:  Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287)

The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das, 1963 Supp. 2 SCR 834, 839, 842; Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Navneet Lal v. Gokul [(1976) 1 SCC 630; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

Two repugnant provisions

If there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. Ramachandra Shenoy v. Mrs. Hilda Brite [(1964) 2 SCR 722, 735; Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

To ascertain terms of the Will and attendant circumstances may also consider

In Bajrang Factory Ltd. v. University of Calcutta, (SB Sinha, J.), 2007-7 SCC 183, it is held as under:

  • “43. With a view to ascertain the intention of the maker of the Will, not only the terms thereof are required to be taken into consideration but all also circumstances attending thereto. The Will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the Will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same.” (Quoted in: Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

The word ‘devise’ was read as ‘desire’

In Shyamal Kanti Guha  v. Meena Bose, (SB Sinha, J.), AIR  2009 SC 1194, 2008-8 SCC 115, referred to Bajrang Factory Ltd. v. University of Calcutta, 2007-7 SCC 183, (SB Sinha, J.), and pointed out as under:

  • “Therein the word ‘devise’ was read as ‘desire’. If this Court is to put itself into the testator’s armchair to ascertain his intention from the words used in the Will; it must take into consideration the surrounding circumstances, the position of the testator, his family relationships, and attach importance to isolated expressions so as to give effect to all the clauses in the Will rather than making some of it inoperative.”

Entire document need not be invalidated

The Supreme Court in Anil Kak v. Kumari Sharda Raje reported in 2008 (6) SCALE 597 held sa under:

  • “The testator’s intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.”   (Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287; Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183.)

Also Read:

Last Part of a Will prevails under Sec. 88

Sec. 88 of the Succession Act says that the last of two inconsistent clauses prevails.

Sec. 88 reads as under:

  • “88. The last of two inconsistent clauses prevails. – Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
  • Illustrations
  • (i) the testator by the first clause of his Will leaves his estate of Ramnagar to “A”, and by the last clause of his Will leaves it to “B” and not to A”. B will have it.
  • (ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.

Sec. 88 (latter disposition will prevail) is applied in the following premises:

  • This rule of interpretation can be invoked only if different clauses cannot be reconciled. (See Rameshwar v. Balraj, AIR 1935 PC 187; Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321).
  • If the apparently appearing inconsistency can be reconciled, the court will take that recourse. (Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321.)
  • In the event of irreconcilable inconsistency between two parts in the Will, the last shall prevail over the earlier clause.  (Kalvelikkal Ambunhi v. H. Ganesh Bhandary, AIR 1995 SC 2491; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)

But, in case of documents like sale deeds, gift deeds, mortgage deeds, if the apparently appearing inconsistency can be reconciled, the court will take that recourse.  But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter. (Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321.)

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