SA/1223/2011 of ARUMUGAM(died) Vs JANARDHANAN on 13 November 2026

JUDGMENT

This Second Appeal has been filed challenging the judgment and decree passed by the First Appellate Court, namely, the learned Additional District Judge, Fast Track Court No. II, Poonamallee, in A.S. No. 95 of 2008, dated 25.01.2010, confirming the judgment and decree passed by the learned Subordinate Judge, Poonamallee, in O.S. No. 299 of 2002, dated 28.02.2008.

2. The suit was instituted by the respondent herein against the appellants and one Gajendran, who is the father of the respondent, before the learned Subordinate Judge, Poonamallee, seeking the following reliefs:

a) permitting the petitioner / plaintiff to sue as Indigent persons.

b) declare that the sale deed dated 17.02.1999 executed by the first respondent – defendant in favour of the third defendant / respondent convey the suit property (site) as absolute owner (registered as document No.179/99) on the file of Sub Registrar Poonamallee) is not binding on the petitioner / plaintiff.

c) declare that the petitioner / plaintiff is the reminder estate holder of the suit property;

d) for possession of the suit property after the life time of the first respondent defendant;

(i) Permanent injunction restraining the defendants from demolishing from on the street property.

e) directing the respondent / defendants 1 to 3 to pay the Government Court fee payable on the plaint.

f) directing the defendants and defendants to pay the petitioner / plaintiff of the costs of the suit.

3. The case of the plaintiff is that Govindarajalu Naicker was the absolute owner of various properties and that he had executed a Will dated 20.04.1992, bequeathing the properties in favour of his three sons and three daughters. Under the said Will, one of the properties, described as the ‘C’ Schedule property, which is the suit schedule property, was bequeathed by creating a life interest in favour of the first defendant, namely, Gajendran (who is not a party to the present appeal), with the remainder interest being bequeathed in favour of the plaintiff. The Will came into effect upon the death of Govindarajalu Naicker. While so, the first defendant is stated to have alienated a portion of the suit property in favour of the second and third defendants, namely, the appellants herein, claiming absolute ownership over the same, under a sale deed dated 17.02.1999. Challenging the said sale deed and for other reliefs, the plaintiff instituted the suit.

4. The first defendant remained ex parte in the suit. The appellants herein, who were arrayed as defendants 2 and 3 before the Trial Court, filed a written statement. They did not dispute the execution of the Will by Govindarajan Naicker. However, their specific contention was that the bequest made in favour of Gajendran, the first defendant, was absolute in nature and that the plaintiff has no right whatsoever over the suit property.

5. Based on the above pleadings, the Trial Court framed the following issues:

(i) Whether the suit is maintainable?

(ii) Whether the contention of the plaintiff that he is entitled to the remainder interest in respect of the suit schedule property is sustainable?

(iii) Whether the plaintiff is entitled to the relief of declaration and recovery of possession in respect of the suit schedule property?

(iv) Whether the plaintiff is entitled to the other reliefs sought for in the plaint?

(v) What other reliefs, if any, is the plaintiff entitled to?

6. In support of the plaintiff's case, the plaintiff examined himself as P.W.1 and his sister and mother as P.Ws.2 and 3, respectively. Exhibits A1 to A6 were marked on his behalf. They are the copy of the Will dated 20.04.1992, the legal notice dated 25.03.1999 issued by the plaintiff to the defendants, the returned postal cover relating to the first defendant, the acknowledgment card relating to the second defendant, the sale deed dated 17.02.1999 and the legal notice dated 23.12.1999 issued by the plaintiff to the defendants.

7. On behalf of defendants 2 and 3, the second defendant examined himself as D.W.1 and marked Exhibits B1 to B5, which included the sale deed dated 17.02.1999 and the revenue records relating to the suit property.

8. Upon considering the oral and documentary evidence available on record, the Trial Court found that the intention of the testator, as gathered from the recitals in the Will, was to confer only a life interest upon Gajendran in respect of the ‘C’ Schedule property and to vest the remainder interest in favour of the plaintiff. The Trial Court particularly took note of the recital referring to the ‘C’ Schedule property as being intended for Gajendran and his children, as well as the subsequent recital, which, after describing the property with its boundaries, specifically stated that the said house should devolve upon Janardhanam, son of Gajendran, after the lifetime of Gajendran and after he performs the marriage of his sister. On an overall reading of the recitals in the

Will, the Trial Court concluded that the testator had intended to confer only a life estate upon Gajendran, with the remainder interest vesting in favour of the plaintiff. The contentions of the appellants that the plaintiff had no cause of action to institute the suit, that he had not performed the marriage of his sister and that the plaintiff was a bona fide purchaser were rejected by the Trial Court after considering the evidence available on record.

9. Aggrieved by the judgment and decree of the Trial Court, defendants 2 and 3 preferred an appeal before the learned Additional District Judge, Fast Track Court, Poonamallee, in A.S. No. 95 of 2008. The first defendant was not impleaded as a party to the appeal, as he had remained ex parte in the suit.

10. The First Appellate Court, upon independently considering the materials on record, concurred with the findings of the Trial Court and dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the appellants have preferred the present Second Appeal, challenging the judgments and decrees of the Courts below on various grounds. 10.1 The principal contention of the appellants is that the Courts below had misconstrued the principles governing the interpretation of Wills and had erroneously applied the relevant principles of law while rejecting their claim.

10.2 It is further contended that the Courts below failed to properly appreciate the alleged repugnancy between the first recital relating to the bequest contained on page 3 of the Will, marked as Ex.A1, and the subsequent recitals appearing towards the end of the same page and in the C Schedule. 10.3 The appellants would also contend that the Courts below failed to consider the plaintiff's entitlement to institute the suit, particularly when he had not performed the marriage of his sister. 10.4 It is further contended that the testator had not expressly prohibited the first defendant from alienating the suit property. According to the appellants, the Courts below failed to apply the principle governing the interpretation of repugnant clauses in a Will, namely, that where an earlier disposition confers an absolute estate, a subsequent disposition seeking to restrict such estate must yield to the earlier disposition. 10.5 The appellants would therefore contend that the finding of the Trial Court that the first defendant had been conferred only a life interest and not an absolute interest was the result of a misinterpretation of the testamentary document and non-application of the settled principles of law.

11. The learned counsel appearing for the appellants, by way of written submissions and during her oral submissions, would reiterate the contentions raised in the Memorandum of grounds of appeal besides contending that the entire controversy revolves around the proper interpretation of the Will, particularly the first and second bequests. Under the first bequest, the testator had conferred an absolute interest upon his son, namely, the first defendant. However, under the subsequent bequest, a purported remainder interest was created in favour of the plaintiff, who is the grandson of the testator, subject to certain conditions, including the performance of the marriage of the plaintiff's sister. She would also contend that the first and second bequests must be read harmoniously and that the intention of the testator must be gathered from the Will as a whole. According to her, the subsequent recitals cannot be interpreted in a manner that defeats or takes away the absolute interest already vested in the first legatee. The appellants would therefore submit that the alleged remainder interest claimed by the plaintiff is legally unsustainable.

12. In support of the above contentions, the learned counsel would rely upon the decision of the Hon'ble Supreme Court in Sadaram Suryanarayana and Another v. Kalla Surya Kantham and Another, reported in (2010) 13 SCC

147.

13. Per contra, the learned counsel appearing for the respondent had filed synopsis of arguments and would submit that the short point involved in the present Second Appeal is the interpretation of the registered Will dated 20.04.1992 executed by the paternal grandfather of the respondent, namely, Govindarajulu Naicker. According to her the principal contention of the appellants that there is an alleged repugnancy in the Will, since the name of the first defendant is mentioned in the earlier portion of the clause relating to the ‘C’ Schedule property is misconceived and that the Will has to be read as a whole, and the intention of the testator must be gathered from the entire document and not from an isolated sentence or expression, by noting the consistent scheme adopted by the testator throughout the Will to bequeath the properties to his grandchildren while reserving a life interest in favour of his children and that the ‘C’ Schedule property is also governed by the same scheme. Therefore, it is her contention that mere mention of the first defendant in the earlier portion of the relevant clause cannot confer an absolute estate upon him, particularly when the concluding portion of the very same clause specifically bequeaths the property in favour of the respondent.

14. In this regard, reliance has been placed upon the judgment of the Hon'ble Supreme Court in Ramachandra Shenoy v. Mrs. Hilda Brite, AIR 1964 SC 1323, wherein it was held that every disposition contained in a Will must be given effect to, as far as legally possible besides on the decision of this Court in Vijayanthimala v. Srinivasa Rao, 2011 (6) CTC 172, to contend that even where an earlier portion of a Will appears to confer an absolute right upon the testator's children, the same can be construed as conferring only a life interest when the intention gathered from the Will as a whole is to confer the vested remainder upon the grandchildren. The learned counsel for the respondent would further contend that Sadaram Suryanarayana v. Kalla Surya Kantham, (2010) 13 SCC 147, is distinguishable as in that case, the testatrix had expressly conferred an absolute estate together with the power of alienation, whereas in the present case, no such absolute right or unrestricted power of alienation was conferred upon the first defendant.

15. This apart, the respondent would contend that the appellants are now seeking to reopen the very same factual findings of the trial court and first appellate Court under the guise of an alleged substantial question of law besides that a Second Appeal cannot be converted into a third round of factual adjudication. Relying upon the decision of Supreme Court in Chandrabhan v. Saraswati, (2022) 20 SCC 199, indicating the circumstances in which concurrent findings may warrant interference in a Second Appeal, the respondent would contend that in the present case, the appellants have not demonstrated any perversity, non-consideration of material evidence or erroneous application of law warranting interference with the concurrent findings of the Courts below.

16. Heard the learned counsel appearing on either side and perused the materials available on record.

17. The Second appeal has been admitted on 22.12.2011 reckoning the following questions of law as substantial questions of law:

(i) Whether there is complete repugnancy between the first recital or bequest (in common) in page No. 3 of the Will (Ex.A1) compared to the last lines and again the schedule C is again repugnant to the lines in the last two lines of the page 3?

(ii) Whether the Courts below have applied their mind wrongly in interpretation of the Will particularly in respect of the said repugnancy in the Will Ex.A1?

(iii) Whether the Courts below are wrong in holding that sale deed executed by the first defendant in favour of the second defendant is not binding on the plaintiff, though it is the transaction made in favour of the second defendant who is a bonafide purchaser?

18. The learned counsel for the appellants would contend now that the following substantial question of law also arises for consideration in the present Second Appeal: "Whether, after having conferred an absolute interest in favour of his son, namely, the first legatee, under the first bequest in the Will, the testator could, by a subsequent bequest in the same Will, create a remainder interest in favour of his grandson, and whether such subsequent bequest would be valid in law?"

19. The primary objection raised by the respondent is regarding the maintainability of the second appeal contending that interpretation of a document is a mere question of fact and is not a question of law. An inference of fact drawn from the recitals or contents of a document is certainly a question of fact. However, the same cannot be said about the legal effect of the terms of a document. For instance, as in the present case, whether the recitals in question have to be construed as an absolute bequest in favour of the first defendant or as bequeathing only a limited estate can only be ascertained by applying rules of interpretation and therefore, the same cannot be said to be a mere question of fact. In other words, where the construction of a document involves the application of any principle of law, the issue would also constitute a question of law. Therefore, where a document is misconstrued or an incorrect legal principle is applied while construing the document, the same would give rise to a question of law. Needless to point out that, for exercising its jurisdiction under Section 100 CPC, the High Court must be satisfied that the case involves not merely a question of law but a substantial question of law. A question of law would be substantial only when its answer materially affects the rights of the parties to the suit and is material to the decision of the case, involving a debatable legal issue that is not covered by any specific statutory provision or settled legal principle emerging from binding precedents. Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in Boodireddy Chandraiah and Others v. Arigela Laxmi and Another, reported in 2007 (1) SCALE 188, which was subsequently reiterated and approved by the Hon'ble Supreme Court in Narendra Gopal Vidyarthi v. Rajat Vidyarthi, reported in 2008 SCC OnLine SC 1790.

20. In the said decisions, the Supreme Court has also pointed out that, though the general rule is that the High Court would not interfere with concurrent findings of fact recorded by the Courts below, the said rule is not absolute. Interference may be warranted in the following circumstances:

(i) Where the Courts below have ignored material evidence or arrived at findings based on no evidence;

(ii) Where the Courts below have drawn erroneous inferences from proved facts by incorrectly applying the law; or

(iii) Where the Courts below have wrongly cast the burden of proof.

21. In the present case, the appellants have raised the first question as to whether there is complete repugnancy between the first recital relating to the bequest contained on page 3 of the Will, marked as Ex.A1, and the subsequent recitals appearing towards the end of the same page, as well as the recital relating to the ‘C’ Schedule property. The other two questions as well as the third one raised during the arguments by the appellants hinge upon the answer to the first question.

22. A mere reading and understanding of the plain language of the recitals contained in the Will has not, by itself, led the Trial Court and the First Appellate Court to arrive at their respective conclusions. On the contrary, while noticing that the language of the earlier recital differs from the subsequent recitals, the Courts below have proceeded to apply the legal principles which, in their opinion was governing the construction of testamentary documents and have ultimately concluded that the intention of the testator was to confer only a life estate upon the first defendant, with the remainder interest vesting in favour of the plaintiff.

23. Therefore, the first question raised by the appellants herein certainly gives rise to a question of law. There can be no doubt that the answer to the said question would materially affect the result of the suit and, consequently, it constitutes a substantial question of law. Therefore, the objection raised by the respondent on this ground cannot be sustained.

24. In order to appreciate the rival contentions, it would be appropriate to reproduce the relevant recitals in the Will, Ex.A1, which have given rise to the present litigation. Since the dispute relates only to the bequest concerning the ‘C’ Schedule property, the relevant recitals alone are extracted below. The relevant recital appearing on page 3 of the certified copy of the Will, Ex.A1, reads as follows: “fpnH tpthpf;fg;gl;l bc&l;a{ypy; fz;l brhj;Jf;fid A B C D E vd;wyf;fk[pl;L xt;bthUyf;fj;jpYs;s brhj;Jf;fis vd; $Pt jpirf;Fg; gpwF mtuth;fs; ifg;gw;wp g[j;jpu bgsj;jpu ghuk;ghpakha; fpua thrfg;go tpj;njhj;jp jhdhjp tpdpkpa tpf;fpuaEfSf;Fwpj;jha; mila ntz;oaJ”/ Similarly, in the same Will, while referring to the C Schedule property, the testator has specified as follows:

"C

bc&l;a{y; brhj;ij fn$e;jpud; Fkhhu;fs;

milantz;oaJ." Further, on page 6 of the same Will, after describing the property with its boundaries, the testator has specified as follows: “,e;j tPl;il fn$e;jpuDf;F gpwF mtDila kfd; $dhh;jdk; vd;gth; jd; rnfhjhpf;F fypahzk; bra;J bfhLj;j gpwF mDgtpj;Jf;F bfhs;s ntz;oaJ/”

25. It is in this context that the learned counsel appearing for the appellants would rely upon the decision in Sadaram Suryanarayana and Another v. Kalla Surya Kantham and another, referred to supra, to contend that once a testator has conferred an absolute right and interest in his property upon a devisee by the recital cited first above, it is not open to him to bequeath the very same property in favour of another set of persons under the same Will, thereby creating successive legatees.

26. On the other hand, a close reading of the decisions relied upon by the learned counsel for the appellants would make it clear that the principle laid down therein applies to cases where the testator has conferred an absolute right and interest in the property upon the first devisee. It is in such circumstances, the testator cannot subsequently make a further disposition of the very same

property in favour of another set of persons so as to create successive interests. Therefore, the question that arises for consideration in the case on hand is whether the first recital in the present Will actually confers an absolute estate upon the first defendant.

27. In this regard, as rightly pointed out by the learned counsel appearing for the respondent, the Supreme Court, as early as in Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Others, reported in AIR 1964 SC 1323, has held that, while it is true that where two repugnant provisions confer successive interests and the first interest created is valid, the subsequent interest may not take effect. A Court construing a Will must, as far as possible, adopt an interpretation that avoids repugnancy and give effect to every testamentary intention contained therein. In other words, while construing a Will containing apparently inconsistent or repugnant provisions, the Court must endeavour to give effect to all the bequests made therein, to the extent legally possible, and interpret the document accordingly.

28. In this regard, the Supreme Court has also observed that where there is a bequest to A, even though it is expressed in apparently absolute terms, followed by a gift of the same property to ‘B’ absolutely, “on” or “after” or “at” A’s death. A is prima facie be held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.

29. In the light of the above principles, in the case on hand, if the first defendant is held to have been bequeathed the suit schedule property absolutely, the subsequent bequest in favour of the plaintiff would necessarily be defeated. However, for such a conclusion to be reached, it must first be established that the intention of the testator under the first bequest was to confer an absolute estate upon the first defendant. For this purpose, the entire Will must be examined.

30. In the present case, a perusal of Ex.A1 does not disclose any clear or unambiguous recital indicating that an absolute estate was intended to be conferred upon the first defendant. There is no express recital conferring an unrestricted power of alienation upon him or otherwise indicating that the testator intended him to enjoy the property as its absolute owner. On the contrary, as pointed out earlier, the recital appearing on page 3 of the Will refers to the ‘C’ Schedule property as being intended for Gajendran and his children “C bc&l;a{y; brhj;ij fn$e;jpud; Fkhhu;fs; milantz;oaJ.”/ Moreover, while describing the ‘C’ Schedule property with boundaries in the schedule portion, a specific direction has been made to the effect that the house shall devolve upon the plaintiff, Janardhanan, son of Gajendran, the lifetime of Gajendran and after he conducts the marriage of his sister.

31. These recitals, when read together and considered in the light of the overall scheme of the Will, wherein, in respect of other properties, life interest has been bequeathed in favour of his children and thereafter the reminder to their children, clearly indicate that the intention of the testator is not to confer an absolute estate upon the first defendant.

32. Therefore, this Court is of the considered view that the first defendant was conferred only a life interest in the suit schedule property, while the remainder interest was intended to vest in favour of the plaintiff. Therefore, the first substantial question of law is answered against the appellants. Consequently, the question of law required in paras 17 and 18 above are also answered against the appellants and the Second Appeal fails and is liable to be dismissed.

33. In the result, the Second Appeal is dismissed, confirming the judgments and decrees passed by the Trial Court and the First Appellate Court. No costs. 13-11-2026 Index: Yes/No

Speaking/Non-speaking order Neutral Citation: Yes/No av To

1. The learned Additional District Judge (Fast Track Court No.II), Poonamallee.

2. The learned Subordinate Judge, Poonamallee.

B.KARTHIKEYAN, J. av Pre-delivery Judgment made in S.A.No.1223 of 2011 13-11-2026