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M.S.Bhavani vs M.S.Raghu Nandan on 5 March, 2020

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1798­1799 OF 2014

M.S. BHAVANI AND ANR. …APPELLANTS

VERSUS

M.S. RAGHU NANDAN ….RESPONDENTS

J UD G M E NT

MOHAN M. SHANTANAGOUDAR, J.

1. The instant appeals arise out of the common final

judgment and order dated 01.10.2012 passed by the High Court

of Karnataka at Bangalore in R.F.A. No. 1888/2011 and R.F.A.

No. 1889/2011. Vide the impugned judgment, the High Court

partly allowed R.F.A. No. 1888/2011 by affirming the relief

granted by the Trial Court that Respondent No. 1 herein is not

bound by the sale deed executed by his mother in favour of the
Signature Not Verified

Digitally signed by

Appellants herein. Further, the High Court dismissed R.F.A. No.
ASHWANI KUMAR
Date: 2020.03.05
15:03:11 IST
Reason:

1889/2011 vide the impugned judgment.

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2. The factual background to these appeals is as follows:

2.1 The suit property was the self­acquired property of one

M. Srinivasa Murthy (hereinafter ‘testator’) who had purchased it

from the Bangalore Development Authority in 1974. He had a

daughter namely M.S. Bhavani (Appellant No. 1 herein) and a son

namely M.S. Raghu Nandan (Respondent No. 1 herein). Appellant

No. 1 initially got married in 1983 and a son named Sameera was

born to her. However, her marriage ended in a divorce and she

then married one Suresh Babu (Appellant No. 2 herein) in 1994.

At such time, her son was about 10 years old.

2.2 In 2002, M. Srinivasa Murthy died, leaving behind his

last Will dated 07.06.1995, written in his own handwriting

(holograph) and registered before the Sub­Registrar, Rajajinagar,

Bangalore. Under this Will, he had bequeathed the suit property

in favour of his wife, Nirmala Murthy (Respondent No. 2 herein).

2.3 In exercise of the rights vested in her by the Will dated

07.06.1995, Respondent No. 2 Nirmala Murthy executed a sale

deed on 25.02.2004 in favour of the Appellants herein (her

daughter and son­in­law) for the sale of the suit property for a

consideration of Rs. 16,42,000/­ (hereinafter ‘the sale deed’). It

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has been stated that such amount was paid in cash by the

Appellants at the time of the execution of the sale deed.

2.4 Respondent No. 1 herein filed O.S. No. 6341/2006

against his mother Nirmala Murthy (Respondent No. 2), and his

sister and brother­in­law (the Appellants herein), seeking a

declaration inter alia that his mother and sister were not entitled

to execute any sale deed in favour of his brother­in­law, as he

had a share in the suit property and the Will dated 07.06.1995

only gave his mother, Nirmala Murthy, a life interest in respect of

such property.

2.5 Later, O.S. No. 1845/2008 came to be filed by the

Appellants against Nirmala Murthy seeking her ejectment from

the suit property on the ground that she was a mere licensee,

who had only been permitted to stay in the property after the sale

in 2004, as the Appellants were residing in Australia. It was

stated that the Appellants did not wish to continue the said

licence in her favour, as she had joined hands with Respondent

No. 1 to file O.S. No. 6341/2006 against them.

2.6 Vide common judgment dated 09.09.2011, the III rd

Additional City Civil Judge, Bangalore City partly decreed the suit

for declaration, O.S. No. 6341/2006, noting that though the Will

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dated 07.06.1995 vested absolute rights with Nirmala Murthy in

respect of the disposition of the suit property, the sale to the

Appellants was vitiated by fraud inasmuch as Nirmala Murthy

never intended to sell the property to the Appellants. It was

further found that the Appellants had gotten the sale deed

executed by misrepresentation by obtaining Nirmala Murthy’s

signatures on the pretext that they were required on her visa

applications for travel to Australia. In light of this, it was held

that the sale deed did not bind Respondent No. 1, being a

fraudulent document against the intention of the testator. Based

on such finding, ejectment suit O.S. No. 1845/2008 was also

dismissed.

2.7 In the appeal before the High Court, vide the impugned

judgment dated 01.10.2012, it was observed that the nature of

the right vested with Nirmala Murthy under the Will dated

07.06.1995 was absolute and she had unfettered powers to sell

the property, as long as her discretion was exercised voluntarily.

However, the High Court also noted that in the event that a sale

was made by Nirmala Murthy, both her children (Appellant No. 1

and Respondent No.1 herein) would be entitled to a share in the

sale proceeds. As regards fraud or coercion in the execution of

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the sale deed, the High Court modified the findings of the Trial

Court and observed that there was no material on record to show

that Nirmala Murthy had been drugged or threatened at gunpoint

so as to execute the sale deed in question. Notwithstanding this,

the final relief granted by the Trial Court that Respondent No.1

was not bound by the sale deed, was confirmed on the basis that

such sale deed was against the intention of the testator

inasmuch as it should have been executed in a transparent

manner, after obtaining the concurrence of Respondent No. 1.

2.8 It is against this common judgment that the Appellants

have come in appeal before this Court. At this juncture, it may

also be noted that Respondent No. 2 Nirmala Murthy passed

away during the pendency of the proceedings before this Court.

3. Heard learned Counsel for the parties.

4. Learned Senior Counsel, Mr. Dhruv Mehta appearing for

the Appellants, first drew our attention to the Will dated

07.06.1995 to argue that Nirmala Murthy became the absolute

heir to the suit property thereunder, and had an unfettered right

to sell the property without informing or consulting any of her

children and to deal with the sale proceeds in a manner of her

choice. Alluding to the use of the word “desire” in respect of the

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sale proceeds being divided among the children of the testator, he

submitted that there is no bequest in the latter part of the Will in

favour of Respondent No. 1 so as to accord him any rights over

the suit property. In any case, relying upon the decisions in

Mauleshwar Mani v. Jagdish Prasad, (2002) 2 SCC 468,

Madhuri Gosh v. Debobroto Dutta, (2016) 10 SCC 805, and

Siddamurthy Jayarami Reddy (dead) by LRs. v. Godi

Jayarami Reddy, (2011) 5 SCC 65, he argued that once an

absolute right was vested with Nirmala Murthy, any subsequent

right in favour of the children in the event of the sale of the

property would be repugnant to such absolute right of ownership

and thereby be invalid. As regards the sale deed dated

25.02.2004, it was argued that the validity of such deed and

payment of valuable consideration thereunder are beyond the

scope of the suit filed by Respondent No. 1 and should have

therefore not been considered by the Trial Court and the High

Court.

5. Per contra, learned Counsel Mr. S.N. Bhat appearing for

Respondent No. 1, emphasized on reading the Will dated

07.06.1995 holistically, pointing to an underlying dominant

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intention of only giving a life interest in the suit property to

Nirmala Murthy, and not to bequeath it absolutely to her. In this

regard, he adverted to clauses allegedly indicating an intention to

settle the properties on the two children and conferring rights on

them in respect thereof, particularly by disposing of the property

and providing them with a share in the sale proceeds. To support

his contention that such latter parts of the Will dated 07.06.1995

granting a share in the property to Respondent No. 1 should be

given effect, he relied on the decisions in Ramachandra Shenoy

v. Mrs. Hilda Brite, AIR 1964 SC 1323 and Kaivelikkal

Ambunhi (dead) by LRs. v. H. Ganesh Bhandary, (1995) 5

SCC 444, which hold that in the event of a conflict between two

clauses of a Will, the latter one shall prevail. As regards the sale

deed dated 25.02.2004, learned Counsel alluded to the

observations by the Trial Court and the High Court regarding the

suspicious circumstances in which such deed was executed.

Based on this, he argued that no title had passed to the

Appellants by virtue of such deed, especially in the absence of a

sale consideration.

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6. Upon perusing the record and hearing the arguments

advanced, we find that the following points arise for our

consideration:

(a) Whether the testator of the Will dated 07.06.1995

intended to vest Nirmala Murthy with an absolute

interest in the suit property?

(b) If yes, whether the sale deed dated 25.02.2004 was

against the Will dated 07.06.1995, and therefore

unenforceable as against Respondent No. 1?
We will be adverting to each of these in turn.

7. As regards the first point, it would be useful to refer to

the relevant excerpts of the Will dated 07.06.1995, which are as

follows:

“I herein execute this last Will and testament on this
day the date 7th of June of 1995 out of my free will and
in bound (sic) mind and health…
My daughter M.S. Bhavani is a divorcee from her first
husband and has a son by him by name Sameera aged
10 years. She is a Doctor by profession and practicing
privately.

One Gentleman by name Sri Suresh Babu who is an
M.Tch in Civil Engineering and by profession a
structural Engineer and consultant and with his
progressive and magnanimous outlook came forward
to my daughter in spite of she having a son of 10
years.

I celebrated the marriage of my daughter M.S. Bhavani
with Sri. Suresh Babu on 6th July 1994…
My daughter is staying with him and her son
separately in a rented house.

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It is my moral duty to provide her a share in my
immovable property, i.e. House No. 377, 5th Main
Road, 3rd Block, 3rd Stage, Basaveshwar Nagar.

After my death, my wife Smt. Nirmala shall be sole
legal and rightful heir over my immovable and movable
property and she will have every right and authority to
sell, mortgage and lease my house or totally bequeath
it to anybody who take care of her in her last days, and
old age also.

The decision of my wife Smt. Nirmala is supreme in
this matter and none of my children, i.e., Bhavani and
Raghunanda have any right to question my wife, put
unjust claim, obstruct or put any obstacle for the
manner my deals with my property.

It is my desire that the house should be sold and sale
amount be divided among my daughter and my son as
per the decision of my wife. My wife shall endev (sic) to
sell the house (sic) during her lifetime.

In case my wife is unable to sell the house during her
lifetime, my daughter shall be the seller of the house
and she should (sic) the house mutually with my son
Raghunanda.”
(emphasis supplied)

A reading of the above portion of the Will dated

07.06.1995, clearly indicates that the testator sought to provide

for the manner in which his wife Nirmala Murthy would have a

right to the suit property and how she would deal with the same.

In addition to this, he also sought to provide for the manner in

which the property may be dealt with by his daughter and son, in

the event that his wife did not sell the property during her

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lifetime. Notably, this second part is not attracted at all in the

present case, as Nirmala Murthy sold the suit property during

her lifetime.

8. The question that then remains to be answered is

whether the right vested in Nirmala Murthy was absolute in

nature. While the Appellants argued in favour of an absolute

right, Respondent No. 1 submitted that the dominant intention of

the testator was to look after his children and give them a share

in the property, thereby implying that the right of Nirmala

Murthy was only intended to be limited to a life interest in the

property.

9. Since the issue essentially turns on the interpretation of

the Will, it would be useful to note certain principles that should

be borne in mind while undertaking the construction of a will. At

its very core, the exercise involves an endeavour to try and find

out the intention of the testator. This intention has to be

gathered primarily from the language of the will, reading the

entire document as a whole, without indulging in any conjecture

or speculation as to what the testator would have done had he

been better informed or better advised. In construing the

language of a will, the Courts may look to the nature and the

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grammatical meaning of the words used, and also consider

surrounding circumstances such as the position of the testator,

his family relationship, and other factors that may surface once

the Court puts itself in the position of a person making the will

[see Shyamal Kanti Guha (dead) through LRs v. Meena Bose,

(2008) 8 SCC 115].

10. Keeping in mind these principles and upon a close

reading of the wording of the Will dated 07.06.1995, we find that

the testator intended to give his wife, Nirmala Murthy

(Respondent No. 2) absolute rights over the suit property,

by making her the sole legal and rightful heir of all his immovable

and movable properties.

10.1 By according Nirmala Murthy the right to sell,

mortgage, and lease the house or even to bequeath it to anybody

who takes care of her in her last days, it is clear that the testator

intended to create an absolute interest in her favour, and to

preclude his daughter and son (Appellant No. 1 and Respondent

No. 1 respectively) from succeeding to the suit property. This is

further supported by the clause stating that the decision of

Nirmala Murthy in exercise of these rights would be supreme and

the children would have no right to question or put an unjust

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claim against the same. To this extent, we agree with the finding

of the High Court that Nirmala Murthy had an absolute right in

the suit property and that the children were disinherited from the

bequest.

10.2 However, we hasten to add here that such right vested

with Nirmala Murthy was intended to be completely unfettered in

nature. The contention raised by Respondent No. 1 that she only

had a life interest in the property as the testator necessarily

wanted a sale of the property, cannot be accepted. This is

because the part of the Will where the testator states that “the

house should be sold and sale amount be divided among my

daughter and my son” is preceded by the expression “it is my

desire”. Juxtaposed with this, the bequest in favour of Nirmala

Murthy is characterized by words such as “my wife shall be sole

legal and rightful heir over my immovable and movable property

and she will have every right and authority to sell, mortgage and

lease…”. The assertive language used in favour of Nirmala

Murthy is a clear indication of the creation of an absolute

bequest in her favour, while the use of non­mandatory words

such as ‘desire’ indicate that the testator did not wish to compel

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his wife to sell the suit property. He merely desired that his wife

should endeavour to sell the property during her lifetime and

divide the sale proceeds as she chose.

10.3 We also note that the High Court erred in observing

that in the event that a sale was to be made by Nirmala Murthy,

both the children would be entitled to a share in the sale

proceeds. As mentioned supra, the testator intended to create an

absolutely unfettered right in favour of his wife by virtue of the

Will. Reading in other clauses that are merely expressive of his

desire as compulsory dictates on such absolute ownership goes

against the clear wording of the Will, and would amount to

rewriting it. Thus, we do not find that there was any bequest

made in favour of the children of the testator under the Will

dated 07.06.1995.

10.4 In this regard, reliance sought to be placed by

Respondent No. 1 on the decision in Kaivelikkal Ambunhi

(supra), to argue that the subsequent bequest made in the latter

part of the Will had to be given effect, is also misplaced, as the

rule of last intention is only applicable when there is

inconsistency in the bequests. We may note the following excerpt

from the decision:

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“4. A Will may contain several clauses and the latter
clause may be inconsistent with the earlier clause. In
such a situation, the last intention of the testator is
given effect to and it is on this basis that the latter
clause is held to prevail over the earlier clause. This is
regulated by the well­known maxim “cum duo inter se
pugnantia reperiuntur in testamento ultimum ratum est”
which means that if in a Will there are two
inconsistent provisions, the latter shall prevail over the
earlier (See: Hammond, Re,
Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR
903] ).

…6. It may, however, be pointed out that this rule of
interpretation can be invoked only if different clauses
cannot be reconciled. (See: Rameshwar Bakhsh
Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ
1133] ).”
(emphasis supplied)

Here, there is no inconsistency in the clauses of the

Will inasmuch as the house property was absolutely bequeathed

to Nirmala Murthy and no inconsistent bequest has been made

thereafter. As discussed supra, the part of the Will providing for

the sale of the property during her lifetime and the distribution of

the sale proceeds between the children cannot be treated as a

bequest, as it was a mere desire expressed by the testator.

10.5 In any case, even if it is assumed that the latter clause

went beyond a mere expression of desire and created a bequest in

favour of the children of the testator (Appellant No. 1 and

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Respondent No. 1), the first clause creating an absolute right in

favour of Nirmala Murthy shall prevail over such clause. In this

regard, the following observations of this Court in Mauleshwar

Mani (supra) are relevant:

“11. From the decisions referred to above, the legal
principle that emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his
absolute interest in the property in favour of his
wife, any subsequent bequest which is repugnant
to the first bequeath would be invalid; and
(2) where a testator has given a restricted or limited
right in his property to his widow, it is open to
the testator to bequeath the property after the
death of his wife in the same will.

12. In view of the aforesaid principles that once the
testator has given an absolute right and interest in his
entire property to a devisee it is not open to the
testator to further bequeath the same property in
favour of the second set of persons in the same will, a
testator cannot create successive legatees in his will.

The object behind is that once an absolute right is
vested in the first devisee the testator cannot change
the line of succession of the first devisee. Where a
testator having conferred an absolute right on anyone,
the subsequent bequest for the same property in
favour of other persons would be repugnant to the first
bequest in the will and has to be held invalid. In the
present case the testator Jamuna Prasad under the
will had bequest his entire estate, movable and
immovable property including the land under self­
cultivation, house and groves etc. to his wife Smt Sona
Devi and thereafter by subsequent bequest the testator
gave the very same properties to nine sons of his

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daughters, which was not permissible…”

(emphasis supplied)
Notably, these observations were reaffirmed by this

Court in Madhuri Gosh (supra) as well.

10.6 Given that we find that an absolute right was given to

Nirmala Murthy over the property, in view of the aforesaid

decisions, any subsequent bequest sought in favour of the

children of the testator cannot be given effect. Further, the

reliance of Respondent No. 1 on the decision in Ramachandra

Shenoy (supra) is misplaced inasmuch as the Clause in the Will

in that case stated thus:

“3.(c) All kinds of movable properties that shall be in
my possession and authority at the time of my death
i.e. all kinds of moveable properties inclusive of the
amounts that shall be not from others and the cash
– all these my eldest daughter Severina Sobina Coelho,
shall after my death, enjoy and after her lifetime, her
male children also shall enjoy permanently and with
absolute interest.”

Clearly, the clauses in the Will in the present case are

significantly different from the aforementioned clause, wherein

the daughter was clearly given a life interest only. This is not the

case with the right of Nirmala Murthy, which has been expressly

stated to be absolute in nature.

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10.7 In view of the foregoing observations, we answer the

first question in the affirmative and hold that the Will dated

07.06.1995 creates an absolute, unfettered right in favour of

Nirmala Murthy with respect to the suit property.

11. In light of this finding, we now turn to the second

point, i.e. whether the sale deed executed by Nirmala Murthy was

against the intention of the testator, and thereby unenforceable

as against Respondent No. 1. In this regard, we note at the very

outset that several observations have been made by the Trial

Court and the High Court with respect to the circumstances in

which the sale deed was executed, which cast an aspersion on its

validity. However, we do not find the need to delve into this

question as the same is beyond the scope of the suit filed by

Respondent No. 1. Moreover, no prayer for setting aside the sale

deed was raised by Nirmala Murthy either. Thus, we shall only

confine ourselves to an examination of the sale deed vis­à­vis the

Will dated 07.06.1995.

12. Notably, the High Court found that the sale deed was

not obtained by fraud or coercion on the part of the Appellants.

However, it was held that such a deed was nevertheless

unenforceable against Respondent No. 1, as it had been executed

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in a clandestine manner without his concurrence or consultation.

The High Court found that a transparent process of sale of the

property by Nirmala Murthy was integral to the intention of the

testator, as he had clearly expressed a desire for his son to get a

share of the sale consideration. Thus, it was held that the sale

deed in question, having been executed without the knowledge of

Respondent No. 1, was against such intention and therefore not

binding on him. Upon perusing the record and the wording of

the Will, we do not agree with such finding of the High Court.

12.1 As mentioned supra, the right vested under the Will in

favour of Nirmala Murthy was an unfettered and absolute right.

There is nothing in the wording of the Will which indicates that

the testator necessarily required any subsequent sale, mortgage,

or lease carried out by Nirmala Murthy to happen with the

concurrence or consultation of his children. In fact, when one

looks to the circumstances and the family relationship between

the testator and his son, it becomes clear that their relations

were strained. This is particularly reflected in Ex. P­17, a letter

addressed by Nirmala Murthy to her son, Respondent No. 1

herein, where she specifically alludes to the ill treatment meted

out by her son to his sister (Appellant No. 1) and the testator. In

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light of this, we find that a mere “desire” for the sale of the

property and for the children to get a share in the proceeds

therefrom cannot be read as a strict bar on the absolute right

vested with Nirmala Murthy to deal with the property as she

thought fit.

12.2 Thus, while it may have been desirable for Nirmala

Murthy to carry out the sale transaction with the knowledge of

Respondent No. 1, her failure to do so does not strike at the very

root of the sale deed. In our considered opinion, interpreting the

Will dated 07.06.1995 in a manner that places fetters on the

power of Nirmala Murthy to sell the property by mandating

consultation with her children would not be in consonance with

the wording of the Will. Indeed, it effectively amounts to adding

terms to the Will, which is impermissible.

12.3 In view of this, we find that the sale deed in question

was executed in accordance with the Will dated 07.06.1995 and

does not violate its terms. Therefore, Respondent No. 1 is also

bound by the same and the finding of the High Court in this

regard is liable to be set aside. The Appellants have acquired

valid title over the suit property by virtue of the sale deed

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executed by Nirmala Murthy and are therefore entitled to

possession of the same.

13. Accordingly, we set aside the judgment of the High

Court and find that Nirmala Murthy had an absolute right in the

suit property by virtue of the Will dated 07.06.1995. We also find

that the sale deed executed by her in favour of the Appellants in

exercise of such rights is in consonance with the intention of the

testator and binds all the parties to these appeals. Accordingly,

O.S. No. 6341/2006 filed by Respondent No. 1 is dismissed and

O.S. No. 1845/2018 filed by the Appellants for ejectment is

decreed. Consequently, the instant civil appeals are allowed.

14. It has been brought to our notice that the suit property

was in the possession of Nirmala Murthy during the pendency of

these appeals, in view of the interim order passed by this Court

on 27.01.2014 directing status quo to be maintained with respect

to the suit property. However, as mentioned supra, Nirmala

Murtha passed away during the pendency of these appeals. The

suit property has been under lock and key since then, and the

possession of such keys has been with Respondent No. 1.

Therefore, in light of our findings above, and given these

circumstances, we direct that the possession of the suit property

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be handed over to the Appellants within a period of 3 months

from the date of this order.

15. Ordered accordingly.

…..……………………………………..J.
(MOHAN M. SHANTANAGOUDAR)

.…………………………………………J.

(R. SUBHASH REDDY)

New Delhi;

March 05, 2020

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