PRAMOD KUMARI BHATIA Vs. OM PRAKASH BHATIA

JUDGEMENT

(1.) The question in the appeal is about the construction of a will. The facts which are now not in dispute before us are as follows :

(2.) The testator, it is seen, noticed the existence of five possible heirs : his wife Lakshmi Devi, his son Om Prakash, his deceased son Krishna Chandra's widow. Manmohini and Krishna Chandra's daughters, Raj Kumari and Pramod Kumari. He was desirous that Pramod Kumari should be brought up by himself and his wife and that they should also perform her marriage. He was also desirous that a sum of Rs. 2000/- should be set apart for the marriage of Raj Kumari. Apart from that, he did make it clear that Manmohini, Raj Kumari and Pramod Kumari should have no right or interest in any of his properties under any circumstances. On his death his properties were to go to his wife Lakshmi Devi who was to have a live interest in them. If his wife Lakshmi Devi predeceased him, the properties were to go to his son Om Prakash. Directions were given for the carrying out of certain charitable objects. His wife Lakshmi Devi and after her death, his son Om Prakash were enjoined to perform the charitable acts. A 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 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 a case where the testator's intention to give the properties to Om Prakash in case Lakshmi Devi predeceased the testator was as patently and reasonably certain, 'no speculation but a 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.

(3.) In William Abbott v. Eliza Middleton (1858) 7 HLC 68, the testator gave an annuity of ( 2000 to his widow, and set apart, out of his personal property, a sum sufficient to provide for its payment. He directed that, on the death of his widow, the sum 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 a son. He died before the testator. The testator's widow died soon thereafter. A 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 'without 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 a will, the right of a 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 (1852) 4 HLC 257 (284), and declared the right of George's son to the sum.