K BABU RAO Vs. DATTA RAO

JUDGEMENT

(1.) - The only point that arises for consideration in this Miscellaneous Second Appeal is -

(2.) On 22-1-1931 one Guruvappa resident of Kodialbail village within the limits of Mangalore town executed a will Ex. P-1 bequething his movable and immovable properties. In Ex.P-1, he states that he is a retired Sharaff of Imperial Bank and a person following Aliyasanthana System of Law, that he has not derived any benefit from his Aliyasanthana family and that the properties that are subject-matter of the will were all his self-acquisitions and that he has been enjoying the same as such. He cancels an earlier will executed by him on 12-11-1991 and stipulates that his son Ram Mohan by his deceased first wife and his Aliyasanthana heirs are not entitled to inherit any of his properties. After stating so, he bequethes the properties described under the will Ex. P-1 to his second wife Seethu, his children by her, namely, Jaka Bai, Babu Rao, Vasudeva Rao and also to his children by Seethu to be born thereafter. He states that these persons should enjoy the said properties independently, absolutely and for generation to generation. But, he stipulates that none of them have right to incur debts and encumber the said properties and if they do so, they are personally liable to discharge the same. He also stipulates that if after his death, his second wife Seethu contracts remarriage or enters into a fresh relationship (Sammanda) according to "Tulu Practice", then the rights created in her favour under the will shall stand forfeited and that only his children born to Seethu Hengsu shall have rights in the properties thereafter.

(3.) While interpreting a will, the court has 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. The court also 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. The duty of the court is to carry out the intention as expressed and none other, as laid down in the case reported in Gnambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103.