Inconsistent Gifts

Before applying the provisions of this section, the court must make every effort to reconcile the apparent gifts. Only if this attempt fails, and it is not possible to give effect to the whole, will such a construction be applied to render every part of it effectual. This section will then apply.

Moreover, for the application of the provisions of this section, the two inconsistent clauses must refer to the same subject matter. They would not apply where the inconsistent clauses are intended to provide for different circumstances. The Supreme Court ruled in Radha Sundar vs. N.D. Jahadur Rahim (AIR 1959 SC 24) that this section does not come into play in the interpretation of deeds where there is a conflict between two clauses, and it is not possible to give effect to all of them.

In such cases, the rule of the earlier clause will override the later one, not vice versa. This was followed in a subsequent decision of the Supreme Court in Ramkrishna vs. Kamalnarayan (AIR 1963 SC 890).

As already pointed out, before applying the rule laid down in this section, the court must attempt to find out if the two inconsistent clauses can be reconciled. In Gulabji vs. Rustomji (AIR 1925 Bom 282), the testator in the earlier clause of his will gave his property to his son R, and in a subsequent clause recited that should R die leaving a son, then such son should be the owner thereof. On interpretation, it was held that the first clause gave an absolute interest to R, which was not consistent with the subsequent clause giving absolute interest to R's son.

However, the two clauses could be reconciled by holding that the testator only intended a life interest for R and an absolute interest for R's son. On an analogous principle, an absolute estate may, if required to give effect to all the provisions of the will, be reduced to an estate for life (Sherratt vs. Bentley, (1834) 2 My & K 149).

In the first part of his will, a testator makes a bequest of his property absolutely to his wife. But in the subsequent part, he mentions the interest of his daughters. It was held that the wife takes a life interest (Lakshmi Ammal vs. Alauddin Sahib, AIR 1962 Mad 247).

In the first part of the will, the testator stated that his two brothers would be heirs, owners, and title-holders of 2/3rd of the land left by him, and his daughter would be the heir, owner, and title-holder of his entire remaining movable and immovable property. However, in the latter part of the same will, the testator provided that on the death of his daughter, the brothers of the testator would be the heirs of the property bequeathed to the daughter. It was held that the recital in the latter part of the will would operate and make the testator's daughter only a limited estate-holder in the property bequeathed to her (Balawant Kaur vs. Charan Singh , (2000) 6 SCC 310; AIR 2000 SC 1908).

In Kalvelikkal Ambunhi vs. H. Ganesh Bhandary (AIR 1995 SC 2491; 1995 AIR SCW 3667), it was observed that 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. As observed in Hammond vs. Treharne (1938) 3 All ER 308, if in a will there are two inconsistent provisions, the latter shall prevail over the earlier clause.

This is regulated by the well-known maxim "Cum Duo Inter Se Pugnantia Reperiuntur In Testamenta, Ultimum Ratum Est" (Uma Devi vs. T.C. Sidhan, AIR 2004 SC 1772). The object underlying Section 208 of the Indian Succession Act, 1925, is to protect the property appertaining to large estates in case of dispute as to succession.