Intention of the Testator: In construing a will, the intention of the testator is to be given effect as far as practicable. Therefore, if the court finds that the entire intention of the testator in the disposition of their property cannot be fully given effect, it should still uphold the portion which gives effect to the paramount intention of the property rather than reject the whole will.

There are certain settled principles for the interpretation of a will. The court does not sit in judgment over the rightness or wrongness of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is indeed the testator's will and whether it is the product of a free and sound disposing mind. It is only for the purpose of examining the authenticity of the instrument propounded as the last will that the court considers the nature of the bequest.

The contents of the will must be appreciated in the context of the circumstances and not vis-à-vis the rules of intestate succession. It is only for this limited purpose that the court examines the nature of the bequest. No one can substitute their own opinion regarding the intention reflected in the will. After all, a will is an expression of the testator's desire. --  Gurdev Kaur v. Kaki, AIR 2006 SC 1975.

In Mahalaxmi Amal v. Bijoy Subramonium, AIR 1977 Mad 87, it was held that the pattern of the testatrix's intention appeared to benefit the great-grandchildren eventually, either through 'S' or her sister 'A'. In the case of 'A', the testatrix used clear language that she should have only a life interest, and after her death, the remainder should vest absolutely in her heirs.

The question arose as to whether the great-grandchildren of 'S' took an absolute interest in the property. It was held that the intention of the testatrix was for the great-grandchildren to become the ultimate owners of the properties. The principle laid down was that in giving effect to the intention of the testator reflected in the will, the entire will has to be examined, and all clauses in the will must be read together.

In Bickersteth v. Shanu (1936) AC 290, the Privy Council held that the established rule for construing a devise of real estate is that it is to be treated as vested unless the condition precedent to vesting is expressed with reasonable clarity.

In Ganesh v. Lalbehari, 41 CWN 1 (PC), on appeal from Kumar Kamakhya Narain Singh v. Abhiman Singh, the Privy Council ruled that although under the section, the intention of the testator should be given effect as far as possible, if the testator's intention to create an estate of inheritance not permissible under ordinary law is clear, and there is no trace of any intention to create another type of estate, effect cannot be given to the illegal scheme of inheritance insofar as it relates to persons entitled to take under that scheme as well as under the ordinary law of Hindu succession.


Written By: S Kundu & Associates
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