Inconsistent gifts
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.
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