The facts of the case are that after bequeathing absolute and unfettered right to property to wife, the testator made it desirable to sell the property and divide the sale amount among daughter and son as per the decision of the wife. The widow instead of giving effect to the desirable part of the will sold the property to her daughter and son-in-law.
It is useful to note certain principles that should be borne in mind while undertaking the construction of a will. At its very core, it’s to find out the intention of the testator. In construing the language of the will, the courts may look to the nature and the grammatical meaning of the words used and also consider surrounding circumstances. The rule of last intention (sec 88 of the Succession act) is only applicable when there is inconsistency in the bequests. This is regulated by the well-known maxim ‘cum duo inter se pugnantia reperiuntur in testament ultimum ratum est’ which means that if in a will there are two inconsistent provisions, the latter shall prevail over the earlier.
Held, here, there is no inconsistency in the clauses of the will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. The part of the will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator.
(2020) 5 SCC 361- M.S.Bhavani and Another v. M.S. Raghu Nandan