SETTLE POSITION OF LAW

. The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where

(i) the courts below have ignored material evidence or acted on no evidence;

(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or

(iii) the courts have wrongly cast the burden of proof. When we refer to `decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

PLEADING:

It is well settled that no amount of evidence can be looked into to find a case for which there has been absolutely no foundation in the pleadings.

(Vide AIR 1930 P.C. 57 - Siddik Mohammed Shah v. Mt. Saran and others, Elizabeth v. Saramma - 1984 K.L.T. 606, Trojan & Co., v. Nagappa - AIR 1953 SC 235 , Bhagwadi Prasad v. Chandramaul - AIR 1966 SC 735).

WILL:

. How a Will has to be interpreted is no longer res integra. Intention of the testator must be ascertained from the words used and the surrounding circumstances. The Court will put itself in the armchair of the testator.

In Navneet Lal v. Gokul [(1976) 1 SCC 630] it has been held :

. From the earlier decisions of this Court the following principles, inter alia, are well established:

(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal)

(2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v.

Parthasarathy) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding

circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar)

(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh

v. Thakurain Bakhtraj Kuer)

(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that

which would render any of the expressions inoperative. The court will look at the circumstances under which the testator

makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das)

(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant

provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite Mrs)'. {See also Arunkumar & Anr. v. Shriniwas & Ors. [(2003) 6 SCC 98]} This aspect of the matter has recently been considered in Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183], wherein it was held : "39. With a view to ascertain the intention of the maker of the will, not only the terms thereof are required to be taken into consideration but also all circumstances attending thereto. The will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same.

In construing a will, no doubt, all possible contingencies are required to be taken into consideration, but it is also a well-settled principle of law that only because a part of a document is invalid, the entire document need not be

invalidated, if the former forms a severable part.

Supreme Court of India

Narendra Gopal Vidyarthi vs Rajat Vidyarthi on 2 December, 2008

SPECIFIC PERFORMANCE:

It has been held that, The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.

Supreme Court of India

Prakash Chandra vs Angadlal And Ors. on 24 January, 1979

Equivalent citations: AIR 1979 SC 1241, (1979) 4 SCC 393, 1979 (11) UJ 277 SC

READINESS AND WILLINGNESS

the Supreme Court laid down that for readiness and willingness the purchaser need not produce money or vouch a concluded scheme for financing the transaction. There are catena of decisions of this Court and the Apex Court to the effect that readiness and willingness do not imply that the purchaser must produce money and the conditions to be fulfilled are that purchaser had done some act in furtherance of the contract and the act performed by him was with certainty.

Supreme Court of India Nathulal vs Phoolchand on 16 October, 1969

Equivalent citations: 1970 AIR 546, 1970 SCR (2) 854