Rule of last intention is applicable only when there is inconsistency in the bequests in a Will

The Supreme Court in the matter of M.S Bhavani & Anr vs. M.S Raghu Nandan, decided on 05.03.2020 observed that last intention rule is governed by the maxim “cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est” which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier.
Facts
M. Srinivasa Murthy (testator) died, leaving behind his last Will dated 07.06.1995, written in his own handwriting (holograph) and registered. Under this Will, he had bequeathed the suit property in favour of his wife, Nirmala Murthy. In exercise of the rights vested in her by the Will dated 07.06.1995, Respondent No. 2 Nirmala Murthy executed a sale deed on 25.02.2004 in favour of the Appellants herein (her daughter and son-in-law) for the sale of the suit property.
Respondent No. 1 (son of the testator) herein filed a suit against his mother Nirmala Murthy (Respondent No. 2), and his sister and brother-in-law (the Appellants herein), seeking a declaration inter alia that his mother and sister were not entitled to execute any sale deed in favour of his brother-in-law, as he had a share in the suit property and the Will dated 07.06.1995 only gave his mother, Nirmala Murthy, a life interest in respect of such property. The District court partly decreed the suit. High Court affirmed the decision of the Trial Court by holding that the right vested with Nirmala Murthy under the Will dated 07.06.1995 was absolute and she had unfettered powers to sell the property, as long as her discretion was exercised voluntarily. However, the High Court also noted that in the event that a sale was made by Nirmala Murthy, both her children (Appellant No. 1 and Respondent No.1 herein) would be entitled to a share in the sale proceeds as per the interpretation of the clauses of the Will.

Issues
Whether the testator of the Will dated 07.06.1995 intended to vest Nirmala Murthy with an absolute interest in the suit property? If yes, whether the sale deed dated 25.02.2004 was against the Will dated 07.06.1995, and therefore unenforceable as against Respondent No. 1?

Held
The Apex Court held that since the issue in hand was essentially on interpretation of the Will, it would be useful to try and find out the intention of the testator. This intention has to be gathered primarily from the language of the will, reading the entire document as a whole, without indulging in any conjecture or speculation as to what the testator would have done had he been better informed or better advised.
Applying the principles of interpretation of Wills and intention of the Testator, the Hon’ble Court observed that it is clear that the testator intended to create an absolute interest in her favour, and to preclude his daughter and son (Appellant No. 1 and Respondent No. 1 respectively) from succeeding to the suit property. This is further supported by the clause stating that the decision of Nirmala Murthy in exercise of these rights would be supreme and the children would have no right over the suit property.
It was further observed that assertive language was used in favour of Nirmala Murthy which is a clear indication of the creation of an absolute bequest in her favour while the use of nonmandatory words such as ‘desire’ indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose.
It was finally held that as there were no inconsistencies 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 rule of last intention would not be attracted. Further, 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. Consequently, the appeals were allowed, and the Respondent No. 1 was directed to transfer possession to the Appellants.