Tag Archives: Propounder of Will

Children, Issue and Heirs

The expressions “children”, “issue” and “heirs” would ordinarily be not synonymous but sometimes they may carry the same meaning. All the aforementioned terms have to be given their appropriate meanings.

In P. Ramanatha Aiyar’s Advanced Law Lexicon at p. 2111, it is stated:

“There is doubtless a technical difference in the meaning of the two words ‘heirs’ and ‘children’, and yet in common speech they are often used as synonym. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

‘When the general term “heirs” is used in a will, it will be construed to mean “child” or “children”, if the context shows that such was the intent of the testator.’

Where the words ‘children’ and ‘heirs’ are used in the same instrument in speaking of the same persons, the word ‘heirs’ will be construed to mean ‘children’; such usage being treated as sufficient evidence of the intention to use the word ‘heirs’ in the sense of ‘children’.”

 Heirs may be lineal or collateral. When we say that the will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married, the question as to who would be their heirs was uncertain.

If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers.

 Whether the expression “heirs” would, thus, mean legal heirs, the question specifically came up for consideration in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273, wherein it was stated:

“It is well settled that legal terms such as ‘heirs’, used in a will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator.”

Referring to an earlier decision of the Hon’ble Supreme Court in Angurbala Mullick v. Debabrata Mullick, 1951 SCR 1125, it was  opined that the expression “heirs” cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu Succession Act.

The decision in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273 is binding. The meaning of the expression “heir” in the context of the Hindu Succession Act has been considered therein. The expression “heir” would mean a legal heir. In construing a document, the Court cannot assign any other meaning. A document as is well known must be construed in its entirety.  When a document is not uncertain or does not contain an ambiguous expression it should be given its literal meaning. Only when the contents are not clear the question of taking recourse to the application of principles of construction of a document may have to be applied. It is also not a case where there exists any inconsistency between an earlier and later part of the document. What is necessary for a true, proper and effective construction of the will in question is to give effect to the intention of the propounder of the will. Bay Berry Apartments (P) Ltd. v. Shobha, (2006) 13 SCC 737.

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