Effect of Heirs and Children Differentiated in Will of Testator

The expression "heir" would mean a legal heir. What is necessary for true, proper and effective construction of the Will in question is to give effect to the intention of the propounder of the Will.

M/s. Bay Berry Apartments Pvt. Ltd. & Anr vs Shobha & Ors
http://indiankanoon.org/doc/728989/

principal question before the court - what would be the meaning of expression 'heirs'

Held : "In relation to the male descendancy the executor had used the expression 'heirs' in regard to the succession of property after their death, which were bequeathed in their favour; the expression 'children' has been used in relation to the inheritance of the property bequeathed in favour of daughters and daughters in law."

The court had to give appropriate meanings to the expressions 'children', 'issue' and 'heirs' which would ordinarily be not synonymous but sometimes they may carry the same meaning.  

The court referred to P. Ramanatha Aiyar's Advanced Law Lexicon at page 2111 :

"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 synonymous. 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."

Also held "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."

In N. Krishnammal vs. R. Ekambaram & sons [(1979) 3 SCR 700 : (1979) 3 SCC 273], 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 ".

In Angurbala Mullick vs. Debabrata Mullick [(1951) 2 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.