PETITIONER: PEAREY LAL Vs. RESPONDENT: RAMESHWAR DAS DATE OF JUDGMENT: 10/12/1962 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER KAPUR, J.L. MUDHOLKAR, J.R. CITATION: 1963 AIR 1703 1963 SCR Supl. (2) 834 ACT: Hindu Will-Widow devisee-Construction of will-Use of word 'Malik', if conveyed absolute ownership--Indian Succession Act, 1925 (39 of 1925), ss. 75, 82, 86. HEADNOTE: In the year 1897, one Girdhari Lal executed a will bequething his property to his wife Mst. Kishen Dei and adopted son. The adopted son predeceased Girdhari Lal. After the death of Girdhari Lai his wife executed a will be- quething the property in dispute i. e. the house to her brother's grandson, the respondent, The appellant who was in occupation of a portion of the said house refused to execute a lease deed in favour of the respondent or pay him the rent after the death of Mst. Kishen Dei. The respondent filed a suit for eviction against the appellant. The appellant denied the title of the respondent as Mst. Kishen Dei did not get an absolute interest under the will of her husband and pleaded that Girdhari Lal; dedicated the said house to one Shiv Temple by executing a will and appointed him as a trustee. The Subordinate judge decreed the plaintiff respondent suit. On appeal the District judge set aside the decree of the Subordinate judge and dismissed the suit, holding that under the will of 1897, Kishen Dei got only a limited estate. The plaintiff-respondent preferred a second appeal to the High Court and the decree of the District judge was set aside and that of the Subordinate judge was restored and on construction of the will of 1897 it held that as the gift over failed, the life estate became an absolute estate and she got an absolute interest in the property. The appellant preferred a Letters Patent appeal before the Division Bench of the High Court and the judgment of the Single judge was confirmed. Held, that in construing a will the court should try its best to get at : (i) the intention of the testator by reading the will as a whole and if possible, such construction as would give to every expression some effect rather than that which could render any of the expression inoperative must be accepted;(ii) another rule is that the words occurring more than once in a will shall be presumed to be used always in the same sense 835 unless a contrary intention appears from the will; (iii) all parts of a will should be construed in relation to each other; (iv) 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; (v) 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; (vi) where one of the two resonable construction would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. On the above rule of construction, under the present will the gift over in favour of the son was only by way of defeasance and the widow had got an obsolute interest in the property. Subbamma v. Ramanaidu, A. 1. R. 1937 Mad. 476, dis- tinguished. Held, further, that the expression 'Malik' has been con- sistently understood by courts as conveying the idea of absolute ownership and therefore, the testator used the word 'Malik' to describe his absolute interest in the property. Sasiman Chowdhurain v. Shiv Narain Chaudhury, (1921) L. R. 49 I. A. 25 and Ram Gopal v. Nand Lal, [1950] S. C. R. 766, relied on. JUDGMENT:
CIVIL APPELLATE JURISDICTICN : Civil Appeal No. 338/1960.
Appeal by special leave from the judgment and order dated
August 31, 1951, of the Punjab High Court in Letters Patent
Appeal No. 64 of 1949.
S. P. Verma, for the appellant.
Bishan Narain and A. D. .Mathur, for the respondent.
1962. December 10. The judgment of the Court was delivered
by
SUBBA RAO, J.-This appeal raises the question of the
construction of a will executed by one Girdhari Lal in the
year 1897.
836
Girdhari Lal, a resident of Delhi.. executed a will dated
February 8, 1897, bequeathing his property, both movable and
immovable, to his wife, Mst. Kishen Dei, and adopted son.
The adopted son predeceased Girdhari Lal. After the death
of Girdhari Lal in 1923, Mst. Kishen Dei exeuted a will
dated October 8, 1941, bequeathing the property in dispute
i. e., house No. 2045, situate in Delhi, to her brother’s
grandson, Rameshwar Dass. One Peraeylal, who is the
defendant in this case, has been in occupation of a portion
of the said house. After the death of Mst. Kishen Dei,
Peareylal refused to execute a lease deed in favour of
Rameshwar Dass or pay him the rent in respect of the portion
of the house occupied by him. Rameshwar Dass had therefore
to file a suit in the Court of the Subordinate judge, Delhi,
for evicting the defendant from the portion of the house
occupied by him. The defendant, inter alia, pleaded that
the plaintiff had no title to the said property, as Mst.
Kishen Dei did not get an absolute interest therein under
the will of her husband; he further pleaded that Girdhari
Lal during his lifetime dedicated the said house under a
will executed by him to Shiv Temple in Gali Patashe Minor
and appointed him to be trustee of the said house. The
learned Subordinate judge found that under the will executed
by Girdhari Lal, Mst. Kishen Dei got an absolute interest
in the house. He further found that the will set up by the
defendant whereunder he claimed that the house was dedicated
to the said Minor had not been proved and on the date when
it was alleged to have been executed, Girdhari Lal was not
of sound mind. In the result, he made a decree in favour of
the plaintiff. On appeal the learned District judge held
that tinder the will of 1897 executed by Girdhari Lal,
Kishen Dei got only a limited estate and, therefore, she
could not under a will confer any interest on the plaintiff.
In that view, he did not give his finding on the question
whether the will set up by the defendant
837
was true and valid. The decree of the learned Subordinate
judge was set aside and the suit was dismissed. The
plaintiff preferred a second appeal to the High Court of
East Punjab at Simla. Khosla J. held, on a construction of
the will of 1897, that under the said will the testator give
a life interest to Mst. Kishen Dei and made a gift over to
the adopted son; but as the gift over failed, the life
estate became an absolute estate under s. 112 of the Indian
Succession Act. Alternatively he also found that on the
wording of the will Mst. Kishen Dei got an absolute
interest in the property. In the result he set aside the
decree of the -District judge and restored that of the
Subordinate judge. It may be nociced at this stage that no
argument was made before Khosla, J., that the defendant
acquired a title to the portion of the house under a
subsquent will executed by Girdhari La]; presumbly in view
of the finding given by the learned Subordinate Judge that
the executant was not of sound mind at the time the will was
alleged to have been executed, no attempt was made to
sustain its execution or validity. The defendant preferred
a Letters Patent Appeal against the said judgment to a
division Bench of the same High Court. The said appeal was
disposed of by Weston, C.J., and Falshaw, T. Weston, C J.,
who delivered the judgment on behalf of the Bench, held on a
construction of the will of 1897 that the intention of the
testator should be taken to be that at any rate on failure
of the bequest to Nathi Mal, the testator’s widow Mst.
Kishen Dei should take an absolute interest in his property.
The division Bench confirmed the judgment of Khosla, J. It
may again be noticed that even before the Division Bench the
defendant did not rely upon the will alleged to have been
executed by Girdhari Lal in his favour. The present appeal
has been filed by special leave against the said judgment.
Mr. Verma, learned counsel for the appellant,
838
raised before us the following two points :
(1)On a true construction of the. will of 1897 executed by
Girdhari Lal, Mst. Kishen Dei only got a life estate
thereunder and, therefore, the plaintiff did not get any
title to the property under the will executed by her in his
favour. (2) The High Court went wrong in not considering and
giving a finding on the question of the truth and validity
of the will alleged to have been executed by Girdhari Lal in
defendant’s favour.
As the first question turns upon the construction of the
will excuted by Girdhari Lal in 1897, it will be convenient
to read the relevant part thereof.Ex. P-1 is the will
executed by him on February 8, 1897. After the usual
preamble that appears inwills, the testor proceeds to
state-
“Further, I have reached the age of nearly 50 years and with
my consent Nathi Mal a boy of 7 years has been adopted and
an agreement has been got written from his father Bega Mal.
Now my wife Mst. Kishen Dei daughter of Bega Mal is living
and I have got one storeyed house situated in the City of
Delhi, Bazar Khari Baoli, inside Gali Batashan and some
goods, and my belongings are in my possession without
partncrship with anybody else. As long as I the testator am
alive, I shall remain malik of entire movable and immovable
property and am entitled to do whatever I wish to do. When
I die then Mst. Kishen Dei, my wife, and after the death of
the said Mussammat, my adopted son Nathi Mal, will become
Malik of all my movable and immovable property without
partnership with anybody. The said Mst. Kishen Dei should
live in this house and said Nathi Mal will get all the
proprietary rights just like
839
the testator. And no relation of mine has and will have any
kind of claim to my movable and immovable property left by
me.”
It must be conceded that there is some conflict of ideas in
the document; but in constructing a will executed in 1897
the court should try its best to get at the intention of the
testator by reading the will as a whole. We must accept, if
possible, such construction as would-give to every
expression some effect rather than that which ‘Would render
any of the expression inoperative. Another rule which may
also be useful in the context of the present will is that
the words occurring more than once in a will shall be
presumed to be used always in the same sense unless a
contrary intention appears from the will : see s. 86 of the
Indian Succession Act. So too, all parts of a will should
be construed in relation to each other : vide s. 82 of the
said Act. It is also a well recognized rule of construction
that the court will look at the circumstances under which
the testator makes his will, such as the state of his pro-
perty, of his family and the like : see s. 75 of the said
Act.
The circumstances under which the will was executed by the
testator may be gathered from the will itself. The testator
had a wife and an adoptcd son. He had no other near
relations to be provided for. The only objects of his
attachment and love were his wife and the minor adopted boy.
He was anxious to provide for both of them. His object
could be achieved in three ways, namely, (i) by conferring a
life estate in his property on his wife and giving a vested
remainder in the same to his adpoted son; (ii) by making a
joint bequest to both of them; and (iii) by making a bequest
of an absolute interest to his wife with a gift over to his
son operating by way of defeasance. Learned counsel for the
appellant relies upon the following passage
840
in the will : “The said Mst. Kishen Dei should live in this
house and said Nathi Mal will get all the proprietary rights
just like the testator, in support Of the contention that in
this senterce the testator made a clear distinction between
the nature of the estate given to the wife and that given to
the son. He contends that the direction that Mst. Kishen
Dei should only live in the house indicates that her
interest was only a life interest in the house whereas the
direction that Nathi Mal should be in the place of the
testator indicates that he had absolute rights which the
father had. If this sentence is disannexed from the rest of
the document, it may lend some colour to the said argument;
but in the context of the other recitals in the document, it
fits in the scheme of bequest clearely expressed by the
testator. The testator described his interest in the
property thus :
“I shall remain Malik of entire movable and
immovable property and am entitled to do
whatever I wish to do. When I die then Mst.
Kishen Dei, my wife and after the death of the
said Mussammat, my adopted son Nathi Mal, will
become malik of all my movable and immovable
property without partnership with anybody.”
It is not disputed, and it cannot be disputed, that the said
description of his right is that of an absolute interest.
The expression “malik” has a well-known connotation and it
has found judicial recongnition in various decisions of High
Courts and the Privy Council. It may not be a term of art
but is a word of definite content that has become part of
the vocabulary of the common man and particularly of
document writers. When the testator used the said word he
-must have intended to convey the accepted meaning of the
said word. In Sasiman Chowdhurain v. Shib Narayan Chowdhury
(1) the
(1)(1921) L.R. 49 I.A 25, 35,
841
Privy Council said that the term “malik” when used in a will
or other document is descriptive of the position which a
divisee or donee is intended to hold and has been held apt
to describe an owner possessed of full proprietary -rights,
including a full right of alienation, unless there is
something in the context or in the surrounding circumstances
to indicate that such full proprietary rights were not
intended to be conferred. This Court, in Ram Gopal v. Nand
Lal (1), accepted the said observations of the Privy Council
as a correct statement of la”,, but added that it should be
taken with the caution which the ..Judicial Committee
uttered in the course of the same observation, namely, that
“the meaning of every word in an Indian document must always
depend upon the setting in which it is placed, the subject
to which it is related and the locality of the grantor from
which it receives its true shade of meaning.” It is not
necessary to multiply decisions, as the expression “‘malik”
has been consistently understood by courts as conveying the
idea of absolute ownership. It must, therefore, be held
that the testator used the word “malik” to describe his
absolute interest in the property. Apart from the meaning
generally given to this word, the testator himself furnished
a dictionary for interpreting the said term in the will.
With the knowledge of the meaning of the word “malik” the
testator proceeded to describe the interest conferred on his
wife in the same terms, namely, that she should become
“malik” without partnership with anybody. If the will
stopped there, there could not have been any controversy as
regards the nature of the bequest. But the testator
proceeded to state that after the death of his wife, his
adopted son would become “malik” without partnership with
anybody. The words must bear the same meaning i.e., the
testator intended that after the death of his wife, his
adopted son should become the absolute owner of the
property. These two bequests prima facie appear to be
inconsistent with each other, for
(1) [1950] S C,R. 766, 773.
842
there are two absolute bequests of the same property in
favour of his wife and, after her death, in favour of his
son. Two constructions are possible, one is to accept the
first and negative the second on the ground that it is
repugnant to the first; the other is to make an attempt to
reconcile both in a way legally permissible. Both can be
reconciled and full meaning given to all the words used by
the testator, if it be held that there was an absolute
bequest in favour of the wife with a gift over to operate by
way of defeasance, that is to say, if the son survived the
wife, the absolute interest of the wife would be cut down
and the son would take an absolute interest in the same. If
that was the construction, the statement in the will relied
upon by learned counsel for the appellant could also be
reconciled with such a bequest. That statement recorded a
wish on the part of the testator that his wife should reside
in the house, for he wanted his minor son and wife to
continue to live in his house. The second part of the
statement also recorded a wish on his part that his wife
should keep the property intact and hand over the same to
his son, who would also be a full owner like himself. Be it
as it may, the said statement could not detract from the
clear words used earlier. If the argument of learned
counsel for the appellant be accepted, this Court would be
rewriting the will for the testator and introducing words
which are not there: it would be cutting down the meaning of
the words which the testator designedly used to convey a
larger interest to his wife. 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. If the construction suggested by learned
counsel be
843
adopted, in the event of his son predeceasing the testator,
there would be intestacy after the death of the wife. If
the construction suggested by the respondent be adopted, in
the event that happened it would not bring about intestacy,
as the defeasance clause would not come into operation.
That was the intention of the testator is also clear from
the fact that he mentioned in the will that no other
relation except his wife and son should take his property
and also from the fact that though he lived for about a
quarter of a century after the execution of the will, he
never thought of changing the will though his son, had
predeceased his wife.
Learned counsel for the appellant relied upon the decision
of Varadachariar., J., in Subbamma V. Ramanaidu (1): There
the testator created a limited interest in favour of the
widow followed by gift over to grandchildren. In describing
the bequest in favour of the widow, the testator used the
word “Hakdar” meaning “owner”. Still the learned judge held
that the widow took only a woman’s estate and the
grandchildren took the remainder. The learned judge
observed :
“To avoid such a possibility, the proper rule of
construction has been held to be to take the will as a
whole; and the presence of a gift over, which is not a mere
gift by way of defeasance, has generally been held to be an
indication that the prior gift was only a limited interest.”
The learned judge also relied upon the other circumstances
of the will in coming to that conclusion. This decision
accepted the same proposition which this Court has laid down
in Ra it Gopal v. Nand Lal (2), namely, that the entire
document should be considered in arriving at the intention
of the testator. No decision on the construction of a will
can be of use in construing another document, unless all the
(1) A.I.R. 1937 Mad. 476, 477.
(2) [1950] S.C.R. 766, 773.
844
important recitals are similar. A document will have to be
construed on its own terms. In the circumstances of the
present document, we have come to the conclusion that under
the will the gift over in favour of the son is only by way
of defeasance.
We cannot allow the learned counsel to raise the second
contention, for it was not raised before the District Court,
before Khosla J., and before the division Bench of the High
Court, It was raised before the Subordinate judge but the
learned Subordinate judge held, on the evidence, that the
will had not been proved and indeed he came to the
conclusion that the testator was not of sound mind on the
date when the will was alleged to have been executed. The
point raises a mixed queston of fact and law and there are
no exceptional grounds for deviating from the usual practice
of this Court and allowing the appellant to raise this point
here when he failed todo so in the two courts below.
In theresult, the appeal fails and is dismissed
with costs. The appellant will pay the Court fee
on the memoof appeal.
Appeal dismissed.
845