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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

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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

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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-

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"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

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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

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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

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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