Pearey Lal Vs. Rameshwar Das  INSC
356 (10 December 1962)
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1963 AIR 1703 1963 SCR Supl. (2)
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.
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 bequething 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 obsolete interest in the property.
Subbamma v. Ramanaidu, A. 1. R. 1937 Mad.
Held, further, that the expression 'Malik'
has been consistently 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,  S. C. R. 766, relied
CIVIL APPELLATE JURISDICTION : Civil Appeal
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
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 subsequent 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
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 property, 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
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
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)
 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
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
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,
(2)  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 question 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