Full Judgment Text
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PETITIONER:
NAVNEET LAL ALIAS RANGI
Vs.
RESPONDENT:
GOKUL AND OTHERS
DATE OF JUDGMENT09/12/1975
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
MATHEW, KUTTYIL KURIEN
UNTWALIA, N.L.
CITATION:
1976 AIR 794 1976 SCR (2) 924
1976 SCC (1) 630
CITATOR INFO :
RF 1979 SC1345 (5)
ACT:
Testamentary Will-Construction-Principles of-Term
"Malik" used in a Will-Meaning of for the purposes of
construction of the Will, whether it denotes vesting a "life
interest" or an "absolute interest".
HEADNOTE:
One ’BC’, governed by the Mitakshra School of Hindu
Law, being issueless and apprehending the claim to his
property after his death as reversioners by his only brother
’RR’ and his nephew ’K’ who were inimical to him since the
partition of their ancestral property in 1899, and possible
harassment of his wife and ’G’, the respondent, executed a
Will on September 21, 1916, in the Urdu script. The
respondent ’G’ being the son of the testator’s sister
married to testator’s wife’s brother was doubly related. As
per the Will, ’G’ was to perform the obsequies and other
annual death ceremonies etc., being his ’waris’ and the
"Malik Kamil’-absolute owner" having all the proprietary
powers and the power of making transfers of all sorts",
while his wife was to be in possession and enjoyment of the
property during her life time. From the date of death of the
testator in 1918 for about 18 years the widow and ’G’ lived
in cordiality but got estranged later due to estrangement of
feelings resulting in several civil and criminal litigation
between them. The widow died in 1948 executing a gift deed
and a Will in respect of certain properties in favour of the
appellant ’NL’.
’G’ filed a civil suit claiming his rights under the
Will dated 21 September, 1916, and the appellant defendant
contested it on pleas that the widow of ’BC’ having an
absolute right over the property under the said Will validly
made the gift deed and the Will of 1948 in his favour and
that the respondent-plaintiff had no locus standi to file
the suit. The suit was decreed. On appeal to the Allahabad
High Court, as there was a difference of opinion between the
Judges of the Division Bench on the nature of the widow’s
estate,-one opining as the Will conferring a "limited
estate" and the other opining as conferring an "absolute
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estate" the appeal was set down to a third Judge who agreed
with the view that the Will conferred only a "limited
estate" upon the widow and dismissed the appeal.
Confirming the decree of the courts below and
dismissing the appeal by certificate, the Court,
^
HELD : (1) The following are the established principles
for construing the language of the Will.
(a) In construing a document whether in English or in
vernacular the fundamental rule is to ascertain the
intention from the words used; the surrounding circumstances
being considered to find out the intended meaning of such
words employed therein. [927F-G]
(b) In construing the language of the Will the court is
entitled to put itself into the testator’s armchair and is
bound to bear in mind also other matters than merely the
words used like the surrounding circumstances, the position
of the testator, his family relationship, the probability
that he would use words in a particular sense-all as an aid
to arriving at a right construction of the Will, and to
ascertain the meaning of its language when used by that
particular testator in that document. [927G-H, 928A]
(c) The true intention of the testator has to be
gathered not by attaching importance to isolated expressions
but by reading the Will as a whole with all its provisions
and ignoring none of them as redundant or contradictory.
[928B]
(d) The court must accept, if possible, such
construction as would give to every expression some effect
rather than that which would render any of
925
the expression inoperative. 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.
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 and such hiatus. [928C-E]
(e) It is one of the cardinal principles of
construction of Wills that to the extent that it is legally
possible effect should be given to every disposition
contained in the Will unless the law prevents effect being
given to it. Of course, if there are two repugnant
provisions conferring successive interests, if the first
interest created is valid the subsequent interest cannot
take effect but a court of construction will proceed to the
farthest extent to avoid repugnancy, so that effect could be
given as far as possible to every testamentary intention
contained in the Will. [928E-G]
Ram Gopal v. Nand Lal and others [1950] SCR 766/772;
Venkata Narasimha v. Parthasarathy, 42 Indian Appeals 51/72;
Gnanambal Ammal v. T. Raju Ayyar and others, [1950] SCR
949/955; Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj
Kuer, [1953] SCR 232/240; Pearey Lal v. Rameshwar Das [1963]
Supp. SCR 834/839/842 and Ramachandra Shenoy and Anr. v.
Mrs. Hilda Brite and others. [1964] 2 SCR 722/735, applied.
(ii) The term "malik" when used in a Will or other
document as descriptive of the position which a devisee or
donee is intended to hold, 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
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context or in the surrounding circumstances to indicate that
such full proprietary rights were not intended to be
conferred, but the meaning of every word in an Indian Will
must always depend upon the setting in which it is placed,
the subject to which it is related and the locality of the
testator from which it may receive its true shade of
meaning. The intention of the testator will have to be
gathered from all the relevant and material contents in the
entire Will made in situation in which the testator was
placed in life in the background of his property, his
inclinations, wishes, desires and attitudes as can be
clearly and unambiguously found either from the recitals
from the instrument or from absolutely undoubted
contemporaneous legally admissible evidence. Hence, even the
words "malik muakkil" can be qualified by other words and
circumstances appearing in the document. [930 B-C & G-H]
Sasiman Chowdhurain and others v. Shib Narayan
Chowdhury and others, 49 Indian Appeals 25/35; Musammat
Surajmani and others v. Rabi Nath Ojha and another, 35
Indian Appeals 17; Krishna Biharilal v. Gulabchand and
others, (1971) Supp. SCR 27 and Dhyan Singh and anr. v.
Jugal Kishore and anr., [1952] SCR 478, discussed.
(iii) In the instant case, the testator intended a life
estate for his wife so long as she lived as is clear from
the reading of the present Will as a whole. This is
consistent with his description of Gokul as "my heir
(waris)" after his death. It is further consistent with the
recital that "if per chance, Mrs. Jarian dies in my life
time, then Gokul, aforesaid will be the absolute owner
(malik kamil) of the estate left by me (matruka meri) and he
shall have power of making all sorts of transfers (aurusko
har qism ke aktiyarat inteqalat hasil honge)". In obvious
contrast even though Smt. Jarian was made the malik of his
entire estate after his death "having all the proprietary
rights" nothing is stated about her "power of making all
sorts of transfers" which power is expressly mentioned as
belonging to him and also exclusively conferred upon Gokul
after Smt. Jarian’s death. While describing his own
"proprietary powers" the testator made reference to his
"power of making transfers of all sorts". This power of
making transfers which was prominent in the mind of the
testator at the time of execution of the Will is conspicuous
by total omission in relation to Smt. Jarian’s enjoyment of
the property. The testator has made the distinction between
mere ownership of property and ownership of the same coupled
with a transfer in every way. [931 A-D]
926
Further, from the recitals in the Will about his only
reversioners viz., his brother and nephew "might trouble and
harass my wife Mst. Jarian and my sister’s son Gokul", it is
clear that the testator never intended that his property
should pass to his brother and nephew. This intention would
be achieved by holding that there was a devise of a life
estate to his wife and an absolute estate thereafter to
Gokul indicating a different line of inheritance in the Will
on the other hand, if any absolute estate would have been
conferred on the widow, then on her death the property would
have passed on by inheritance to her husband’s heirs who
were none else than the brother and the nephew of the
testator. There was no other heir of Mst. Jarian to inherit
the property after her death. [931 G-H, 932 A-B]
A plenitude of absolute estate in favour of the wife
will make the absolute bequest to Gokul void in law. No such
repugnant interpretation detrimental to the interest of
Gokul can be made in the light of the entire tenor of the
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instrument. The testator intended to bequeath in favour of
his widow only a life estate and after her death an absolute
estate to Gokul. [932B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 914 of
1968.
(From the judgment and decree dated the 9th April,
1962, of the Allahabad High Court in first Appeal No. 283 of
1950).
Naunit Lal, K. G. Bhargava and Miss Lalita Kohli for
the appellant.
G. S. Pathak, D. P. Singh and M. G. Goswami for
respondents nos. 1(a) to 1(f).
The Judgment of the Court was delivered by
GOSWAMI, J. This appeal by certificate from the
judgment and decree of the Allahabad High Court raises an
important question with regard to the construction of a
will. The respondent Gokul (whose heirs have been impleaded
after his death) was the original plaintiff in a suit for
declaration that he was the absolute owner under a will of
the property in suit and for possession of certain of them.
He also claimed certain movable properties with which we are
not concerned in this appeal.
The property in suit was originally in exclusive
ownership and possession of Bhola Chaubey, the testator.
Bhola Chaubey, was governed by the Mitakshra School of Hindu
Law. He belonged to the class of priests and was an old man
of 67 years at the time when he executed the will on
September 21, 1916. He had then a legally wedded wife, Smt,
Jarian, approaching nearly her forty-fifth year and they had
no issue in wedlock. The only person whom the testator
appeared to have almost treated like a son was the
respondent Gokul, doubly related to the testator, being his
sister’s son and also his wife’s brother’s son. Gokul had
been with him since childhood and the testator got him
married. Gokul in return had been serving the testator to
his satisfaction and was in enjoyment of his full confidence
and affection till the testator’s death in 1918. Gokul was
then aged about 23 years. It was directed in the will that
Smt. Jarian would get the obsequies and other religious
rites of the testator performed by Gokul.
After the death of the testator Smt. Jarian and Gokul
continued to live in cordiality for nearly 18 years.
Feelings, however, got
927
estranged some time after that and there was even
litigation, criminal and civil, between Smt. Jarian and
Gokul. It appears Smt. Jarian, who died in March, 1948, had
executed a gift deed and a will in respect of certain
properties in suit in favour of the appellant, Navneet Lal.
All this led to the institution of the present suit out of
which this appeal has arisen.
The case of the appellant was that Bhola Chaubey had
given an absolute estate under the will to his wife, Smt.
Jarian, and she was, therefore, entitled to deal with the
property as she liked and hence the deed of gift and the
will in favour of the appellant were perfectly valid.
According to the appellant the respondent had no right to
file the suit basing upon the will executed by Bhola
Chaubey.
According to the respondent the will conferred on Smt.
Jarian only a life estate during her life and after her
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death an absolute estate of the testator’s entire property
on the respondent.
The Civil Judge, Mathura, decreed the respondent’s suit
except with reference to the movable property mentioned in
Schedule O to the plaint as well as in respect of certain
muafi zamindari property in Schedule A to the plaint. The
appellant appealed to the High Court at Allahabad and when
the matter came up for disposal by a Division Bench of that
court, there was a difference of opinion between the Judges.
Srivastava, J. held that the testator had no intention of
conferring a limited life estate only on his wife and that
she acquired an absolute estate by virtue of the will. On
the other hand, B. Dayal, J. took a contrary view holding
that Bhola Chaubey intended to give merely a life estate to
Smt. Jarian and to make Gokul full owner of the property
after her death. The appeal was then set down for hearing
before a third Judge, (Dhawan, J.) who agreed with B. Dayal,
J. resulting in dismissal of the appeal.
We are concerned in this appeal only with the
construction of the will executed in the year 1916.
From the earlier decisions of this Court the following
principles, inter alia, are well established:-
(1) In construing a document whether in English
or in vernacular the fundamental rule is to
ascertain the intention from the words used;
the surrounding circumstances are to be
considered; but that is only for the purpose
of finding out the intended meaning of the
words which have actually been employed. [Ram
Gopal v. Nand Lal and others(1)].
(2) In construing the language of the will the
court is entitled to put itself into the
testator’s armchair [Venkata Narasimha v.
Parthasarathy(2)] and is bound to bear in
mind also other matters than merely the words
used. It must consider the surrounding
circumstances, the position of the testator,
his family
928
relationship, the probability that he would
use words in a particular sense....but all
this is solely as an aid to arriving at a
right construction of the will, and to
ascertain the meaning of its language when
used by that particular testator in that
document. [Venkata Narasimha’s case supra and
Gnanambal Ammal v. T. Raju Ayyar and
Others(1)].
(3) The true intention of the testator has to be
gathered not by attaching importance to
isolated expressions but by reading the will
as a whole with all its provisions and
ignoring none of them as redundant or
contradictory [Raj Bajrang Bahadur Singh v.
Thakurain Bakhtraj Kuer(2)].
(4) The court 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. 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. Where apparently
conflicting dispositions can be reconciled by
giving full effect to every word used in a
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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. [Paerey Lal v. Rameshwar
Das(3)].
(5) It is one of the cardinal principles of
construction of wills that to the extent that
it is legally possible effect should be given
to every disposition contained in the will
unless the law prevents effect being given to
it, Of course, if there are two repugnant
provisions conferring successive interests,
if the first interest created is valid the
subsequent interest cannot take effect but a
Court of construction will proceed to the
farthest extent to avoid repugnancy, so that
effect could be given as far as possible to
every testamentary intention contained in the
will. [Ramachandra Shenoy and Another v. Mrs.
Hilda Brite and Other(4)]
Bearing in mind the above principles we may now look at
the will in question as a whole. This will is written in the
urdu language. An official translation is placed on the
record. From the contents of the will we find the background
and the exact position of relationship of the parties set
out earlier. Gokul was residing with Bhola Chaubey
929
and Smt. Jarian. It may bear repetition that Gokul was held
in great love and affection by the testator who was keenly
anxious for the welfare both of his wife and of Gokul. There
is yet another feature which is prominent in the will. The
testator was apprehensive of his only brother, Ram Raj and
his nephew, Kishnu, who "might trouble his wife and Gokul
after his death."
From such of the aforesaid prefatory recitals as appear
in the will, two objects stand out, namely, that he was
deeply interested in the enjoyment of his property movable
and immovable after his death by his wife and after her
death by Gokul. The second object was that he intended that
his property should not fall into the hands of his brother
and nephew who had been separate from him since long after
some arbitration and even bore ill-will against him and his
wife.
After the above revelation of his mental attitude in
the will there follows the following recitals:-
"So long as I, the executant, am alive, I myself
shall remain the owner in possession (malik wa qabiz)
of my entire movable and immovable property and of the
income from Birt Jijmani. After my death Mst. Jarian,
the wedded wife of me, the executant, shall be the
owner (malik) of my entire estate, movable and
immovable, and of the income from Birt Jijmani and
shall have all the proprietary powers (aur usko jamiya
akhtiyarat malikana hasil honge). After the death of
Mst. Jarian, Gokul aforesaid shall be the owner of the
entire estate left by me (malik kamil jaidad matruka
meri ka hoga), and he shall have all the proprietary
powers and the power of making transfer of all sorts
(aur usko jamiya akhtiyarat malikana wa inteqalat har
qism hasil honge). If per chance, Mst. Jarian dies in
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my life time, then Gokul aforesaid will be the absolute
owner (malik kamil) of the estate left by me (matrura
meri) and he shall have power of making all sort of
transfers (aur usko har quism ke akhtiyarat inteqalat
hasil honge). Gokul aforesaid should go to Jijmana and
should continue to give to Mst. Jarian during her life
time the charitable gifts (daan dakshina) which he
brings from there. After her death he might continue to
be benefited thereby. Mst. Jarian should get my
obsequies, Barsi (annual death ceremony), Chhamchhi
etc. performed through Gokul aforesaid according to the
custom prevalent in the brotherhood. It will be the
duty of Gokul aforesaid to obey and serve my wife Mst.
Jarian. It will be necessary for Mst. Jarian to keep my
heir (waris) Gokul aforesaid and to act in consultation
with him. At present I have the following immovable
properties and the Birt Jijmani. If in addition to
these I purchase or get any property the aforesaid
persons shall be the owners of that also according to.
the aforesaid conditions".
Mr. Naunit Lal, on behalf of the appellant, submits
that since the testator stated in the will that after his
death Smt. Jarian "shall be the
930
owner (malik) of my entire estate.. and shall have all the
proprietary powers (aur usko jamiya akhtiyarat malikana
hasil honge)", it is absolutely clear that he intended to
confer upon his wife an absolute estate to his entire
property. Mr. G. S. Pathak, on behalf of the respondents,
contests the proposition.
In support of his contention, Mr. Naunit Lal draws our
attention to several decisions wherein the word ‘malik’ has
been noticed and explained.
The term ‘malik’ when used in a will or other document
as descriptive of the position which a devisee or donee is
intended to hold, 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, but
the meaning of every word in an Indian will must always
depend upon the setting in which it is placed, the subject
to which it is related, and the locality of the testator
from which it may receive its true shade of meaning.
[Sasiman Chowdhurain and others v. Shib Narayan Chowdhury
and others (1) ].
We find observations to the same effect in Musammat
surajmani and others v. Rabi Nath ojha and another(2). It
is, approved therein that in order to cut down the full
proprietary rights that the word malik imports something
must be found in the context to qualify it.
Similarly counsel has referred to the expression ‘malik
mustakil’ which was noticed in a decision of this Court in
Krishna Biharilal v. Gulabchand and Ors.(3), and this Court
observed at page 31 as follows:-
"The meaning of the expression ‘malik mustakil’ an
urdu word, has come for consideration before this Court
in some cases. In Dhyan Singh and anr. v. Jugal Kishore
& Anr.(4), this Court ruled that the words ‘malik
mustakil’ were strong, clear and unambiguous and if
those words are not qualified by other words and
circumstances appearing in the same document, the
courts must hold that the estate given is an absolute
one
We are, however, not required to consider the words
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‘malik mustakil’ in this case. But it is clear that even
those words can be qualified by other words and
circumstances appearing in the same document.
It is, therefore, abundantly clear that the intention
of the testator will have to be gathered from all the
relevant and material contents in the entire will made in
the situation in which the testator was placed in life in
the back ground of his property, his inclinations, wishes,
desires and attitudes as can be clearly and unambiguously
found either from the recitals from the instrument or from
absolutely undoubted contemporaneous legally admissible
evidence.
931
Reading the present will as a whole and if every
disposition has to be rationally harmonised, we find that
the testator intended a life estate for his wife so long as
she lived. This is consistent with his description of Gokul
as "my heir (waris)" after his death. It is further
consistent with the recital that "if per chance, Mst. Jarian
dies in my life time, then Gokul aforesaid will be the
absolute owner (malik kamil) of the estate left by me
(matruka meri) and he shall have power of making all sorts
of transfers (aur usko har quism ke akhtiyarat inteqalat
hasil honge)". In obvious contrast even though Smt. Jarian
was made the malik of his entire estate after his death
"having all the proprietary rights" nothing is stated about
her "power of making all sorts of transfers" which power is
expressly mentioned as belonging to him and also exclusively
conferred upon Gokul after Smt. Jarian’s death. While
describing his own "proprietary powers" the testator made
reference to his "power of making transfers of all sorts".
This power of making transfer which was prominent in the
mind of the testator at the time of execution of the will is
conspicuous by total omission in relation to Smt. Jarian’s
enjoyment of the property.
We have to give due importance to the lexicon in the
will and we find that the testator has made a definite
distinction between mere ownership of property and ownership
of the same coupled with powers of transfer "in every way".
Ordinarily, however, without such clear evidence from
the recitals in the will itself it may not be possible to
hold that ownership of property, which is devised, without
any thing more, would not connote absolute ownership of the
same with the power of alienation.
There is another significant feature in the recitals,
when reference is made in the will to acquisition of future
property. Says the testator "if in addition to these I
purchase or get any property the aforesaid persons shall be
the owners of that also according to the aforesaid
conditions". The testator thus unerringly conceives of any
future property being owned by both, by the widow during her
life time and by Gokul after her death in the same manner as
the property that had already been bequeathed. The
expression "according to the aforesaid conditions" is,
therefore, very significant in the context. We also find
that during her life time Gokul would be collecting "daan
dakshina" of the jijmani to Smt. Jarian and after her death
Gokul would enjoy the same. There is no contemplation of any
possibility to deprive Gokul of the enjoyment of the
property in any event.
All the above features run counter to the theory of an
absolute estate in favour of Smt. Jarian. There is still
another clinching factor. It is clear from the will that the
testator had misunderstanding and quarrels with his brother
regarding ancestral property and the matter had to be
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settled by arbitration leading to partition and separate
enjoyment of property as far back as 1889. It also appears
from the recitals in the will that he had grave apprehension
that after his death his only reversioners, his brother and
nephew, "might trouble and harass my wife Mst. Jarian and my
sister’s son Gokul." One thing was, therefore, clear that
the testator never intended that his property should pass to
his brother and nephew. This intention of the testator would
932
best be achieved by holding that there was a devise of a
life estate to his wife and an absolute estate thereafter to
Gokul indicating a different line of inheritance in the
will. On the other hand, if any absolute estate would have
been conferred on the widow, then on her death the property
would have passed on by inheritance to her husband’s heirs
who were none else than the brother and the nephew of the
testator. There was no other heir of Mst. Jarian to inherit
the property after her death.
A Plenitude of absolute estate in favour of the wife
will make the absolute bequest to Gokul void in law. No such
repugnant interpretation detrimental to the interest of
Gokul can be made in the light of the entire tenor of the
instrument.
Having regard to the context and the circumstances
apparent from the will, we are clearly of opinion that the
testator intended to bequeath in favour of his widow only a
life estate and after her death an absolute estate to Gokul.
That being the position the will by Smt. Jarian in favour of
the appellant fails and her gift in favour of the appellant
also similarly fails on her death. The respondent’s suit is
rightly decreed by the courts below. The appeal fails and is
dismissed. We will, however, make no order as to costs.
S.B. Appeal dismissed.
933