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 section Pathak D P Singh and M G Goswami for respondents nos
1a to 1f
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 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 vs Nand Lal and others1
2 In construing the language of the will the court is entitled to put itself into the testator s armchair Venkata Narasimha vs Parthasarathy2 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 vs T Raju Ayyar and Others1
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 vs Thakurain Bakhtraj Kuer2
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 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 vs Rameshwar Das3
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 vs Mrs Hilda Brite and Other4 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 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
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 section 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 vs Shib Narayan Chowdhury and others 1 
We find observations to the same effect in Musammat surajmani and others vs Rabi Nath ojha and another2
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 vs Gulabchand and Ors3 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
vs Jugal Kishore  Anr4 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 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 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
SB Appeal dismissed


Summary:
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 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 vs Nand Lal and others  Venkata Narasimha vs Parthasarathy 42 Indian Appeals 5172 Gnanambal Ammal vs T Raju Ayyar and others  Raj Bajrang Bahadur Singh vs Thakurain Bakhtraj Kuer  Pearey Lal vs Rameshwar Das 1963 Supp
SCR 834839842 and Ramachandra Shenoy and Anr
vs Mrs Hilda Brite and others  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 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 vs Shib Narayan Chowdhury and others 49 Indian Appeals 2535 Musammat Surajmani and others vs Rabi Nath Ojha and another 35 Indian Appeals 17 Krishna Biharilal vs Gulabchand and others 1971 Supp
SCR 27 and Dhyan Singh and anr
vs 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 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