ivil Appeal No 2231 of 1988
From the Judgment and Order dated 1981987 of the Madras High Court in Appeal No 86 of 1982
R Venkataramani for the Appellants
section Balakrishnan and MKD Namboodiri for the Respondents
The Judgment of the Court was delivered by SHARMA J
This appeal by special leave is directed against the decree passed by the High Court in favour of the plaintiff respondents in a suit for partition
The property in suit belonged to Smt
Rathinammal who after executing a registered will died in 1942
Accord ing to the terms of the will her two sons Natesan
defend ant No 1 and Subramanian
plaintiffs  witness No 2 PW 2 were to remain in possession of the properties without any power of alienation and had to pay the taxes and conduct regularly certain religious festivals and thereafter their sons were to manage the properties on similar terms
The will further provides that after their attaining majority the great grand sons ie 510 the son s sons  sons of the testatrix will get the proper ties as absolute owners
Subramanian the younger son of the testatrix who has been in the present suit examined as the second witness on behalf of the plaintiffs has one son Arunachalam de fendant No 15
The three plaintiffs Ramesh Ganesh and Sivalingam are the sons of the defendant No 15
The defend ant No 1 got four sons and ten sons  sons
The main dispute in the suit is about the share which the plaintiffs are entitled to under the terms of the will
They claim that they being the only grand sons of Subramanian have half share in the properties the remaining half going to the grand sons of the defendant No 1 namely defendants No 5 to 14
On behalf of the defendants it is pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares
The defendants also contended that the suit was fit to be dismissed as the defendant No 1 and the defendant No 15 had finally parti tioned the properties in 1975 and no question of a further partition arises
The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity
The trial court rejected the plea based on the rule against perpetuity
Having regard to the interest of the defendant No 1 his brother Subramanian and Arunachalam defendant No 15 the court held that the alleged partition of 1975 was illegal and not binding on the plaintiffs
So far the shares of the plaintiffs and the defendants No 5 to 14 are concerned agreeing with the defence case the court held that the parties would take the properties as per capita
However the suit was dismissed on the ground that the plaintiffs were still minor
On appeal by the plaintiffs the High Court confirmed the finding of the trial court that the 1975 partition was illegal
On the question of the shares of the parties the High Court agreed with the plaintiffs and held that the division would take place as per stirpes
Taking into ac count the fact that during the pendency of the appeal two of the plaintiffs had attained majority the High Court passed a decree in their favour for one sixth share each
So far the third plaintiff is concerned the High Court declared his right without passing a decree for partition
The de fendants are challenging the decision of the High Court by the present civil appeal
The learned counsel for the appellants has contended that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and the conclusion of the 511 High Court on this aspect is illegal
The English version of the operative portion of the will has been quoted in para graph 7 of the judgment of the trial court and is not chal lenged by either party before us
After mentioning the rights and the duties of her sons the testatrix has stated the position of her grand sons and great grand sons thus They that is sons  sons have also to pay the taxes and out of their income conduct the aforesaid festivals regular ly
Then their male issues after attaining majority have to take possession of the said properties in equal shares and enjoy them with all powers of alienation
 It has been stated by the learned counsel for the parties before us that the words the said properties in equal shares are the English version of the words SAMABHAGAMAGA ADAINTHU
The learned counsel for the appellants translated this portion of the will as stating that they that is the sons  sons shall pay the taxes due to the Government and will carry on the charitablereligious activities without fail and their male issues would on attaining majority get the properties in equal portion SAMABHAGAMAGA ADAINTHU and will possess own and enjoy it absolutely
 The crucial expression is SAMABHAGAMAGA ADAINTHU which according to the learned counsel for the parties means in equal portions
The question is as to whether in view of this provision in the will the entire properties left by the testatrix are to be divided equally amongst all her great grand sons or the three plaintiffs shall amongst themselves take half the remaining half going to their cousins
The High Court has interpreted the crucial part of the will mentioned in the preceding paragraph as directing the plaintiffs on the one hand and the defendants 5 to 14 on the other respectively to share equally out of each branch
It has been assumed that the properties finally descended on the two branches in equal shares and conse quently parties belonging to the two branches inherited the properties as stirpes
The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venkatakrishna Rao  Ors
vs Shrimati Boddu Satyavathi  Ors   were more or less similar which this Court construed in the manner as suggested by the plaintiffs in the case before us
We are not in agreement with the
approach of the High Court
512 8
It is well settled that a court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document but while so doing the surrounding circumstances the posi tion of the testator
his family relationship and the probability that he used the words in a particular sense also must be taken into account
They lend a valuable aid in arriving at the correct construction of the will
Since these considerations are changing from person to person
it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases the disputed will approximates closely
Recourse to prece dents therefore should be confined for the purpose of general principle of construction only
which by now are well settled
There is still another reason as to why the construction put on certain expressions in a will should not be applied to a similar expression in the will under ques tion for a will has to be considered and construed as a whole and not piecemeal
It follows that a fair and reason able construction of the same expression may vary from will to will
For these reasons it has been again and again held that in the matter of construction of a will
authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur see Ramachandra Shenoy and Another vs Mrs Hilda Brite and Others  at p 736
The risk in not appreciating this wholesome rule is demonstrated by the case before us
Assuming that the will in the case of Boddu Venka takrishna Rao  Ors
vs Shrimati Boddu Satyavathi  Ors   was somewhat similar to that in the present case
the High Court
following the construction given on the will in the reported case has held in the judgment under appeal that the great grand sons of the testatrix shall be taking the properties as per stripes
While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case
There
the testatrix who was a childless widow
had bequeathed under the will life es tates to two children who were defendants 4 and 5 in the case and whom she had brought up from their infancy
and subject to the same the property was to go to their chil dren after their death
The conclusion of the High Court on the construction of the will
with which this Court agreed
was expressed thus
the bequest in favour of defendants 4 and 5 was that of a life estate with a vested remainder in favour of their children and that the children should take the vested re mainder per stripes and not per capita
513 In the case before us no life estate was created in favour of anybody
otherwise there would not arise any question of the plaintiffs  getting any share in the proper ty even on their attaining majority during the lifetime of their father and uncle
The High Court has also
under the impugned judgment observed that a Hindu is not ordinarily expected to create a joint tenancy but failed to appreciate that there is only presumption
to this effect which can not override the provisions of the will if the language is unambiguous and clear
In the present case there is no manner of doubt and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate in the properties
It is the agreed case of the parties that as soon as plaintiffs and defendants No 5 to 14 become major they are entitled to get the property abso lutely without waiting for the death of their respective fathers or grand fathers
We should therefore
interpret the will without being influenced by the meaning given to the will in the reported case
The devolution of the property under the will takes place on the plaintiffs and defendants No 5 to 14 for the first time under equal shares
Since this is the first occasion for the shares in the property to be defined the expression equal shares must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix
In other words
they take the properties as per capita
Admittedly the third plaintiff has also attained majority during the pendency of the present appeal and has therefore
become entitled to a share in the properties now
The suit
is accordingly decreed in favour of all the plain tiffs their share being one thirteenth each
The plea that the disposition under the will was hit by the rule against perpetuity was rejected by the trial court in paragraph 7 of judgment on the ground that the sons of the testatrix namely the first defendant and the plain tiff s witness No 2 as also their respective sons the defendants No 2 to 4 are alive
The point was not pressed in the High Court
The view of the trial court appears to be correct and does
not require reconsideration at this stage
In the result the appeal is allowed in part as indicated above
The suit is accordingly decreed in favour of all the three plaintiff
The share of the three plain tiffs and the ten defendants that is defendants No 5 to 14 shall be onethirteenth each in the suit properties
There shall be no order as to costs
NVK Appeal party allowed


Summary:
What is the true meaning and scope of the expression holder in due course  as defined in Section 9 of the Nego tiable Instruments Act 1881 was the question that arose for consideration in this appeal
Consequent upon the pleading of promissory note and other title deeds relating to her property by Defendant No 5 mother of Defendants 2 to 4 in favour of the respondent Bank as security thereby creating an equitable mortgage the respondent Bank allowed credit facilities like accommo dation by way of Hundi discount Key loan and cheque pur chases upto a limit of Rs3500000 to Defendant No 1 a firm consisting of defendants Nos 2 to 4 as partners
The first defendant firm had business dealings with the appel lant defendant No 6
In course of business it was supplying goods consisting of hill products and used to receive pay ment by way of cheques from defendant No 6
Defendant No 6 issued two cheques drawn on the Union Bank of India Palgh at in favour of the first defendant payable to the first defendant firm on order
The cheques were purchased by the Respondent bank and proceeds thereof were credited by the bank to the account of first defendant on valid considera tion
The first defendant withdrew the amount at various dates
When the respondent bank sent the cheques for collec tion the Union Bank of India returned the cheques with the endorsement full cover not received
Defendants 2 to 5 agreed to pay the amounts to the Bank but could not pay the full amount with the result the Bank filed a suit for recovery of the balance amount from Defendant No 6 also who had issued the cheques in question
At the trial Defendant No 6 contended that since the firm defendant No 1 did not supply the goods it could not pay the money in the bank
According to Defendant No 6 the appellant did not admit the purchase of cheques by the respondent bank for valid consideration and hence denied that the bank was holder in due course 
The trial court held that the re spondent bank is a holder in due course  and as such enti tled to enforce the liability against the appellant defend ant No 6
543 The trial court also held defendants 2 to 4 personally liable for the plaint claim
Against the order of the trial court the appellant defendant No 6 alone appealed to the High Court
The High Court affirmed the findings of the trial court but modified the decree holding that the immova ble properties mentioned in the schedule to the plaint would first be proceeded against and in case the entire amount of decree is not realised by the sale of those properties the Bank would proceed against the assets of the firm defendant No 1 and for the balance if any the decreeholder would proceed against the defendants Nos 2 4 and 6
Aggrieved by the said order of the High Court the 6th defendant has preferred this appeal
Dismissing the appeal this Court HELD Indian Law is stricter and is not satisfied merely with the honesty of the person taking the instrument but requires the person to exercise due diligence and goes a step further than English Law in scrutinising the causes which go to make up the belief in the mind of the transfer ee
359B In the instant case the holder namely defendant No 1 made the necessary endorsements in the two cheques in favour of the plaintiff Bank and the Bank endorsed payee account credited
The defendant No 1 withdrew this amount and there is no dispute about it
It must also be noted in this context that there is no endorsement on the cheque made by the drawer namely the appellant that cheques are not nego tiable
In the absence of the cheques being crossed not negotiable nothing prevented the plaintiff Bank to purchase the cheques for a valuable consideration and the presumption under Section 118g comes to his rescue and there is no material whatsoever to show that the cheques were obtained in any unlawful manner or for any unlawful consideration
358E G In a given case it is left to the court to decide wheth er the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective
370A The court while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same
The enquiry regarding the satisfaction of this re quirement invariably depends upon the facts and cir 544 cumstances in each case
The words without having suffi cient cause to believe have to be understood in this back ground
370B C In the instant case there is also an implied contract to credit the proceeds of the cheques in favour of defendant No 1 to his account before actually receiving them
As a question of fact this aspect is established by the evidence on record
In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc
that were going on between defendants No 1 and 6
Even if defendant No 1 has not supplied the goods in respect of which the cheques in question were issued by defendant No 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No 1 nor can it be said that the plaintiff acted negligently
Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negligence on the part of the plaintiff
370E G Nelson vs Larhold  Baker vs Barclays Bank Ltd  Gill vs Cubitt English Reports 107 Kings  Bench 806 Durg Shah Mohan Lal Bankers vs Governor General in Council and Others AIR 1952 Allaha bad 590 Sunderdas Sobhraj a firm vs Liberty Pictures a firm AIR 1956 Bombay 618 AL Underwood Ltd vs Bank of Liverpool and Martins Same vs Barclays Bank at page 241 referred to
Raghavji Vizpal v Narandas Parmanandas Bombay Law Re porter Vol
VIII 1906 921 Overruled
Chitty on Contracts 26th Edn
Paragraphs 2778  2781 Chalmers on Bills of Exchange 13th Edn
at p 283 Paratha sarathy on Cheques in Law and Practice 4th Edn
p 74 Halsbury s Laws of England 4th Edn
paragraph 221 page 186 and paragraph 222 referred to