Case: Pearey Lal Vs. Rameshwar Das

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 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 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 (A.I.R. 1937 Mad. 476, 477 .): 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 womans 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 ([1950] S.C.R. 766, 773.), 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 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. 5. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 wordIt 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 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 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 wifeNo decision on the construction of a will can be of use in construing another document, unless all the 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 defeasanceWe 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.