Case: Pearey Lal Vs. Rameshwar Das

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 brothers 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 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 subsquent 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 testators 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.

Reasoning: 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.