dedol-hf/india-case-legal-rag huggingface dataset:
our opinion the High Court has reversed it on totally inade-
quate  grounds.   The  result  is that the  appeal  must  be
allowed and the judgment of the High Court should be
792
set  aside.  As the High Court, however, has  dismissed  the
suit  only on the ground of non-attestation of the  mortgage
bond and did not consider the other points which were raised
before it, the case must go back to that court in order that
the  other matters, which have been left undecided,  may  be
heard  and decided by the learned Judges and the  case  dis-
posed of in accordance with law.  The plaintiff appellant is
entitled  to costs of this hearing as well as the  costs  of
the High Court against defendant No. 1.
                        Appeal allowed.
       Agent  for the appellant: Rajindar Narain.
     Agent for the respondents: S.P. Varma.
PETITIONER:
RAM GOPAL
        Vs.
RESPONDENT:
NAND LAL AND OTHERS
DATE OF JUDGMENT:
14/11/1950
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
FAZAL ALI, SAIYID
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  139            1950 SCR  766
 CITATOR INFO :
 R          1952 SC 145  (7)
 R          1954 SC 355  (15)
 F          1963 SC1703  (7,8)
 R          1972 SC1279  (10)
 R          1976 SC 794  (8)
ACT:
Hindu  Law--Gift to  female  owner--Construction--'Gift
for maintenance--Estate conveyed, whether absolute or limit-
ed--Use of the word 'Malik', effect of.
HEADNOTE:
        In  construing a document whether in English  or  in
vernacular  the fundamental rule is to ascertain the  inten-
tion 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.
To  convey  an absolute estate to a  Hindu  female,  no
express  power of alienation need be given; it is enough  if
words of such amplitude are used as would convey full rights
of ownership.
The  term 'Malik' when used in a will or other  document  as
descriptive  of  the position which a devisee  or  donee  is
intended  to  held, has been held apt to describe  in  owner
possessed of full proprietory rights, including a full right
of  alienation, unless there is something in the context  or
in the surrounding circumstances to indicate that such  full
proprietory rights were not intended be conferred to
      767
    The  mere fact that a gift of property is made  for  the
support  and maintenance of a female relation could  not  be
taken to be a prima facie indication of the intention of the
donor, that the donee was to enjoy the property only  during
her  life-time.  The extent of interest, which the donee  is
to  take,  depends upon the intention of the  donor  as  ex-
pressed  by the language used, and if the dispositive  words
employed  in  the  document are clear  and  unambiguous  and
import  absolute ownership, the purpose of the  grant  would
not,  by  itself,  restrict or cut down  the  interest.  The
desire  to  provide maintenance or rcsidence  of  the  donee
would only show the motive which prompted the donor to  make
the  gift,  but  it could not be read as a  measure  of  the
extent of the gift.
    Where a Hindu died leaving two widows, a widowed  daugh-
terin-law and a daughter's son, and a relative of the family
acting as guardian of the daughter's son's son who was  then
the  nearest reversioner got a relinquishment deed from  the
daughter-in-law renouncing all her claims to the estate  and
in  return executed a  deed of 'tamlikhama' to her with  re-
spect to certain properties which ran as follows:
    "I  have  therefore,  of my own accord  and  free  will,
without  any compulsion or coercion on the part of  any  one
else  while in my proper senses made a Tamlik of  a  double-
storied  pucca  built  shop  .........  and a  house  and  a
kothri  in Etawah  .........  worth Rs. 8,000  for  purposes
of  residence        of the Musammat  (the  daughter-in-law)
owned  by  the  minor         aforesaid   .........    which
present stands let out on out on rent to Sunder Lal, brother
of Mst. Meria aforesaid  .........  in favour of Mst.  Meria
aforesaid,  widow  of  Chhedi Lal and  made  her  the  owner
(Malik) "'
    Held,  that  there  was nothing in the  context  of  the
document  or  in the surrounding circumstances  which  would
displace  the presumption of full proprietory  rights  which
the use of the words 'Malik' is apt ordinarily to convey and
the  daughter-in-law  obtained under the gift  deed  a  full
heritable  and transferable title to t, he  properties  con-
veyed thereby.
    Rajendra  Prasad v. Gopal Prasad (57 I.A. 296),  Kollani
Koer v. Luchmee Parsad (94 W.R. 395), Tagore v. Tagore (I.A.
Supp.  Sasiman  Chaudhurain v. Shib Narayan  (49  I.A.  25),
Biswanath Prasad v. Chandrika (60 I.A. 56) relied on.
Baja  Ram Baksh v. Arjun (60 I.A. 56), Woodayaditta  Deb  v.
W.R. 229) distinguished.
JUDGMENT:
APPELLATE JURISDICTION: Civil Appeal No. LIX of 1949.
    Appeal  from  the judgment of the Allahabad  High  Court
(Verma  and  Yorke JJ.) dated 6th September, 1943  in  First
Appeal No. 3 of 1940.
    P.L.  Banerjee (B. Banerjee, with him), for  the  appel-
lant.
768
    S.P. Sinha (N.C. Sen, with him), for the respondents.
    1950.  November  14.  The court  delivered  judgment  as
follows :--
    MUKHERJEA J.--This appeal is directed against an  appel-
late  judgment  of a Division Bench of  the  Allahabad  High
Court dated September 6, 1943, by which the  learned  Judges
reversed   a  decision of the Civil Judge, Etawah,  made  in
Original Suit No. 28 of 1936.
    The  suit  was one commenced by the  plaintiff,  who  is
respondent No. 1 in this appeal, for recovery of  possession
of two items of immovable property--one, a residential house
and other, a shop--both of which are situated in the town of
Etawah.   The   properties  admittedly formed  part  of  the
estate  of one Mangal Sen who died sometime towards the  end
of  the last century, leaving behind him, as his heirs,  his
two  widows, Mst. Mithani and Mst. Rani.   Mangal Sen had  a
son named Chhedi Lal and    a daughter named Janki Kuar born
of  his  wife Mst.  Rani, but both of them died  during  his
lifetime.    Chhedi Lal had no issue and he was survived  by
his   widow Mst. Meria,while Janki left a son  named  Thakur
Prasad. Janki's husband married another wife and by her  got
a son named Babu Ram.  On Mangal Sen's death, his properties
devolved  upon  his two widows, and Mst.  Rani  having  died
subsequently, Mst. Mithani came to hold the entire estate of
her  husband in the restricted rights of a Hindu widow.   On
27th  November  1919,  Mst. Mithani  surrendered  the  whole
estate of her husband by a deed of gift in favour of  Thakur
Prasad who was the nearest reversioner at that time.  Thakur
Prasad died in 1921, leaving a minor son named Nand Lal  who
succeeded to his properties and this Nand Lal is the  plain-
tiff  in the suit out of which this appeal arises.  On  27th
October  1921, there was a transaction entered into  between
Babu  Ram  on his own behalf as well as guardian  of  infant
Nand Lal on the One hand and Mst. Meria, the widow of Chhedi
Lal, on
      769
the  other,  by which two items of property  which  are  the
subject-matter  of the present litigation were  conveyed  to
Meria  by a deed of transfer which has been described  as  a
Tamliknama;  and she on her part executed a deed  of  relin-
quishment  renouncing  her claims to every  portion  of  the
estate  left by Mangal Sen.  It is not disputed  that  Meria
took  possession of the properties on the basis of the  Tam-
liknama and on 10th April 1923 she executed a will, by which
these  properties were bequeathed to her three nephews,  who
are  the sons of her brother Sunder Lal. Meria died on  19th
June  1924.   One  Ram Dayal had  obtained  a  money  decree
against  Sunder Lal and his three sons, and in execution  of
that decree the properties in suit were attached and put  up
to sale and they were purchased by Ram Dayal himself on 30th
January 1934. On 1st June 1936, the present suit was  insti-
tuted  by Nand Lal and he prayed for recovery of  possession
of  these  two items of property on the allegation  that  as
they were given to Mst. Meria for her maintenance and  resi-
dence, she could  enjoy  the same only so long as she  lived
and after her death, they reverted to the plaintiff.  Sunder
Lal,  the brother of Meria, was made the first defendant  in
the  suit, and his  three sons figured as defendants Nos.  2
to  4.  Defendant No. 5 is a lady named  Chimman  Kunwar  in
whose favour Sunder Lal was alleged to have executed a  deed
of transfer in respect of a portion of the disputed  proper-
ty.   Ram Dayal, the  decree-holder auction purchaser,  died
in May 1935 and his properties vested in his daughter's  son
Ram Gopal under a deed of gift executed by him in favour  of
the latter. On 1st September 1938, Ram Gopal was added as  a
party  defendant to the suit on the plaintiff's  application
and  he  is defendant No. 6.  The   two   other  defendants,
namely,  defendants 7 and 8, who were also made  parties  at
the  same  time, are respectively the widow and  an  alleged
adopted son of Ram Dayal.
    The  suit was contested primarily by  defendant  No.  6,
and the substantial contentions raised by him in his written
statement were of a two-fold character.
770
The first and the main contention was that Mst. Meria got an
absolute title to the disputed properties on the strength of
the  'Tamliknama' executed in her favour by the guardian  of
the plaintiff and after her death, the properties passed  on
to the three sons of Sunder Lal who were the legatees  under
her  will.   Ram Dayal, it was said, having purchased  these
properties  execution of a money decree against  Sunder  Lal
and  his  three sons acquired a valid title  to  them.   The
other  contention  raised was that the suit  was  barred  by
limitation.   The trial Judge decided both these  points  in
favour of the contesting defendant and dismissed the  plain-
tiff's  suit. On appeal to the High Court, the  judgment  of
the  Civil Judge was set aside and the plaintiff's suit  was
decreed.
  The  defendant  No. 6 has now come up on  appeal  to  this
court and Mr. Peary Lal Banerjee, who appeared in support of
the appeal, pressed before us both the points upon which the
decision of the High Court has been adverse to his client.
  The  first  point raised by Mr. Banerjee  turns  upon  the
construction to be placed upon the document executed by Babu
Ram on his own behalf as well as on behalf of Nand Lal  then
an  infant, by which the properties in dispute  were  trans-
ferred to Mst. Meria by way of a 'Tamliknama'.  The question
is whether the transferee got, under it, an absolute  inter-
est in the properties, which was heritable and alien able or
was it the interest of a life tenant merely.  The documentis
by  no means a complicated one.  It begins by a  recital  of
the events under which Nand Lal became the sole owner of the
properties left by Mangal Sen and refers in this  connection
to the obligation on the  part of both Babu Ram and Nand Lal
to "support,  maintain and console" Mst. Meria, the widow of
the   pre-deceased  son of Mangal Sen.   The  document  then
proceeds to state as follows:
 "I  have therefore, of my own accord and free will  without
any compulsion or coercion on the part of any one else while
in my proper senses made a Tamlik of a double-storied  pucca
built shop  ......  and a house
     771
and  a  kothri  in Etawah  .........  worth  Rs.  8,000  for
purposes  of residence of the Musammat, owned by  the  minor
aforesaid   ......  which at present stands let out on  rent
to Sunder Lal, brother of Mst. Meria aforesaid .........  in
favour of Mst. Meria aforesaid, widow of Chhedi Lal and made
her  the owner (Malik).  If any portion or the whole of  the
property  made a Tamlik of for the purpose  mentioned  above
passes  out of the possession of the Musammat  aforesaid  on
account  of the claim of Nand Lal minor aforesaid, I and  my
property  of every sort shall be responsible and liable  for
the same."
    This document has got to be read along with the deed  of
relinquishment, which is a contemporaneous document  execut-
ed  by  Meria  renouncing  all  her claims to  the  property
left  by  Mangal Sen.  The deed of relinquishment  like  the
Tamliknama  recites elaborately, with reference to  previous
events,  particularly to the deed of gift executed  by  Mst.
Mithani  in favour of Thakur Prasad, the gradual  devolution
of the entire estate of Mangal Sen upon Nand Lal.  It states
thereafter  that Babu Ram, as the guardian of the minor  and
also  in his own right, "has under a Tamliknama  dated  this
day  made  a 'Tamlik'. in my favour of a  shop  alongwith  a
Balakhana and a kota for my maintenance and a house  .......
for  purpose of my residence which are quite sufficient  for
my maintenance." "I have therefore, of my own accord ",  the
document  goes  on  to say, "made a  relinquishment  of  the
entire   property  aforesaid  mentioned  in  the   deed   of
gift  ......worth Rs. 25,000.  I do covenant and do give  in
writing  that I have and shall have no claim to  or  concern
with the property  .........  belonging to the minor  afore-
said, nor has the property aforesaid remained subject to  my
maintenance  allowance  nor shall I bring any claim  at  any
time."   The  schedule to the instrument, it may  be  noted,
gives a list of all the properties of Mangal Sen in  respect
to  which Mst. Mithani executed a deed of gift in favour  of
Thakur  Prasad, including the two items of property  covered
by the'Tamliknama' mentioned aforesaid.
772
In  construing  a  document whether in  English  or  in
vernacular the fundamental rule is to ascertain the   inten-
tion  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(1).  In the present case the  instru-
ment  of  grant has been described as a  'Tamliknama'  which
means a document by which ' Maliki ' or ownership rights are
transferred and the document expressly says that the grantee
has  been  made a' Malik' or owner.  There  are  no  express
words making the gift heritable and transferable; nor on the
other hand, is there any statement that the transferee would
enjoy the properties only during her life-time and that they
would revert to the grantor after her death.
     It  may be taken to be quite settled that there  is  no
warrant  for the proposition of law that when a grant of  an
immovable  property is made to a Hindu female, she does  not
get  an  absolute or alienable interest  in  such  property,
unless  such  power is expressly conferred  upon  her.   The
reasoning adopted by Mr. Justice Mitter of the Calcutta High
Court  in  Kollani Koer v. Luchmee Parsad(2) which  was  ap-
proved of and accepted by the Judicial Committee in a number
of  decisions, seems to me to be unassailable.  It was  held
by  the Privy Council as early as in the case of  Tagore  v.
Tagore('3)  that  if an estate were given to a  man  without
express words of inheritance, it would, in the absence of  a
conflicting  context,  carry,  by Hindu Law,  an  estate  of
inheritance.  This is the general principle of law which  is
recognised  and  embodied in section 8 of  the  Transfer  of
Property  Act and unless it is shown that under Hindu Law  a
gift to a female means a limited gift or carries with it the
restrictions or disabilities similar to those that exist  in
a 'widow's estate', there is no justification for  departing
from  this principle.  There is certainly no such  provision
in Hindu Law and no text could be supplied in support of the
same.
(1) Vide Rajgndra Prasad v. Gopal Prasad. 57 I.A. 296.
(2) 24 W.R. 395.         (3) L.R.I.A. Supp. 47 at 65.
      773
    The  position, therefore, is that to convey an  absolute
estate  to  a Hindu female, no express power  of  alienation
need be given; it is enough if words are used of such ampli-
tude as would convey full rights of ownership.
    Mr. Banerjee naturally lays stress upon the  description
of  the document as 'Tamliknama' and the use of the  word  '
Malik'  or owner in reference to the interest which it  pur-
ports  to convey to the transferee.  The word' Malik' is  of
very  common use in many parts of India and it  cannot  cer-
tainly be regarded as a technical term of conveyancing.   In
the  language  of the Privy Council, 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  pro-
prietory  rights,  including  a full  right  of  alienation,
unless there is something in the context or in the surround-
ing  circumstances  to indicate that such  full  proprietory
rights were not intended to be conferred(1).''  This I think
to be a perfectly correct statement of law and I only desire
to  add that it should be taken with the caution  which  the
Judicial  Committee uttered  in course of the same  observa-
tion  that "the meaning of every word in an Indian  document
must  always depend upon the setting in which it is  placed,
the  subject to which it is related and the locality of  the
grantor from which it receives its true shade of meaning."
    The question before us, therefore, narrows down to  this
as  to whether in the present case there is anything in  the
context  of these two connected instruments or in  the  sur-
rounding  circumstances  to cut down  the  full  proprietory
rights that the word 'Malik' ordinarily imports.
    The  High Court in reaching its decision adverse to  the
appellant  laid great stress on the fact that the grant  was
expressed to be for maintenance and residence of Mst. Meria.
This, it is said, would prima facie indicate that the  grant
was to enure for the lifetime of the grantee.  It is pointed
out by the learned
(1)  Vide Sasiman Chowdhurain v. Shib Narayan, 49  I.A,  25.
35.
99
774
Judges that the language of the document does not show  that
anybody else besides the lady herself was to be benefited by
the grant and the indemnity given by Babu Ram was also given
to  the lady personally.  It is further said that  if  Meria
was given an absolute estate in the properties comprised  in
the 'Tamliknama', there was no necessity for including these
two properties again in the deed of relinquishment which she
executed at the same time.
    I  do  not  think that the mere fact that  the  gift  of
property is made for the support and maintenance of a female
relation  could be taken to be a prima facie  indication  of
the intention of the donor, that the donee was to enjoy  the
property only during her life-time. The extent of  interest,
which  the donee is to take, depends upon the  intention  of
the  donor as expressed by the language use, d, and  if  the
dispositive  words  employed in the document are  clear  and
unambiguous  and import absolute ownership, the  purpose  of
the  grant  would not, by itself, restrict or cut  down  the
interest.  The desire to provide maintenance or residence of
the  donee  would only show the motive  which  prompted  the
donor to make the gift, but it could not be read as a  meas-
ure of the extent of the  gift. This was laid down in  clear
terms  by the Judicial Committee in a  comparatively  recent
case  which is to be found reported in Bishunath  Prasad  v.
Chandrika(1).  There a Hindu executed a registered  deed  of
gift of certain properties in favour of his  daughter-in-law
for the" support and maintenance" of his daughter-in-law and
declared that the donee should remain absolute owner of  the
property  (malik   mustaqil)  and  pay  Government  revenue.
There  were  no words in the document expressly  making  the
interest  heritable or conferring on the donee the power  of
making  alienation.  It was held by the  Judicial  Committee
that  the donee took under the document, an absolute  estate
with powers to make alienation giving title valid after  her
death.  In course of the judgment, Lord Blanesburgh  quoted,
with approval,  an  earlier decision of the
(1) 60 I.A 56
      775
Judicial  Committee, where the words "for your  maintenance"
occurring  in a deed of gift were held insufficient  to  cut
down to life interest the estate taken by the donees.  These
words,  it was said, "are quite capable of  signifying  that
the  gift was made for the purpose of enabling them to  live
in  comfort  and do not necessarily mean that it was  to  be
limited to a bare right of maintenance."
    On  behalf of the respondent, reliance was  placed  upon
the decision of the Judicial Committee in Raja Ram Buksh  v.
Arjun(1)in  support of the contention that in a  maintenance
grant  it is the prima facie intention of the gift  that  it
should be for life.  In my opinion, the decision cited is no
authority for the general proposition as is contended for by
the learned Counsel for the respondent, and it is to be read
in the context of the actual facts of the case which  relate
to grants of a particular type with special features of  its
own.  It was a case where a Talukdar made a grant of certain
villages to a junior member of the joint family for  mainte-
nance of the latter.  The family was governed by the law  of
primegeniture and the estate descended to a single heir.  In
such  cases the usual custom is that the junior  members  of
the family, who can get no share in the property, are  enti-
tled  to provisions by way of maintenance for which  assign-
ments  of  lands are generally made in  their  favour.   The
extent  of  interest taken by the grantee  in  the  assigned
lands depends entirely upon the circumstances of the partic-
ular  case,  or rather upon the usage that prevails  in  the
particular  family.   In the case before the  Privy  Council
there  was  actually no deed of transfer.  It  was  an  oral
assignment  made  by  the Talukdar, and the  nature  of  the
grant  had to be determined upon the recitals of a  petition
for mutation of names made to the Revenue Department by  the
grantor after the verbal assignment was made and from  other
facts  and circumstances of the case.  The case of  Woodoya-
ditta  Deb v. Mukoond(2), which was referred to  and  relied
upon  in the judgment of the Privy Council, was (1) 28  I.A,
1.                   (2) 22 w.R. 229.
776
also a case of maintenance or khor phos grant made in favour
of  a junior member of the family, where theestate  was  im-
partible and descended under the rules of primogeniture.  It
was held in that case that such grants, the object of  which
was to make suitable provisions for the immediate members of
the  family,  were by their very nature and also  under  the
custom of the land resumable by the zemindar on the death of
the   grantee,  as otherwise the whole  zemindary  would  be
swallowed  up  by  continual demands.   This  principle  bas
obviously no application to cases of the type which we  have
before us and it was never so applied by the Privy  Council,
as would appear from the decision referred to above.
     The  learned Counsel for the plaintiff respondent  drew
our  attention  in  this connection, to the  fact  that  the
properties  given  by the ,Tamliknama' were  valued  at  Rs.
8,000,  whereas  the entire estate left by  Mangal  Sen  was
worth  Rs. 25,000 only.  It is argued that the  transfer  of
nearly  one-third of the entire estate in absolute right  to
one who was entitled to maintenance merely, is, on the  face
of it, against probability and common sense.  I do not think
that,  on  the facts of this case, any weight could  be  at-
tached  to  this argument. In the first place, it is  to  be
noted that whatever might have been the actual  market value
of  the properties, what the widow got under the  Tamliknama
was  a  residential house and a shop, and the shop  was  the
only  property  which  fetched any income.   This  shop,  it
appears,  was  all along in possession of  Sunder  Lal,  the
brother of Meria, and the rent, which he paid or promised to
pay  in  respect of the same, was only Rs. 12 a  month.   So
from the income of this property it was hardly possible  for
Meria to have even abate maintenance, and this would  rather