Pearey Lal vs Rameshwar Das
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 338/1960
Decision Date: 10 December, 1962
Coram: Syed Jaffer Imam, J.L. Kapur, J.R. Mudholkar, Subba Rao
In this case the Supreme Court recorded that the petition was filed by Pearey Lal against Rameshwar Das and that the judgment was delivered on 10 December 1962. The bench consisted of Justice Syed Jaffer Imam, Justice J. L. Kapur and Justice J. R. Mudholkar. The case is reported in the 1963 Annual Report of Indian Reports at page 1703 and also in the 1963 Supplement to the Supreme Court Reporter at page 834. The statutory framework involved the Hindu Will‑Widow devisee provision and the construction of a will, particularly the use of the word “Malik” where the conveyance of absolute ownership was at issue, under sections 75, 82 and 86 of the Indian Succession Act, 1925 (39 of 1925).
The factual background began in 1897 when a man named Girdhari Lal executed a will that bequeathed his property to his wife, Mst. Kishen Dei, and to his adopted son. The adopted son died before Girdhari Lal, leaving Kishen Dei as the surviving beneficiary. After Girdhari Lal’s death, Kishen Dei executed her own will, granting the house that is the subject of the present dispute to her brother’s grandson, who is the respondent in the present proceedings. The appellant, who was then occupying a portion of that house, refused to execute a lease deed in favor of the respondent and also refused to pay rent after Kishen Dei’s death. Consequently, the respondent instituted an eviction suit against the appellant. The appellant contended that Kishen Dei did not acquire an absolute interest under her husband’s will and further argued that Girdhari Lal had previously dedicated the house to a Shiv temple and had appointed himself as trustee of that dedication. The subordinate judge ruled in favor of the respondent and decreed the suit for eviction. On appeal, the district judge reversed that decree, holding that under the 1897 will Kishen Dei was entitled only to a limited estate and therefore could not convey an absolute title. The plaintiff‑respondent then appealed to the High Court, where the district judge’s order was set aside and the subordinate judge’s decree was restored. The High Court, after construing the 1897 will, held that because the intended gift over to the son failed, the life estate created by the will transformed into an absolute estate, giving Kishen Dei a full interest in the property. The appellant subsequently filed a Letters Patent appeal before the Division Bench of the High Court, and the judgment of the single judge was confirmed by that Division Bench.
The Court explained that when construing a will the court must first seek the testator’s intention by reading the entire instrument and must give effect to every expression so that no clause becomes inoperative. It further stated that any word occurring more than once in a will is presumed to carry the same meaning throughout, unless the will shows a contrary intention. All provisions of a will must be read in relation to one another, and the court should consider the circumstances surrounding the making of the will, such as the testator’s estate, family situation and similar factors. Where there appear to be conflicting dispositions, the court should adopt a construction that gives full effect to each word rather than one that diminishes the clear meaning of the testator’s language. Moreover, if one of two reasonable constructions would lead to intestacy, that construction must be rejected in favor of the alternative that avoids a hiatus in succession. Applying these principles to the present will, the Court held that the gift to the son was merely a defeasance and that Kishen Dei possessed an absolute interest in the property. The Court distinguished the earlier decision in Subbamma v. Ramanaidu, A. R. 1937 Mad 476, on the ground that the facts were different. Additionally, the Court affirmed that the term “Malik” has consistently been interpreted by courts as indicating absolute ownership, and therefore the testator’s use of the word signified his intention to convey an absolute interest. The Court relied on the authorities Sasiman Chowdhurain v. Shiv Narain Chaudhury (1921) L. R. 49 I. A. 25 and Ram Gopal v. Nand Lal [1950] S. C. R. 766 in reaching this conclusion.
The Court explained that when a document contains conflicting expressions, the proper approach is to give effect to every word used, rather than to adopt an interpretation that would diminish the clear meaning intended by the testator. In other words, a construction that reconciles the language by respecting each term should be preferred to one that narrows or truncates the expressed meaning. Furthermore, if two reasonable constructions are possible and one of them would result in intestacy – that is, a gap in the disposition of the estate – the Court held that such a construction must be rejected in favor of the alternative that avoids any hiatus. Applying these principles of construction to the will under consideration, the Court found that the provision purporting to benefit the son operated merely as a defeasance clause, and consequently the widow was determined to have obtained an absolute interest in the property. The decision in Subbamma v. Ramanaidu, A. 1 R 1937 Mad 476, was distinguished. The Court further observed that the term “Malik” has consistently been interpreted by courts as signifying absolute ownership, and therefore the testator’s use of the word was intended to convey his complete interest in the property. The Court relied upon the authorities Sasiman Chowdhurain v. Shiv Narain Chaudhury (1921) L R 49 I A 25 and Ram Gopal v. Nand Lal [1950] S C R 766 in reaching this conclusion.
The judgment concerned Civil Appeal No. 338/1960, filed by special leave against the judgment and order dated 31 August 1951 of the Punjab High Court in Letters Patent Appeal No. 64 of 1949. Counsel for the appellant was S. P. Verma, while Bishan Narain and A. D. Mathur appeared for the respondent. The appeal was decided on 10 December 1962, and the judgment was delivered by Justice Subbarao. The matter before the Court required the interpretation of a will executed in 1897 by Girdhari Lal, a resident of Delhi. By that will dated 8 February 1897, Girdhari Lal bequeathed all his movable and immovable property to his wife, Mst. Kishen Dei, and to his adopted son, who later predeceased him. After Girdhari Lal’s death in 1923, Mst. Kishen Dei executed a subsequent will on 8 October 1941, wherein she devised the disputed house – house No. 2045 situated in Delhi – to her brother’s grandson, Rameshwar Dass. The defendant, Peareylal, was occupying a portion of that house. Following Mst. Kishen Dei’s death, Peareylal refused to execute a lease in favor of Rameshwar Dass or to pay rent for the portion he occupied. Consequently, Rameshwar Dass instituted suit before the Subordinate Judge, Delhi, seeking eviction of Peareylal. In his defence, the defendant claimed that the plaintiff lacked title because Mst. Kishen Dei had not acquired an absolute interest under her husband’s will. He further asserted that Girdhari Lal, while alive, had dedicated the house by a will to the Shiv Temple in Gali Patashe Minor and had appointed himself as trustee of the house. The learned Subordinate Judge found that under Girdhari Lal’s 1897 will, Mst. Kishen Dei held an absolute interest in the house. The Court’s analysis subsequently built upon this finding in determining the proper construction of the will and the resulting rights of the parties.
In the proceedings before the learned Subordinate Judge, it was held that Mst. Kishen Dei obtained an absolute interest in the house. The Judge also concluded that the will alleged by the defendant, in which the defendant claimed that the house had been dedicated to the Minor, was not proved, and that on the date the alleged will was supposedly executed, Girdhari Lal was not of sound mind. Accordingly, the Subordinate Judge issued a decree in favour of the plaintiff.
Upon appeal, the learned District Judge observed that under the 1897 will executed by Girdhari Lal, Mst. Kishen Dei received only a limited estate and therefore could not, by virtue of her will, confer any interest on the plaintiff. The District Judge did not express a finding on whether the defendant's alleged will was genuine and valid. Consequently, the District Judge set aside the Subordinate Judge’s decree and dismissed the suit. The plaintiff then filed a second appeal before the High Court of East Punjab at Simla. Justice Khosla, interpreting the 1897 will, held that the testator granted a life interest to Mst. Kishen Dei and made a gift over to the adopted son; because the gift over failed, the life estate became an absolute estate under section 112 of the Indian Succession Act. Alternatively, Justice Khosla also found that the wording of the will gave Mst. Kishen Dei an absolute interest in the property. On that basis, the High Court set aside the District Judge’s decree and restored the Subordinate Judge’s decree.
It is noteworthy that no argument was presented before Justice Khosla that the defendant had acquired title to any portion of the house under a subsequent will executed by Girdhari Lal; presumably, the finding of the Subordinate Judge that the alleged executor lacked mental capacity precluded any attempt to sustain the later will’s execution or validity. The defendant then appealed this judgment by way of a Letters Patent Appeal to a division Bench of the same High Court. The division Bench, comprising Chief Justice Weston and Justice Falshaw, delivered its judgment through Chief Justice Weston. The Bench, construing the 1897 will, held that the testator’s intention was that, in any event, on the failure of the bequest to Nathi Mal, the testator’s widow, Mst. Kishen Dei, should acquire an absolute interest in the property. The division Bench affirmed Justice Khosla’s judgment. Again, even before the division Bench, the defendant did not rely on the will he alleged to have been executed by Girdhari Lal in his favour. The present appeal, filed by special leave, challenges that judgment. Counsel for the appellant raised two points: first, that a correct construction of the 1897 will shows that Mst. Kishen Dei only obtained a life estate, so the plaintiff had no title under the will; second, that the High Court erred by not addressing the truth and validity of the alleged will executed by Girdhari Lal in the defendant’s favour.
In the appeal, counsel for the petitioner advanced two specific contentions. First, the counsel argued that the will dated 8 February 1897 granted only a life estate to Mst. Kishen Dei, and consequently the plaintiff never acquired any proprietary title to the property through the will that she had purportedly executed in his favour. Second, the counsel maintained that the High Court erred by failing to examine and pronounce upon the authenticity and legal validity of the will alleged to have been executed by Girdhari Lal in the defendant’s favour. Because the primary dispute hinged upon the interpretation of the 1897 will, the Court found it appropriate to reproduce the relevant portion of that document for analysis. The will, designated as Exhibit P‑1, commenced with the customary introductory formula found in testamentary instruments, and then proceeded with the testator’s own narration: “Further, I have reached the age of nearly 50 years and with my consent Nathi Mal a boy of 7 years has been adopted and an agreement has been got written from his father Bega Mal. Now my wife Mst. Kishen Dei daughter of Bega Mal is living and I have got one storeyed house situated in the City of Delhi, Bazar Khari Baoli, inside Gali Batashan and some goods, and my belongings are in my possession without partnership with anybody else. As long as I the testator am alive, I shall remain malik of entire movable and immovable property and am entitled to do whatever I wish to do. When I die then Mst. Kishen Dei, my wife, and after the death of the said Mussammat, my adopted son Nathi Mal, will become Malik of all my movable and immovable property without partnership with anybody. The said Mst. Kishen Dei should live in this house and said Nathi Mal will get all the proprietary rights just like the testator. And no relation of mine has and will have any kind of claim to my movable and immovable property left by me.” The Court acknowledged that the document contained certain internal tensions, yet stressed that in construing a will of that era the judiciary must strive to discern the testator’s true intention by reading the instrument holistically. The Court explained that the preferred approach was to assign effect to each expression, rather than to render any clause inoperative. Moreover, the Court invoked the principle that repeated words in a testament are presumed to carry a uniform meaning unless the will itself indicates otherwise, citing section 86 of the Indian Succession Act. Likewise, the Court observed that all provisions of a will must be interpreted in relation to one another, referring to section 82 of the same Act. Finally, the Court noted the well‑established rule that the circumstances surrounding the execution of the will—such as the testator’s property position, family situation, and related factors—are relevant to its construction, as mandated by section 75 of the Act.
In this case, the Court observed that the circumstances surrounding the execution of the will could be inferred from the document itself. The testator was married and had an adopted son, and he had no other close relatives to consider in his testamentary scheme. His affection and concern were directed solely toward his wife and the minor adopted boy, and he was determined to provide for both of them after his death.
The Court identified three possible methods by which the testator could have achieved his protective purpose: first, by granting his wife a life estate in the property while vesting a remainder interest in the same property in his adopted son; second, by effecting a joint bequest that would benefit both the wife and the son together; and third, by bequeathing an absolute interest to his wife together with a defeasance provision that would subsequently convey the property to his son.
Counsel for the appellant relied upon a specific passage from the will, which read: “The said Mst. Kishen Dei should live in this house and said Nathi Mal will get all the proprietary rights just like the testator.” The counsel argued that this sentence demonstrated a clear distinction between the estate granted to the wife and that granted to the son. According to the counsel, the instruction that Mst. Kishen Dei should only live in the house indicated a life interest for her, whereas the instruction that Nathi Mal should take the position of the testator suggested that the son would enjoy the same absolute rights that the father possessed.
The Court noted that if the sentence were read in isolation, it might lend some support to the appellant’s argument. However, when the sentence is read in conjunction with the other recitals of the will, it fits within the overall scheme of bequests clearly expressed by the testator.
The testator’s own description of his interest was quoted by the Court: “I shall remain Malik of entire movable and immovable property and am entitled to do whatever I wish to do. When I die then Mst. Kishen Dei, my wife and after the death of the said Mussammat, my adopted son Nathi Mal, will become malik of all my movable and immovable property without partnership with anybody.” The Court held that this description could not be disputed as representing an absolute interest in the property.
The Court further explained that the expression “malik” carries a well‑known connotation and has been recognized by various High Courts and the Privy Council as indicating full proprietary ownership. Although not a technical term of art, “malik” is a word of definite meaning that has entered the common vocabulary of the people and of document drafters. Consequently, when the testator employed this word, he must have intended to convey its accepted meaning.
Referring to the precedent set in Sasiman Chowdhurain v. Shib Narayan Chowdhury (1921) L.R. 49 I.A 25, 35, the Court reiterated the Privy Council’s observation that the term “malik,” when used in a will or other document, describes the position that a divisee or donee is intended to hold and is therefore apt to denote absolute ownership.
In this case the Court explained that the term “malik” is normally understood to denote an owner who holds full proprietary rights, including an unrestricted right to alienate the property, unless the surrounding context or circumstances demonstrate that such full rights were not intended. The Court referred to the observation of the Privy Council in Ram Gopal v. Nand Lal, which accepted this description of “malik” as a correct statement of law, but also warned that each word in an Indian document must be read in light of the setting, the subject matter, and the grantor’s locality, because those factors give the true shade of meaning. The Court noted that it is unnecessary to cite numerous decisions, as courts have consistently treated “malik” as conveying the idea of absolute ownership. Consequently, the Court held that the testator employed the word “malik” to describe his own absolute interest in the property.
Beyond the general meaning of the word, the testator himself supplied a dictionary definition of “malik” within the will. Equipped with that definition, the testator used the same term to describe the interest he intended to give his wife, stating that she should become “malik” without any partnership. If the will had ended at that point, there would have been no dispute about the nature of the bequest. However, the testator continued by declaring that after his wife’s death his adopted son would also become “malik” without partnership. The Court observed that, given the consistent meaning of the term, the testator intended that, upon his wife’s death, his adopted son would acquire absolute ownership of the same property.
The two bequests, at first glance, seemed to conflict because they each created an absolute interest in the same property—once in favor of the wife and later in favor of the son. The Court identified two possible constructions. The first approach would accept the first bequest and reject the second as repugnant; the second approach would attempt to reconcile both bequests in a legally permissible manner. The Court found that reconciliation was possible if the wife’s absolute interest was understood to operate as a defeasance: should the son survive the wife, the wife’s absolute interest would be cut down, and the son would step into an absolute interest in the property. Under this construction, the wording recorded by counsel for the appellant, which expressed the testator’s wish that his wife reside in the house, could be harmonized with the defeasance concept, because the testator’s expressed desire for his wife to live in the house did not outweigh the clear language granting “malik” status to both the wife and, subsequently, the son.
In this case, the testator expressed a desire that his minor son and his wife should continue to reside in his house. The second portion of the same declaration conveyed the testator’s wish that his wife should preserve the property in its entirety and subsequently transmit it to his son, thereby making the son a full owner in the same manner as the testator himself. Nevertheless, the Court held that this declaratory statement could not diminish the effect of the unequivocal language employed earlier in the will. The Court observed that, were the argument advanced by counsel for the appellant to be accepted, the Court would in effect be rewriting the testator’s testamentary instrument and inserting words that were not originally present; such an approach would truncate the meaning of the words that the testator deliberately used to grant a larger interest to his wife. The Court further explained that when apparently conflicting dispositions can be harmonised by giving full effect to every word used in a document, that harmonious construction must be preferred over a construction that would curtail the clear meaning of the testator’s language. Moreover, the Court stated that where one of two reasonable constructions would result in intestacy, that construction must be rejected in favour of an alternative that avoids any lapse in disposition.
The Court illustrated the consequences of each construction. If the construction advocated by counsel for the appellant were adopted, the situation in which the son predeceased the testator would lead to intestacy after the wife’s death. In contrast, if the construction proposed by the respondent were applied, the same eventuality would not produce intestacy because the defeasance clause would not be triggered. The Court noted that the testator’s intention was also evident from a specific clause in the will stating that no person other than his wife and son should inherit his property, and from the fact that the testator lived for nearly twenty‑five years after executing the will yet never altered it even though his son died before his wife. Counsel for the appellant relied upon the decision of Varadachariar, J., in Subbamma V. Ramanaidu (1). In that case, the testator created a limited interest in favour of the widow followed by a gift over to the grandchildren. The testator described the bequest to the widow using the term “Hakdar,” which means “owner.” Nevertheless, the learned judge held that the widow received only a woman’s estate and that the grandchildren received the remainder. The 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 judge also considered other surrounding circumstances of the will in reaching that conclusion. This decision affirmed the same proposition that this Court had earlier articulated in Rai it Gopal v. Nand Lal (2), namely, that the entire document must be taken into account when determining the testator’s intention.
In this case, the Court observed that the testator’s intention had to be ascertained from the will itself and that a decision interpreting one will could not be used to interpret a different document unless the substantive recitals of the two documents were substantially alike. The Court further explained that each instrument must be construed according to its own language and context. After examining the present will, the Court concluded that the provision granting a gift over to the son operated only as a defeasance and did not create an independent vested interest. The Court then turned to the procedural history and held that the appellant’s second contention could not be entertained because it had never been raised before the District Court, before Justice Khosla, nor before the division bench of the High Court. Although the contention had been raised before the Subordinate Judge, that judge, relying on the evidence, had found that the will had not been proved and had also concluded that the testator was not of sound mind at the time the alleged will was executed. The Court characterised the issue as involving both factual and legal questions and indicated that there were no exceptional reasons to depart from its usual practice of refusing to permit a party to raise a new point on appeal after it had been omitted in the lower courts. Consequently, the Court held that the appeal could not succeed, ordered the appeal dismissed, and directed that the appellant pay the costs of the proceeding, including the court fee payable on the memorandum of appeal.