# PEAREY LAL D1t1mhtr, JO v. RAMESHWAR DAS

- **Citation:** [1963] Supp. 2 S.C.R. 834
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** S. J. Imam, J.~L. Kapur, K. SuBBA RAo, j. R . .l\:IuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pearey-lal-d1t1mhtr-jo-v-rameshwar-das-2852
- **Pages:** 11

## Headnote

Hindu IVill-IVidow devi.see-Oo11structio11 of will-U8e
of word •Malik', if convey"! absolute ownership-Indian Succession Act, 1925 (39 of 1925), 88. 75, 82, 86.
In the year 1897, one Girdhari Lal executed a will
bequething his property to his wife Mst. Kishen Dei and
adopted son. The adopted son predeceased Girdhari Lal.
After the death of Girdhari Lal his wife executed a will be·
qucthing the property in dispute i. e. the house to her brother's
grandson, the respondent. The appellant who wa• in occupa·
tion of a portion of the said house refused to execute a lease
deed in favour of the respondent or pay him the rent after the
death of Mst. Kishen Dei. The respondent filed a suit for
eviction against the appellant. The appellant denied the title
of the respondent as Mst. Kishen Dei did not get an absolute
interest under the will of her husband and pleaded that
Girdhari Lal dedicated the said house to one Shiv Temple by
executing a will and appointed him a• a trustee. The Subordinate Judge decreed the plaintiff.respondent suit. On appeal
the District Judge set aside the decree of the Subordinate Judge
and dismissed the suit, holding that under the will of 1897,
Kishen Dei got only a limited estate. The plaintift-respondent
preferred a second appeal to the High Court and the decree of
the District Judge was set aside and that of the Subordinate
Judge was restored and on construction of the will of 1897 it
held that as the gift over failed, the life estate became an
absolute estate and she got an absolute interest in the property.
The appellant preferred a Letters Patent appeal before the
Division Bench of the High Court and the judgment of the
Single Judge was confirmed.
Held, that in construing a will the court should try its
best to get at : (i) the intention of the testator by reading the
will as a whole and if possible, such construction as would give
to every expression some effect rather than that which could
render any of the expression inoperative must be accepted; (ii)
another rule is that the \Vords occurring more than once in a
will shall be presumed to be used always in the same sense
2S.C.R.
SUPREME COURT REPORTS
835
unless a contrary intention appears from the will; (iii) all parts
of a will should he construed in relation to each other; (iv) (he
court will look at the circumstances under which the testator
makes his will, such as the state of his propertv, of his family
and the like; (v) 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; (vi) where one
of the t\VO rca~onablc construction \Voul<l lead
to intcstacy 1
that should be discarded in favour of a construction which docs
not create any such I1iatus.
On the above rule of construction, under the present will
the gift over in favour of the son was only by way of defeasance
and the widow had got an obsolute interest in the property.
Subbamma v. Ranutnaidu, A. I. R. 1937 Mad. 476, dis·
tinguished.
Ileld, further, that the expression 'Malik' has been consistently understood by courts as .-onveyino; the idea of absolute
ownersliip and therefore, the testator used the word 'Malik' to
describe his absolute interest in the property.
Sasiman Olwwdlturain v. Shiv Narain O!taudhury, (1921)
L. R. 49 I. A. 25 and Ram Gopal v. Nand Lal, [1950] S. C.R.
766, relied on.
CIVIL APPELLATE juRISDICTIUN : Civil Appeal
No. 338/1960.
Appeal by special leave from the judgment and
order dated August 31, 1951, of the Punjab High
Court in Letters Patent Appeal No. 64 of 1949.
S. P. Verma, for the appellant.
Bii!Kin Narain and A. D. JJ!atlmr, for the res·
pondent.
1962. December 10. The Judgment of the
Court was delivered by
SUBBA RAO, J.-This appeal raises the question
of the construction of a will executed by one Girdhari
Lal in the year 1897.
1962
l't•rty Lal
•

## Text

sa4 SUPREME;couRT REPORTS [l!J63] SUPP
1962
PEAREY LAL
D1t1mhtr, JO.
v.
RAMESHWAR DAS
(S. J. IMAM, J.~L. KAPUR, K. SuBBA RAo and
j. R . .l\:IuDHOLKAR, JJ.)
Hindu IVill-IVidow devi.see-Oo11structio11 of will-U8e
of word •Malik', if convey"! absolute ownership-Indian Succession Act, 1925 (39 of 1925), 88. 75, 82, 86.
In the year 1897, one Girdhari Lal executed a will
bequething his property to his wife Mst. Kishen Dei and
adopted son. The adopted son predeceased Girdhari Lal.
After the death of Girdhari Lal his wife executed a will be·
qucthing the property in dispute i. e. the house to her brother's
grandson, the respondent. The appellant who wa• in occupa·
tion of a portion of the said house refused to execute a lease
deed in favour of the respondent or pay him the rent after the
death of Mst. Kishen Dei. The respondent filed a suit for
eviction against the appellant. The appellant denied the title
of the respondent as Mst. Kishen Dei did not get an absolute
interest under the will of her husband and pleaded that
Girdhari Lal dedicated the said house to one Shiv Temple by
executing a will and appointed him a• a trustee. The Subordinate Judge decreed the plaintiff.respondent suit. On appeal
the District Judge set aside the decree of the Subordinate Judge
and dismissed the suit, holding that under the will of 1897,
Kishen Dei got only a limited estate. The plaintift-respondent
preferred a second appeal to the High Court and the decree of
the District Judge was set aside and that of the Subordinate
Judge was restored and on construction of the will of 1897 it
held that as the gift over failed, the life estate became an
absolute estate and she got an absolute interest in the property.
The appellant preferred a Letters Patent appeal before the
Division Bench of the High Court and the judgment of the
Single Judge was confirmed.
Held, that in construing a will the court should try its
best to get at : (i) the intention of the testator by reading the
will as a whole and if possible, such construction as would give
to every expression some effect rather than that which could
render any of the expression inoperative must be accepted; (ii)
another rule is that the \Vords occurring more than once in a
will shall be presumed to be used always in the same sense
2S.C.R.
SUPREME COURT REPORTS
835
unless a contrary intention appears from the will; (iii) all parts
of a will should he construed in relation to each other; (iv) (he
court will look at the circumstances under which the testator
makes his will, such as the state of his propertv, of his family
and the like; (v) 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; (vi) where one
of the t\VO rca~onablc construction \Voul<l lead
to intcstacy 1
that should be discarded in favour of a construction which docs
not create any such I1iatus.
On the above rule of construction, under the present will
the gift over in favour of the son was only by way of defeasance
and the widow had got an obsolute interest in the property.
Subbamma v. Ranutnaidu, A. I. R. 1937 Mad. 476, dis·
tinguished.
Ileld, further, that the expression 'Malik' has been consistently understood by courts as .-onveyino; the idea of absolute
ownersliip and therefore, the testator used the word 'Malik' to
describe his absolute interest in the property.
Sasiman Olwwdlturain v. Shiv Narain O!taudhury, (1921)
L. R. 49 I. A. 25 and Ram Gopal v. Nand Lal, [1950] S. C.R.
766, relied on.
CIVIL APPELLATE juRISDICTIUN : Civil Appeal
No. 338/1960.
Appeal by special leave from the judgment and
order dated August 31, 1951, of the Punjab High
Court in Letters Patent Appeal No. 64 of 1949.
S. P. Verma, for the appellant.
Bii!Kin Narain and A. D. JJ!atlmr, for the res·
pondent.
1962. December 10. The Judgment of the
Court was delivered by
SUBBA RAO, J.-This appeal raises the question
of the construction of a will executed by one Girdhari
Lal in the year 1897.
1962
l't•rty Lal
•.
R1»ushw•r D•s
Subha R,w, J,
1962
'earey Lal
••
ll.ameslrwar Das
Suiba Rao, J,
836 SUPREME COURTREPORTS [1963] SUPP.
Girdhari Lal, a resident of Delhi, executed a
will dated February 8, 1897, bequeathing his property, both movable and immovable, to his wife,
l\:fst. Kishen Dci, and adopted son.
The adopted
son predeceased Girdhari Lal. After the death of
Girdhari Lal in 1923, Mst. Kishen Dei exeutcd a
will dated October 8, 1941, bequeathing the property
in dispute i. e., house No. 2045, situate in Delhi, to
her brother's 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 Ramesh war 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 Subordi·
natc Judge, Delhi, for evicting the defendant from
the portion of the house occupied by him.
The
defendant, inter ali<I, pleaded that the plaintiff had
no title to the said property, as l\fst. 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,
l\,Ist. Kishen Dei got an absolute interest in the house.
He further found that the will set up by the defendant whereundcr 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 I.al was not of sound mind. Jn the
resu It, he rnade a decree in favour of the plaintiff.
On appeal the learned. District Judge held that under
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. Jn that view, he did not give his fiinding on
the question whether the will set up by the defendant
2 S.C.R.
SUPREME COURT REPORTS
837
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. KhoslaJ.
held, on a construction of the will of 1897, that under
the said will the testator gave a life interest to
Mst. Kishcn 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 noticed 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 Lal; presumbly in view of the finding
given by the learned Subordinate Judge that the exe·
cutant 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 di vision Bench of the same High
Court. · The said appeal was di<poscd of by
Weston, CJ., and Falshaw,J. Weston, CJ., who cleliver.ed 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 testator's
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 i'n
hi~ favour.
The
present appeal has been filed by special leave against
the said judgment.
Mr. Verma, learned counsel for the appellant,
1962
Ptarl_'I Lal
"·
Ramuhwar Das
Suhh• BM, J.
196"2
P1arty Lttl
••
Raz1shwD D'f
838 SUPREME COURT REPORTS [1963] SUPP.
raised before us the following two points :
(1) On a true construction of the will of 1897
executed by Girdhari Lal, Mst. Kishen Dei only got
a life estate thereunder and, therefore, the plaintiff
did not get any title to the property under the will
executed by her in his favour.
(2) The High Court
went \\"rong in not considering and giving a finding
on the question of the truth and validity of the will
alleged to have been executed by Girdhari Lal in
defendant's favour.
As the first question turns upon the construction of the will excuted by Girdhari Lal in 1897, it
will be convenient to read the rclevan: part thereof.
Ex.
P-1
is
the
will
executed
by him on
February 8, 18!}7.
After the usual preamble that
appears in wills, the testor proceeds to state-
"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 Bata~han and
some goods,
and my- belongings are in my
possession without partn(rship 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, mv wife, and after the death of
the said
l\f~ssammat,
my
adopted
son
Nathi Mal, will become Malik of all my mov-
,
able and immovable property without partnership with anybody.
The said Mst. Kishen
Dei should live in this house and said Nathi
f\fal will ~ct all the proprietary rights just like
2 S.C.R.
SUPREME COURT REPORTS
839
the testator. And no relation of mine has and
will have any kind of claim to my movable and
immov;:ble property left by me."
It must be conceded that there is some conflict
of ideas in the document; but in constructing a will
executed in 1897 the court should try its best to get at
the intention of the testator by reading the will as a
whole. We must accept, if possible, such construction as would. give to every expression some effect
rather than that which would render any of the
expression inoperative.
Another rule which may
also be useful in the context of the present will is
that the words occurring more than once in a will
shall be presumed to be used always in the same
sense unless a contrary intention appears from the
will : sec s. 86 of the Indian Succession Act.
So too,
all parts of a will should be construed in relation to
each other : vide s. 82 of the said Act. It is also a
well recognized nile of construction that the court
will look at the circumstances under which the
testator makes his will, such as the state of his property, of his family and the like : see s. 75 of the
said Act.
The circumstances under which the will was
executed by the testator may be gathered from the
will itself. The testator had a wife and an adopted
son.
He had no other near relations to be provided
for.
The only objects of his attachment and love
were his wife and the minor adopted boy.
He was
anxious to provide for both of them.
His object
could be achieved in
thr~e wJys, namely, (i) by
conferring a life estate in his property on his wife
and giving a vested remainder in the same to his
adpoted son; (ii) by making a joint bequest to both
of them; and (iii) by
making a bequest of an
absolute interest to his wife with a gift over to his
son operating by way of defeasance.
Learned coun-
~el for the appellant reljes upon the following passage
1962
'""'' Lal
v.
~Du
SuH• 11.., I.
1962
Pearey Lal
v.
Rtf111eshwtU DOJ
Subb• RaoJ J.
840 SUPREME COURT REPORTS [1963) SUPP.
in the will : "The said Mst. Kishen Dei should live
in this house and said Nathi fvfal will get all the
proprietary rights just like the testator," in support
of the contention that in this senter;ce the testator
made a clear distinction between the nature of the
estate given to the wife and that given to the son. He
contends that the direction that Mst. Kishen Dei
should only Ii ve in the house indicates that her
interest was only a life interest in the house whereas
the direction that N athi Mal should be in the place
of the testator indicates that he had absolute rights
which the father had. If this sentence is disannexed
from the rest of the document, it may lend some
colour to the said argument; but in the context of
the other recitals in the document, it fits in the
scheme of bequest clearely expressed by the testator.
The testator described his i11tereit in the property
thus:
·
"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."
It is not disputed, and it cannot be disputed,
that the said description of his right is that of an
aosolutc 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 word. In Sasiman
Ohowdhurain v. Shib Narayan Chowdhury (') the
(I) (1921) L.R. 4g I.A. 25, S5,
-
•
'! ,.
•
2 S.C.R.
SUPREME COURT REPORTS
841
Privy Council said that the term "malik" when used
in a will or other document is descriptive of the
position which a divisee or donee is intended to hold
and has been held apt to describe an owner possessed
of full proprietary rights, including a full right of
alienation, unless there is something in the context
or in the surrounding circumstances to indicate that
such full proprietary rights were not intended to be
conferred. This Court, in Ram Gopal v. JVand
Lal (1), accepted the said observations of the Privy
Council as a correct statement of law, but added
that it should be taken with the caution which the
Judicial Committee uttered in the course of the same
observation, namely, 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."
It 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 properly. These two bequests primli
Jacie appear to be inconsistent with each other, for
(I} [1950) S.C,R. 766, 773.
1962
Pearey Lal
v.
Rameshwar Das
Subba Rao, J.
1962
Ptar~v l.nl
v.
Ro.meshu·ar Dc.s
Subba Rao, J.
842 SUPREME COURT REPORTS [1963] SUPP.
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 wa~ 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 \\as the construction, the statement in
the will relied upon by Ieamed 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 r<'side 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, tbat should ,be discarded in favour of a
construction which <loes not create any such hiatus.
Jf the wnstruction suggested by learned counsel be:
_
...
.
,_
2 S.C.R.
SUPREME COURT REPORTS
843
adopted, in the event of his son predeceasing the
testator, there would be intestacy after the death of
the wife. If the construc•ion 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 th'.Jught of changing th~ will though his son
had predeceased his wife.
Learned counsel for the appellant relied upon
the decision of Varadachariar, J., in S·ubbamma v.
Rf.lmanaidit (1): 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 woman's
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 bern held lo 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 Rarn Gopul v. Nand
Lal ('),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
(I) ~.IR. 1~37 Mad. 476, 477.
(2) .[1950) $.C.R. 7G6, 773.
1962
Pmey Lal
v.
R411ushwar Das
Subba Rao, I
1962
Ptarty Lill
v.
Rameshwar Das
Subba Rao, J.
844 SUPREME COURT REPORTS (1963] SUPP.
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.
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 to do so in the two courts below.
In the result, the appeal fails and is dismissed
with costs.
The appellant will pay the Court fee
on the memo of appeal.
Appeal dismissed.