# SaliebzaJa Mohd. Kamgar Shah v. Jag1lish Chandra Rao - **Citation:** [1963] Supp. 2 S.C.R. 417 - **Court:** Supreme Court of India - **Decided:** 1963 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/saliebzaja-mohd-kamgar-shah-v-jag1lish-chandra-rao-2780 - **Pages:** 19 ## Headnote 2 S.C.R. SUPREME COURT REPORTS RAMKISHORE LAL ti. KAMAL NARAIN \B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. C. DAS GuFTA and J. C. SHAH, JJ.) 417 001U1trmtirm of Documents:._Partition award-"Milkiyat" rigkts given tc one co-sharer for purpo" of spending income on temple-Later recitals •hawing dedication to temple-If absolute dedication in favour of templ•-Dedicatirm, if can b• made by partitirm award. A registered partition award made by Panchas between all the co-sharers provided : "Mouza Telibandha-together with all rights and inter. rests of proprietorship has been given to Ramsaranlal .... for the undermentioned purposes. From the profits and income Ramsaranlal shall incur expenses . ..... Shri Ramchandra Swami Math Shri Dudhadherji, according as the same expenses have been continuing to be met up to this day .... If this work fails to be done .... any cosharer who may benefit .... shall take this Mouza Telibandha together with all rights and interests into his possession and carry on the work of the temple .... None of the co-3harers and Ramsaranlal have any rights over it. Ramsaranlal or any other co-sharers have neither got, nor shall have, any right to transfer .. Mouza Telibandha ... , because Mouza Telibandha has been reserved for ever for the aforesaid purpose and it shall continue to be so only " Some of the co-sharers filed a suit to set aside the award. The parties referred the matter to one Mr. Bagchi and in view of his award a compromise petition was filed and the suit was di~nnisscd. The appellants contended that the partition award made an absolute dedication of the Mouza in favour of the temple. The respondent contended that the award gave the Mouza in full proprietorship to Ramsaranlal with only a charge on it to meet the expenses of the temple, that the partition award could not validly create a dedication and that the partition award wa. modified by the Bagchi award, 1962 NoMnber, 22. 1962 RamkUhote Lal •• Karna/ Nara ht 418 SUPREME COURT REPORTS [1963] SUPP. lleld, that the partition award created an absolute dedication of Mou'la Telibandha in favour of the temple. Though the use of the words "Malik" and ·•Milkiyat" indicated the conferment of an absolute estate, it w,ls not invariably so and it was necessary to examine the context in each case. Where the intention is to grant an ab.-.olute estate, an attempt to reduce the powers of the O\vner by imposing restraints on alienation has to be repelled on the ground of rcpugnancy; but where the restrictions are the primary things intended and they are consistent with the whole trnor of document, it is a material circurnstanre for displacing the presumption of absolute ownership implied in the use of the word "Malik". The use of the words "Kul haq haquq samet Milkiyal" in the opening clause of the award raised a presumption that absolute interest was given theieby to Ramsaranlal, but the later recitals rebutted this presumption. Considering all the different provisions, it \\'as clear that the intention was not to make Ra1nsaranlal absohite owner but to give hirn posses, it was superseded by the Award of Mr. Bagchi on May 14, 1898, which was accepted ~y all the co-sharers as the actual settlement of their own and on the basis of which a suit brought to challenge the validity of the earlier award was dismissed as compromised. The defendant's case is that there was no trust, either express or constructive, created at any time by any one in respect of Telibandha village ; that neither he nor his father was trustee in respect of this village and there was no breach of trust by him. To explain his possession of the village the defendant referred to a partition in 1901 between Sarjoo Prashad's four sons, on the one hand and Jamuoa Prasad, on the other, at which, it was said, that Telibandha fell to the share of Sarjoo Prasad's four sons. Thereafter in 1913, there was a further partition between Sarjoo Prasad's four sons and the defendant at which Telibandha was allotted to defendant's father Ramsaranlal alone. On a consideration of the evidence the Trial Court held that there had been a valid dedication in respect of the village Telibandha for the Temple of Shri Ramchandra Swamy. It was not satisfied that the dedication had been made by Dinanatb himself but held that there was such a dedication sometime before 1896 and that that dedication was confirmed by all the co-sharers at the time of the partition of 1896. As regards the Bagchi Award, the learned Judge was of opinion that it did purport to revoke 1962 RmnJ. is ho rt Ld •• Kamal Ntmirt Dos G•PI•, I. 1962 Ramkis/uJr1 Lal v. Kam.al Narain Das Gupta, J. 422 SUPREME COURT REPORTS[l963] SUPP. the dedication and to allot the village to the members of one branch of the family with only a moral obligation to look after the temple but this later Award had all along remained a dead letter and did not affect the Panch Faisla Award of 1896. The Trial Court held that a valid trust had been created in favour of the temple and it was a public religious trust, as Shri Ramchandra temple, for which the trust was created, was a public institution. The Court found that the defendant was the trustee of this public trust, and had committed breaches of trust by transferring trust properties and appropria· ting its proceeds and finally by his express repudiation of this trust and was therefore liable to be removed. Accordingly, it passed a decree declaring that defendant No. 1 had committed breaches of trust as a trustee of the village T elibandha for the temple of Shri Ramchandra Swamy and removing the defendant from the office of the trustee. By the decree the Court also directed the defendant to deposit a sum of Rs.l,06,774/1/-in Court. The first plaintiff Ram Kishore Lal was appointed the trustee in place of the defendant. It was also ordered that a oommissioner would be appointed later on to enquire into the alienations made by the defendant and to take accounts of the trust from the year 1936. On appeal by the defendant, the High Court of Judicature at Nagpur has set aside the Judgment and decree of the Trial Court and ordered the dismissal of the suit. The High Court was of opinion that the dedication of the village Telibandha had not been proved. The High Court agreed with the Trial Court that dedication by Dinanath Sao himself, by a Patha in 1857 as alleged in the plaint had not been established ; but disagreeing with the Trial Court, it held that there was no absolute dedication of the village for the purpose of the temple by the Panch Faisla Award of 1896 and no trust was created thereby. On a construction of this document the 2 $.C.R. SUPREME COURT REPORTS 423 learned Judges of the High Court held that it did not show more than a partial dedication of the village as distinguished from an absolute dedication. AcGor· dingly, the High Court allowed the. appeal and ordered the suit to be dismissed without going into the other questions as regards the character of the temple or whether the defendant had committed breaches of trust. Against this decision of the High Court the present appeal was filed by the plaintiffs on a certificate granted by the High Court under Art. 133 (1) (b) of the Constitution. The main controversy before us is whether by the Punch Faisla Award of 1896 an absolute dedication of the village Telibandha was made in favour of Shri Ramchandra Swamy temple or whether the village was given in full proprietorship to Ramsaran Lal with only a charge on it to meet the expenses of the temple. The relevant portion of the Award is in its second paragrah. The Award is in Hindi and the second paragraph has been translated thus :- "2. Mouza Telibandha alias Karawatoti, sixteen annas, Asli Men Dakhli (i. e. village proper with the out-skirts under control), in tahsil Raipur together with all rights and interests of proprietorship has been given to Ramsaranlal with the consent of and at the instance of all the co-shares for the under-men· tioned purposes. From the profits and income of mouza Telibandha, Ramsaran Lal shall incur the expenses of Samaiyas (probably occasions), celebrations, Bho·Rag, Bal-Bhog of daily routine and white-washing and plastering, etc., and other work of Shri Ramchandra .Swami Math Sbri Dudhadharji, according as the same expenses have been continuing to be met up to this day from the time of Dinanath Sao, Sobha· ram Sao and Sarjoo Prasad Sao. If this work 1962 &mkishu" IAI •• Kamal Nataln Das Gupt~, J. 1962 Ramkish,,, Lal v. Kamal Narain Das Gupta, J. 424 SUPREME COURT REPORTS [1963] SUPP. that is being done from long before, fails to be done, then out of all these six co-shares, any co-sharer, who may be fit to do that work and carry it on, shall take this Monza Telibandha together with all rights and interests into his possession and carry on the work of the temple just as it has continued to be done from ever. None of the co-shares and Ramsaranlal have any right over it. Ramsaranlal or any other co-sharers have neither got, nor will they have, any right to transfer, either in whole or in part, Monza Telibandha, proper, together with Dakhli, together with all the rights and privileges, by sale or mortgage or gift or will or in any other manner whatsoever, because mouza Felibandha has been reserved from ever for the aforesaid purpose and it shall continue to be so only." The decision of the question before us depends on the proper contruction of this paragraph of the Panch Faisala. It is necessary to mention that the word~ "together with all rights and interests of proprietorship" in the translation stand for "Kul haq haquq samet milkiyat ke" of the original; and the words "from the profits and income of Monza Telibandha" in the translation stand for "Telibandha ke munafa wo amdani se" of the original. The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into •• 2 S.C.R. SUPREME COURT REPORTS 425 consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non· testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? · It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebw,da Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). (') It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e. g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void. Turning now to para. 2 of the Panch Faisala, we find that the opening clause while providing for giving the village Telibandha to Ramsaran Lal uses the words "Ku! haq haquq samet milkiyat ke." It has been contended by the learned AttorneyGeneral on behalf of the respondent that these words (I) (1960) 3 S.C.R, 604, 611. 1962 RamkisMrt Lal •• Kamdl NM"ain Das Gupta, J. 1962 Jlamk iJhoTI Lal v. Kfl1'1al Narain Das Gupta, J. 426 SUPREME GOUR T REPORTS [1963] SUPP. show an intention to give an absolute interest of ownership in the property to Ramsaran Lal. Accordingly, argues the learned Attorney-General, the later provisions in the paragraph which st:em to indicate that such absolute right was not given have to be ignored as an ineffective attempt to take away what has already been given. Neither the words " none of the co-sharers and Ramsaran Lal have any right over it" nor the prohibition against the alienations in the following clause, nor the words "Telibandha has been reserved for ever for the aforesaid purposes and it shall continue to be so only" can,it is argued, limit the amplitude of what is given to Ramsaran Lal by the opening clause. The question therefore is : Does the use of the words "Kul haq haquk samet milkiyat ke" invariably show an intention to give full and absolute ownership? We do not think so. The question as to the meaning to be attached to the word "Malik" (from which the word "Milkiyat" has been derived) and "Milkiyat" have often been considered by the courts. A consideration of the pronouncements of the Privy Council on this question leave no doubt that while ordinarily an intention to give an absolute and full ownership is expressed by the words "Malik" or "Milkiyat" by saying that somebody is to be the Malik or is to have the Milkiyat, this is not invariably so. In lAlit Mohan Singh Roy v. Chuklcun Lal Roy (') where the words of the gift to the appellant were "shall become owner (Malik) of all my estates and properties", it was held that they were sufficient to convey a heritable and alienable estate-unless the context indicated a different meaning. In Surajmani v. Rabi Nath Ojha (') also the use of the word "Malik" was held to import full proprietary rights, unless there is something in the context to qualify it. In Saraju Bala Devi v. J yotirmoyee Devi (') the Privy Council had to consider the nature of the (I/ (18971L.R.241. A. 76. (2) (1907) L. R. 35 I. A.17. (SJ (1931) L.ll, 581.A.. 270. .. 2 S.C.R. SUPREME COURT REPORTS 427 interest that passed by two leases which constituted the lessee the Malik of the property in express terms. Their Lordships examined the terms of those leases to see whecher there was something in the context to indicate that the words did not import full proprietary rights and held that the conditions taken singly or collectively did not cut down the absolute estate. It is important to note that in all these cases their Lordships of the Privy Council did not proceed on the basis that the mere use of the word "Malik" so clearly and unambigl}ously passed the absolute interest that examination of the context was not necessary. On the contrary in each case they emphasised the need of examining the context to find out what. was intended. This was quite in line with what had been decided in one of the earliest cases-( Mohamed Shumsool v. Shewukram) (') where the word ';Malik" came up for consideration. In that case the question arose whether a testator in saying that "only Mst. Rani Dhan Kowar, the widow of my son is my heir and except Mst. Ranee Dhun Kowari aforesaid none other is; nor shall be my heir and Malik". The document gave an estate of inheritance to the Rani which she was able absolutely to alienate. The Privy Council thought it proper to take into consideration the ordinary notions and wishes of a Hindu with respect to devolution of property and proceeded to observe : "Having reference to these considerations, together with the whole of the will, all the expres· sions of which must be taken together without any one being insisted upon to the exclusion of others, their Lordships are of opinion that the two courts in India, who both substantially agree upon this point, are right in construing the intention of the testator to have been that the widow of his son should not take an absolute estate which she should (I) (1874) LR. 2 I.A. 7. 1962 Ramlcis/wr1 Lal •• Kamal Narain Das Gupta J, 1962 Ramkishort Loi v. Kamal Narain Das Gupta, J. 428 SUPREME COURT REPORTS [1963] SUPP. have power to dispose of absolutely, but that she took an estate subject to her daughters succeeding her in that estate." In Rai Bajrang Bakadur Singh v. Thakurain Bakhtrai K uer (') this Court had to consider a will which used the words "Malik Kami!" and "Naslan bad naslan" in reference to Che interest given to the younger so11 Dhuj Singh. Mukherjea, J., speaking for the Court said:- "These words, it cannot be di.;puted, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred. In all such cases the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory." On a consideration of ·the context this Court came to the conclusion that Dhuj Singh had only a life interest in the properties and pointed out that "in cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation woulct certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". What was said in this case in connection with the construction of a will applies with equal force to the construction of every other document by which some property is disposed of. (I) [!953J S.C.R. 232. (I :1 2 S.C.R. SUPREME COURT REPORTS 429 Remembering therefore that the use of words "Knl haq haquq samet Mi:lkiyat" in the opening clause of this Panch Faisla raises a presumption that ab;olute interest was given thereby to Ramsaranlal, we have also to remember that this is merely a presumption which can well be displaced by what follows in the same document as regards this very property. When all these different provisions are consi· dered it appears to us to be clear beyond any shadow of doubt that the intention was not to make Ramsaranlal the absolute owner of the village but give him possession and management of the village for the benefit of Shri Ramchandra Swamy temple. Immediately after saying that the village is given to Ramsaranlal "Kul haq haq·u.q samet nii/lciyat" the document says in the same breath that this is being done for the under-mentioned purposes. Then the purposes are mentioned in the next sentence as meeting the expenses of worship and maintenance of the temple of Shri Ramchandra Swamy. The provision is. next made that if Ramsaranlal does not carry m1t this purpose then out of the co-sharers between whom the partition was being made, any co-sharer may carry it on and for this such co-sharer shall take the Mouza Telibandha into his possession. The document then proceeds to say that none of the co sharers and Ramsaran\al had any right over the village. Then follows the prohibition against alienation. The learned Judges of the High Court have said that the use of the words "from the profits and bcome of mouza Telibandha Ramsaranlal shall incure the expenses ...... " indicate that only a portion of the income was intended to be used and that supports the presumption arising from the use of the word "Ku! haq haquq samet milkiyat" that absolute interest was being given to Ramsaran Lal. This 1962 &mkisllor1 Lal v. ramal Narain Daf Gupra, J. 1962 Ramkishor1 Lal v. Kamal Nar•itt Dos Gupta, J. 430 SUPREME COURT REPORTS [1963] SUPP. provision has to be considered, however, along with all other clauses and it would not, in our opinion, be right to take the indication of the words "from the profits and income" as out-weighing or neutralising the numerous other provisions which point to an intention that Ramsaran Lal would not have the absolute owne1ship of the village. As has been mentioned earlier, tne words "from the profitsa.nd income of mouza Telibandha" in the translation stand for "Telibandha ·ke munafa wo amdani se" of the original. It is not correct to say that these words as used in the original necessarily mean " from the profits and income ofmouza Telibaudha." The words may equally well be translated as "with the profits and income of mouza Tclibandha." It is worth noticing that the plaintiff's witness Mathura Prasad stated in answer to a question from the Court : "At that time there was no question as to what should be done with the savings from the income of the village Telibandha, after meeting the requirements of the temple, because the income those days was not much while the expenses which used to be incurred on the temple were far in excess of the income from the vlilage." The correctness of this statement was not challenged in cross-examination. It appears clear to us that by the use of the words "at that time" the witness meant "the time of the partition in 1896." In using the words "Mouza Telibandha ke munafa wo amdani se" it is more than likely therefore that the Panchas wanted to say that the purposes mentioned will be carried out with the income and profits and did not expect any surplus to be left. We have therefore no hesitation in holding on a construction of paragraph 2 of the Panch Faisala that by this Award Telibandha village was dedicated absolutely to the temple of Shri Ramchandra Swamy and Ramsaran Lal was given possession of it as the manager and trustee of the temple. 2 S.C.R. SUPREME COURT REPORTS 431 But, says the learned Attorney-General, a parti· tion Award of this nature cannot under the Hindu Law create a valid dedication in favour of a deity. This plea was not taken by the defendant in his written statement nor does it appear to have been urged seriously before the courts below. Assuming it is open to the defendant to raise this· point now, it has to be decided on the further assumption that the facts under which the provision of dedication was made in the award were correctly stated there. That i,, these provisions were made "with the consent of and at the instance of all the co-sharers." The act of the Panchas was thus really the act of the owners of the property and as owners had full right to make a valid dedication to the deity the dedication as made in Para. 2 of the Panch Faisla must be held to be valid. This brings us to the question if the dedication thus made has ceased to be valid by anything which happened afterwards. It appears that immediately after the award was made, it was presented before the Sub Registrar, Raipur, for registration. Within a few days, however, an application in connection with this matter appears to have been made before the Civil Judge, Raipur. In this Ramsaranlal stated his objection to the award on the ground that "the Panchas did not read out the award before him, that they had asked him fo state in writing his objections which he did but they did not take any evidence." The Civil Judge rejected Ramsaran Lal's contention and returned the award to the Sub-Registrar 'lith a direction to register it in due course and also directed the Panchas to file it in a Civil Court after it had been duly registered. It ·appears that after this the award was duly registered. In Novem~r of the same year however Ra!T'saranlal's three brothers brought a suit in the Court of the Ci vii Judge at Raipur in which they sought to have this registered award set aside. Ramsaran\al and 1962 Ramkisho11 I.al v. K, tn4J Nardi11 Das Gupta, J. 1962 Romkislw11 Lal. v. K2mal Narain L'Blituted by new rule-Old nde '°'8 not ,..,; .. when new ruks declar"1 invalid-0""8titvtiol& of India, Arta.391, 304-Madras Genenil Salt.a Tax Aol (IX of 193"), ••· 3,5, 19Jladraa General Salu Tax Rulu, r. 16. This is a petition under Art. 32 of the Constitution, the petitioners are dealers in hides and skins in the State of Madras. The impugned sales tax assessment relates to turnover of sales of tanned hides and skins which had been obtained from outside the Su.te of Madra•. The main contention of the petitioners is that the tanned hides and skins imported from outside and sold inside the State arc, under r. 16 of the Madras General Sales Tax Rules, subject to a higher rates of tax than the tax imposed on hides and skins tanned and sold within the State and this discriminatory taxation offended Art. 304 (a) of the Constitution. The respondents contentions were (a) sales tax doc. not come within the purview of Art. 304 (a) as it is not a tax on the import of gogd.1 at the point of entry, (b) the impugned 1961 Ro.Uishor1 lAl v. KonNl Jl•Niti IJu C.,to, J. 1962 N.-.61r 21,