1. When this case came on for trial the first question raised was whether the defendant was entitled to lay before the Court evidence of facts alleged to have been in the testator's mind, and, therefore, necessary to be known to the Court before it could truly apply the language used by the testator in the second clause of the will. This was, of course, strenuously opposed by Mr. Jinnah for the plaintiff, who, like most counsel of experience, is always most insistent on a legal technicality most ingenious, and I may say persuasive, in proportion as he feels that if this ground fails him his case is lost. Nevertheless, after giving the matter my most anxious consideration during the whole of his argument and the exhaustive and able reply to it by Mr. Kanga, I am still unable to free my mind from the logical compulsion of the technicality upon which Mr. Jinnah has taken his stand.
2. In this country the construction of wills must be governed, I think, by the terms of Section 62, and, for our particular purpose, Section 164 of the Indian Succession Act. Section 164 appears to be advisedly worded so as to narrow the field of inquiry to which large extensions had been given in England. Did that section stand alone, then the argument would have given rise to little difficulty. But the defendant has invoked the assistance of Section 62 in his endeavour to escape the narrow limitations imposed by Section 164. And the concluding words of Section 62 might, no doubt, be thought to give effect to something like the general principle upon which the English Courts have rarely hesitated to act. I own I find it for myself very hard to dissociate those words from the words with which the section opens. Those words, I think, must govern all that follows. So read, the section empowers Courts to avail themselves of extrinsic evidence 'for the purpose of determining questions as to what person or what property is denoted by any words used in a will', etc. Now, in the present case, it seems to me that it is only by an undue straining of language that it can fairly be said that any question arises as to determining either the person or property denoted in the disputed clause. Ingenuity might suggest that there really is some uncertainty about the property arising in this way, that if Rs. 1,500 given to the plaintiff were meant to be given in discharge of a debt and not in addition thereto, then without the assistance of extrinsic evidence the Court reading the words of the will simply as they stand might dispose of Rs. 3,000 instead of Rs. 1,500 of the testator's money. So that to that extent--the difference between Rs. 1,500 and Rs. 3,000--there is really an uncertainty about the property denoted in the disputed clause, to resolve which the section allows the Court to go into extrinsic evidence of all facts which might enable it to apply the testator's language more correctly to the facts which were within his knowledge. That seems to me the only possible line of reasoning by which the defendant might hope to escape the rigidity of Section 164, as well as the distinctions insisted upon by some of the very greatest English Judges in dealing with cases of somewhat similar difficulty.
Clause 2 of the will runs in the following terms: 'My trustees shall give to my brother, Pestonji Framji Mistry, Rs. 1500 namely fifteen hundred without interest and they shall get him to vacate the place in my house which he now occupies '. On the face of them, these words are quite clear and unambiguous both as to the property and the person and if we turn to the authorities upon which the learned Counsel have relied, notwithstanding the great Judges, who were responsible for the decisions in Charter v. Charter (1874) L.R. 7 H.L. 364. and Harrison v. Higson  1 Ch. 561. affirming the well-known doctrine that where there is an ambiguity in the language used by the testator the Judge is entitled by the use of extrinsic evidence to put himself in the testator's shoes or seat himself in the testator's chair, I cannot see any way of distinguishing the facts with which I am at present confronted from those which were incompromisingly dealt with by such high authorities as Lord Halsbury L. C., Lord Davey and Rigby L.J. in Higgins v. Dawson W. In the other cases there can be no question that very great Judges-one of the very greatest indeed Earl Cairns-inclined somewhat liberally to the view that where there might be any form of ambiguity in the language the Courts might seek illumination from extrinsic evidence throwing any light upon the surrounding facts which then by inference would be used as pointing to the testator's intention. In the last case, however, a sharp line is drawn between the propriety- even the legality-of taking one step in the direction of investigating intention. Their lordships unanimously insisted, in language which is too plain to be mistaken or misunderstood, that where a testator has left no uncertainty as to the person to be benefited and the property by which the benefit is to be conferred, then the Courts are precluded from going outside the actual words used by the testator, and the effect of that principle seems to have been given by the language of Section 164 of the Indian Succession Act. There it is laid down: 'Where a debtor bequeaths a legacy to his creditor, and it does not appear from the will that the legacy is meant as a satisfaction of the debt,' etc. Plainly the important words are 'and it does not appear from the will,' words which confine the scope of the Court's interpretation in the first instance to the language of the will and that alone.
4. In the present instance, Clause 2 of the will is certainly worded in an unusual way and therefrom suspicions or conjectures might well arise as to the testator's intention.
5. Casually read, the clause does not sound like an expression of the testator's desire to confer a legacy upon some chosen object of his bounty. There are the curious words ' without interest,' and the immediately following sentence directing the executor to get the legatee to vacate the house. Now the whole force of Mr. Kanga's argument lies in this, that the form of expression is so unusual as to necessitate a further enquiry where it is disputed that the words bear their natural meaning. He contends that even on the face of this clause it does appear from the will that this was not an ordinary bequest but was intended to be no more than the satisfaction of a debt and he proposes to lay before the Court conclusive evidence of three facts: (i) That the testator owed the legatee Rs. 1,500; (2) that that sum was not carrying interest; and (3) that in lieu of interest the legatee was residing in the house referred to in that clause at a rent reduced in proportion to what would otherwise have been interest on Rs. 1500. If those facts were shown, I do not doubt that almost any person would arrive at the conclusion, at which Mr. Kanga wishes the Court to arrive, that the clause read in the light of the facts clearly means that (the testator wished the debt to be discharged and the creditor to be got rid of out of the house. And it is for that reason that Mr. Jinnah fought desperately against the introduction of any such extrinsic evidence whatever and has taken his stand upon the technicality that though the clause may be in an unsual form there is nothing really uncertain or ambiguous in it. And here again we may with advantage read the observations of Rigby L. J. approved by Lord Davey in Higgins v. Dawson  A.C. 1. were I to accede to Mr. Kanga's argument, which, I confess, I greatly wish to do and have wished to do since the case opened, I can not conceive for myself that I should be yielding to what is characterised by those learned Judges as an illegitimate bias, a pre-possession in favour of what I believe to be the testator's intention. And the ground-work of Mr. Kanga's whole argument seems to me to be cut away when we further apply the distinctions drawn by those learned Judges between what is right and what is wrong for a Judge to do in such circumstances. There is really no possibility of any ambiguity about the person to be benefited. The testator directs his trustees to give to the plaintiff, naming him, a definite sum of money. Neither can there be any ambiguity about the property to be given. The property is Rs. 1,500. Nor can there be any real ambiguity about the words ' without interest.' Whether they are superfluous or whether in some instances they might bear a meaning-a practical meaning I mean-in themselves, they are plain enough. As to the direction to get the legatee to vacate the house, that too is perfectly plain whether or not it is intended as a condition of the legacy.
6. Now, the law laid down in Higgins v. Dawson  A.C. 1, insists peremptorily on Judges refraining where the language of the will presents no ambiguity from imagining ambiguity in its application to different sets of existing facts, and so initiating an inquiry into those facts. The test is perfectly simple. Had nothing been known of the debt of the plaintiff or had there been no dispute about this will at all and had this clause been submitted to anybody, whether a man in the street or the most learned Judge, could it be said that either the one or the other would have felt or entertained the very slightest doubt about its meaning? I feel, therefore, that as a Judge I am bound to follow the law laid down for the guidance of Courts in cases of difficulty like this by the greatest Judges of the Realm.
7. I confess I come to this conclusion with the utmost reluctance, because it appears to me that in this particular case at any rate the result will be doing not justice but injustice. I believe- that there is no doubt in the mind of the plaintiff any more than in my own that if we were not trammelled by these legal technicalities, if I felt at liberty to into the facts which Mr. Kanga says he is prepared to prove, and if those facts were proved, then neither I nor anyone else would hesitate to say that the intention of the testator was not to bestow a legacy but to discharge a debt. Nevertheless hard cases notoriously make bad law and my duty on the authorities and the words of the sections I have adverted to, which after all are framed, I presume, upon a wide survey of averages calculated to attain a maximum of justice, is to enforce the rule as I understand it.
8. I must, therefore, I think, refuse to allow any extrinsic evidence to be gone into here. I must take the terms of the will, terms which the testator himself chose to use, and give their plain meaning and natural effect to them.
9. At this point, it is intimated to the Court that after the delivery of this interlocutory Judgment, parties would probably settle.
10. As to the issue of estoppel Mr. Kanga felt unable to carry it any further and I think there is nothing in it. But upon this issue he put in certain letters intending to use them in support of his contention that the defendant could not have reasonably acted otherwise that he did, and, therefore the plaintiff should bear his own costs. This leaves the question of costs alone open; and before delivering judgment upon it, as the Court was about to rise yesterday afternoon, I suggested to counsel on both sides that possibly they might come to some understanding.
11. This morning they have agreed upon terms; and there will, therefore, be a decree by consent for the plaintiff for Rs. 1500; and defendant to pay half the plaintiff's party and party costs.