1. This appeal is against the judgment of our learned brother, Ansari, J. The facts relating to this appeal briefly are that one Bhumayya, son of Sambiah, was the owner oF house No. 489-16-B (new) known as 'Rukmini Vilas' situated in Mahubpura, Gowliguda, Hyderabad. The said Bhumiah executed a will on 23rd Isfanclar, 1349 Fasti (23rd January 1940), under which he bequeathed the house by dividing it into three portions giving away two portions to his sons, who are defendants 1 and 2 in the case, and one portion to his wife, Rukkamma.
Three rooms on the ground floor and three rooms on the top floor, marked red in the plan annexed to the will, were given over to the wife, while two rooms on the first floor and three rooms on the ground-floor, marked yellow in the plan were given over to the sons. The further recital in the will is to the effect that the upstairs of the house and three rooms on the ground floor were in the occupation of Dr. Bopardikar with whom the property had been mortgaged for a sum of Rs. 5000/-, that a rental agreement had been taken from the mortgagee for a period of ten years under a stipulation that the rent payable by him was to be adjusted towards the amount of principal and interest due under the mortgage.
There is a direction in the will that the discharging of the mortgage was to be by the sons and the portion given over to the wife under the will was not to be charged with the liability under the mortgage. It was also stated in the will that the rent of the other portion of the house shall be utilised, for the maintenance of his wife, Rukkamma and her two unmarried daughters. The wife was directed to meet the expenses of the marriages of these daughters by selling or mortgaging the house given over to her.
In addition to these conditions there was also a further condition that in the event of any of the beneficiaries under the will selling his or her portion of the property bequeathed, the other beneficiary would have the right of pre-emption, that is to say, would have the option of buying the property. Bhumiah died on 28th January, 1940. After his death the family appears to have lived in their respective portions of the house amicably till 23rd November, 1950 when Rukkamma died.
After her death there appear to have been family disputes. The present suit was brought by the four daughters of Rukkamma on 26th March 1951. The plaintiffs allege that after their mother's death disputes arose between themselves and their step brothers, that the tenants withheld payment of rent and offered to pay the rents only on the plaintiffs getting a decree from a competent court for a declaration that they were the owners of the property.
This suit was filed for a declaration of their title to the suit property having become entitled to the same after the death of Rukkamma, the original beneficiary under the will. The defendants, the sons, pleaded inter alia that the property in dispute belonged to the joint family; that a few days prior to their father's death, the father's mental condition was not quite sound and taking advantage of the weak mental condition of their father their stepmother, the mother of the plaintiffs, exercised undue influence over him and obtained his signature on the will now sought to be relied upon by the plaintiffs.
It was also urged that the document relied upon was not a will, but a deed of partition, and not having been registered was inadmissible in evidence. Various issues were framed in the case and the trial court held that the document Ex. N. 1 was a will. The trial court on the question as to whether the property was joint family property or not, held that the house was joint family property and as such the testator could not have bequeathed it by will. It therefore held that the mother of the plaintiffs had only a limited estate in the property and not being stridhana property the plaintiffs were not entitled to any declaration of ownership as asked for.
It also held that it had not been established that the plaintiffs were in possession of the property and as such a mere suit for a declaration was not maintainable. One Other point that was decided by the trial court was that the will had been acted upon by the sons till the death of Rukkamma and as such they were estopped from disputing tho title of tho testator.
2. The lower appellate court, upheld the finding that the house called 'Rukmini Vilas' was joint family property and as such could not have been bequeathed by will by Bhumiah. In the result the suit was dismissed. When the matter was taken in second appeal before the High Court the learned Judge came to the conclusion that the house could not be regarded as joint family property and in that view dissented from the concurrent findings of the courts below.
While holding that the testator was competent to execute the will, the property not having been established as being the joint family property, the learned Judge on a construction of the various clauses of the will came to the conclusion that the testator did not grant an absolute estate to his wife, that the words occurring in the will like 'malik' had been controlled by other words in the will which indicated that the wife was only given the usufruct of the property. The learned Judge therefore held that the wife had no heritable estate under the will, which her daughters could claim as her heirs under the law. In the result he dismissed the appeal, but granted 'leave'.
3. It is stated that at the time when leave was asked for by the appellant under Clause 15 of the Letters Patent, an objection was raised on behalf of the learned counsel for the respondents that no leave could be granted for the reason that Clause 15 of the Letters Patent did not apply to this case. The learned Judge however without deciding this question of preliminary objection with regard to the appeal granted leave and observed, that this preliminary objection could be raised when the appeal was being argued.
4. Now before us Sri Ramachandra Rao raised a preliminary objection stating that the appeal was incompetent because Clause 15 of the Letters Patent could not apply to this case. The argument was that the suit was one filed in the Hyderabad State and pertaining to the Telangana area of the Andhra Pradesh State and was governed by the Hyderabad Civil Procedure Code. It was urged that in all matters where the subject-matter of the suit related to the Telangana area the laws of the erstwhile Hyderabad State, which had not been adapted or modified after the coming into force of the Andhra Pradesh State, would apply.
It was stated that in regard to suits instituted prior to the coming into force of the Indian Civil Procedure Code in April 1951 all appeals were governed by Section 602 of the Hyderabad Civil Procedure Code and not by Section 100 of the Indian Civil Procedure Code. Being governed by Section 602 of the Hyderabad Civil Procedure Code the parties could canvass questions of fact in second appeal also which was not permitted under Section 100 of the Indian C. P. C. On this analogy it was sought to be contended that this suit also having been instituted prior to the coming into force of the Indian Civil Procedure Code and the provisions of the Letters Patent not having been adapted or applied to the Hyderabad area, Clause 15 of the Letters Patent could not apply.
5. Straightway we must state that there is a fallacy in this argument. It has to be observed that Letters Patent governed the proceedings in the Madras High Court and after the formation of the Andhra State it was applied to the Andhra High Court as well and after 1st November, 1956 the jurisdiction of the Andhra High Court has been extended to the Hyderabad State and the High Court in the newly formed Andhra Pradesh State was to exercise jurisdiction over all the territories in Hyderabad, the Hyderabad High Court having ceased to exist.
The necessary consequence of this was that the Letters Patent which governed the proceedings in the High Court in so far as the Andhra High Court was concerned, applied to the Andhra Pradesh High Court also. Clause 15 of the Letters Patent confers a right of appeal on a party against the judgment of a single Judge of the High Court where leave is granted. A right of appeal is therefore provided in all cases decided by a Judge of the Andhra Pradesh High Court provided he grants leave.
It therefore comes to this that a party could file an appeal against any judgment rendered by a Judge of the High Court of Andhra Pradesh irrespective of the fact that the subject-matter of the appeal relates to an area in the Hyderabad State, that is to say, the Telangana area. The test is : Is it a judgment of a Judge of the Andhra Pradesh High Court? The maintainability of the appeal would not depend upon what the Judge of the High Court decided, but whether he decided the question sitting as a Judge of the Andhra Pradesh High Court.
The learned counsel invited our attention to Sections 119 and 120 of the States Reorganisation Act. These sections, in our opinion, have no relevancy whatsoever to the question as to whether an appeal would lie under Clause 15 of the Letters Patent against a judgment of a Judge of the High Court of Andhra Pradesh. Sections 119 and 120 only say that by reason of territorial changes and formation of new states as amended in Part II of the Act, there would not be any change in the law in force immediately before the appointed date.
They only save the operation of the existing laws until such laws are adapted, modified or repealed by the competent Legislature. We may in this connection refer to a decision of this Court in the case of Sridhar Rao, In Re, 1957-2 Andh WR 319 : (AIR 1958 Andh Pra 60), where a similar question arose for discussion. Subba Rao, C. J. (as he then was), who delivered the judgment of the Bench, observed that under Sections 30 and 33 of the Andhra State Act, the High Court of Andhra was invested with the same jurisdiction exercised by the Madras High Court before the appointed day, and the said High Court (High Court of Andhra) was to follow the same practice and procedure obtaining in the High Court of Madras until such time as they were varied, revoked or amended by the High Court of Andhra.
The learned Judges further held that the appellate jurisdiction of the Andhra High Court was regulated by Clause 15 of the Letters Patent governing the Madras High Court and that, therefore, an appeal lay under Clause 15 of the Letters Patent to a Bench against the decision of a single Judge. The jurisdiction of the Andhra High Court has been extended over the areas of the Hyderabad State and therefore, the Andhra High Court, which has now been named the Andhra Pradesh High Court, would be governed by Clause 15 of the Letters Patent and would exercise jurisdiction under that clause irrespective of the fact that the matter related to the Telangana area of the Hyderabad State.
6. One other argument was advanced by the learned counsel which has to be negatived straightway. It was urged that the appellants herein had acquired a vested right, as it were, in that the judgment of a single Judge of the High Court was final but for Clause 15 of the Letters Patent and that light could not be affected. This argument has to be straightway repelled, for no litigant could have a vested right to obtain a determination of the matter in issue with the attribute of finality. This has been made abundantly clear by the decision of the Supreme Court in the case of Indira Sohanlal v. Custodian, Evacuee Property, Delhi, : 2SCR1117 . Their Lordships observed ;
'It appears to be clear that while a right of appeal in respect of a pending action was conceivably treated as a substantive right vesting in the litigant on the commencement of the action ..... though we do not so decide ..... no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action.''
For these reasons we must hold that the preliminary objection must fail. Here we are only concerned with the judgment of a Judge of the Andhra Pradesh High Court and Clause 15 of the letters Patent would certainly apply.
7. Coming to the merits of the case the whole question depends upon the construction of the terms of the will. It is clear from the preamble of the will that the testator purported to divide the house amongst his sons and his wife, for the words used in the will in Urdu are 'Hash Tasfeel Zail, takseem karta Hun' meaning 'I am dividing the properties as under.'
Clause 2 of the will reads as follows :
'Men Zouje ke nam (3) kamre neechey ke hisse ke, aur badlai bisse man teen kamare jo nakhsha munsalike men barang surakh zabir kiya gaya bai kar diva hun jis per voh kabiz va malik mustasavvir hogi.'
Here the testator gave three rooms on the ground floor and three rooms on the top floor as detailed in the plan to his wife and states that she would be an absolute owner. 'Malik' is the word used. The characteristic feature about these dispositions is that the same language is used with regard to the disposition in favour of the wife as has been used with regard to the disposition in favour of the sons.
The learned Judge, Ansari, J., was evidently influenced by the fact that there were provisions in the will slating that the rents realised could be utilised for the maintenance of the wife and that the property bequeathed in favour of the wife might be sold or mortgaged with a view to defray the expenses of the marriage of the daughters. The learned Judge thought that the property had not been given absolutely to the wife but that was given to her for her enjoyment and for a stipulated purpose viz., to sell the property and meet the expenses of the marriage of the daughters.
In our opinion the language used is not susceptible of the interpretation put upon it by the learned Judge. While the sons have been made responsible for the discharge of the mortgage in favour of the mortgagee, Bopardikar, the wife has been made responsible to get the daughters married and for meeting the expenses to mortgage or sell the property. The disposition does not say that what all is realised, by the sale of the houses should be utilised for the marriage expenses of the daughters.
She could spend the amount necessary for the marriage expenses and keep the rest for herself. It is only to make a provision to meet the expenses of the marriage. It does not say that only so much of the property should be sold as would be necessary for the marriage expenses. The direction is that it is open to the wife to either mortgage or sell the property as she chooses in order to raise the necessary funds for the marriage expenses of the daughters.
The fact that the disposition in favour of the sons is in the same terms as the disposition in favour of the wife and the language used is identical and the further fact that a right of pre-emption is given to the wife as much as to the sons to purchase the property and the fact that the word 'malik' is used, would also conclusively go to show that what the testator purported to bequeath to the wife was an absolute estate in the properties demised.
It would be useful to refer to a decision of the Supreme Court in the case of Ramgopal v. Nandalal, : 1SCR766 . Their Lordships of the Supreme Court emphatically made it clear that there was no warrant for the propostition that when a grant of an immovable property was made to any Hindu female she does not get an absolute interest in the property. It would be enough if words of the greatest amplitude were used conveying full rights of ownership.
They further held that the mere fact that gift of property is made for the support and maintenance of the female relation would not be an indication of the fact that the intention of the donor was that the donee was to enjoy the property only during her lifetime. The position therefore is that if the dispositive words employed in the document were clear and unambiguous to import absolute ownership, the purpose of the grant could not restrict or cut down the interest.
In this case it does not even appear that the motive of the testator was only for the maintenance of the wife or for meeting the expenses of the marriage of his daughters. Under these circumstances construing the various terms of the document and the language used, we can only come to the conclusion that the testator bequeathed the property conferring an absolute estate on the wife.
No importance should be attached to isolatedwords but the will should be read as a whole andthe court has to look at the dominant intention ofthe testator. Therefore after considering the various clauses of the will, we are of the opinion thatRukkamrna never got a life estate under the will.The judgment of the learned Judge is set aside,this appeal allowed and the plaintiffs' suit decreed.The plaintiffs-appellants would be entitled to theircosts throughout.