V.D. Bhargava, J.
1. This is an appeal from the decision of a learned single. Judge of this Court in a second appeal.
2. The following pedigree is necessary in order to understand the facts of the case :
| | | | |
Ram Charan= Tulsha Ram Prasad=Brijrani Ram Sahai Ram Dei Ram Sarup=Ram Piari
(alias Bari Bahu) (Alias Manjhli Bahu) O.S.P. | (alias Chhoti Bahu)
Defendant 5 Defendant 1 | Plaintiff
| | _____________________________ |
Munni(Dead) Shyam Behari=Ganga | | Shyam Manohar
(Defendant 2) Jagdish Prasad Mahesh Prasad
(Defendant 3) (Defendant 2)
3. In November, 1913, Ram Sahai having died previously, Debi Din and his three surviving sons Ram Charan, Ram Prasad and Ram Sarup divided the family property by a private partition. Properties entered at (a) and (b) of list A attached to the plaint were allotted to Ram Charan and that at (c) was allotted to Ram Sarup.
4. Ram Charan died in November, 1917, and was succeeded by his widow Srimati Tulsha alias Ban Bahu who is defendant No 5 in this suit. She transferred half of the property of item (b) and whole of item (a) to Ram Sarup purporting to do so under the oral will of her deceased husband. The remaining half of item (b) she transferred by the same deed to Shiam Bihari and reserved to herself a maintenance allowance of Rs. 15/- P. M. which she made a charge upon all the properties transferred.
5. Ram Sarup died in 1923 and was succeeded by his minor son Shiam Manohar who also died six months later and therefore the plaintiff Srimati Ram Piari alias Chhoti Bahu became the owner of half of item (b) and item (a) and item (c). By the deedEx. 3 dated 15-12-1924, she surrendered all her rights in favour, of her mother-in-law Srimati Tulsha reserving to herself a right of residence and a sum of Rs. 20/- P. M. for. her maintenance. This allowance was made a charge upon the property conveyed by her to her mother-in-law.
6. On 19-2-1926 Srimati Tulsha executed a deed, Ex. 4, relinquishing the property surrendered by Srimati Ram Piari, the plaintiff, in favour of her husband Debi Din who became the owner of it subject to the charge.
7. On 1-5-1930 Debi Din executed a will by which he made arrangements for the entire property then owned by him. This will is Ex. All, Therein he recites that there is no co-sharer in the property which he was bequeathing and since it was necessary to make arrangements of his property so that there may be no disputes after his death between his heirs and dependants he executed that deed. Shortly after the execution of the will Debi Din died. Shiam Bihari also died in 1940.
8. On 12-12-1946, Ram Piari instituted this suit out of which this special appeal arises for recovery of Rs. 1,900/- at the rate of Rs. 20/- per mensem from 1-12-1938 to the date of suit under the deed of relinquishment executed by her. She impleaded all the members of the family who were then alive and also the subsequent transferees but later on the two sons of Debi Din's daughter were exempted.
9. According to the plaintiff the sum of Rs. 20/- per mensem continued to be a charge on the property which she conveyed to her mother-in-law and which later on was in turn first transferred to Debi Din and then to other members of the family and therefore she was entitled to a sum of Rs. 20/-per mensem which had not been paid to her.
10.. On behalf of the defendants it was contended that since Debi Din had made full provision of the maintenance of Srimati Rani Piari by giving her property worth Rs. 1,50,000/- no charge remained on the property and since the plaintiff accepted the will she was not entitled to make any claim.
11. The suit was dismissed by the trial court but the lower appellate court allowed the appeal and set aside the decree of the trial court and decreed the plaintiff's suit. A learned single Judge of this Court in second appeal again allowed the appeal, set aside the decision of the lower appellate Court and restored that of the trial court. Against that decision this appeal has been filed.
12. The sole question that arises in this appeal is whether by that will the charge was removed or not.
13. Learned Counsel for the appellant argues that as there is no mention of the charge in the will itself therefore it docs not appear from the will that the legacy was meant as a satisfaction of that debt and therefore the creditor, i.e., the plaintiff was entitled to the legacy as well as to the amount of the charge. Reliance was placed by the learned Counsel for the appellant on Section 177 of the Indian Succession Act.
14. Relying on the decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao it was further argued that it should be the words of the will which should be interpreted and no extraneous evidence or circumstances should be taken into consideration in interpreting the will as the will was unambiguous and clear. In the above case their Lordships oE the Privy Council had relied, among other English cases, on Roddy v. Fitzgerald (1858) 6 II.L.C. 823 (876) wherein it was observed :
'These rules are perfectly plain and clear. The first duty of the Court expounding the will is to ascertain what is the meaning of the words used by the testator. It is very often said that the intention of the testator is to be the guide, but that expression is capable of being misunderstood, and may lead to a speculation as to what the testator may be supposed to have intended to write, whereas the only and proper inquiry is, what is the meaning of that which he has actually written? That which he has written is to be construed by every part being taken into consideration according to its grammatical construction and the ordinary acceptation of the words used, with the assistance of such parol evidence of the surrounding circumstances as is admissible, to place the Court in the position of testator.'
15. It was contended by the learned Counsel for the appellant that the learned single Judge in this case has speculated as to what the testator is supposed to have intended to write and he has not interpreted the will as it should have been interpreted. The points taken by the learned single Judge in consideration in deciding the case was that the testator intended to provide Shiam Bihari with aGuzara and if this amount is also a charge on the property his Guzara would be reduced practically to a nominal sum. The second consideration was that since he had made full provision for maintenance in the will, much better provision than what she had by means of a charge of Rs. 20/-, therefore the testator must have been supposed to have given the legacy in lieu of the debt. Learned Counsel for the appellant argued that these are considerations which are speculative and beyond the power of the Court to go into.
16. Reliance has further been placed on a decision of the Bombay High Court in Pestonji v. Framji 8 Ind Cas 180 where while interpreting Section 177 which was then equivalent to Section 164 of the Indian Succession Act it was laid down :
'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 seems to have been given to this principle by the language of Section 164 of the Indian Succession Act.'
It may be mentioned that Section 177 is directly opposed to the principles of interpretation on this point under the English law where if one, being indebted. to another in a sum of money, does by his will give a sum of money as great as, or greater than, the debt, without taking any notice at all of the debt, this shall nevertheless, be in satisfaction of the debt and the legacy. While Section 177 says that unless there is something in the will itself from which it appears that the legacy was meant as a satisfaction of the debt the creditor is entitled to the legacy as well as to the amount of the debt.
17. In the present case it is true that the amount which has been given to Srimati Ram Piari is far greater an amount than the charge of Rs. 20/-pcr mensem, but from this if we are going to conclude that it must be inferred, that the testator did not intend to pay the debt also, it would be in effect giving effect to the principles of English law and not to the language of Section 177.
18. 8 Ind Cas 180 (Bom) was very much akin to the present case. There the testator owed the legatee a sum of Rs. 1,500/-. This sum was not carrying any interest and that in lieu of interest the legated was residing in the house referred to in the will. By the will the testator provided that his trustees were to give to his brother, Pestonji Framji Mistri, Rs. 1,500/- namely fifteen hundred, without interest and they were to get him to vacate the place in his house, which he then occupied. Since there was no mention in the will that it was in lieu of the money which the testator owed to the legatee that he was giving this amount, though the amounts, were identical and though the sum given to his brother was not carrying interest and it appeared that this amount was given in lieu of the vacation of the premises, yet the learned single Judge held that since from the will itself it did not appear so, it was not open to go beyond the will. The Court was very reluctant in that case to give that decision. So are we, in the present case. Merely from the fact that a large amount was given for Guzara we cannot infer that it appears from the will that the legatee (testator-sic) wanted to discharge the debt by giving the legacy,
19. The appeal is therefore, allowed and thedecree of the learned single Judge is set aside andthe plaintiff's suit is decreed but in the circumstancesof the case the parties will bear their own coststhroughout.