1. This appeal has arisen from a suit for declaration brought by plaintiff 1, Mt. Chhatarpali, claiming to be the daughter of one Moti Rawat, and her two sons, plaintiffs 2 and 3, challenging certain alienations made by Mt. Kalap Dei, defendant 1. Her alienees, thirty-two in number, are also arrayed as defendants. The lower Court dismissed the suit. The present appeal is by the three plaintiffs. The following-pedigree will explain the position of the parties:
Moti Rawat--------------------------------------------| | |Mt. Delwa Mt. Mendha Mt. Kalap Dei,(1st wife) (2nd wife) (3rd wife)| childless. defendant 1,|----------------|-----------------------------| |Mt Ghhatarpali Mt. Dhanpali(disputed) (died childless)plaintiff 1.|----------------|-----------------------------| |Ram Charittar Ram Asareplaintiff 2 (minor)Plaintiff 3.
2. Moti Rawat died some time in November 1906 at Ajudhia in the Fyzabad district, where he is said to have gone, not long before his death, accompanied by his third wife, Mt. Kalap Dei (defendant 1), and his daughter, Mr. Dhanpali. Parties are not agreed as to the object of his visit to Ajudhia. According to the plaintiffs, he was very old and in feeble health, and like a devout Hindu, went to the sacred place of Ajudhia to die; while according to the defendants he had gone there on a pilgrimage and died of cholera. It is common ground, that his daughter, Dhanpali, also died the same day. His three wives admittedly survived him.
3. Mt. Kalap Dei claimed mutation of names in respect of the zamindari property left by Moti Rawat on the strength, of a will, dated 5th November 1906, alleged to have been executed by Moti Rawat at Ajudhia. The will leaves practically the whole of Moti Rawat's property to Mt. Kalap Dei (defendant 1) with a chance of succession in favour of his daughter Dhanpali subject to a provision for the maintenance of his other two widows. The latter objected to mutation of names being made in favour of Mt. Kalap Dei. A compromise was arrived at between the parties to the mutation case under which Mt. Kalap Dei agreed to pay Rs. 100 a year to each of her co-widows in consideration of the latter relinquishing their claim to the property of their deceased husband. Accordingly mutation of names was effected in favour of Mt. Kalap Dei. It is not disputed that she has been in possession of her husband's estate and made no less than three gifts to her brother's sons and daughter and to a karinda named Parbhu Nath Dube, defendant 32, and executed a hypothecation bond in favour of Hubdar Chaudhri, since deceased, father of defendants 5 to 7, and another hypothecation bond in favour of defendants 29 to 31. She also executed a taqsimnamah (deed of partition) in favour of certain other defendants. The other two widows of Moti Rawat have since died and do not appear to have ever challenged the right of Mt. Kalap Dei after the compromise to which a reference has already been made. The present suit was instituted on 1st June 1927, by plaintiff 1, who claims to be the daughter of Moti Rawat and, as such, entitled to a reversionary interest in the property left by him. Her two sons claim to be the ultimate reversioners after the termination of the life estates of Mt. Kalap Dei and their mother. The plaintiffs impugn the genuineness of the will relied on by the defendants, and contend that, in any ease, the will confers no more than a limited estate on plaintiff 1. They challenge all the alienations made by defendant 1, and claim a declaration that the same are not binding on the plaintiffs and other reversionary heirs of Moti Rawat. They also prayed for the appointment of a receiver in respect of two of the properties in dispute. The suit was contested by Mt. Kalap Dei, defendant 1, and her alienees, the other defendants. They denied that plaintiff 1 is the daughter of Moti Rawat, but admitted that the other two plaintiffs are the sons of plaintiff 1. They maintain that the will, purporting to have been executed by Moti, is a genuine document and confers an absolute estate on the legatee, namely Mt. Kalap Dei, defendant 1. Legal necessity in respect of all the transactions impugned by the plaintiffs is pleaded.
4. The learned Subordinate Judge in whose Court the suit was instituted, found that Mt. Chhatarpali, plaintiff 1, is the daughter of Moti Rawat, that the will set up by the defendants had been validly executed by Moti Rawat and confers an absolute estate on Mt. Kalap Dei. On these findings he dismissed the plaintiffs' suit. He also recorded findings on the validity of the transactions, impugned in this case, which we shall notice at an appropriate place in our judgment. The defendants have challenged,' in a cross-objection, the finding of the learned Subordinate Judge that plaintiff l is the daughter of Moti Rawat. The whole case was thus re-opened in appeal.
5. On the question whether Mt. Chhatarpali is the daughter of Moti, the most important evidence is that of Chhatarpali herself. She was subjected to a. lengthy cross-examination as regards the particulars of Moti's house and his affairs. She has given satisfactory replies to most of the questions put to her. It is highly improbable that an illiterate woman like Mt. Chhatarpali could have been so tutored as to answer all the questions relating to the affairs of a man who was not related to her at all. The defendants were not able to suggest in the course of the trial, particularly when, Mt. Chhatarpali was in the witness-box as to who was her father according to them. It is said that the defendants,, who are strangers to the family of Chhatarpali's father, could not know his name. This explanation is not convincing. If it is a fact that Mt. Chhatarpali. is the daughter of someone other than, Moti, the defendants could have easily ascertained it by making enquiries. There are numerous other witnesses who-have given evidence on behalf of the. plaintiffs and who are in a position to-know, if it is a fact, that Mt. Chhatarpali is the daughter of Moti. Moti's. ancestral house was in village Parsohia. A number of witnesses from that village, have definitely deposed that Mt. Chhatarpali is the daughter of Moti. The patwaris of village Parsohia and other villages in which Moti had an interest also supported the plaintiffs' case.
6. As far back as 1909 Guman Chaudhuri made a statement in a certain case to which Moti's brother Binda was a party. Guman stated on that occasion that one of Moti's daughters was Chhatarpali. He has been examined as a witness in the present case and was confronted with his previous statement; but he attempted to wriggle out of it by saying that he had stated in the previous case from information received from Binda. Assuming this is true, Binda's declaration as regards the relationship between his brother and Chhatarpali is admissible, Binda being dead. The statement was made at a time when there was no dispute regarding the relationship which is now in question. It is clear to us that Guman, who is now under the influence of some of the defendants, tried to undo the effect of his statement and to help the defendants so far as he could. The learned Subordinate Judge relied upon the statement of one Mt. Bauna, who is closely related to Mt. Kalap Dei's brother. She had stated in a case in 1920 that Mt. Chhatarpali was the daughter of Moti. Mt. Bauna has not been examined, though she is alive; and it is doubtful if her statement is admissible in evidence. We do not therefore take her statement into consideration in arriving at our finding.
7. The witnesses examined by the defendants on this part of the case do not give satisfactory evidence. The learned Subordinate Judge, before whom they were examined, has disbelieved them; and in our opinion he was right in doing so. Apart from the fact that they are under the influence of the defendant, their evidence when opposed to that of the plaintiffs witnesses is unworthy of credit. Accordingly we hold, in agreement with the lower Court, that Mt. Chhatarpali is the daughter of Moti.
8. The most important point in the case is the construction of the will. It recites that the testator was very much pleased with his third wife, Mt. Kalap Dei, and was displeased with the other two, and goes on to provide that the testator would remain the owner (malik) of all his moveable and immoveable property during his lifetime and that after him his third wife.
will be the permanent owner (in the officia translation the words 'malik mustaqil' have been translated as absolute owner but the correct translation is as we have given) of all moveable and immoveable property, cash, things, zamindari, groves, sair items, etc., and she will be at liberty to have her name recorded in the public papers in respect of all the property by virtue of this document and to remain in possession and enjoy, the profits thereof. If Mt. Mendha, the first wife, and Mt. Delwa, the second wife, will survive me and have any children, the said executor will be bound to maintain them as I would have done, and the said Mussammats and their children shall also be bound to obey Mt. Kalap Dei with their heart. They should content themselves with whatever cash Mt. Kalap Dei would give them for their maintenance; should they claim anything contrary to this, their claim would be considered to be false. The Musammat will also have power to declare Mt. Dhanpali, daughter of Mt. Delwa, as her executor and successor. After the death of Mt. Kalap Dei, Mt. Dhanpali, my daughter, will have the same powers as Mt. Kalap Dei will have. Everyone will be bound to maintain the property and not to waste and destroy it, but Mt. Kalap Dai can mortgage and sell the property for lawful necessity. Should anyone, after the execution of this document, bring any claim against Mt. Kalap Dei, the said executor, or her heirs and representatives and successors, in respect of the moveable and immoveable property, it would be considered to be false and invalid in the face of this document.
9. It was argued before us on behalf of the defendants that the clause conferring 'permanent ownership' on the legatee should be construed as giving an absolute estate, and that anything repugnant to that clause occurring in subsequent clauses of the will should be rejected. We do not think that this is a proper way of ascertaining the intention of the testator. It is true that the use of the word 'malik' imparts an absolute estate; but it has been repeatedly held by their Lordships of the Privy Council that it is not a term of art and that its real significance should be considered in the light of the setting in which it occurs. If there is nothing in the context to indicate a contrary intention, the word 'malik' certainly denotes full ownership; but it is consistent with a limited estate if it is controlled by other clauses in the will. We are of opinion that the method of construction suggested on behalf of the defendants is open to objection. The will should be construed as a whole, and we should not take the clause in which the words 'permanent owner' occur as standing by itself, and record a finding that an absolute estate has been conferred upon the legatee and then pass on to other clauses which indicate the contrary and reject them on the ground that they are repugnant to the earlier clause or that they merely express pious wishes of the testator. We think that in the provisions which follow the testator clearly contemplated a limited estate such as is enjoyed by a Hindu widow. The testator has expressed a wish that his daughter, Mt. Dhanpali, should succeed Mt. Kalap Dei. The will is inartistically drawn up. It is in evidence that it was drafted by a petition writer on receipt of instructions from the testator, who was himself an illiterate person. Though the will purports in one sentence to confer a 'power' (ikhtiar) on the legatee 'to declare' Mt. Dhanpali as her successor, which implies that it is open to the legatee to exercise that power or not, yet the sentence which follows is couched in imperative language and provides' that after the death of the legatee Mt. Dhanpali would succeed. Then follows the most important clause in which it is declared that every one (meaning Kalap Dei and Dhanpali) should keep the property intact and not waste or destroy it. The only exception allowed is that Mt. Kalap Dei can mortgage or sell the property for lawful necessity, a power which is denied to Mt. Dhanpali.
10. It seems to us that the use of the word 'malik'. . (the addition of the word 'permanent' does not appreciably enlarge the estate indicated by the word malik')-when taken with the clause already mentioned must be taken to have been used with reference to a limited estate. If an absolute estate was intended to be conveyed by the use of that word, it was not necessary to make a provision empowering her to appoint Mb. Dhanpali as her successor. It should be noted that Mt. Dhanpali was not entitled to inherit from Mt. Kalap Dei as an absolute owner. The testator thought that unless he conferred a power on Mt. Kalap Dei to appoint Mt. Dhanpali as her successor, she would not be able to do so even if she desired. The implication clearly is that her power to appoint a successor is limited to appointing Mt. Dhanpali, which is obviously inconsistent with an absolute estate. Again, the direction that the legatees should maintain the estate intact clearly implies that they were not given a right to transfer, except to a limited extent in the case of Mt Kalap Dei. Reliance was placed on behalf of the defendants upon the last clause in which 'the heirs, representatives and successors' of Mt. Kalap Dei are mentioned. It is argued that this was clearly intended to indicate an estate of inheritance. The literal, meaning of the words certainly connotes those who would inherit her property, if she died intestate, and successors in interest under transfer or devise. It should however be noted that they occur in the concluding part of the will, where the scribes usually add a set formula to all documents, and mean nothing more than declaring that the instrument in which they occur is binding on everyone claiming the estate: against those claiming under it. Turning to the judgment of the lower Court, we observe that the learned Subordinate Judge has placed too great reliance on his own familiarity with the language in which the will is written. He cited the following observation of Wazir Hasan, J., in Jagmohan Singh v. Sheoraj Kuar 1928 Oudh 49:
This will is the will of my countryman and is couched in the language which is my language. I strongly feel that I can say with confidence that the word 'malik' in the setting in which it is placed here means nothing less than the status of a full owner embracing within it and connoting the incidents of an estate of inheritance and of power of alienation.
11. The learned Subordinate Judge says that he is 'tempted to remark the same in this case,' and proceeds to hold:
I think Moti Rawat gave an absolute estate to: Mt. Kalap Dei by using the words 'malik mustakil' and that the expression that she was empowered to mortgage or sell the property in case of legal necessity does not curtail the estate, but has been used simply by way of explanation and amplification of what was implied as an inseparable incident in the status of a malik.
12. (The italics are ours). It may be conceded that familiarity with the language in which a document is written is a distinct advantage to the Judge construing it; but care should be taken to avoid arbitrariness. Where the right construction of a document depends not so much on the meaning of a word which has a somewhat fluctuating meaning, but on the setting in which it occurs, logical deductions are of greater importance, and familiarity with the language in which the document is written does not make any appreciable difference. The meaning of the words malik mustaqil' present no difficulty to our mind; but we are not inclined on that account to make light of the difficulty in construing a document drawn up by an unskilled petition writer on receiving instructions from an illiterate villager, who was himself not conversant with many Persian and Arabic expressions employed by the draftsman. It is in the evidence of Ashiq Husain, the scribe, that
Moti Rawat stated to me what he wanted to write in the 'wasiyatnama.' I made a draft and read it over to him. Whatever is written in the wasiyatnama was told by Moti Rawat. Moti Rawat made his thumb impression.
13. Ashiq Husain admits that he was a total stranger to Moti Rawat. Ashiq Husain gave his evidence years after the execution of the will, and does not naturally state what words were used by Moti Rawat himself in giving instructions. It is in the highest degree improbable that he used the word 'mustaqil.' All we can say is that Ashiq Husain gave effect, to the best of his ability, to the wishes expressed by Moti Rawat in his own language. Ashiq Husain's evidence does not show that anything more than mere reading of the will was done before Moti Rawat put his hand to it. We do not mention these facts to suggest that the will should not be taken to express the wishes of Moti Rawat. All we mean to point out is that in considering the will too great stress should not be laid on any particular word and due allowance should be made in construing the will for the circumstances in which it was drawn up and executed. We must take it that Moti Rawat instructed Ashiq Husain to provide that the principal legatee, Mt. Kalap Dei, should maintain the estate intact and should not transfer it except for legal necessity, and that his daughter, if she succeeded Mt. Kalap Dei, should not have even that power. The learned Subordinate Judge says that this clause is an
explanation and amplification of what was implied as an inseparable incident in the status of a malik.
14. We are inclined to think that the learned Subordinate Judge did not realise the implication of his view expressed in this sentence, which leads to a conclusion diametrically opposite to the one he arrived at. If the testator meant to explain the word 'malik' by making it clear that the legatee can transfer in case of lawful necessity and not otherwise, and should maintain it intact, he must be taken to have conferred only a limited estate. In this view the clause can in no sense be an 'amplification' of the estate previously denoted by the word 'malik'. On the contrary, we think that far from being an 'amplification' it is a limitation on the power prima facie implied in the use of that word.
15. Taking the word 'malik' with the limitation attached to it, we are unable to impute an intention to the testator of conferring a transferable estate on the legatee, nor are we able to appreciate the remarks of the Subordinate Judge that if Moti Rawat had intended to confer a life estate only, he would have expressed himself, in clear language. As against this it is as easy to say that, if he had intended to confer an estate of inheritance he would have expressed himself clearly to the effect that the legatee would have a heritable and transferable estate. No difficulty would have arisen if the testator had been careful in expressing himself more precisely one way or the other.
16. The learned Subordinate Judge lays some stress on what he calls surrounding circumstances, and thinks that Moti Rawat could be anxious only for his three wives and two daughters, that Mt. Chhatarpali being married no provision was necessary for her and therefore made devises only in favour of his third wife and his daughter Dhanpali and provided for the maintenance of the other two wives. Moti Rawat left property yielding ample income for the support of his widows and daughter who was dependent on him. He had himself lived all his life on the income of that property. There was no reason to believe that he considered Mt. Kalap Dei's requirements after his death to be more than what they were in his lifetime, nor is there any reason to suppose that he would have great partiality for his estate eventually going to Kalap Dei's brother's family. We are unable to hold that there is anything in the surrounding circumstances which can lead to the inference that Moti Rawat was anxious to give an absolute estate to Mt. Kalap Dei. The learned Subordinate Judge says that Moti Rawat
went all the way to Ajudhia to give something permanent to his youngest wife Kalap Dei and wanted to do the thing away from his other wives. In such circumstances it is hardly conceivable that he would give only a life estate to Kalap Dei.
17. This is begging the whole question, which is whether Moti Rawat did intend to give an absolute estate to Mt. Kalap Dei. The plaintiff Mt. Chhatarpali, had, at least, one son living at the date of the will. (The age of plaintiff 2, as given in the plaint, was 24 in 1928, and the will was executed in 1906). It is not suggested that he was not well disposed towards Mt. Chhatarpali. The latter was certainly married; but her husband's family does not appear to have ever been in such affluent circumstances as to justify a belief in Moti Rawat that she would not have for his property. It is, to our mind, perfectly natural for Moti Rawat to leave the entire income of his property, which he himself enjoyed, to Kalap Dei and, after her, to his widowed daughter, for their lives, and ultimately to his reversionary heirs including the son or sons of his daughter Chhatarpali. It seems to us that Moti Rawat merely intended that his other two widows should not have equal rights with Mt. Kalap Dei as they would have had in case of his intestacy, and that for that reason he gave the enjoyment of his property exclusively to Mt. Kalap Dei alone. There was no reason for him to make Mt. Kalap Dei, the absolute owner of the property to the detriment of his own daughter's son or sons. For all these reasons we hold that Mt. Kalap Dei acquired no more than a life estate under;the will of her husband.
18. The alienations which Mt. Kalap Dei is said to have made in excess of her powers comprise of gifts referred to in the plaint, two deeds of hypothecation and a 'taqsimnama' or deed of partition. There can be no doubt that the gifts do not convey more than Mt. Kalap Dei's interest and will not be binding on the reversioners. As for the deed of partition, the learned Subordinate Judge has held that, if she has a limited interest only in the property in dispute, it is not binding on the reversioners. He has pointed out that a smaller area was allotted to the share of Mt. Kalap Dei than should have been given to her on a fair partition. We uphold his finding on this point. As regards the deeds of hypothecation, both of which are dated 29th June 1917, one is in favour of defendants 5 to 7, sons of Hubdar Chawdhri, for Rs. 900, and the other is in favour of defendants 29 to 31 for Rs. 300. Both the deeds carry interest at the rate of 25 per cent, per annum, compoundable every year. The plaintiffs challenged the alienations on the ground that there was no legal necessity for the loans and for contracting them at that high rate. It is in evidence that out of the sum of Rs. 1,200 borrowed by Mt. Kalap Dei Rs. 1,087-3-0 was deposited in Court in satisfaction of a decree passed in respect of the debts of Moti. The difference between Rs. 1,200 and that amount must have been spent on stamp and registration. We agree with the lower Court that the entire sum of Rs. 1,200 borrowed under the two hypothecation bonds was taken for legal necessity. The only question is whether there was any necessity for borrowing it at a high rate of interest. Moti Rawat whose debt has been paid off by contracting these loans had agreed to pay interest at 7 per cent, per annum, compoundable every year. The burden of proving legal necessity for the loans at a high rate of interest lay on the mortgagees who have adduced no evidence of any kind to show the circumstances in which Kalap Dei was obliged to borrow at that rate. Accordingly we hold that the estate of Moti Rawat is not bound to pay the stipulated interest. We hold that 7 per cent, per annum, compoundable every year is a fair rate which the mortgages should carry.
19. The only other question that remains to be decided has reference to a grove, No. 1271. The plaintiffs alleged that the grove belonged exclusively to Moti and should not have been dealt with by Kalap Dei as if it were joint property in which Moti's interest was only three-fourths. The lower Court has held that it did not belong exclusively to Moti and that his share therein did not exceed three-fourths. We are satisfied that this finding is correct. The result of our findings is that the appeal is allowed and the plaintiffs' suit is decreed for a declaration that Mt. Chhatarpali is the daughter of Moti Rawat and that the gifts impugned in the suit, the taqsimnama, dated 20th April 1922, and the rate of interest stipulated in deeds of hypothecation, dated 29th June 1917, one in favour of defendants 5 to 7 and the other in favour of defendants 29 to 31, so far as it is in excess of 7 per cent. per annum compound able every six months, are not binding on the plaintiffs. The plaintiffs' claim for appointment of receiver is dismissed. As the plaintiffs' suit has in the main been decreed, but dismissed as regards minor reliefs, we direct that they shall receive 11/12ths of their costs in both Courts. The defendants' cross-objections are dismissed.