1. We are of opinion that the construction put upon the Will of Chhotepuri by the learned District Judge is correct. By his Will the testator gave to the appellant 3 hiswas, 13 biswansis, 1 ndnaivansi, 14 1/2 anwansis of zamindariproperty comprised in certain pattis in the village of Hariha, the numbers of which are stated in the plaint. These pattis are described as being in the separate possession of the testator. In addition to the property so described, the testator was entitled to property in other villages and also to shamlat pattis in the; village of Hariha. These shamlat pattis in the khewats have numbers assigned to them, different and distinct from the numbers of the pattis specifically ffiven to the appellant. The pattis given by the testator by his Will are as pattis and they alone are assessed to revenue. The shamlat pattis are owned in shares by proprietors of asli pattis in common, and are not assessed to revenue. The Court of first instance held that under the bequest in the Will the testator's interest in the shamlat pattis, which belonged to him, passed to the donee. But upon appeal the learned District Judge reversed this decision and held, in view of the specific and clear language of the Will, that only the asli pattis, described therein, passed to the appellant.
2. We have carefully considered the language of the Will and there, is nothing to lead us to think that the testator intended to dispose of the shamlat pattis in which he was a co-sharer with others. The asli pattis, described therein, are given in specific terms and there are no general words such as 'with the appurtenances' or 'lands appertaining thereto' to justify us in holding that the testator intended to dispose of his shares in the shamlat pattis or any land outside the asli pattis. It is a well-settled canon of construction that where a given subject is devised and there are found two species of property, the one precisely corresponding to the description in the devise and the ether not completely answering thereto, the latter will be excluded. Here the asli paltis precisely correspond with the description in the gift and the shamlat pattis in no way answer to that description and a portion in the shamlat pattis is excluded. The presumption, which arises in favour of testacy, has no application in this case, because the testator had property in other villages, and as to that propel by he certainly intended to die in testate, as there is no reference in his Will to any property whatsoever save and except the asli pattis in the village of Hariha.
3. For these reasons, we dismiss the appeal with costs including in this Court fees on the higher scale.