1. Two points have been raised in this appeal: one relates to the interpretation of a document and the other to a question of fact. The question of fact is whether a certain oral gift did take place or not, and the finding on the point given by both the Courts below is that there was no such gift. This is a finding of fact and the reasons given by the Courts below are satisfactory. We do not propose to go into the evidence even if we could. This point clearly fails.
2. To appreciate the first point it will be necessary to state the facts in some detail. They are these: One Tahar-ud-din had children by two wives. By one wife, who was dead in 1877 there was a son Noor-ud-din and by the other wife, Mt. Mashkur-un-nissa, he had two children: a son Mahbub Ahmad and a daughter Mt. Arjumand Khatun. Mahbub Ahmad's daughter is the appellant before us, and she was the plaintiff in the First Court. Arjumand Khatun was the defendant in the Court of first instance and is the respondent in this Court. It appears that a dispute arose as to the dower debt of the two wives of Tahar-ud-din. Noor-ud-din claimed the dower of his deceased mother and Mashkur-unnissa claimed her own dower. A certain gentleman was chosen to arbitrate and he made an award on the 28th of April 1877, and this is the document which we have to interpret. By this award the arbitrator divided the property in three classes. In Class No. 1 he set apart those properties which belonged to Noor-ud-din in his own right. We have nothing to do with these properties. Then he divided the properties which belonged to Tahar-ud-din alone into two equal shares and declared that one share should be taken by Noor-ud-din and the other by Mt. Mashkur-un-nissa. He said that these two people, namely Noor-ud-din and Mashkur-un-nissa were, to be the owners of the two halves respectively. Then follows the list of properties and then come certain provisions which are to be interpreted. Mashkur-un-nissa, it was declared, was to have no right to transfer the property given to her. Then it was said that the property given to her was to remain for the benefit of her children and she was to manage the property during their minority. Then comes another provision and it is this: that out of the children of Mt. Mashkur-un-nissa the property ought to go to the male children, provided the male children performed the customary duties which fall on brothers towards their sisters. It was provided that in case the male children failed in their duties the female children would have a right to obtain their usual shares according to the Muhammadan Law.
3. Tahar-ud-din died many years ago and Mashkur-un-nissa died some time about 1900 A.D. Mahbub Ahmad died in 1921. On the death of Mahbub Ahmad, his daughter brought the suit, out of which this appeal has arisen, for a declaration that she was the owner of the entire property which once belonged to Mashkur-un-nissa being, the one-half of the property that once belonged to Tahar-ud-din. She tried to make out her case like this: According to the award, the entire property, that had been set apart for Mashkur-un-nissa, went to Mahbub Ahmad. Mahhub Ahmad was in possession of this entire property during his lifetime. Before his death he became a Shia and made a gift orally of the entire property to his own daughter, the plaintiff. The appellant's case, therefore, was that Mahbub Ahmad being a Shia his entire property went to his daughter although under the Sunni Law only one-half share would go to her, the other half going to his sister, Arjumand Khatun. The second string to the bow was that Mahbub Ahmad made an oral gift of the entire property to her. This claim was opposed by Ajumand Khatun and she said that she got her legitimate one-third share on the death of her mother and that she was in possession of that property. She denied that he had ever made a gift to his daughter.
4. The Courts below have found that Mahbub Ahmad never became a Shia and, as already stated, have also found that there was no oral gift in favour of the plaintiff. Now there remains the question of the interpretation of the award. It had to be admitted by Mr. Aziz, who has very ably argued the case on behalf of the appellant that in the award the same word 'malik' has to be taken as having been used (according to his own interpretation) in different senses at different places. But assuming that Mr. Aziz's interpretation of the award is correct it does not follow in the circumstances that his client is entitled to any relief at all. According to Mr. Aziz's interpretation, Mahbub Ahmad would become entitled to the entire property given to his mother by Tahar-ud-din in lieu of her dower only in case he performed all the duties that were 'customary to be performed by a brother towards his sister.' According to the interpretation of Mr. Aziz, these duties would involve the marrying away of the sister, performing her gauna and other customary duties and so forth. We have already stated that Mashkur-un-nissa died in 1900. It has been found that on the death of Mashkur-un-nissa, who had been recorded as the sole owner of the property, the property was recorded in the names of her two children. Mahbub Ahmad 2/3rds and Arjumand Khatun 1/3rd. This would mean that Arjumand Khatun got her share according to the Mahomedan Law and that Mahbub Ahmad, for the space of 20 or 21 years, never objected to Arjumand Khatun being recorded as being in possession of her legitimate share. We have to see what actually happened in the year 1900. At that date, both Mahbub Ahmad and Arjumand Khatun were majors, presumably Arjumand Khatun had already been married. Whether the brother and sister would take their shares according to the Mahomedan Law, or not depended on whether or not Mahbub Ahmad was, (accepting the interpretation of Mr. Aziz), prepared to shoulder the responsibilities and the duties imposed on him by the award. We find it is to be the fact that, immediately on the death of Mashkur-un-nissa, the brother and sister divided the property. This division would be entirely in accordance with one aspect of the award and quite consistent with its terms. It is now too late in the day to say that, although Arjumand Khatun was recorded as the owner of 1/3rd share in the property, it must be taken that she was recorded only for the purpose of consolation and that she never obtained any profits out of the property. We must remember that under the Mahomedan Law Arjumand Khatun was entitled, as of right, to this share and the award would give her that right in certain circumstances. We have no evidence either way as to whether the circumstances which would give Arjumand Khatun her legitimate share did happen or not. Accepting, therefore, the interpretation given by Mr. Aziz, it does not follow that the appellant is entitled to succeed.
5. Mahbub Ahmad's share (being 2/3rds) would go, half to his sister and half to his daughter. This is exactly what has been found by the Courts below.
6. The result is that the appeal fails and it is hereby dismissed with cost including counsel's fees in this Court on the higher scale.
7. I agree. The facts are set out in the judgment of my learned brother. The document, the award, which we are asked to interpret in the plaintiff's favour has been found by both the Courts to be unsusceptible of any clear interpretation beyond the single fact that it allotted half of the property of Tahar-ud-Din to each side of the family. We are only concerned with the half allotted to the side of Mashkur-un-nissa. Both the Courts have given valid reasons for holding the document to be inoperative, beyond the extent to which I have stated, owing to ambiguity. I would add one further reason. It is clear that prima facie, at any rate, the same meaning must be given to the same word throughout the document unless there be some very good reason justifying the attribution of different meanings. Now in this document the word 'malik' occurs no less than three times. In the first place it is used as descriptive of the rights conferred on Mashkur-un-nissa. In the second place it is used to describe the rights conferred on all the children. In the third place it is used to describe the rights conferred only on the male children who are to provide properly for the female children whose 'hisse sharaee,' are to revive if the male children do not properly provide for them. The plaintiff urges that the word 'malik' was used in reference to the rights of Mashkur-un-nissa only at the point where the arbitrator was considering the single question of the distribution of the property in the proportions of one half to one branch of the family and the other half to the others; and that he had not in mind, when using the phrase in connexion with the rights of Mashkur-un-nissa's branch, any question relating to the rights of Mashkur-un-nissa and her children inter se. This is not an unreasonable suggestion and might possibly furnish ground for attributing a different meaning to the word 'malik' where it is first used from its meaning where it is used subsequently. But this does not carry the plaintiff's case far enough. To make the document intelligible he must reconcile also the use of the word 'malik' in the second place where it is used to describe the rights of all the children with its use in the third place where it is used as descriptive of the rights of the male children only apart from the female children. These two uses can only be reconciled by holding that the use of the word as descriptive of the rights of the male children only is followed by the use of the words 'hisse sharaee' as descriptive of the slumbering rights of the female children and that the two phrases together really amount to conferring the rights of 'malik' on all the children. In that sense the use of the word 'malik' in the third place qualified by the words. 'hisse sharaee' as descriptive of the slumbering rights of the females might conceivably be equivalent to the use of the word 'malik' in the second place as descriptive of the rights of all the children. But it would not help the plaintiff to give to this document interpretation that all the children became 'malik,' nor, if it would help the plaintiff, could I hold myself justified in putting such a subtle construction on the words of the document.
8. Before I can hold that the ordinary law governing the succession to this property has been superseded by the document I must be able to find a clear intention manifested in the document. In Ancaster v. Mayer  1 Bro. C.C. 455, Lord Thurlow, the then Lord Chancellor, after holding that, while in construing a Will personal estate was primarily liable to testator's debts, a testator could provide otherwise, not necessarily by express words but at least by 'a declaration plain,' continued:
If there be a declaration plain or manifestation clear, so that it is apparent, upon the face of the Will, that there is such a plain intention, the rule then is, not to disappoint, but to carry such intention into execution.
9. His Lordship then proceeded to hold that he could find no such 'declaration plain' in the sense in which those words were always to be used, and held that the ordinary rule of law must apply. Those words have been constantly relied upon in later cases and the view so stated affirmed. In Brydges v. Phillip  6 Ves, Jur. 567 Sir William Grant, Master of the Rolls, said:
I rather conjecture, that the testator did intend, that the real estate he had set apart should be devoted to the payment of his debts. I could not be certain that I might not be mistaken even in privately supposing that: but there is no ground upon which I can judicially collect a settled intention.
10. I find myself in a similar position in regard to this document that, while there are some grounds for holding a particular view of what may have been the intention of the arbitrator, I find 'no ground upon which I can judicially collect his settled intention' beyond the fact that he meant half of the property to go to one branch of the family and half to the other and that matter is not in dispute before us.
11. I see, therefore, no justification for a departure being made from the ordinary rule of succession according to which it is properly admitted by counsel for the plaintiff that his client would only be entitled to the 1/3rd of half the property allotted to her branch of the family by the arbitrator which 1/3rd she has obtained from the lower Courts. I would, therefore, agree in dismissing the appeal.