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Sansar Chand Vs. Mt. Durga Dasi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All93
AppellantSansar Chand
RespondentMt. Durga Dasi
Excerpt:
- - if the two ladies, my successors, are pleased with sansar chand they can give the property to him or do as they like. in the present case, the word 'malik,'used in the earlier part of the clause quoted above, if it had been uncontrolled by any other words in the context, might have been rightly construed as conferring an absolute estate on the two ladies, but the sentences which follow very clearly indicate that the words 'malik' and 'qabiz' were used by the testatrix in a limited sense. the only extent to which the legatees can transfer the property bequeathed to them is clearly specified in the will. the word 'only' clearly limits the power as regards transfer. the plaintiff is clearly entitled to a declaration that the mortgage deed and the decree passed on foot thereof are void..........collateral in the male line of hakim suraj singh, who had three wives, sardha devi, mathuri and durga dasi, whose names have been mentioned above in the order of seniority. suraj singh made a gift in favour of mt. sardha devi in respect of, his entire moveable and immoveable property on 12th november 1877. it is common ground that the gift was given effect to and mt. sardha devi remained in possession of the property gifted to her till her death. suraj singh died sometime before 1883.2. the exact date of his death is not material. by a will dated 16th march 1883, mt. sardha devi made certain dispositions in favour of her two co-widows (mathuri and durga dasi) and the plaintiff (sansar chand). the construction of this will is the principal question involved in this case. according to.....
Judgment:

Niamatullah, J.

1. This appeal has arisen from a suit brought by the plaintiff-appellant for a declaration that the decree passed in suit No. 12 of 1923 in favour of defendant 2 against defendant I for sale of certain property is void as against the plaintiff. The plaintiff, Pt. Sansar Chand is a male collateral in the male line of Hakim Suraj Singh, who had three wives, Sardha Devi, Mathuri and Durga Dasi, whose names have been mentioned above in the order of seniority. Suraj Singh made a gift in favour of Mt. Sardha Devi in respect of, his entire moveable and immoveable property on 12th November 1877. It is common ground that the gift was given effect to and Mt. Sardha Devi remained in possession of the property gifted to her till her death. Suraj Singh died sometime before 1883.

2. The exact date of his death is not material. By a will dated 16th March 1883, Mt. Sardha Devi made certain dispositions in favour of her two co-widows (Mathuri and Durga Dasi) and the plaintiff (Sansar Chand). The construction of this will is the principal question involved in this case. According to the plaintiff the will conveyed a life interest to Mts. Mathuri and Durga Dasi with remainder to the plaintiff, Sansar Chand. According to the contesting defendants, Sansar Chand acquired no interest, vested, or otherwise, except in case Mts. Mathuri or Durga Dasi made any transfer in his favour.

3. The circumstances which led to the institution of the suit which has given rise to this appeal were that Mts. Mathuri. and Durga Dasi executed a deed of simple mortgage in favour of Karta Kishen, the husband of defendant 2, on 8th March 1911, and that after the death of Karta Kishen, his widow, defendant 2, obtained a decree for sale of the mortgaged property on foot of the aforesaid mortgage. This decree was passed in suit No. 12 of 1923. Sansar Chand, the plaintiff, then instituted the present suit for a declaration that the aforesaid decree was void against him, claiming to be entitled to the interest of a remainder man in the property which originally belonged to Suraj Singh and which was gifted by him to Mt. Sardha Devi. As already stated, the decisive question in the case is the right construction of the will executed by Sardha Devi on 16th March 1883. The learned Subordinate Judge held that the two co-widows of Sardha Devi acquired an absolute interest in the property and that the plaintiff, Sansar Chand took no interest under the will either in the lifetime of the two ladies or after their death. The material portion of the will is as follows:

After my death the aforesaid ladies (Mathuri and Durga Dasi) shall be owners and possessors o my property (malik wa qabiz honge) and they will have power to sell and mortgage (the property) for charity and maintenance (khuro nosh) and etc. The power to manage and to transfer shall be only for charity and maintenance and shall be possessed by Durga Dasi. It will not be necessary for her to obtain the permission of Mathuri. Whatever property is left after expenditure on charity and maintenance will belong to Sansar Chand, son of Ugar Sen, as owner (malik). If Durga Dasi dies before (Mt. Mathuri) then this will shall be considered to be in favour of Mt, Mathuri; and if Mt. Mathuri dies before (Mt. Durga Dasi), then this will shallbe considered to be in favour of Mt. Durga Dasi. If the two ladies, my successors, are pleased with Sansar Chand they can give the property to him or do as they like.

4. One of the elementary rules of construction is that the document to be construed should he read as a whole. It is not permissible to single out one clause and to hold on the strength of it and without reference to other clauses, that the interest conferred upon the legatee was that of an absolute owner, and then reject other clauses, which follow and which materially qualify the earlier clause, on the ground that they are repugnant to full ownership conferred by the earlier clause The cumulative effect of all the clauses should be considered to ascertain the intention of the testator. In the present case, the word 'malik,' used in the earlier part of the clause quoted above, if it had been uncontrolled by any other words in the context, might have been rightly construed as conferring an absolute estate on the two ladies, but the sentences which follow very clearly indicate that the words 'malik' and 'qabiz' were used by the testatrix in a limited sense. The only extent to which the legatees can transfer the property bequeathed to them is clearly specified in the will. They are to transfer only when it is necessary, for charitable purposes or for providing themselves with maintenance. Stress is laid upon the word 'waghera' after the words 'khuro nosh' and it is argued that the legatees are authorised to transfer not only for charitable purposes and maintenance, but also for all other purposes, as is indicated by the word, 'waghera.' We are unable to accept this contention. The word 'waghera ' follows the words 'khuro nosh,' which signify food and drink, and the word 'waghera' is merely intended to enlarge the significance of the words 'khuro nosh' so as to include not only food and drink but also other necessities of life such as clothing. The word 'waghera,' in our opinion, in the context in which it occurs, was not intended to confer a general and absolute power of alienation. Taking the entire clause in which the power to alienate has been specified, we have no doubt that the testatrix intended to confer a limited power of alienation. In one of the sentences in which Mt. Durga Dasi is authorised to act independently of Mt. Mathuri, it has been expressly stated that she would have power to transfer only for the purposes of charity and maintenance. The word 'only' clearly limits the power as regards transfer. It was also argued before us that the plaintiff Sansar Chand's right under the will is neither vested nor contingent and has been left to the will of the two ladies who are to determine whether he should succeed or not; and it is only if he survives the ladies and they leave a will in his favour that Sansar Chand can succeed. Reliance is placed in this connection on the clause empowering the ladies to 'give' the property to Sansar Chand or do as they please. This argument takes no account of a preceding clause in which there is a clear provision that, after the death of the two ladies, whatever property is left will belong to Sansar Chand as full owner. If it is possible to read the two clauses consistently, such reading is to be adopted. The reading suggested by the contention referred to above makes the two wholly inconsistent. In our opinion, what the testatrix intended was that Sansar Chand would be the full owner of the property after the death of the widow, except such of it as might have been transferred for charitable purposes and maintenance; but that if the legatees desired to give the whole or part of it to Sansar Chand in their lifetime, they were at liberty to do so.

5. In other words, the limited power of alienation previously given has been enlarged if it is to be exercised in favour of Sansar Chand. In the absence of any power to transfer, except for purposes specified in the clause, the legatee would have had no power to give the property even to the remainder man. Therefore it has been made clear that if the legatees so desire, they can accelerate the estate in favour of Sansar Chand. The construction suggested on behalf of the respondents and accepted by the learned Subordinate Judge makes a number of important words occurring in the will wholly redundant. If it had been the intention of the testatrix to confer an absolute estate with unfettered power of alienation, there was no necessity for her to specify the purposes for which they could transfer the property. The provision that the legatees may transfer for charitable purposes and for maintenance would become, in that view, wholly superfluous. Moreover such a construction would militate against the clause in which it is laid down in so many words that the legatee shall have the power of transfer only for charitable purposes and for maintenance. Having carefully considered the entire will the arguments addressed to us and the judgment of the learned Subordinate Judge, we have arrived at an unhesitating conclusion that the will conferred a limited estate on Mts. Mathuri and Durga Dasi with remainder to Sansar Chand. It has not been suggested that the object of the mortgage made by the two ladies in favour of the husband of defendant 2, was to raise money for charitable purposes or for maintenance of any of the two ladies. This being so, it was not warranted by the terms of the will under which the mortgagors claimed. The plaintiff is clearly entitled to a declaration that the mortgage deed and the decree passed on foot thereof are void as against him. Accordingly we allow this appeal, set aside the decree appealed from and decree the plaintiff's suit with costs.


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