1. One Achia Pillai executed a Will, Exhibit A, on 22nd May, 1908, devising his properties to his foster son, Nallakannu Pillai, 1st defendant's husband, and bequeathing some properties to the plaintiffs, his wives, to be enjoyed by them for life. Achia Pillai bought the plaint properties in 1909 and 1913 and died in 1914, Nallakannu Pillai died in 1917. The plaintiffs have brought this suit for possession of the plaint properties. The 2nd defendant is the alienee of the properties from the 1st defendant. The District Munsif held that there was an intestacy as regards the plaint properties; that the plaintiffs, being the widows of Achia Pillai were entitled to the properties and gave a decree in their favour. Both the 1st defendant and the 2nd defendant preferred separate appeals against the decree of the District Munaif. The Additional Subordinate Judge of Tinnevelly held that the plaint properties passed to Nallakannu Pillai under the Will and dismissed the plaintiffs' suit. The plaintiffs have preferred these two second appeals against the 1st defendant and the 2nd defendant.
2. The first question for determination is whether there was an intestacy as regards the plaint properties. The Will is in Tamil and the operative portion of the Will is, 'I have bequeathed my ancestral and self-acquired properties worth Rs. 4,000 and my assets and liabilities (thanarunangal) to the said Nallakannu Pillai. My idea is that the said properties should be enjoyed by me during my lifetime and after my death they should pass on to the said Nallakannu Pillai.' The question is whether the properties acquired after the execution of the Will passed to Nallakannu Pillai under this Will. The Subordinate Judge is of opinion that it was the intention of the testator to bequeath all his properties to Nallakannu Pillai and that, therefore, the Will must be construed in the light of that intention. It is also urged by Mr. Ramachandra Iyer, Who appears for the respondent in Second Appeal No. 688 of 1922, that Nallakannu Pillai was treated as a son and was asked to perform the funeral ceremonies of the testator and of his wives, and that he gave only a life-interest to his widows in some property with reversion in favour of Nallakannu Pillai and, therefore, it must be presumed that the intention of the testator was that all his properties should devolve on Nallakannu Pillai. In construing a Will written in the vernacular and executed by a villager, the Court has to see what the language of the Will is, and in what sense the words in the Will were used by the testator. There is no evidence that the Will was drafted by a solicitor or a lawyer. Aohia Pillai was an ordinary villager of some means in a village in Ambasamudram taluk, Tinnevelly district. Mr. Ramachandra Iyer contended that the word 'thanam' is used as meaning wealth or property and should not be held to mean only outstandings or cash. 'Thanam' is a Sanskrit word and no doubt its literal meaning is wealth. But we have to see in what sense the word 'thanarunangal' is used in the Will. In the first place the testator was not a Brahmin but a Vellala, and in the second place the word 'thanarunangal' is used in contradistinction to the word 'sothu' in the Will. It would not be right to give the words in a document the etymological or the literal meaning and consider such meaning to have been that of the execntant. Where no terms of art are used, the Court should understand the words of the Will as the testator understood them or intended they should be understood. Words have different shades of meaning in different places. The question is, 'What did the testator, a man of the Tinnevelly district and a non-Brahmin understand by the word 'thanarunangal.' The Will gives a clear indication as to what he meant. He devises certain properties to Nallakannu Pillai, describes them in thesohedule to the Will, gives their value and describes them by the word 'sothukkal' and adds the word 'thanarunangal.' The word 'dhanarunam' as used in the Will can only mean outstandings and debts, as it is used in contradistinction to the word 'sothu.'
3. In this connexion Mr. Ramachandra Iyer contended that the word 'sothu' means property and should not be held to mean immovable property. But in the Will, the testator uses the word 'sothu' as meaning immovable property in more than one place. The word ''property,' no doubt, is used in a general sense but when the word sothu is used in describing immovable property, it cannot be said that the testator intended that the word should mean movable as well as immovable property.
4. The District Munsif understood the word 'thanarunangal' as meaning only outstandings and debts. The learned Subordinate Judge has not considered what meaning the word conveyed to the testator. He relied upon the etymological meaning of the word and came to the conclusion that it meant properties, movable and immovable property. The compound word 'thanarunangal' used in the Will can only mean outstandings and liabilities. Whatever may be the meaning of the word 'thanam' when used alone, when it is used in juxtaposition with the word 'runangal' and when it is commonly used as meaning outstandings and debts and when it is also used in the Will in contradistinction to the word 'sothu' meaning immovable property, it is not proper to give the etymological or literal meaning to one portion of the compound word and say that the word means moveable and immovable property.
5. There is no residuary clause in the Will, nor is their any clause to the effect that all the properties that the testator might die possessed of should go to the legatee. It is urged for the respondent that the, intention of the testator was that all the properties should go to Nallakannu Pillai. When there are no words indicating such an intention it is not for the Court to import the intention into the Will. It is not the function of the Court to make a new Will for the testator. The Court is to interpret the Will as it finds it and the intention should be gathered from the language used in the Will and not by anything extraneous to it. By imposing certain intention into the Will which is not there the Court is creating a new Will for the testator and is not construing the Will of the testator. The Subordinate Judge, who remarks in more than one place that there is some imperfection in the language, says that the intention was unmistakably plain and that effect must be given to that intention. The question is how is that intention to be proved. Is it to he gathered from the words used in the Will, or from circumstances outside it? In construing a Will, when there are clear terms in the Will itself, the Court is not entitled to go outside the Will and consider what the intention of the testator must have been. It may be suggested that the will was drafted by a person unacquainted with legal technicalities and that, therefore, some latitude should be given in construing it. But in this case the testator devised specifically certain items of immovable property to Nallakannu Pillai and added that he shall get such properties and outstandings and debts. It is not proper that from the mere fact that Nallakannu Pillai was asked to perform the obsequies of the testator, it should be held that the testator intended to bequeath to him all after-acquired properties.
6. From the statement and the issues it is clear in what sense the defendants and their vakil understood the Will. As remarked by the District Munsif in para. 4 of his judgment the 1st defendant did not claim the property under the Will, but claimed it as being the joint acquisition of her husband Nallakannu Pillai and Achia Pillai. Paragraphs 4 to 7 of the 1st defendant's written statement make it clear that the 1st defendant and her legal adviser did not understand the Will as covering the plaint properties. Issue No. 1 makes it quite clear that the idea that the Will covered the plaint properties was not present to the mind of the vakil at the time when the issue was framed. It is as follows : 'Did the 1st defendant's husband acquire a vested interest in the properties of the plaintiff's husband?' This issue taken along with the paras. 4 to 7 of the 1st defendant's written statement makes it quite clear that the present contention that the plaint properties were devised under the Will to Nallakannu Pillai was not present before the minds of the 1st defendant and her legal advisers. This is some indication as to how the local people understood the Will. Though it would not be a strong circumstance in favour of the construction put upon it by the District Munsif, yet it shows how the local people understood the words in the Will. To show that the testator intended that all his properties should be inherited by his legatee it would not be right to import such an intention into the Will. Whatever might have been the relationship between the testator and the legatee a general bequest in favour of the legatee cannot be implied by the use of the single word 'thanaruaangal.' In the whole of the Will there is not a single word which could import the intention that all the properties of the testator were to devolve on the legatee.
7. In interpreting a Will of this kind the whole of the Will should be looked into for the purpose of coming to a conclusion as to what was meant by the particular expression in the Will. It would not be right to take a single word out of its context and give it the etymological meaning and say that the testator purported to bequeath all his properties to the legatee.
8. The plaintiffs are the widows of Achia Pillai, the testator. There is nothing to show that he did intend that the properties acquired after the execution of the Will should be enjoyed by them for life as Hindu widows. It is not proper to speculate as to what the testator might have intended with regard to the after-acquired properties. But it is quite clear that ha made no fresh Will though he lived for six years after the date of Exhibit A.
9. The Subordinate Judge relies upon the conduct of the plaintiffs in not claiming the plaint property as their's soon after the death of Achia Pillai. It must be remembered in this connexion that the plaintiffs are ignorant women and they lived with Nallakannu Pillai. If Nallakannu Pillai were alive, probably they may not have claimed this property on the ground of intestacy, but that would not prevent them, from claiming such of the properties as were not disposed of under the Will, Exhibit A.
10. Some reliance was placed by Mr. Venkatarayaliah on a case in Jitendra Kumar v. Nritya Gopaul 18 C.W.N. 140. It is not proper that the terms of one document should be interpreted in the light of the words used in another document; but if principles of construction are enunciated in a case, the Court should consider whether they are applicable to the construction of the document before it. In a somewhat similar case in Baikantha Nath v. Kashi Nath (1913) 16 I.C. 553 a Bench of the Calcutta High Court held that the property which was in the possession of the testator when he made his Will did not pass to the legatee. But that case was decided upon the terms of the Will and that is not an authority for holding that under this Will the plaint properties did not pass to Nallakannu Pillai.
11. After a careful consideration of the terms of the Will, I have no hesitation in holding that there was an intestacy with regard to the plaint properties and that the plaintiffs, as widows of Achia Pillai, are entitled to them.
12. The second point is as regards the liability of the plaintiffs to pay a certain amount which was paid by Nallakannu Pillai for the discharge of an encumbrance on one of the plaint items. Nallakannu Pillai discharged Exhibit III. If Nallakannu Pillai was a mere volunteer no doubt he would not he entitled to be paid back the amount which he paid for the discharge of Exhibit III. In this case it cannot be said that Nallakannu Pillai discharged the debt (Exhibit III) gratuitously or as a volunteer. The plaintiffs and Achia Pillai lived together at the time and he discharged the debt on the plaint properties as he was living with the plaintiffs. There was no direction in the Will that Nallakannu Pillai should discharge all the encumbrances on the property. That being so, it cannot be said that in the circumstances, Nallakannu Pillai was a mere volunteer and that his estate is not entitled to be paid back the amount which he spent in removing the encumbrances on the plaint property. The 1st defendant will be entitled to get from the plaintiffs the amount paid towards the discharge of Exhibit III.
13. The plaintiffs are entitled to mesne profits as found by the District Munsif.
14. In the result the plaintiffs' appeals are allowed, and they will have a decree for the possession of the plaint properties, together with mesne profits as decreed by the District Munsif, together with costs throughout. The plaintiffs will pay the 1st defendant the amount that was paid by Nallakannu Pillai for the discharge of Exhibit III without interest and the amount will be a charge on the plaint property.