1. This appeal is directed against an order by which the Court below has refused execution of a decree for recovery of dower debt, on the ground that the properties against which the decree-holder seeks to proceed are not liable to be seized in execution of that decree. It appears that one Wahidal Huq, who died in 1905, left him surviving two widows, the appellant Kaniz Jenatul Kobra, and the respondent Hamidunnesea; he also left a daughter, Mukhduman, by a predeceased wife. The appelant sued the heirs of her husband for recovery of the dower-debt and obtained a decree against them on the 28th January 1907. When she applied for execution of this decree, objection was taken by other claimants that the decree could not be executed against properties which did not form part of the estate of her husband at the time of his death. We are now concerned with a property named Chuck Shahbanu and also other properties covered by two mokurari leases, dated the 19th March 1876, and the 4th February 1881, and a Bimokasa, dated the 7th January 1890. On behalf of the appellant, it has been contended that these properties formed part of the estate of her husband at the time of his death and are consequently liable to be sold in execution of the decree obtained by her. In so far as the property Chuck Shahbanu is concerned, there is no dispute that it was part of the estate of the husband of the decree-holder at the time of his death. One-half of it has already been sold at the instance of the Secretary of State for India in Council, who was entitled to recover the value of the Court-fees payable on the plaint upon which the suit for recovery of the dower-debt was instituted by the appellant, the other half is unquestionably liable to be sold in execution of the decree. But it must be observed that the appellant is bound to allow credit for the value of seven-sixteenths share of this property which has been erroneously treated as her property. She was entitled by right of inheritance to only one-sixteenth share of the property; but the Secretary of State has caused one-half of this property to be sold as if that share had devolved upon her. Consequently, seven-sixteenths of the property has been improperly treated as her properly and the value thereof must be set-off against the decretal amount. In respect of the first property, therefore, the contention of the appellant must prevail in part.
2. In respect of the properties covered by the mokurari leases of 1876 and 1881 and the Bimokasa of 1890, it has been contended on behalf of the appellant that the entire interest therein did not vest in the respondent prior to the death of her husband and that, consequently, the properties are liable to be sold in execution of the decree obtained by her. The validity of this argument must be determined upon reference to the terms of the three instruments mentioned. The mokurari of the 19th March 1876 provided that certain properties mentioned in the schedule annexed thereto be let out in perpetuity to the present respondent for a rent also fixed in perpetuity and a bonus of Rs. 800. There is no controversy before us that, in so far as the interest in the tenancy thus created is concerned, the appellant is not entitled to seize it in execution of her decree. But the question arises, whether the interest of the landlord under thi3 mokurari had also vested absolutely in the respondent prior to the death of her husband. The mokurari provides that during the life-time of the grantor the rent would be received by him as landlord; but upon his death, the right to receive the mokurari rent would vest in his wife the grantee, and upon her death, pass to her children. It has been contended by the learned Vakil for the appellant that this latter provision was inoperative and that the legal effect of the mokurari was to vest in the grantee the tenancy right, but that there was no valid disposition of the interest of the grantor as landlord. The argument in substance is that the disposition intended to take effect upon his death was of a testamentary nature and so could not be validly made in the mokurari instrument. In answer to this contention, it has been argued by the learned Vakil for the respondent that the effect of the transaction was to vest the properly absolutely in the grantee subject to the payment of a life annuity to the grantor. In our opinion, this aspect of the matter cannot be supported. The terms of the deed plainly indicate that the intention of the grantor was to create a perpetual mokurari. The entire ownership was divided into two parts. The interest of the tenant was to vest in the grantee while the interest, of the landlord continued in the grantor. There was no intention to vest the interest of the landlord in the grantee till the death of the grantor himself. There was consequently no present disposition so far as that particular interest was concerned. The object of this mode of disposition is obvious. In the first place, the grantor was anxious to retain control over the property in spite of the disposition he made and this distinguishes the present case from that of Nawab Umjad Ally v. Mahumdee Begum 11 M.I.A. 517 : 10 W.R. 25 where the donor made no reservation of dominion over the corpus of the subject matter of the gift. If he had vested the property absolutely in the grantee, be could not have imposed restrictions as to alienation so far as the grantee was concerned, as is clear from the decision of their Lordships of the Judicial Committee in Raja Padmanund Singh Bahadur v. Hayes 28 I.A. 152 : 28 C. 720 : 5 C.W.N. 806. In the second place, it is plain that the intention of the grantor was to avoid the difficulty created by the rule of Muhammadan law that a testamentary bequest to a person entitled to inherit is void, unless the inheritors give their consent after the death of the testator. There is no question that this is the recognized rule of Muhammadan law as laid down by their Lordships of the Judicial Committee in the cases of Ameeroon-nissa Khatoon v. Abedoonnissa Khatoon 2 I.A. 87 : 23 W.R. 208 : 15 B.L.R. 67 and Khujooroonissa v. Musammat Roushun Jehan 3 I.A. 291 : 2 C. 184 : 26 W.R. 36.
3. In order to avoid this difficulty, the grantor included in the lease a disposition, the true character whereof was undoubtedly testamentary Abdul Cadar v. Tajoodin 6 Bom. L.R. 263 at p. 268 and it was not competent to him thus to defeat the provisions of the Muhammadan law Said Kasum v. Shaista Bibi 7 A.H.C.R. 318. In so far, therefore, as the mokurari instrument of the 19th March 1876 is concerned, it is clear that the only effect was to vest in the grantee the interest of the tenant, while the interest of the landlord continued undisposed of. Similar observations apply to the mokurari of the 4th February 1881.
4. It has been argued, however, on behalf of the respondent, that even if this construction be placed upon the two mokurari leases, the effect of the Bimokasa of the 7th January 1890 was to vest in the mokuraridar whatever interest remained in the landlord. Reliance has been placed upon the concluding clause of the Bimokasa which states that whatever right and interest the grantor had as landlord in the vended property, they become extinguished in him and become vested, in all their entirety, in the vendee. It would be erroneous, however, to interpret this document by reference to one alone of its provisions. The earlier clauses of the Bimokasa make it plain that the right and interest which the vendor had as landlord in the properly comprised thereunder was the right to receive rent during his life-time. The deed, taken as a whole amply indicates that the executant had not the remotest doubt or suspicion that the provision made in the mokurari for the vesting of the landlord's interest in the grantee after the death of the grantor was inoperative in law. The Bimokasa, taken by itself, therefore, makes it clear beyond the possibility of dispute that all that the vendor intended to transfer was his right to receive rent under the mokurari during his life-time. The mokuraris and the Bimokasa taken together, consequently, did not transfer the entire interest in the property to the grantee. The right to receive rent after the death of the grantor thus vested on his demise in the respondent, and that interest is liable to be seized in execution of the decree obtained by the appellant.
5. It has been finally contended by the learned Vakil for the respondent that if we adopt this construction, we do not give effect to what was the intention of the husband of the appellant. He has strenuously argued that the duty of the Court is to discover the intention of the grantor and to give effect to it as far as practicable. This contention is opposed to the rule laid down by Lord Wensleydale in Monypenny v. Monypenny 9 H.L.C. 114 at p. 146 where that learned Judge observed as follows: The question is not what the parties to a deed may have intended to do by entering into the deed, bat what is the meaning of the words used in the deed; a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.' To the same effect is the observation of Baron Parke in Lord Dungannon v. Smith 2 Cl. & F. 546 at p. 599 : 10 Jur. 721 : 69 P.R. 137: 'We must first ascertain the intention of the testator, or more properly the meaning of his words, and then endeavour to give effect to them so far as the rules of law will permit.' Again, Lord Selborne in Pearks v. Moseley 5 A.C. 714 at p. 719 : 50 L.J. Ch. 57 : 43 L.T. 449 : 29 W.R. 1 observed as follows: 'You take his words, and endeavour to arrive at their meaning, as if the whole intention expressed by the words could lawfully take effect. I do not mean that, in dealing with words which are obscure and ambiguous, weight may not be given to the consideration that it is better to effectuate than to destroy the intention. But if the construction of the words is one about which a Court would have no doubt, though there was no law of remoteness, that construction cannot be altered or wrested to something different, for the purpose of escaping from the consequences of that law.' The matter was concisely summed up by Lord Halsbury in the case of Leader v. Duffey 13 A.C. 294 at p. 301 : 58 L.J.P.C. 13 : 59 L.T. 9 in the following manner; You will be arguing in a vicious circle if you begin by assuming an intention, apart from the language of the instrument itself, and having made that fallacious assumption, you bend the language in favour of the assumption so made.' In the case before us, there is no ambiguity either in the mokurari deed or in the Bimokasa. The intention of the grantor must thus be determined from the plain language he had actually used, We cannot give effect to his unexpressed intention. The consequence is that the interest which was retained by the grantor as landlord under the two mokurari leases has vested in his representatives after his death and the appellant is entitled to have that interest sold in execution of her decree.
6. The result is that this appeal must be allowed, the order of the Court below set aside and execution allowed to proceed against one-half of the property known as Chuck Shahbanu and also against the landlords' interest under the mokurari deeds of 1876 and 1881.
7. We may add that the ground upon which the appeal now succeeds was not taken in the Court below nor was it argued on the first occasion when the appeal was considered by the Court. It was raised for the first time when an application for review was made and the learned Judges who allowed that application granted it in order that this point might be argued. At the time of the argument before the Bench, no objection has been taken to the consideration of the questions of law raised. Under these circumstances, we direct that each party do pay his own costs both here and in the Court below.
8. Let the record be sent down.