Patna High Court
Baba Ashurfi Singh vs Babu Biseswar Pratap Narain Sahi And ... on 16 January, 1922
Equivalent citations: 65IND. CAS.977, AIR 1922 PATNA 362
JUDGMENT Ross, J.
1. This is an appeal by the plaintiff, Ha alleges that Musammat Mulukrani Kuer was the absolute owner of the properties specified in the plaint and that he obtained an istamrari mukarari patta from Musammat Mulukrani Kuer on the 7th of August 1896. A dispute having arisen between himself and the reversioners of Babu Har Pragas Narayan Singh, the husband of Musammat Mulukrani Kuer, the properties were attached by the order of the Magistrate and this suit was brought for a declaration of the plaintiffs title to, and for recovery of, possession of the properties together with the surplus amount of profits in the hands of the Receiver. There were six parties who were defendants to the suit but we are concerned now only with the third party who are two minors under the protection of the Court of Wards. Their defence was that Musammat Mulukrani Kuer tad only a limited interest in the properties for the term of her life and that, consequently, the plaintiff was not entitled to succeed. The Subordinate Judge held that Musammat Mulukrani Kuer bad an absolute right to the property and consequently gave a decree to the plaintiff, This decision was reversed on appeal and the question now is as to the nature of the estate taken by Musammat Mulukrani Kuer under a deed of gift executed in her favour by her husband on the 23rd June 1859.
2. The contention on behalf of the appellant is that the preamble to the deed refers to the whole collection of rights to their uttermost limit in these properties, and that by the first clause the properties are granted to the grantor's wife "as malik" and that, consequently, she became full owner, her interest being limited only so far as it is specifically limited in the succeeding clauses. The second clause deals with the power of alienation and there is no restriction therein on the granting of a mokarari lease. Consequently, Musammat Mulukrani Kuer had power to grant a mokarari lease and the lease granted by her is valid.
3. Reference was made to the decisions in Kollany Kooer v. Luchmee Pershad 24 W.R. 395, Suramani v. Rabi Nath Ojha 30 A. 81 : 5 A.L.J. 67 : 12 C.W.N. 231 : 18 M.L.J. 7 : 10 Bom. L.R. 59 : 7 C.L.J. 13l; 3 M.L.T. 41 : 35 I.A. 17 P.C.) Bhaidas Shivdas v. Bai Gulab 65 Ind Cas. 974 : 26 C.W.N. 129 : 15 L.W. 412 : 20 A.L.J. 289 : 42 M.L.J. 385; (P.C.) and the unreported decision of the Privy Council in Musammat Sasiman Chowdhurain v. Shib Narayan Chowdhury. It was argued that the effect of these cases is to show, as observed in the last mentioned case, that the term 'malik,' when used in a Will or other document as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred;" and, further, that the fact that the donee is the wife or widow of a Hindu is not in itself a circumstance qualifying the meaning of the word "malik".
4. Now, as was pointed out in the case of Musammat Sasiman Chowdhurain v. Shib Narayan Chowdhury, it is always dangerous to construe the words of one Will by the construction of more or less similar words is a different Will which was adopted by a Court in another case. The case upon which the learned Counsel for the appellant most strongly relies is Bhaidas Shivdas v. Bai Gulab 65 Ind Cas. 974 : 26 C.W.N. 129 : 15 L.W. 412 : 20 A.L.J. 289 : 42 M.L.J. 385; (P.C.), but the terms of the Will in that case were materially different from those under consideration now. The rule of construction is given in Shib Lakshan v. Srimati Tarangini Dasi 8 C.L.J. 20 where it was laid down that the Court must, in construing a Will, look to all the clauses of the Will and give effect to all the clauses, ignoring none as redundant or contradictory--see also Kandarpa Nath Ghose v. Jogendra Nath Bose 6 Ind. Cas. 141. 12 C.L.J. 391. This deed, therefore, cannot be construed by reference only to the preamble and the first two clauses, but must be read as a whole. The second clause lays down the limits within which the donee can alienate the property; any alienation made during the lifetime of the donor is to be by his permission. After his death she can transfer up to a limit of 50 bighas for charitable purposes; she can also transfer by sale or gift to any son of the donor and the donee or the son of that son or any other son or daughter of the donor or any male descendant of his elder brother, but except to these persons she is to have no power to sell, or make a gift of, or mortgage, more than 50 bighas. The third clause gives the donee power to execute a Will in favour of any of the aforesaid persons, The fourth clause deals with the property, undisposed of at the donee's death by any such Will and in that case it is declared that her son will get the property, or his male descendants, and if there is no son of the donee or male descendant of a such son then in existence, then any other son of the donor or his son and in default of such persons, the donor's elder brother or his son will get the property, but no daughter of the donee or any of her paternal or maternal relations. The fifth clause provides for any unmarried daughter or son's daughter of the donee, and the last clause declares that if the donee dies before the donor, the properties undisposed of by the donee will revert to him.
5. Now, as was pointed out in the case of Bhaidas Shivdas v. Bai Gulab 65 Ind Cas. 974 : 26 C.W.N. 129 : 15 L.W. 412 : 20 A.L.J. 289 : 42 M.L.J. 385; (P.C.), the word "malik" is not a term of art, that is to say, it does not necessarily define the quality of the estate taken but the ownership of whatever that estate may be Absolute ownership imports at least the right to exclusive and free enjoyment of the property and free power of disposition. It is impossible to hold, on the terms of this deed, that an absolute estate was granted to Musammat Mulukrani Kuer; the limitations are inconsistent with free and full ownership. Reading the dead as a whole, it seems to me clear that the intention of the donor was to provide for the donee and also for the ultimate devolution of his property. The grant in effect is the grant of an ordinary Hindu woman's estate with powers to sell, or to appoint by deed or Will, to certain specified persons, and if these powers are not exercised by the donee they are exercised by the donor by this deed in favour of those persons It follows that the absence of any clause restraining the donee from granting a mokarrari lease does not lead to the conclusion that she is empowered to grant it; her powers must be gathered from the total effect of the conveyance and from the nature of the estate thereby granted. The argument of the appellant involves isolating a portion of the dead from the rest and then inferring that, because this power is not expressly taken away, it is granted. The argument infringes the rule of construction above referred to. In my opinion, therefore, this appeal must fail and be dismissed with costs.
Coutts, J.
6. I agree.