Jivandas Karsondas vs Ramniklal Mohanlal and Others

Chhatpar, J.—This is a second appeal arising out of a suit filed by the the applt-pltf to recover possession of a portion of a property included in survey No. 402/B5 under sanad No. 409/85 against the resps.-defts. claiming that the entire property covered by the said survey number was bequeathed to him by his uncle Shamji Anandji by a will dated 3-5-1940. Shamji died on 20-11-1940. The property referred to above is shown as property No. 2 in the said will. Adjoining this property is property bearing survey No. 401/5B under sanad No. 344/82 which also belonged to the testator. This property is shown as No. 1 in the will & was bequeathed along with other properties by the deceased to his wife Ujambai for life & after her death to the resps. 1 to 3 who are his grand nephews. Ujambai died in 1949 & consequently the property No. 1 along with other properties descended to resps. 1 to 3. The other resps. 4 to 6 are the executors of the will. Soon after the death of Ujambai the applt. filed the present suit. The properties 1 & 2 which have been bequeathed to resps. 1 to 3 & the applt. respectively are described in the will as under: (After stating the two clauses of the will in Gujrati script, which are omitted, the judgment proceeds:). Which may be translated as under: (i) Residential property which I am occupying and using at present & which has entrance on the West & the East with compound, Jatrines, office room & terrace whose survey No. is 401, sanad No. 344/82. (ii) A property with entrance on North & South with a storey, to the West to Manishanker Keshavji Joshi & in which at present my tenant Joshi Amratlal is residing--that property--whose survey No. is 402/B5, sanad No. 409/85.

It is common ground that all the portion of the property included in survey No. 402/B5 which was in the occupation of the tenant Amratlal has been handed over to the applt. The dispute relates to a small portion which is about one fourth of the total area of the survey number & for which the present suit has been filed. It is alleged by the resps. that this small portion was separated from this survey number & joined to adjoining the residential house of the testator which is shown as property No. 1 in the will & which bears survey No. 401/B5.

In order to understand what was the intention of the testator, it will be necessary to go into certain facts relating to property No. 2 devised to the applt. This property was purchased by the testator in 1921. There is no evidence on the record whether at time of the purchase this property was an open plot or built upon. The conveyance deed unfortunately has not been put in which might have given some indication as to the state of the property but it is admitted that soon after the purchase he separated about one portion of it which was immediately adjoining his residential house, the property No. 1 in the will, by building a wall separating it from the rest of the property. On this small portion so separated the testator built a kitchen which has since then been used for the benefit of his residential house, the property No. 1, in the will. This kitchen opened on a court yard which formed part of the residential house of the testator. The wall that was built separating this portion from the rest had no communicating door between the portion built as a kitchen & the rest of the property. At the time of the death of the testator, on the rest of this survey number was a room on the ground floor & a room on the first floor & this portion was in the occupation of the tenant Amratlal. It will thus be observed that for all practical purposes the survey No. 402/B5 was divided into two portions by a blank wall. The bigger portion with construction was let to Amratlal while the smaller portion with the kitchen constructed on it was included in the residential house of the testator. This was the state of the two properties when the testator made his will. The crucial point in the case therefore becomes whether by devising the property No. 2 in the will the testator intended both the portions which are included in She ground survey No. 402/B5 were bequeathed to the pltf. or only that portion of it which was in the occupation of Amratlal.

The testator died in 1940 & the present suit was filed in 1949. The pltf. got possession of the portion in the occupation of the tenant Amratlal in 1940. No adverse inference can however be drawn against the pltf. for having filed the suit so late because it is in evidence that he got the sanad of this property, only in the year 1948 where after he says he became conscious of his right that the sanad included the portion on which the kitchen stands. This fact is not denied by the defts. The sole contention rests upon the interpretation of the will & the intention of the testator in the light of the facts stated above relating to the two properties. Both the lower Cts. have held that the testator intended to bequeath only that portion of the survey No. 402/B5 which was in the occupation of Amratlal.

The learned Counsel for the resps. has raised a preliminary point that the question involved is one of fact & cannot be challenged in a second appeal. It is further contended that there being two possible; interpretations of the will & since both the Cts. have interpreted the will in on way, the H.C. should accept such interpretation. In support of these arguments, reliance is placed upon the case of ''Abdul Latif v. Rahmatullah'' AIR 1930 Lah 139 where it was heid that although a finding of fact arrived at from misconstruction of a document was open to be challenged in second appeal but where there are two possible interpretations of terms or expressions in a deed or document & the Cts. below have adopted one of the interpretations, the H.C. is not justified, in refusing to accept that interpretation in second appeal. To the same effect are the rulings of the Lahore H.C. reported in ''Mt. Gurdevi v. Gujar Mal'' AIR 1931 Lah 594 & ''Lakhu Ram v. Wali'' AIR 1926 Lah 672. The last case follows a ruling of the Bombay H.C. reported in ''Rajaram v. Ganesh Hari Kharkhanis'' 21 Bom 91.

These cases relate to the interpretation of deeds but the case of ''Monohar Mukherjee v. Suresh Chandra'' 91 IC 423 (Cal) was a ''case'' of interpretation of a will where it was held:

Where the words of a device are plain & the only question is as to the identification of the property referred to, the question is not one of the construction of the document & cannot be urged in second appeal.

On the other hand, reliance has been placed by the learned Advocate for the applt. on the case of ''Hans Raj v. Tulsi'' AIR 1939 Lah 264 where it was held that where the question was which of the two alternative meanings of a certain word should in context be applicable, the question was one of interpretation of a document & if the document was one of title it would be open to question in second appeal. In this case it was held that the word "phal" in the ordinary sense meant only the fruit of trees & not its product or products. It was held that resin extracted from the trees could not be said to be "phal" or fruit of the trees. This case is distinguishable from the present case where there is no question of interpretation of any particular word, in the will the question being what property the testator intended to bequeath. The case reported in Kanhya Lal Missir Vs. Mt. Hira Bibi and Others, relied upon by the learned advocate for the applt. lays down that a will should be read as a whole & importance should not be given to isolated expressions. The point involved in that case was whether the will created an absolute or limited estate. The case reported in AIR 1928 308 (Nagpur) held that whether certain document was a will & not a gift or a family arrangement depended upon the right of construction of a document & involved a question of law. This ruling has apparently no relevancy so far as the present case is concerned. The construction of a document whether it is a will or a transfer ''inter vivos'' would be a question of law. The case reported in ''Mt. Bishan Devi v. Jagat Singh'' AIR 1937 Lah 353 lays down that in interpreting a will it is the duty of the Ct. to find out the intention of the testator. The intention is to be gathered from the language used by the testator but the meanings attached to the words may be affected by surrounding circumstances & when this is the case these circumstances should be taken into consideration. The case reported in Mahammad Ali Vs. Dinesh Chandra Roy Choudhury and Others, similarly refers to the general principle of the construction that in constructing a document alleged to be a will the intention of the person executing it must be deduced from the language of the document itself. In that case also, the question was whether the document was a will or was a contract between the two parties. This case has no relevancy. The case reported in ''Mt. Ram Rakhi v. Peoples'' Bank of Northern India'' AIR 1942 Lah 42 holds that it is true that ordinarily the question of intention is a question of fact but when the question of the interpretation of a document of title is at the same time concerned it is always a question of law to determine what legal inference can be deduced from the contents of the documents taken as a whole. There the question was whether a certain clause in the will gave a life estate to the testator''s wife or an absolute estate. This case is also distinguishable.

The construction of a document of title or of a will which forms the basis of a suit is a question of law. But in the present case, the question is as to the specification of the property which the testator is supposed to have devised to the pltf. If the terms of the will were perfectly plain & simple outside evidence would not be admissible & the intention of the testator would have to be gathered from the terms of the will itself but if the description of the property devised admits of a grave doubt whether the testator intended to bequeath the whole of the survey No. 402/5B or only that portion which was in the possession of Amratlal. In such cases in order to arrive at the intention, it is necessary to admit extraneous evidence & the circumstances relating to the property which in the present case were the act of partitioning the two portions by a wall & making to all intents and purposes the smaller portion a part of his residential house. It then becomes a question of facts to the identity of the property intended by the testator to be bequeathed to the applt., & such finding of fact cannot be challenged in second appeal.

Even apart from the legal position whether this is a finding of fact which is binding on a Ct. of second appeal, I see no reason to differ from the concurrent finding of the lower Cts. in respect to this issue. There is authority for the proposition as laid down in the ruling relied upon the reps''s. advocate, that where two constructions are possible & the Cts. below have adopted one construction, the H.C. in second appeal would not be justified in overriding such decision especially in the present case the true construction depends upon extraneous evidence & circumstances.

As this is a somewhat important case & in order to do full justice, I am recording my finding as to the interpretation of the will. In my opinion the clue to the proper construction lies in the principles contained in Section 79, Succession Act which reads as under:

If a will mentions several circumstances as descriptive of the thing which the testator intends to bequeath & there is any property of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such property, & it shall not be lawful to reject any part of the description as erroneous, because the testator had other property to which such part of the description does not apply.

It is a well settled canon of construction that where a given subject is devised & there are found two species of property, the one precisely corresponding to the description in the device & the other not completely answering thereto, the latter will be excluded. The illustrations to the Section 79, Succession Act make this proposition clear. In the present case the testator has devised a house in the occupation of Amratlal & bearing survey No. 402/5B but the house in fact consists of 2 parts. To one part the description entirely applies. That description is a house in the possession of Amratlal & having survey No. 402/5B, while to the smaller part the whole of the description does not apply but only a part applies. The description as to the occupation of Amratlal does not apply to this portion. Consequently this portion will have to be excluded. Taking the evidence into consideration as to the circumstances of the purchase of the property in question & the building of the wall & the kitchen which has for many years been used as a part of the residential house of the testator, I am of the opinion that the testator had in contemplation complete houses as separate units when he made the devices in the will. Taking this construction I agree with the finding of the two lower Cts. that this portion of the property No. 2 which was used as a part of residential house was never intended by the testator to be revised to the pltf.

Under the circumstances I hold that the pltf has no claim to this portion of the property for which the suit has been filed. I therefore, confirm the judgment of the lower Cts. & dismiss this appeal with costs.