Ramprashad Sahu and Another vs Mt. Basantia

Adami, J.—The only question which arises in this appeal is whether a will, executed by Hira Lal, was revoked by the terms of a deed of sale executed by him a little more than a month after the execution of the will.

Hira Lal married Mt. Basia in sagai form but had no issue by her; he used to pay Rs. 2 a month to his stepmother, Mt. Basantia, as maintenance. The present appellants are brothers of Mt. Basia. The two ladies Basantia and Basia, it appears, were not on good terms.

On the 7th August 1920 Hira Lal executed a Will whereby he gave a life-interest to Mt. Basia over all the properties, after his death, with remainder to her two brother, the appellants, in equal shares. The Will directed that Mt. Basia should continue to pay the maintenance of Rs. 2 a month to Mt. Basantia, and that she should maintain one Antu Lal, whom the testator said he had maintained and brought up as his son. On Basia''s death the appellants were directed to pay Rs. 5 a month to the said Antu Lal during his life. The last paragraph of the Will reserved to the testator the right to cancel or amend the Will wholly or in part.

It appears that, when she came to know of the terms of the Will, Mt. Basantia, was displeased and there was a quarrel. On September 14th 1920 Basantia filed a complaint to the effect that Hira Lal, Basia and Mt. Mirchaia, Basia''s mother, had assaulted her because she complained to Hira that she was not being property maintained while Mirchaia was being fed and kept by Hira Lal. The case never came on for trial for evidently, in order to avoid a scandal. Hira Lal came to a settlement with Basantia, the result of which was the execution by him of a deed of sale. (Ex. A) on the 17th of September 1920, whereby he transferred to his step-mother a house and the land appurtenant to it as also a gola for a consideration of Rs. 1,500, the payment of which he remitted. In consequence of the execution of this deed Basantia withdrew her complaint on the 20th September 1920.

Hira Lal died on the 3rd December 1920. Basia after obtaining mutation of her name for that of her husband in the Municipal and the Land Registration Records, applied for Probate of her husband''s Will on 16th July 1922, but before Probate was, granted, died on the 9th August 1922. On the 14th of August the appellants made an application for Probate or Letters of Administration with the Will annexed.

Mt. Basantia objected to the grant on the ground that Basia and her brothers and mother had acted in collusion and had exerted undue influence over Hira Lal and procured his execution of the Will. She denied that the Will was signed by Hira or that it was properly attested and further alleged that the Will had been revoked by the registered sale-deed (Ex. A) of the 17th September 1920.

The learned District Judge has found that both the Will and the sale-deed were signed by Hira Lal in sound disposing mind and that they were duly attested according to law and were genuine. He has held that the entire Will was revoked by the deed of the 17th September 1920, and has, therefore, rejected the appellants'' petition for grant of Letters of Administration.

There is no contest in this Court as to the genuineness of the Will propounded or of the deed of sale; the sole question to be decided is whether certain words contained in the deed of sale amount to a revocation of the Will, and it is necessary to consider this deed carefully.

The deed of sale, after stating that the house, land and gola are transferred to Mt. Basantia for a consideration which is remitted, and renouncing all claim of these properties, proceeds:

If at any time I, the declarant, and my heirs and representatives put forward any plea and objection and contention of any kind in any form and with any statement in respect of these matters, then any such act done by me, the declarant and my heirs and representatives shall be deemed to be null and void in face of this document and the same shall not be fit to be entertained by a competent Court, and I the declarant executed in favour of my wife Mt. Basia a deed of Will, dated the 7th August 1920, which was registered in the Sub-Registry Office at Patna on the 10th August 1920 and the properties entered in this deed of absolute sale have been entered in the said deed of Will. I having cancelled the said Will and rendered it null and void, have executed this deed of absolute sale in respect of the properties specified below and have made over to the said vendee the documents specified below relating to the said vended property; and I have had the contents of this document read over to me word by word by the scribe and have thoroughly understood them. They are true and correct and are accepted by me.

The respondent contends that the words "having cancelled the said Will and rendered it null and void" amount to a revocation of the entire Will, specially as all the formalities required for the revocation of a Will by Sections 57 and 50 of the Indian Succession Act (X of 1865) were observed in the execution of the document. The appellants, on the other hand, urge that these words revoke the Will only so far as it relates to the properties which are the subject of the deed of sale, and that the words must be construed according to the context in which they are found.

In the interpretation of deeds and Written instruments the established rule of construction is "to read the words in their ordinary and grammatical sense, and to give them effect unless such a construction would lead to some absurdity or inconvenience, or would be plainly repugnant to the intention of the parties to be collected from other parts of the deed," Bland v. Crowley (1851) 6 Ex. 522 and as Bramwell, B., has laid down in Fowell v. Tranter (1864) 3 H. & C. 458, "the golden rule of construction is, that words are to be construed according to their natural meaning, unless such a construction would either render them senseless, or would be opposed to the general scope and intent of the instrument, or unless there be some very cogent reason of convenience in favour of a different interpretation." The Court will not ordinarily introduce into a deed words which are not to be found there nor strike out of a deed words which are there in order to make the sense different, Whyte v. Burndy (1847) 16 L.J.Q.B. 156. Words will be construed according to their strict and primary acceptation, unless from the immediate context or from the intention of the parties apparent on the face of the instrument, the words appear to have been used in a different sense, and they are incapable of being carried into effect, Mallan v. May (1844) 13 M. & W. 511. The intention of the testator must be collected from the words employed by himself in his Will and no surmise or conjecture of any object which the testator may be supposed to have had in view can be allowed to have any weight in the construction of his will unless such object can be collected from the plain language of the Will itself. In the Earl of Hardwicke v. Douglas (1840) 7 Cl. & F 795, Lord Cottenham laid it down that "if there be no ambiguity, however unfortunate it may be that the intention of the testator shall fail, there is no right in any Court of Justice to say those words shall not have their plain and unambiguous meaning." As in wills so in deeds of revocation. If words used are unambiguous, they cannot be departed from merely because they lead to consequences which may be considered capricious or even harsh: Abbott v. Middleton (1858) 7 H.L.C. 68.

Now, in the present case, if the words "I having cancelled the said will and rendered it null and void" had found place in a deed of which the primary and ostensible object was the alteration of a testamentary disposition, I do not think that there could be any doubt that even if extrinsic evidence gave rise to the belief that the testator intended to revoke a part only of his will, the words used would operate to revoke the entire will; for the words are unambiguous and the meaning must be judged from the words employed in the deed. In Grover v. Burningham (1850) 5 Ex. 184, Rolfe, B., observed: "We are to ascertain by construing the will non quod voluit sed quod dixit, or rather, we are to ascertain quod voluit by interpreting quod dixit."

But here these words find place in a deed which, on the face of it is a deed of sale of two properties of which the executant was in present possession; the whole instrument relates to those two properties only and the general scope and intent of the instrument is a transfer of those two properties to Mt. Basantia. For the purpose of effecting the transfer and of giving a good title it was in fact not necessary to make any mention of the previously executed will or to revoke it in whole or in part, for this will could only have effect from the death of the testator and would cover only the properties which were in the testator''s possession at the time of his death.

It is urged by Sir Imam on behalf of the respondent that the fact that revocation is mentioned where no revocation was necessary for the purposes of a valid transfer shows that the executant had the intention not only to transfer the property but to revoke the entire will; and the scope and object of the deed was not only sale of the property but also revocation of the will.

If the executant had stated in the document: "I do hereby cancel the said will and make it null and void," and made it plain that the scope of the deed in that part was to revoke the will, I would have no doubt that the intention was to revoke the entire will; but the words used are: "I having cancelled the said will and rendered it null and void have executed this deed, us wasika wasiyatnama mazhur ho talafo batil o mansukh karke yah wasika bailahalami haza jaidad muffasile zail, ka tahrir o taslim kiya. The word "karke" leaves us uncertain whether the executant is not referring to some deed of revocation previously executed. No such deed has been produced. The words do not show clearly an intention that the deed of sale should itself operate as a deed of revocation.

Considering that the words occur in a deed of sale of which the plain object is to transfer the two properties only, I do not think that either the general scope or intent of the instrument is to revoke the previous will in its entirety or that the context justifies the interpretation that the entire will was revoked.

Looking to the outside circumstances we know that Hira Lal had a desire to make a disposition of his properties on his death and did make a will; we know too that the respondent Mt. Basantia filed a complaint owing to her dissatisfaction over the arrangements made for her maintenance and we know that the result was this deed of sale of two properties to her, which had clearly as its object the provision of some maintenance for her, It is evident, then, that Hira Lal had the animus revocandi in so far as Basantia was left insufficiently provided for by his will, but there is nothing to show an animus revocandi so far as Mt. Bask and the appellants and Anantu Lal were concerned. It is true that in the will Hira Lal declared his right to amend the will, a declaration which was unnecessary, and it is true that Lalji; Sahay (Objector''s Witness No. 1), the scribe of the deed of sale, says that, when he saw the words "us wasika wasiyatnamai mazkur ko talaf o batil o mansukh karke". he asked Hira Lal if he had power to revoke and he said he had, and thereupon the scribe added the word "mansukh" in the margin, and Hira Lal signed to attest the alteration; but this does not help to show that revocation of the entire will was intended. If the will had been wholly revoked on Basia''s death, the property would devolve on Mt. Basantia and there would be no necessity for the transfer of properties to her by the deed of sale. It is evident that the intention was to satisfy Mt. Basantia and get rid of her claim.

I would hold that the words "us wasika wasiyatnama mazkur ko talaf o batil o mansukh karke" in the deed of sale do not amount to a revocation of the entire will of Hira Lal, but only revoke it in respect of the properties conveyed by the deed. I would, therefore, allow the appeal and direct that Letters of Administration with the will annexed be granted to the appellants.

Each party will pay its own costs.

Jwala Prasad, J.

I entirely agree.