Ram Gopal Versus Nand Lal and others -14/11/1950


Ram Gopal  Versus Nand Lal and others Respondent

(Before: Saiyid Fazl Ali, B. K. Mukherjea And N. Chandrasekhara Aiyar, JJ.)

Civil Appeal No. 59 of 1949,

Decided on :   14-11-1950.

Interpretation of deeds—Principles of

Counsel for the Parties:

Shri P. L. Banerjee, Senior Advocate (Shri B. Banerjee, Advocate, with him) instructed by Shri R. K. Kuba, Advocate for Appellant

Shri S. P. Sinha, Senior Advocate (Shri N. C. Sen, Advocate, with him) instructed by Shri S.P. Varma, Advocate for Respondents.


Mukherjea, J—This appeal is directed against an appellate judgment of a D. B. of the Allahabad H. C. dated 6-9-1943, by which the learned Judges reversed a decision of the Civil Judge, Etawah made in O. S. No. 28 of 1936.

2. The suit was one commenced by the pltf., who is resp. 1 in this appeal, for recovery of possession of two items of immovable property-one a residential house and other a shopboth of which are situated in the town of Etawah. The properties admittedly formed part of the estate of one Mangal Sen who died sometime towards the end of the last century, leaving behind him, as his heirs, his two widows Mt. Mithani and Mt. Rani. Mangal Sen had a son named Chhedi Lal and a daughter named Janki Kuar born of his wife Mt. Rani, but both of them died during his lifetime. Chhedi Lal had no issue and he was survived by his widow Mt. Meria, while Janki left a son named Thakur Prasad. Janki’s husband married another wife and by her got a son named Babu Ram. On Mangal Sen’s death, his properties devolved upon his two widows, and Mt. Rani having died subsequently, Mt. Mithani came to hold the entire estate of her husband in the restricted rights of a Hindu widow. On 27-11-1919, Mt. Mithani surrendered the whole estate of her husband by a deed of gift in favour of Thakur Prasad who was the nearest reversioner at that time. Thakur Prasad died in 1921, leaving a minor son named Nand Lal who succeeded to his properties and this Nand Lal is the plaintiff in the suit out of which this appeal arises. On 27-10-1921, there was a transaction entered into between Babu Ram on his own behalf as well as guardian of infant Nand Lal on the one hand and Mt. Meria, the widow of Chhedi Lal on the other, by which two items of property which are the subjectmatter of the present litigation were conveyed to Meria by a deed of transfer which has been described as a Tamliknama; and she on her part executed a deed of relinquishment renouncing her claims to every portion of the estate left by Mangal Sen. It is not disputed that Meria took possession of the properties on the basis of the Tamliknama and on 10-4-1923 she executed a will, by which these properties were bequeathed to her three nephews, who are the sons of her brother Sunder Lal. Meria died on l9-6-1924. One Ram Dayal had obtained a money decree against Sunder Lal and his three sons, and in-execution of that decree the properties in suit were attached and put up to sale and they were purchased by Ram Dayal himself on 30-1-1934. On 1-6-1936, the present suit was instituted by Nand Lal and he prayed for recovery of possession of these two items of property on the allegation that as they were given to Mt. Meria for her maintenance and residence, she could enjoy the same only so long as she lived and after her death, they reverted to the Pltf. Sunder Lal, the brother of Meria, was made deft. 1 in the suit, and his three sons figured as defts. 2 to 4. Defendant 5 is a lady named Chirman Kunwar, in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a portion of the disputed property. Ram Dayal, the decree-holder auction purchaser, died in May 1935 and his properties vested in his daughter’s son Ram Gopal under a deed of gift executed by him in favour of the latter. On 1-9-1938, Ram Gopal was added as a party deft, to the suit on the pltf.’s application. and he is deft. 6. The two other defis., namely, defts. 7 and 8, who were also made parties at the same time, are respectively the widow and an alleged adopted son of Ram Dayal.

3. The suit was contested primarily by deft. 6, and the substantial contentions raised by him in his written statement were of a twofold character. The first and the main contention was that Mt. Meria got an absolute title to the disputed properties on the strength of the “Tamliknama” executed in her favour by the guardian of the ptlf. and after her death, the properties passed on to the three sons of Sunder Lal who were the legatees under her will. Ram Dayal, it was said, having purchased these properties in execution of a money decree against Sunder Lal and his three sons acquired a valid title to them. The other contention raised was that the suit was barred by limitation. The trial Judge Decided both these points in favour of the contesting deft, and dismissed the pltf’s suit. On appeal to the H. C., the judgment of the Civil Judge was set aside and the plif’. suit was decreed.

4. Defendant 6 has now come up on appeal to this Ct. and Mr. Peary Lal Banerjee, who appeared in support of the appeal, pressed before us both the points upon which the decision of the H. C. has been adverse to his client.

5. The first point raised by Mr. Banerjee turns upon the construction to be placed upon the document executed by Babu Ram on his own behalf as well as on behalf of Nand Lal then an infant, by which the properties in dispute were transferred to Mt. Meria by way of a “Tamliknama”. The question is whether the transferee got, under it, an absolute interest in the properties, which was heritable and alienable or was it the interest of a life tenant merely. The document is by no means a complicated one. It begins by a recital of the events under which Nand Lal became the sole owner of the properties left by Mangal Sen and refers in this connection to the obligation on the part of both Babu Ram and Nand Lal to “support, maintain and console” Mt. Meria, the widow of the predeceased son of Mangal Sen. The document then proceeds to state as follows:

“I have, therefore, of my own accord and free will come up on appeal, without any compulsion or coercion on the part of anyone else while in my proper senses made a Tamlik of a double-storied pucca built shop . . . . . and a house and a kothri in Etawah. … . worth ` 8000 for purposes of resident of the Musammat, owned by the minor aforesaid. . . . . which at present stands let out on rent to Sunder Lal, brother of Mt. Meria aforesaid . . .. in favour of Mt. Meria aforesaid, widow of Chhedi Lal and made her the owner (Malik). If any portion or the whole of the property made a Tamlik of for the purpose mentioned above passed out of the possession of the Mussammat aforesaid on account of the claim of Nand Lal minor aforesaid, I and my property of every sort shall he responsible and liable for the same.”

6. This document has got to be read along with the deed at relinquishment, which is a contemporaneous document executed by Meria renouncing all her claims to the property left by Mangal Sen. The deed of relinquishment like the Tamliknama recites elaborately, with reference to previous events, particularly to the deed of gift executed by Mt. Mithani in favour of Thakur Prasad, the gradual devolution at the entire estate at Mangal Sen upon Nand Lal. It states thereafter that Babu Ram, as the guardian of the minor and also in his own right, “has under and Tamliknama dates this day made a ‘Tamlik’ in my favour of a ship along with a Balakhana and a kota for my maintenance and a house . . . for purpose of my residence which are quite sufficient for my maintenance.’ “I have therefore, of my own accord.”

the document goes on to say,

“made a relinquishment of the entire property aforesaid mentioned in the deed of gift . . . . worth rupees 25,000. I do covenant and do give in writing that I have and shall have no claim to or concern with the property. . . . belonging to the minor aforesaid, nor has the property aforesaid remained subject to my maintenance allowance nor shall I bring any claim at any time.”

The schedule to the instrument, it may be noted, gives a list of all the properties of Mangal Sen in respect to which Mt. Mithani executed a deed of gift in favour of Thakur Prasad, including the two items at property covered by the ‘Tamliknama’ mentioned aforesaid.

7. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used ; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed:vide Rajandra Prasad v. Gopal Prasad,571. A. 296, in the present case the instrument of grant has been described as a “Tamliknama’ which means a document by which ‘Maliki’ or ownership rights are transferred and the document expressly says that the grantee has been made a ‘Malik’ or owner. There are no express words making the gift heritable and transferable ; no. on the other hand is there any statement that the transferee would enjoy the properties only during her life time and that they would revert to the grantor after her death.

8. It may be taken to be quite settled that there is no warrant for the proposition at law that when a grant at an immovable property made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta H. C. in Mt. Kollani Koer v. Luchmee Prasad, 24 W. R. 395 which was approved at and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the P. O, as early as in the case of Tayore v. Tagore, I. A. Sup. Vol. 47, (9 Beng. L. R. 377 (P. C.) ) that if an estate were given to a man without express words at inheritance, it would, in the absence of a conflicting context, carry, by Hindu law, an estate at inheritance. This is the general principle of law which is recognised and embodied in S. 8, T. P Act and unless it is shown that under Hindu law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a ‘widow’s estate’, there is no justification for departing from this principle. There is certainly no such provision in Hindu law and no text could be supplied in support of the same.

9. The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given ; it is enough if words are used at such amplitude as would convey full rights of ownership.

10. Mr. Banerjee naturally lays stress upon the description of the document as ‘Tamliknama’ and the use at the word ‘Malik’ or owner in reference to the interest which it purports to convey to the transferee. The word ‘Malik’ is of very common use in many parts of India and it cannot certainly be regarded as a technical term at conveyancing. In the language at the P. C., 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 property rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that suchfull proprietary rights were not intended to be conferred:vide Sasiman Chowdhurain v. Shib Narain,49 I. A. 25.”

This I think to be a perfectly correct statement at law and I only desire to and that it should be taken with the caution which the Judicial Committee uttered in course at the same observation that

“the meaning of every word in an Indian document must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the grantor from which it received its true shade of meaning.”

11. The question before us, therefore, narrows down to this as to whether in the present case there is anything in the context of these two connected instruments or in the surrounding circumstances to cut down the full proprietary rights that the word ‘Malik’ ordinarily imports.

12. The H. C. in reaching its decision adverse to the applt. laid great stress on the fact that the grant was expressed to be for maintanance and residence of Mt. Meria. This, it is said, would prima facie indicate that the grant was to enure for the life-time of the grantee. It is pointed out by the learned Judges that the language of the document does not show that anybody else besides the lady herself was to be benefited by the grant and the indemnity given by Babu Ram was also given to the lady personally. It is further said that if Meria was given an absolute estate in the properties comprised in the ‘Tamlikama’, there was no necessity for including these two properties again in the deed at relinquishment which she executed at the same time.

13. I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a prima facie indication at the intention at the donor, that the donee was to enjoy the property only during her life-time. The extent at interest, which the donee is to take, depends upon the intention at the donor as expressed by the language used, and if the dispositive words employed in the document are clear and un-ambiguos and import absolute ownership, the purpose at the grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence for the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of the gift. This was laid down in clear terms by the Judicial Committee in a comparatively recent case which is to be found reported in Bishunath Prasad v. Chandrika Prasad, 60 I. A. 56. There a Hindu executed a registered deed at gift at certain properties in favour of his daughter-in-law for the “support and maintenance” of his daughter-in-law and declared that the donee should remain absolute owner at the property (malik mustaqil) and pay Govt. revenue. There were no words in the document expressly making the interest heritable or conferring on the donee the power at making alienation. It was held by the Judicial Committee that the donee took under the document, an absolute estate with powers to make alienation giving title valid alter her death. In course of the judgment, Lord Blanesburgh quoted, with approval, an earlier decision of the Judicial Committee, where the words “for your maintenance” occurring in a deed of gift were held insufficient to cut down to life interest the estate taken by the donees. These words, it was said,

“are quite capable at signifying that the gift was made for the purpose of enabling them to live in comfort and do not necessarily mean that it was to be limited to a bare right at maintenance.”

14. On behalf of the resp., reliance was placed upon the decision at the Judicial Committee in Rameshar Bakhsh v. Arjun, 28 I. A. 1, (23 ALL. 194 (P. C.) ) in Support of the contention that in a maintenance grant it is the prima facie intention of the gift that it should be for life. In my opinion, the decision cited is no authority for the general proposition as is contended for by the learned counsel for the resp., and it is to be read in the context at the actual facts of the case which relate to grants at a particular type with special features at its own. It was a case where a Talukdar made a grant at certain villages to a junior member of the joint family for maintenance at the latter. The family was governed by the law at primogeniture and the estate descended to a single heir. In such cases the usual custom is that the junior members at the family, who can get no share in the property, are entitled to provisions by way of maintenance for which assignments at lands are generally made in their favour. The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances at the particular case, or ‘rather upon the usage that prevail in the particular family. In the case before the P. C. there was actually no deed at transfer. It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals at a petn, for mutation of names made to the Revenue Department by the grantor after the verbal assignment was made and from other facts and circumstances at the case. The case Woodoyaditto Deb v. Mukoond, 22 W. R. 225 which was referred to and relied upon in the judgment at the P. C. was also a case at maintenance or khor phos grant made in favour of a junior member at the family, where the estate was impartible and descended under the rules of primogeniture. It was held in that case that such grants, the object of which was to make suitable provisions for the immediate members at the family, were by their very nature and also under the custom of the land resumable by the zemindar on the death of the grantee, as otherwise the whole zemindary would be swallowed up by continual demands. This principle has obviously no application to cases of the type which we have before us and it was never, so applied by the P. O. as would appear from the decision referred to above.

15. The learned counsel for the pltf. resp. drew our attention in this connection, to the fact that the properties given by the ‘Tamliknama’ were valued at Rs.8,000, whereas the entire estate left by Mangal Sen was worth ` 25,000 only. It is argued that the transfer of nearly one third of the entire estate in absolute right to one who was entitled to maintenance merely, is on the face of it, against probability and common sense. I do not think that, on the facts of this case, any weight could be attached to this argument. In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income. This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only ` 12 a month. So from the income of this property it was hardly possible for Meria to have even a bare maintenance and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.

16. But what is more important is, that the object of creating these two documents, as the surrounding circumstances show, was not merely to make provision for the maintenance of Mt. Meria ; the other and the more important object was to perfect the title of Nand Lal to the estate left by Mangal Sen and to quiet all disputes that might arise in respect of the same. It may be that Mt. Meria could not, in law, claim anything more than a right to be maintained out of the estate of her deceased fatherin-law. But it is clear that whatever her legal rights might have been, Nand Lal’s own position as the sole owner of the properties left by Mangal Sen was not altogether undisputed or free from any hostile attack. As has been said already, Sunder Lal, the brother of Meria, was in occupation of the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to it. It appears from the record that in 1920 a suit was instituted on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mt. Mithani by taking a settlement from her. Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mt. Meria who was the actual owner of Mangal Sen’s estate. The suit ended in and compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the pltf; the latter had to abandon the claims which were made in the plaint for rents, costs and damages. Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of ` 12 p. m. A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria in maliki right. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mt. Meria with regard to the rights of Nand Lal to the properties of Mangal Sen and to make his title to the same absolutely impeccable. That seems to be the, reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of maintenance. It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made Sunder Lal executed a rent agreement in respect of the shop in favour of Mt. Meria acknowledging her to be the owner of the property.

17. It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word “Malik” is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, prefectly well known in the locality, to express such intention.

18. The H. C. seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal. This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mt. Meria for the simple reason that the property belonged to an infant and it was as guardian of the ‘minor that Babu Ram was purporting to act. It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as well. Probably no such thing was contemplated by the parties and no such undertaking was insisted upon by the other side. But whatever the reason might be which led to the covenant being expressed in this particular form, I do not think that it has even a remote bearing on the question that arises for our consideration in the present case. It is of no assistance to the pltf. in support of the construction that is sought to be put upon the document on his behalf.

19. I am also not at all impressed by the other fact referred to in the judgment of the H. C. that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Meria’s rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the ‘Tamliknama’, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the ‘Tamliknama’. After the ‘Tamliknama’ was executed in her favour there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word “Malik” is apt ordinarily to convey. The first contention of the applt. therefore succeeds and in view of my decision on this point, the second question does not arise for determination at all.

20. The result is that the appeal is allowed, the judgment and decree of the H.C. are set aside and those of the trial Judge restored. The deft. 6 will have his costs from the pltf. in all the Cta. There will be no order for costs as regards the other parties.

21. Fazl Ali, J—I agree with the judgment delivered by my learned brother, Mukherjea J.

22. Chandrasekhara Aiyar, J—During the hearing of the appeal, I entertained doubts whether the view taken by the H. C. was not correct. But on further consideration, I find that it cannot be maintained, having regard to the terms of the ‘Tamliknama’ (deed of transport in favour of Mt. Meria and the context in which it came into existence. The name of the document or deed does not very much matter. Though the word ‘malik’ s not a term of art, it has been held in quite a large number of cases, Decided mostly by the Judicial Committee of the P. C. that the word, as employed in Indian documents, means absolute owner and that unless the context indicated a different meaning, its use would be sufficient to convey a full title even without the addition of the word ‘heirs’, or ‘son’, ‘grandson’ and ‘great-grandson’. Of course, if there are other clauses in the document which control the import of the word and restrict the estate to a limited one, we must give the narrower meaning, otherwise the word must receive its full significance. Especially is this so, when the rule of interpretation laid down in Mohammed Shamsul v. Sewak Ram, 2 I. A. 7, (14 Beng. L. R. 226 P. C.) has come to be regarded as unsound.

23. The language employed in the ‘Tamliknama’ (Ex.II) is almost similar to the language of the deeds construed in Bhaidas Shivdas v. Bai. Gulab, 49 I.A.1and Bishunath Prasad v. Chandika Prasad, 60 I.A. 56 where it was held that an absolute estate was conveyed.

24. I agree that the judgment and decree of the H.C. should be set aside and that the decree of the trial Judge should be restored with costs to the applt. and in all the Cts.

AIR 1951 SC 139 : (1950) SCR 766

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