KAMAKHYA DAT RAM Vs. KHUSHAL CHAND

JUDGEMENT

(1.) Their Lordships do not think it necessary to call upon counsel for the appearing respondent. In these consolidated appeals from the Chief Court of Oudh at Lucknow the sole question for decision arises with regard to the terms of a paragraph in the will of Rai Bahadur Sri Ram. The will is dated 22 May, 1911, and the paragraph to be interpreted reads as follows: "Besides the villages comprised in Taluka Rasulpur entered in list 3 other villages and shares in villages entered in list 4 given at the foot of this deed, shall pass to the said Sitapat Ram and after him to his eldest son under the rules of succession laid down in Act 1 of 1869."

(2.) The question is whether by this provision the testator conferred on his son, Sitapat Ram, an absolute right of property in the villages and shares in villages comprised in list 4 or only a life interest: The question has become of material importance because during his lifetime Sitapat Ram apparently incurred debts to a large amount and his creditors have sought to do execution against the properties, or some of them. If the interest of Sitapat Ram in the villages was limited to a mere life interest, then, of course, the creditors could only attach such life interest. He also, apparently, granted a mortgage purporting to affect one or more of these villages, and in this instance also it is obviously of importance to decide whether he was entitled to grant such a mortgage as owner. The matter comes before their Lordships in the form of appeals from four decrees of the Chief Court of Oudh. Three of these relate to judgment debts and execution decrees. In these instances the appeals are ex parte; in the fourth instance, which is the decree relating to the mortgage, there is an appearance for the respondent, Kushal Chand, the mortgagee. The Courts below have unanimously held that Sitapat Ram took an absolute right of property under his father's will in the villages entered in list 4. Their Lordships get little assistance from decisions with regard to other wills in construing the language and arriving at the intention of this particular testator. Certain cases in which other testators have used other language have been referred to, but from these the only guidance to be obtained is that what must be sought in every instance is the dominant intention of the testator. It is, of course, always legitimate, and frequently helpful, to look to other provisions of settlement, in order to see what is the vocabulary of the testator and how he expresses himself with regard to other matters. In the present instance their Lordships receive considerable assistance from the contrast between the language used in para. 4 and that used in the neighbouring para. 6. In the latter paragraph the testator, after directing that "Sitapat Ram shall get the villages detailed in list 6," adds the words "but he shall have no power to make transfer or create any incumbrance with regard to those villages, and the said Sitapat Ram shall remain in possession during his lifetime and after him his sons, Adyadat Ram, Bidyadat Ram and Shantadat Ram or of them any person or persons who may be alive after Sitapat Ram, shall get equal shares."

(3.) In this instance the testator makes it abundantly clear that Sitapat Ram's interest in the villages detailed in list 6 is to be limited to a life interest, thus showing that when he wanted to restrict his beneficiary to a life interest he knew the appropriate language in which to express his intention. But the contrast between para. 4 and para. 6 becomes even more conspicuous when reference is made to the lists themselves, which are appended to the will; for list 4 is headed: villages which Sitapat Ram and after his death his eldest son shall get;" while list 6 is headed: "List 4 of villages which Sitapat Ram shall get for his lifetime without the power of transfer, and after him, his sons mentioned in para. 6 shall get it." The titles of these lists thus bring into striking contrast the villages which Sitapat Ram is to get for his lifetime without power of transfer, and the villages which he is to get without any such qualification. On the words of para. 4 itself, the direction that after Sitapat Ram the villages in list 4 are to pass to his eldest son under the rules of succession laid down in Act 1 of 1869, imports no more than that after Sitapat Ram's death his eldest son is to take these villages, for by S. 22 of the Act 1 of 1869 it is provided that in the event of intestacy the eldest son shall succeed. The bequest therefore is really much the same as if it had been expressed in favour of Sitapat Ram and after him his heir at-law, according to the statutory law of intestacy succession.