Bose J.: - (1.) THIS is a litigation between two branches of a family whose common ancestor was one Megh Raj Singh. The family tree is as follows: JUDGEMENT_145_AIR(SC)_1952Image1.jpg
(2.) THE dispute is about property which, according to the plaintiffs, formed part of Shanker Lal's estate. THE plaintiffs state that the two branches of, the family were separate at all material times; that on Shanker Lal's death in 1884 his daughter Mohan Dei (the defendants grandmother) succeeded to a limited estate. THE reversion opened out on her death in October 1929 and the plaintiffs are entitled as the next reversioners, for Mat. Mohan Dei's son Shri Kishan Das predeceased her. 146 The defendants admit that Shanks Lal was separate from the other branch of the family. They divide the property which their grandmother Mat. Mohan Dei possessed into two categories. First, there was property which they say belonged to her. These are properties which, according to them, she purchased or obtained under mortgages in her own right. Next, there were properties which belonged exclusively to her father and to which she succeeded as daughter. On Shanker Lal's death disputes arose between Shanker Lal's father's brother's son Brijlal (the plaintiffs' grand at her) and the defendants' grandmother Mst. Mohan Dei. Brijlal claimed the entire estate by survivorship, his allegation being that Shanker Lal died in a state of jointness with him and that all the properties were joint family properties. This dispute was referred to arbitration and an award was delivered. Under it Mst. Mohan Dei was given the suit properties as absolute owner and the rest of the estate then in dispute was given to Brijlal. A division was effected accordingly and ever since, that is to say, from 31-12-1884, the date of the award, down to 26/3/1941, the date of the suit, each branch has been in separate and uninterrupted possession of the properties respectively allotted to it and each has been dealing with them as absolute owner. The defendants claim that the plaintiffs are bound by this award and are in any event estopped. The plaintiffs lost in the first court but non in the High court. The defendants appeal. The first question is about the nature of the award. The defendants say that it gave Mst. Mohan Dei an absolute estate. The plaintiffs deny this and say she obtained only a limited estate. In our opinion, the defendants are right. The question at issue is a simple one of construction. The award is Ex. A-1. The operative portion runs thus: "Saving regard to the specifications given above, Brij Lal, first party, and Mst. Mohan Devi, the deceased's female issue, second party, have been held entitled to shares, worth Rs. 28,500.00 and Rs. 42,482.100 respectively in the said properties, and accordingly ......two lots have been made and the first lot is allotted to the first party and the second lot to the second party; and henceforth the parties shall have no claim or liability against each other; and each party has become permanent owner (malik mustaqil) of his or her share; and each party should enter in proprietary possession and occupation of his or her respective share . . . ." The underlining (here italicised) is ours.
(3.) WE do not think the words admit of any doubt, particularly as the words "malik mustaqil" have been used: see Ram Gopal v. Nand Lal, 1950 S. C. R. 766 at p. 773 and Bishunath prasad v. Chandika Prasad, 60 Ind. App. 56 at pp. 61 and 62. But it was argued that the award must be viewed as a whole and that certain earlier passages show that this could not have been the intention. The passages relied on are these. First, the finding that the properties claimed by Mst. Moban Dei as her own really belonged to Shanker Lal. He had purchased some and acquired others through mortgages in her name but she was only a benamidar and had no title to them. Second, that some of the properties in dispute were ancestral and the rest self-acquired, though whether with the help of ancestral funds or not the arbitrator was unable to determine. Third, the arbitrator's view of the Hindu law, namely that- "the brother should be the owner of the joint ancestral property and the daughter who has a male issue should be owner of the self-acquired property." And lastly, this passages-- "Furthermore, when the 2nd party (Mohan Dei) has inherited no properties from her husband, she, in case of getting this share, will certainly settle down in Amroha and will make her father's haveli as her abode and thus the haveli shall remain abad as heretofore, and in this way the deceased's name will be perpetuated ; and it is positive that, After the Musammat, this property shall devolve on her son, who will be the main (owner) thereof, and later the descendant of this son will become the owner thereof." We do not think these passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High court who bold they do. In our opinion, the arbitrator was confused in his mind both as regards the facts as well as regards the law. His view of the law may have been wrong but the words used are, in our opinion, clear and, in the absence of anything which would unambiguously qualify them, we must interpret them in their usual sense. Some cases were cited in which the word "malik", and in one case the words "malik mustaqil" were held to import a limited estate be. cause of qualifying circumstances. We think it would be pointless to examine them because we are concerned here with the document before us and even if it be conceded that words which would ordinarily mean one thing can be qualified by other words and circumstances appearing in the same document, we are of opinion that the passages and circumstances relied on in this case do not qualify the strong, clear and unambiguous words used in this document. The learned counsel for the plaintiffs respondents had to search diligently for the meaning for which he contended in other passages and had to make several assumptions which do not appear on the face of the award as to what the arbitrator must have thought and must have intended. We are not prepared to qualify clear and unambiguous language by phrases of dubious import which can be made to coincide with either view by calling in aid assumptions of fact about whose existence was can only guess. ;