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They will of course be entitled to enjoy the balance left after payment of rent PRE |
This will was construed as conveying an absolute estate to the son and the daughter of the niece PRE |
It was remarked that in spite of an PRE |
express restriction against alienation, the estate taken by S. (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to alienate except in case of legal necessity and that such a construction was in accorda... |
The provisions contained in this will bear no analogy to those we have to construe Ratio |
The restraint against alienation was repugnant to both a life estate and a widow',-, estate and was not, therefore, taken into account Ratio |
But there were other indications in that will showing that a widow's estate had been given Ratio |
The fact that the gift over was a contingent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow's estate Ratio |
There is no such indication in the will before us Ratio |
Reliance was next placed on the decision in Pavani Subbamma v. Ammala Rama Naidu (1937 PRE |
1 M.L.J. 268 PRE |
1936 Indlaw MAD 236 PRE |
Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son's daughter and the daughter's son respectively PRE |
A suit was instituted by the son's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by S PRE |
The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate PRE |
Varadachari J. held that since in the will the gift over to the grand-children was of the entire Properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest PRE |
This decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say: "In deference to the view taken in Maharaja of Kolhapur v. sundaram Iyer (1925) I.L.R. 48 Mad Ratio |
1, it may be possible to create an interest analogous to a woman's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by S. need not necessarily be only a life estate in the English law sense of the term Ratio |
We do not understand how such passing observations can be helpful in deciding the present case Ratio |
Assuming that it is possible to create a Hindu woman's estate not with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration Ratio |
The following remarks in the Privy Council decision in Nathu, Ram Mahajan v. Gangayabai (1938 PRE |
2 M.L.J. 562 were next cited:-- "As the will gave her the right to 'enjoy' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by -the Hindu law in the case of a widow, be in possession of the estate PRE |
Such casual observation made in respect of a will couched in entirely different terms cannot afford much assistance in the decision of the case Ratio |
In Vasantharao Ammannamma v. Venkata Kodanda Rao Pantalu 1939 PRE |
Indlaw MAD 621 (1940 PRE |
M.L.J. 188, the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows: "Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second e... |
My self-acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter PRE |
Thereafter they shall pass to my grandson through my daughter PRE |
The will was construed as giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take- under the law of inheritance, that is a limited estate analogous to a widow's estate PRE |
At page 193 of the report it was observed as follows: "The question therefore arises, did he intend to confer only a life estate or a daughter's estate PRE |
It seems to us that he meant to give a daughter's estate rather than a life estate PRE |
He omits the words 'during her life' with reference to the disposition in favour of the daughter PRE |
The words 'pass to my daughter' would rather indicate that in the ordinary course of devolution the estate should pass to her, that is, the daughter and then to the grandsons PRE |
The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons PRE |
Either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution PRE |
If it was the daughter's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest PRE |
This line of reasoning which appealed to the learned judges is not of much he]-) to us here as the language hi this will is quite different Ratio |
If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widow's estate is delimited by the words "till your lifetime Ratio |
Reliance was next placed on Maharaja of Kolhapur v. sundaram Iyer (1925) I.L.R. 48 Mad PRE |
That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant PRE |
There it was said that: "the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance PRE |
These remarks do not throw much light on the point before us Ratio |
The last decision referred to was the decision of the Privy Council in Mahomed Shumsool v. Shewukram 1874 Indlaw PC 12 (1874-75) 2 I.A. 7 There a Hindu inhabitant of Bihar by a document of a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their ... |
One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case PRE |
In a suit by the respondent against his grandmother the daughter of the 'testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her PRE |
In this judgment the following observations were emphasized as relevant to this enquiry:- "It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst PRE |
Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters PRE |
In other words, that she should take an estate very much like the ordinary estate of a Hindu widow PRE |
In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property PRE |
It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate PRE |
These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a Hindu widow's estate which she would otherwise get by inheritanc... |
Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that Ratio |
The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow's estate and no more Ratio |
What is given must be gathered from the language of the will in the light of the surrounding circumstances Ratio |
The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar ARG |
He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour ARG |
In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty v. Narayana swami Chetty (19I4 PRE |
26 M.L.J. 616 PRE |
There the testator made a will in favour of his wife providing, inter alia PRE |
all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty (nephew) and my wife, should live together amicably as of one family PRE |
If the two could not agree and live together amicably, my wife would pay Rs PRE |
4,000 and separate him PRE |
and then my wife would enjoy all the remaining properties with absolute rights PRE |
If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow PRE |
It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger PRE |
This decision only decides that case and is not very relevant in this enquiry Ratio |
Reference was also made to the decision of their Lordships of the Privy Council in Mst PRE |
Bhagwati Devi v. Chowdry Bholonath Thakur (1874-75) 2 I.A 256 PRE |
This was a case of a gift inter vivos PRE |
The gift to Mst PRE |
Chunderbutti, his wife, was in these terms: "the remaining 'milkiut' and 'minhai ' 'estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst PRE |
Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should not by any means trans... |
The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death PRE |
The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow PRE |
The Privy Council on this will held as follows: "Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti PRE |
If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, re... |
But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether PRE |
She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one PRE |
It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be PRE |
Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences and they agree with the subordinate judge in construing it according to its plain meaning PRE |
These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable Ratio |
This will was couched in different language than the will in the present case Ratio |
There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves Ratio |
Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan (1898) I.L.R PRE |
22 Bom PRE |
The will there ran as follows PRE |
When I die, my wife named Suraj' is owner of that property PRE |
And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that PRE |
It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs PRE |
After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will RPC |
Both the learned counsel eventually conceded that the language used in the will was consistent with the testator's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow's estate Ratio |
It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a Hindu widow's estate as she would get in case of intestacy ARG |
He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow's estate ARG |
Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter's estate was described as coming into being after the estate of the widow and was not conferred on h... |
In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs RPC |
Appeal dismissed RPC |
This is an appeal on a certificate u/art FAC |
133(1) of theConstitution from a judgment and decree passed by the Appellate Bench of the High Court of Calcutta FAC |
modifying on appeal the judgment and decree passed by Mr. Justice Bose on the original side of that court FAC |
One Dwarka Nath Ghose was the owner of considerable moveable and immoveable properties FAC |
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