Lakshmana Nadar & Ors Vs. R.
Ramier  INSC 33 (14 April 1953)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
CITATION: 1953 AIR 304 1953 SCR 848
Hindu law-Will--Bequest to wife for her
lifetime and to daughter absolutely after wife's lifetime-Estate taken by
wife-Whether ordinary life estate or Hindu widow's estate -Daughter's
estate-Whether vested-Death of daughter before widow, effect of -Construction
of Hindu will-Guiding principles.
A Hindu Brahmin governed by the Mitakshara
law made a will in which he gave the following directions: " After my lifetime,
you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy
the aforesaid entire properties ...
After your lifetime, Ramalakshmi Ammal, our
daughter and her heirs shall enjoy them with absolute rights and powers of
alienation such as gift, exchange and sale from son to grandson and so on for
generations. As regards the payment of maintenance to be made to C, wife of my
late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and
obtain a release deed." After the death of the testator his wife entered
into possession of his properties but before the death of his wife, his
daughter and all her children died:
Held, (i) that on a proper construction of
the will in the light of surrounding circumstances, the testator bad conferred
on his 849 wife only an ordinary life estate, and alienations made by her would
not endure beyond her lifetime ;
(ii) that the testator's daughter obtained
under the will a vested interest in the properties after the lifetime of the
widow, to which her husband succeeded on her death.
The rule of construction by analogy is a
dangerous one to follow in construing wills differently worded, and executed in
Ram Bahadur v. Joger Nath Prasad (3 Pat. L.J.
199), Pavani Subbamma v. Arumala Rama Naidu ( 1 M.L.J. 268), Nathu Rain
Mahajan v. Ganga Bai ( 2 M.L.J. 562), Vasanta Rao Ammennamma v. Venkata
Kodanda Rao ( 1 M.L.J. 188), Maharaja of Kolhapur v. Sundaram Iyer
(I.L.R. 48 Mad. 1), Mahoned Shumsool v. Shewakram (2 I.A. 7), Ratna Chetty v.
Narayana swami Chetty (26 M.L.J. 616), Mst.
Bhagwati Devi v. Choudry Bholonath Thakur (2 I.A. 256) and Lallu v. Jagmohan
(I.L.R. 22 Bom. 409) referred to.
Judgment of the Madras High Court affirmed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 95 of 1952.
Appeal from the judgment and decree dated the
27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar
JJ.) in Appeal No. 635 of 1946 arising, out of judgment and decree dated the
13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in
Original Suit No. 50 of 1945.
K. S. Krishnaswamy Iyengar (S. Ramachandra
with him) for the appellants.
K. Rajah Iyer (R. Ganapathy Iyer, with him)
for the respondent.
1953. April 14. The Judgment of the Court was
delivered by MAHAJAN J.-One Lakshminarayana Iyer, a Hindu Brahmin, who owned
considerable properties in the Tirunelveli district, died on 13th December,
1924, leaving him surviving a widow Ranganayaki, and a married daughter
Ramalakshmi had married the plaintiff and had
a number of children from him. They were all alive in December, 1924, when
Lakshminarayana died, Before his death he 850 executed a will on 16th November,
1924, the construction of which is in controversy in this appeal. By this will
he gave the following directions -"After my lifetime, you, the aforesaid
Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid
entire properties, the outstandings due to me, the debts payable by me, and the
chit amounts payable by me. After your lifetime Ramalakshmi Ammal, our daughter
and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy
them with absolute rights and powers of alienation such as gift, exchange, and
sale from son to grandson and so on for generations. As regards the payment of
maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son
Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases,
and obtain a release deed".
Ranganayaki entered into possession of the
properties on the death of her husband. On 21st February, 1928, she settled the
maintenance claim of Lakshmi Ammal and obtained a deed of release from her by
paying her a sum of Rs. 3,350 in cash and by executing in her favour an
agreement stipulating to pay her a sum of Rs. 240 per annum.
Ramalakshmi died on 25th April, 1938 during
the lifetime of the widow. None of her children survived her. On the 24th July,
1945, the widow describing herself as an absolute owner of the properties of
her husband sold one of the items of the property to the 2nd defendant for Rs.
500. On the 18th September, 1945, the suit out of which this appeal arises was
instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for
a declaration that the said sale would not be binding on him beyond the
lifetime of the widow. A prayer was made that the widow be restrained from
alienating the other properties in her possession. On the 19th September, 1945,
an ad interim injunction was issued by the High Court restraining the widow
from alienating the properties in her possession and forming part of her
husband's estate, In 851 spite of this injunction, on the 27th September, 1945,
she executed two deeds of settlement in favour of the other defendants
comprising a number of properties. The plaintiff was allowed to amend his
plaint and include therein a prayer for a declaration in respect of the invalidity
of these alienations as well. It was averred in the plaint that Ramalakshmi
obtained a vested interest in the suit -properties under the will of her father
and plaintiff was thus entitled to maintain the suit.
The defendants pleaded that the plaintiff had
no title to maintain the suit, that the widow was entitled under the will to an
absolute estate or at least to an estate analogous to and not less than a
widow's estate, that the estate given to Ramalakshmi under the will was but a
contingent one and she having predeceased the widow, no interest in the suit
properties devolved on the plaintiff.
The main issue in the suit was whetherthe
widow took under the will an absolute estate or an estate like the Hindu
widow's estate and whether the daughter's interest therein was in the nature of
a contingent remainder, or whether she got in the properties a vested interest.
The subordinate judge held that the widow
took under the will a limited life, interest, and not an absolute estate or
even a widow's estate under Hindu law, and that the daughter got thereunder a
vested interest in the properties to which the plaintiff succeeded on her
death. In view of this finding he granted the plaintiff a declaratory decree to
the effect that the first defendant had only an estate for life in the suit
properties and that the alienations made by her would not enure beyond her
lifetime. The question as to the validity of the alienations was left
undetermined. The unsuccessful defendants preferred an appeal against this decree
to the High Court of Judicature at Madras. During the pendency of the appeal
the widow died on 14th February, 1948. The High Court by its judgment under
appeal affirmed the decision of the trial judge and maintained his view on the
construction of the will. Leave to appeal to the Supreme Court was 852 granted
and the appeal was admitted on the 27th November, 1951.
The substantial question to decide in the
appeal is whether the estate granted by the testator to his widow was a fall
woman's estate under Hindu law or merely a limited life estate in the English
sense of that expression. It was not contested before us that a Hindu can by
will create a life estate, or successive life estates, or any other estate for
a limited term, provided the donee or the persons taking under it are capable
of taking under a deed or will. The decision of the appeal thus turns upon the
question whether the testator's intention was to give to his widow ail ordinary
life, estate or an estate analogous to that of a Hindu widow. At one time it
was a moot point whether a Hindu widow's estate could be created by will, it
being an estate created by law, but it is now settled that a Hindu can confer
by means of a will oil his widow the same estate which she would get by
inheritance. The widow in such a case takes as a demisee and not as an heir.
The court's primary duty in such cases is to ascertain from the language
employed by the testator "what were his intentions", keeping in view
the surrounding circumstances, his ordinary notions as a Hindu in respect to
devolution of his property, his family relationships etc.; in other words, to
ascertain his wishes by putting itself, so to say, in his armchair.
Considering the will in the light of these
principles it seems to us that Lakshminarayan Iyer intended by his will to
direct that his entire properties should be enjoyed by his widow during her
lifetime but her interest in these properties should come to an end on her
death, that all these properties in their entirety should thereafter be enjoyed
as absolute owners by his daughter and her heirs with powers of alienation,
gift, exchange and sale from generation to generation. He wished to make his
daughter a fresh stock of descent so that her issue, male or female, may have
the benefit of his property. They were the real persons whom he earmarked with
certainty as the ultimate recipients of 853 his bounty. In express terms he
conferred on his daughter powers of alienation byway of gift, exchange, sale,
but in sharp contrast to this, on his widow he conferred no such powers. The
direction to her was that she should enjoy the entire properties including the outstanding
etc. and these shall thereafter pass to her daughters. Though no restraint in
express terms was put on her powers of alienation in case of necessity, even
that limited power was not given to her in express terms. If the testator had
before his mind's eye his daughter and her heirs as the ultimate beneficiaries
of his bounty, that intention could only be achieved by giving to the widow a
limited estate, because by conferring a full Hindu widow's estate on her the
daughter will, only have a mere spes successions under the Hindu law which may
or may not mature and under the will her interest would Only be a contingent
one in what was left indisposed of by the widow.
It is significant that the testator did not
say in the will that the daughter will enjoy only the properties left
indisposed of by the widow. The extent of the grant, so far as the properties
mentioned in the schedule are concerned, to the daughter and the widow is the
same. Just as the widow was directed to enjoy tile entire properties mentioned
in the schedule during her lifetime in like manner the daughter and her heirs
were also directed to enjoy the same properties with absolute rights from
generation to generation. They could not enjoy the same properties in the
manner directed if the widow had a full Hindu widow's estate and had the power
for any purpose to dispose of them and did so. If that was the intention, the testator
would clearly have said that the daughter would only take the properties
remaining after the death of the widow.
The widow cannot be held to have been given a
full Hindu widow's estate under the will unless it can be said that under its
terms she was given the power of alienation for necessary purposes, whether in
express terms or by necessary implication. As above pointed out, admittedly
power of alienation in express terms was not conferred on her. It was argued
854 that such a power was implicit within the acts she was authorized to do,
that is to say, when she was directed to pay the debts and settle the
maintenance of Ramalakshmi it was implicit within these directions that for
these purposes, if necessity arose, she could alienate the properties. This
suggestion in the surrounding circumstances attending the execution of this
will cannot be sustained. The properties disposed of by the will and mentioned
in the schedule were considerable in extent and it seems that they fetched
sufficient income to enable the widow to fulfill the obligations under the
will. Indeed we find that within four years of the death of the testator the
widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter-in-law
without alienating any part of the immovable properties and presumably by this
time she had discharged all the debts. It is not shown that she alienated a
single item of immovable property till the year 1945, a period of over 21 years
after the death of her husband, excepting one, which she alienated in the year
1937 to raise a sum of Rs.
1,000 in order to buy some land. By this
transaction she substituted one property by another. For the purpose of her
maintenance, for payment of debts etc., and for settling the claim of the
daughter-in-law she does not appear to have felt any necessity to make any
alienation of any part of the estate mentioned in the schedule and the testator
in all likelihood knew that she could fulfil these obligations without having
recourse to alienations and hence he did not give her any power to do so. In
this situation the inference that the testator must have of necessity intended
to confer on the widow power of alienation for those limited purposes cannot be
raised. In our opinion, even if that suggestion is accepted that for the
limited purposes mentioned in the will the widow could alienate, this power
would fall far short of the powers that a Hindu widow enjoys under Hindu law.
Under that law she has the power to alienate the estate for the benefit of the
soul of the husband, for pilgrimage and for the benefit of the estate and for
855 other authorized purposes. It cannot be said that a Hindu widow can only
alienate her husband's estate for payment of debts, to meet maintenance charges
and for her own maintenance. She represents the estate in all respects and
enjoys very wide power except that she cannot alienate except for necessity and
her necessities have to be judged on a variety of considerations. We therefore
hold that the estate conferred on Ranganayaki Ammal was more like the limited
estate in the English sense of the term than like a full Hindu widow's estate
in spite of the directions abovementioned. She had complete control over the
income of the property during her lifetime but she had no power to deal with
the corpus of the estate and it had to be kept intact for the enjoyment of the
daughter. Though the daughter was not entitled to immediate possession of the
property it was indicated with certainty that she should get the entire estate
at the proper time and she thus got an interest in it on the testator's death.
She was given a present right of future enjoyment in the property. According to
Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the
property disposed of belongs to the object of the gift when the will takes
effect and we think the daughter got under this will a vested interest in the
testator's properties on his death.
It was strenuously argued by Mr. K. S.
Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman
presumably versed in the sastras, living in a village in the southernmost part
of the Madras State, that his idea of a restricted estate was more likely to be
one analogous to a Hindu woman's estate than a life estate a,-, understood in
English law wherein the estate is measured by use and not by duration, and that
if this will was construed in the light of the notions of Lakshminarayana Iyer
it should be held that the widow got under it a Hindu widow's estate and the
daughter got under it a contingent remainder in the nature of spes and on her
death there was nothing which could devolve on the plaintiff and he thus had no
locus standi to question the alienations made by the widow, 856 The learned
counsel in support of his contention drew our attention to a number of
decisions of different High Courts and contended that the words of this will
should be construed in the manner as more or less similar words were construed
by the courts in the wills dealt with in those decisions. This rule of
construction by analogy is a dangerous one to follow in construing wills
differently worded and executed in different surroundings. [Vide Sasiman v.
Shib Narain (1)]. However, out of respect for learned counsel on both sides who
adopted the same method of approach we proceed to examine some of the important
cases referred to by them.
Mr. Krishnaswami Iyengar sought to derive the
greatest support for his contention from the decision in Ram Bahadur v. Jager
Nath Prasad (2 ). The will there recited that if a daughter or son was born to
the testator during his lifetime, such son or daughter would be the owner of
all his properties but if there was no son or daughter, his niece S. would get
a bequest of a lakh of rupees, and the rest of the movable and immovable
properties would remain in possession of his wife until her death, and after
her these would remain in possession of his niece. The remainder was disposed
of in the following words: "If on the death of my wife and my niece there
be living a son and a daughter born of the womb of my said brother's daughter,
then two-thirds of the movable property will belong to the son and one-third to
the daughter. But as regards the immovable property none shall have the lest
right of alienation. They will of course be entitled to enjoy the balance left
after payment of rent".
This will was construed as conveying an
absolute estate to the son and the daughter of the niece. It was remarked that
in spite of an. 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 (1) 491. A. 2 5.
(2) 3 Pat. L. J. 199.
857 alienate except in case of legal
necessity and that such a construction was in accordance with the ordinary
notions that a Hindu has in regard to devolution of his property.
The provisions contained in this will bear no
analogy to those we have to construe. The restraint against alienation was
repugnant to both a life estate and a widow',-, estate and was not, therefore,
taken into account. But there were other indications in that will showing that
a widow's estate had been given. 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. There is no such indication in the will before us.
Reliance was next placed on the decision in
Pavani Subbamma v. Ammala Rama Naidu (1). 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. 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. 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. 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. 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 (2), 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 (1) (1937) 1 M.L.J. 268.
(2) (1925) I.L.R. 48 Mad. 1.
111 858 sense of the term." We do not
understand how such passing observations can be helpful in deciding the present
Assuming that it is possible to create a
Hindu woman's estate notwithstanding 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.
The following remarks in the Privy Council
decision in Nathu, Ram Mahajan v. Gangayabai(1) 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." Such casual observation
made in respect of a will couched in entirely different terms cannot afford
much assistance in the decision of the case.
In Vasantharao Ammannamma v. Venkata Kodanda
Rao Pantalu(2), 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 elder brother deceased. 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.
Thereafter they shall pass to my grandson
through my daughter".
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. 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 ? It seems (1) (1938) 2
(2) (1940) M.L.J. 188, 859 to us that he
meant to give a daughter's estate rather than a life estate. He omits the words
'during her life' with reference to the disposition in favour of the daughter.
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. 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.
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. 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". 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.
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."
Reliance was next placed on Maharaja of Kolhapur v. Sundaram Iyer (1). 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. 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." These remarks do not throw much light on the
point before us.
The last decision referred to was the
decision of the Privy Council in Mahomed Shumsool v. Shewukram(2) There a Hindu
inhabitant of Bihar by a document of (1) (1925) I.L.R. 48 Mad. 1.
(2) (1874-75) 2 I.A. 7.
860 a testamentary character declared his
daughter who had two daughters, as his heir, and after her two daughters
together with their children were declared heirs and malik. 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
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. 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. Rani Dhun Kaur should not
take an absolute estate, but that she should be succeeded in her estate by her
two daughters. In other words, that she should take an estate very much like
the ordinary estate of a Hindu widow. 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. 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." 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 inheritance.
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 861
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. 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. What is given must be gathered from
the language of the will in the light of the surrounding circumstances.
The learned counsel for the respondent
followed the line adopted by Mr. Krishnaswami Iyengar. 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.
In the first instance, he placed reliance on
a decision of the Madras High Court in Ratna Chetty v. Narayana swami
Chetty(1). There the testator made a will in favour of his wife providing,
inter alia, "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. If
the two could not agree and live together amicably, my wife would pay Rs. 4,000
and separate him and then my wife would enjoy all the remaining properties with
absolute rights. If both of them would live together amicably, Muthu Arunachala
Chetty himself would enjoy the properties which remain after the death of the
widow." 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. This decision only decides that case and is
not very relevant in this enquiry.
Reference was also made to the decision of
their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath
Thakur(2). This was a case of a gift inter vivos.
The gift to Mst. Chunderbutti, his wife, was
in these terms (1) (19I4) 26 M.L.J. 616.
(2) (1874-75) 2 I.A 256.
862 "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.
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 transfer the milkiut estates
and the slaves; that after the death of my aforesaid wife the milkiut and
household furniture shall devolve on Girdhari Thakur, my karta (adopted
son)." 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. The High Court took a different view and held that Chunderbutti took
the estate in her character as a Hindu widow. 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. 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,
real and personal. 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. 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.
It would also follow that she would completely
represent the estate, and under certain circumstances the statute 863 of
limitations might run against the heirs to the estate, whoever they might be.
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." These observations have to a certain
extent relevance to the present case but on the facts this case is also
distinguishable. This will was couched in different language than the will in
the present case. There was a clear prohibition, forbidding the widow to make
any transfers of the milkiuit estates and the slaves.
Reference was also made to a decision of the
Bombay High Court in Lallu v. Jagmohan(1). The will there ran as follows:"
When I die, my wife named Suraj' is owner of that property. 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." 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.
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. 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. 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 (1) (1898) I.L.R. 22 Bom. 409.
864 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. 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. 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 her simultaneously with the widow, and this connoted
according to the notions of Hindus a full Hindu widow's estate. 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.
Agent for the appellant: M. S. K. Aiyangar.
Agent for the respondent Ganpat Rai.