JUDGMENT
1. The claim in this case relates to a twelfth share of certain immovable properties described in the schedules to the plaint. They were at one time owned by three brothers Kasi Nath, Biswa Nath and Jagannath. Kasi Nath’s one-third share devolved on his son the defendant No. 13. Biswa Nath died sonless in the year 1874 and his one-third share devolved on his widow Vishnupriya, who died in the year 1902. Biswa Nath. left him surviving a married daughter Joytara, but she was sonless and became a widowin the life-time of Vishnupriya. Jagannath also died while Vishnupriya was alive. The plaintiff and the defendants Nos. 14 and 15 are sons of Jagannath, and under the Dayabhaga School of Hindu Law, the plaintiff and these defendants as well as defendant No. 13 are equally entitled to the share of Biswa Nath. The plaintiff is thus entitled to a twelfth share.
2. The contesting defendants are the purchasers of the share of Biswa Nath from Vishnupriya and they have set up three deeds of transfer in support of their claim two of the year 1881 and one of the year 1886. The first two deeds were executed by Jagan-nath and Vishnupriya and covered their respective shares in some of the properties, the subject of this suit. The deed of 1886 was executed by Vishnupriya alone in favour of Joytara who, it is admitted, was benamdar of the defendant No. 13.
3. The lower Courts have dismissed the claim of the plaintiff holding that there were necessities justifying the sales by Vishnupriya. The finding is one of fact and the flaws in the reasonings of the lower Courts relied on by the learned Vakil for the appellant are not sufficient in law to induce us to set it aside. If the appeal had rested only on the grounds impugning this finding, we should have no hesitation in dismissing the appeal.
4. But, in our opinion, the deeds of transfer purported to convey only the life-interest of Vishnupriya; and what passed by them to the purchasers was merely the limited estate; of a Hindu widow and not the absolute estate left by her husband. It is conceded by the learned Vakil for the respondents (and there can be no doubt on the point) that a Hindu widow in possession of her husband’s estate as his heiress may, if she pleases, and for legal necessity, alienate only her limited estate, and the mere existence of such necessity would not be sufficient evidence to show that the entire estate was transferred, if the deed of transfer showed without ambiguity that what was transferred was only the widow’s limited estate. The widow has the option of selling either her limited estate or the entire estate. The deeds appear to us to be unambiguous in these terms. By the first two deeds, Jagannath conveyed his absolute right, so far as his own share was concerned, and his reversionary right to the share of Viswa Nath which was expectant on the deniise of Vishnupriya during his own life-time. But he was not then the immediate reversioner-Joytara intervened and she was then capable of bearing a male child. Vishnupriya herself conveyed by the deeds her limited interest only. If Jagannath had been the immediate reversioner, he and Vishnupriya might jointly have given a good title to the purchaser, but the intervention of Joytara produced a different effect. The intention to convey only a limited interest being clear, the evidence and a finding of legal necessity are irrelevant.
5. The third deed-the one, in favour of Joytara, the benamdaroi Surjya Kumar, is still more specific in its terms. By it Vishnupriya expressly conveyed her life-interest only and relinquished her widow’s estate.
6. The learned Vakil for the contesting defendants has asked us to infer from the finding as to the existence of legal necessity and from the surrounding circumstances that Vishnupriya intended to transfer the right “which her husband had and not merely her limited interest. If there was any vagueness in the terms of the instruments we might have done so, especially as it is a hard case for the purchasers. But there is no foundation for a plea of bad drafting and there is no vagueness or’ ambiguity.
7. We are, therefore, compelled to set aside the decrees made by the lower Courts and to direct that the suit of the plaintiff be decreed with costs in all the Courts in terms of the prayers contained in the plaint.
