JUDGMENT
Francis William Maclean, K.C.I.E., C.J.
1. The question which we have to decide in this case is dependent upon the construction of the will of one Kristo Lall Bhadury who died many years ago leaving a widow surviving him and no issue.
2. His will which was made in Bengali is dated the 2nd of June 1862, and is in the following terms: “I, having by reason of ill-health come to the house of my father-in-law “(naming him)” and not having recovered under various modes of medical treatment and hence, considering my life to be in peril, I appoint” (literally “make”) “my wife, Sreemutty Bhubunessari Dabee, to the malikatwa (ownership) after my demise as exercised” (literally “done”) “by myself, in respect of the family dwelling-house,” (describing it) “and wearing apparel, etc., whatever there is, (i.e.) in respect of all the properties aforesaid, I, of my own free will, make (this) will.”
3. The question is whether the heirs of the deceased testator, who are plaintiffs, or the heirs of the widow, who died in January 1898, who are the defendants, are entitled to this property, and this depends upon the question what was the estate which the widow took, whether she took an absolute interest, or only the interest of a childless Hindu widow. The learned Judge in the Court below has dismissed the suit, hence the present appeal by the heirs of the deceased testator.
4. It is urged for the appellants that, although the words of the will, having regard to the true import of the word malikatwa, might have conferred upon the widow an absolute interest, had the property been given to her under the will of a stranger,–I should say that the question only arises as to the immoveable property,–that when the gift is by a husband to his wife the same considerations do not apply, and that she does not, and cannot, take an absolute interest upon the ground that there is a distinct and binding rule of Hindu law that, unless upon the language of the will, although the word “malik” or malikatwa may be used, an express or implied power of alienation can be taken as given to the widow, she only takes the limited interest of a childless Hindu widow.
5. For this proposition the appellants rely upon the case of Bhoba Tarini Debya v. Peria Lall Sanyal (1897) I.L.R., 24 Cal, 646, which followed the decision in the case of Koonj Behari Dhur v. Prem Chand Dutt (1880) I.L.R., 5 Cal., 684.
6. I ought to state that, admittedly, the case is not affected by the Hindu Wills Act, or by Section 82 of the Succession Act.
7. In the case of Bhoba Tarini Debya v. Peari Lall Sanyal (1897) I.L.R., 24 Cal., 646, the law at page 649 of the report is laid down as follows: “If this stood alone,”–‘this’ referring to the words in the particular will which the Judges were then construing,–” and Section 82 of the Succession Act was not applicable to the case, then as the bequest (which in this respect follows the same rule as a gift) was one of immoveable property by the husband to his wives, they would take a limited estate under the Dayabhaga. They would take the property without having any power to alienate it; and property over which they have not the power of alienation, cannot constitute their stridhana or absolute property (see Dayabhaga, Chapter IV, Sections 1, 18, 19, and 23), and must on their death pass to the heirs of her husband (see Colebrooke’s Digest Book, V, p. 515, commentary:) “–and, later on at page 651, the same view is further expressed in the following passage: “We only wish to observe, with regard to those cases, that an important distinction, which is some times lost sight of, may reconcile the apparent conflict in some of them. The rule of Hindu law, referred to above, is based upon a text attributed to Narada cited in the Dayabhaga, Chapter IV, section I, 23, and is limited to the case of gift of immoveable property to the wife, and it is to this particular case that the decision in Koonj Behari Dhur v. Prem Chand Dutt (1889) I.L.R., 5 Cal., 684, relates.”
8. Taking then the law to be that as stated In the cases I have mentioned, we have to ascertain whether upon the construction of the will, in this case and accepting as a guide to that question of construction, the law as laid down by the Privy Council in the eases of Srimati Soorjeemoney Dasi v. Denobundo Mullick and others (1857) 6 Moore’s I.A.., 526, and Moulvie Mohamed Shumsool Hooda v. Shewukram (1874) L.R., 2 I.A., 7, an express or implied power of alienation can be regarded as given to the widow. If the gift bad stopped at the words, “after my demise,” there would be considerable force in the argument of Sir Griffith Evans, that an absolute interest was not conferred, but we must give some effect to the words that follow “as exercised by myself,” ownership as exercised by myself! What do these words mean? What was the nature of his ownership? It was an absolute ownership, and as incident to it, there was an absolute power of alienation; and he confers upon his wife the same class of ownership, that is, an ownership with power of alienation. In this view, which I take to be the true one, she takes an absolute interest, an interest which upon her death, devolved upon her heirs and not upon the heirs of her late husband.
9. We have been much pressed with a decision of the Bombay High Court, in the case of Hari Lal Pran Lal v. Bai Rewa (1895) I.L.R., 21 Bom., 376, where the language used was somewhat similar to that in the present case. There the Court held that the widow only took a limited and not an absolute interest. Whilst entertaining the greatest respect for the decisions of that tribunal they are not binding upon us, and moreover the language of that will is, in many respects, different from that in the present case. The whole of that will is not set out in the report, and though no doubt these are the words “Just as I am the owner of the property at present, in the same way my wife, Ujum, is the owner,” those words were regarded by the Court as qualified by other provisions in the will, provisions which we do not find in, the will now before us. But even in that case the learned Judges expressed doubt as to the conclusion at which they arrived. I am unable to regard that case as governing the present; the two wills are very different in their language and provisions.
10. Having regard to the circumstances of the testator in this case–at the date of his will he had no children and no near relatives–it is not improbable that he should wish to give his wife an absolute interest in the property, and in my opinion the language of his will has done so.
11. The view taken by the Court below is right and the appeal must be dismissed with costs.
Macpherson, J.
12. I am of the same opinion.
Hill, J.
13. I am also of the same opinion.
