SUDHAMANI DAS, MINOR, BY HIS MOTHER AND NEXT FRIEND AND GUARDIAN SRIMATI RADHA RANI DASSYA Vs. SURAT LAL DAS

JUDGEMENT

(1.) The learned Vakil for the appellant has given us an interesting address. Bat in my view the case is a very clear one. The question depends on the construction of the Will of Banka Behari Das who died in May 1893. The Will is dated the 30th Baysak 1303 B. S. There is a codicil to the Will which, however, does not affect the point at issue. Banka Behari had a brother named Ganga Charan Das who survived him bat has since died. The plaintiffs in the suit are the widow and the minor son of Ganga Charan Das. By his Will, Banka Behari authorized his widow to adopt five sons in succession and the Will provided that, if a son were adopted, the widow and the son should take the estate in equal moieties. It goes on to say: " They will be the owners (maliks) in possession with full power of gift and sale to be exercised by each of them." As I understand that devise, if the widow had adopted a son, she and the son would each have taken a moiety of the estate in absolute right. As a matter of fact, however, no son was adopted and it is unnecessary for us, therefore, to decide what estate the widow would have taken if she had adopted a son. The point turns on clauses (4) and (5) of the Will which I shall read. Clause (4) runs as follows:---" If, for any reason, the adopted son or my said wife is required to sell any property left by me, he or she shall sell it to my heirs and co-sharers for proper price, that is to say, the highest price offered by them; but if they refuse to purchase the property on paying the proper price, it may be sold to others," Clause (5) is this : " If my said wife do not adopt any sons, then, on my decease, my said wife would be the owner (malik) of all my property with power of gift and sale, and shall be able to give and sell it according to the directions contained in Clause (4)." Now, the widow, Kamini Sundari, acted on the supposition that she took au absolute estate under her husband s Will. She died in 1911 having heraelf made a Will by which she dedicated the property to religious uses in favour of a diety known as Thakur Banka Behari and appointed certain persons, who are the defendants Nos. 1 to 6 in this suit (the diety being the defendant No. 7), as executors. The suit was brought by the plaintiffs for the construction of Banka Behari s Will and for the purpose of recovering the property from the diety and the executors of the widow s Will, on the ground that the widow had only a widow s estate in the property of which she affected to dispose.

(2.) As I have stated, the question tarns on the two clauses of the Will which have read, Speaking for myself, I a an conceive of no language which would have more clearly indicated the intention of the testator that his widow should take an absolute estate. I entirely recognise and appreciate the fast that, ordinarily, a Hindu leaving property to his widow to be enjoyed by her after his death would desire that the widow should take the usual widow s estate so that the property should not go out of the testator s family. Bat it is too late to contend that, if the husband s devise in terms confer upon the widow an absolute estate, even than the widow can only take the limited widow s estate. The law has been otherwise, at any rate, since 1872, when the case of Porsunno Koomar Ghose v. Tarrucknath Sirhar 10 B. L. R. 267. was decided, A resent illustration will be found in the case of Nanda Gopal Sinha v. Pareshmoni Debt 17 Ind. Cas. 478 : 17 C. L. J. 464, and between these two oases there are numerous authorities which might be referred to.

(3.) Now, turning to the words need in the Will, the testator has used the word "malik " which usually denotes an absolute owner. To my mind, there is nothing in Clause (4) which curtails the force of the word "malik" in Clause (5) or the power of gift and sale conferred by that clause and outs down the meaning of the language so as to make the estate devised an ordinary widow s estate. It is argued that under Clause (4) a restriction was put upon the disposal of the property by the widow. It is true that Clause (5) lays down that the widow is to give and fell the property according to the directions contained in Clause (4). But what do those directions some to P The widow was enjoined, if she should sell, to sell in the first instance to the testator s heirs and co sharers for a proper price whish was defined as the highest price, meaning, I suppose, the highest price obtainable in the market at the time. If, however, the heirs or the co sharers refused to purchase the property paying the proper price, then the widow was to be at liberty topsail the property to others. Now, I am not considering the ultimate effect of the words. It is unnecessary to deride whether, if the widow had sold the property without first siring it to an heir or a co sharer, the (sic)Lansfer would or would not have been valid. Bat assuming for a moment that it would not have been valid, is the restraint, such as it is imposed by the Clause sufficient; to eat down the plain meaning of the words in the succeeding clause? In my opinion, that question san only be answered in the negative. The right whish the testator purported to give to the heirs and co sharers: was a mere right of pre-emption. I agree entirely with the conclusion arrived at by the learned Subordinate Judge and, generally, for the reasons which he has stated in his judgment. I am of opinion, that the suit was properly dismissed. The appeal, therefore, fails and should be dismissed with costs. Asutosh Chaudhuri, J. 3. The learned Vakil for the appellants has placed before us the whole history of the low relating to gifts to a wife by a Hindu husband, beginning with Maulvi Mohamed Shumtool Hooda v. Shewukram 2 I. A. 7 : 22 W, R. 409 : 11 B. L. R. 226 : 3 Sar. P. C. J. 405. down to Bhoba Tarini Debya v. Peary Lall Sanyal 24 C, 646 : 1 C. W. N. 578 : 12 Ind. Dec. (n. s.) 1100. He concedes that the result is that it is now practically settledlaw that, in all oases of gift by Will, whether to male or to female, unless the instrument shows that a restricted interest was intended to be created, the legatee or the devisee must be entitled to the whole interest of the testator. He has also called-our attention to the case of Sures Chandra Palit v. Lalit Mohan Dutta 31 Ind, Cas. 405 : 20 C. W. N. 463 : 22 C. L. J. 316. which lays down that, 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, namely, that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family and also that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of in-heritance which they are enabled to alienate. The learned Judges also say in that case that the instrument must receive a construction according to the plain meaning of the words and sentences therein contained, that is, the words are to be read first in their grammatical and ordinary sense unless the context shows otherwise, There is no difficulty in accepting there general principles. In fact, they are always recognised by Courts in (sic)coostruing Hindu Wills. The testator in the second paragraph of the Will in this case clearly says that, if his wife should adopt a eon in accordance with the authority given by him by the first clause, the adopted son and the wife " shall succeed to the ownership of the entire properties in equal shares vested with the power of rule and gift and no violation of such provision shall be Permitted." The Bengali words used are "Dan bikrah sattadekarafeh malik dakhilkar hoe be." It is conceded that by that clause an absolute half is given to the son and the other half is given to the wife. Clause (5) of the Will deals with the case if no son is adopted by the wife. It says that the wife shall succeed to all the properties left by the testator after his death with powers of sale and gift and that she shall be the malik and be in possession and that she shall have Power of sale and gift in accordance with the provisions of paragraph 4 to whish T shall refer later. The Bengali words are Dan bikrah, datwa adhikare omilik dakhilkar hoe be." The expression "Ditto, adhikari" is apparently a mislake for "Saitnadhikari," Bat whether that is so or not, it is quite clear that the same words or words which practically have the same meaning have been used in clanaes (2) and (5) and, therefore it is difficult to avoid the conclusion that the testator intended to give his wife an absolute estate if she did not adpct. It has been argued that the has to be read in (sic)conjanction with the provisions of paragraph 4. It is said that that clause restrists the right of alienation (sic)bceause it says: "if the aforesaid adopted son or my wife aforesaid should find it nesessary to sell any of the properties left by mo, they shall be entitled to sell it to a stranger if my (sic)hons and co sharers refuse to purchase it for an adequate (sic) considcration," and reliance is placed upon (sic)Machay, In re (1875) 20 Eq. 186 : 44 L. J, Ch, 411 : 32 L. T. 632 : 23 W. R. 718, in whish a devise to a brother on the condition that he was never to sell out of the family was considered a valid condition, That case does not seem to me to be applicable In the present circumstances. Hare, there is no absolute restriction of the sale; the power of sale is not interfered with by that direction. It practieally says that the widow should sell to the highest bidder. It is also to be noticed that it gives power to her to sell any of the properties in-eluding in that expression properties bath moveable and immoveable. I do not think that we can (sic)acrept the argument that this restricted the right to sell, thus showing that a trusted estate was being given to the widow. It seems to me that words clearly and unequivocally gave the estate to the lady absolutely. Clause (4) refers to the adopted son also. He did not take under the Will but by virtue of adoption. The restriction was not operative against him and I do not think it ant down gift to the wife and an absolute one-half or the absolute whole if she did not adopt a eon. With regard to the use of the word "malik" I may refer to the case of Suraj Manx v, Rabi Nath Ojha 35 I. A. 17 : 5 A. L. J. 67;. 12 C. W. N. 231 : 18 M L. J. 7 : 10 Bom. L. R. 59 : 7 C. L. J. 131 : 3 M. L. T. 14 : 30 A, 84 (P. C.). where their Lordships of the Privy Council say: " The word malik imports full proprietary rights unless there is something in the contest to qualify it. The fast that the donee is a Hindu" widow is not v6uffioient for the purpose." We think that the words used here are stronger than the word malik. The same words were used when the gift was made to the son; and that also indicates that an absolute estate was being given to the wife. I agree that the appeal should be (sic)dismicsed,