HARIPADA OJHA Vs. SMICHHAMAYEE DEBI

JUDGEMENT

(1.) This is an appeal from a decree of the Subordinate Judge of Purulia confirming a decision of the Munsif of Purulia dismissing the plaintiff's suit. The plaintiffs are admittedly the grandsons of one Bhuban who had two brothers Haradhan and Srikanta. Haradhan left a son Paran who died childless and Srikanta left a daughter Ichhamayee who is defendant 1 in the suit. The principal question with which we are concerned in this appeal turns upon the construction of a deed of gift executed by Srikanta in favour of defendant 1. By this deed Srikanta gave certain properties to defendant 1 and defendant 1 has transferred some of those properties to some of the other defendants. The question which has to be decided is whether by the deed of gift defendant 1 acquired an absolute estate or only a life estate. The deed of gift has been reproduced in the judgment of the learned Subordinate Judge in these terms: You are my childless widowed daughter. You are living in my house. After my death there is no means of your maintenance. For that reason I give up to you the lands and baris as detailed with boundaries in schedule below of the value of Rs. 499 in Mauza Dimdiha Fergana Lakhda... From this day you shall be in uninterrupted and peaceful possession thereof as an owner like myself by exercising of the right of gift, sale and transfer as you like, and I and my heirs will have no right or objection thereto. You acquire right to the properties, land and bari as per boundaries with all appurtenances thereof. Be it noted that you shall pay the rent fixed for the lands and baris to the superior landlords after mutation of your name in the landlord's sherista. Hence I execute this deed of gift of my own accord without the pressure of others and being in senses sound mind. Dated 1313, 25 Falgoon.

(2.) It is contended on behalf of the appellants that by this deed of gift, defendant 1 acquired only a life-interest in the properties which were the subject-matter of the deed. On the other hand, it was contended on behalf of the respondent that this deed conferred upon her an absolute interest. A number of cases were cited on behalf of the appellants in support of their contention, these being Moulvie Mohamed Shumsool Hooda V/s. Shewukram (1974) 2 I.A. (P.C.) 7, Radha Prosad Mullick V/s. Ranimoni Dassi ( 08) 35 Cal. 896, Lallu V/s. Jagmohan ( 98) 22 Bom. 409, Mangamma V/s. Dorayya A.I.R. 1937 Mad. 100 and Rameshar Baksh Singh V/s. Arjun Singh (1901) 23 All. 194. The first two cases were relied upon because they lay stress upon the fact that in construing the will of a Hindu it is not improper to take into consideration what are known to be his wishes with respect to the devolution of property and that it may be assumed that a Hindu generally desires that an estate, specially an ancestral estate shall be retained in his family and that it may also be assumed that a Hindu knows that as a general rule at all events women do not take an absolute estate of inheritance which they are unable to alienate.

(3.) In Lallu V/s. Jagmohan (1998) 22 Bom. 409 there was a will in favour of the wife in the following terms: 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,