MANIKA MUDALI Vs. MUTHACHI KAVANDAN ALIAS NALLAMA KAVUNDAN

JUDGEMENT

(1.) In this case, both the lower Courts after careful consideration have construed the gift- deed, Exhibit I, as conveying to the donee (the wife of the donor) only a limited interest in the property. I do not feel justified in coming to a different conclusion. The general rule of construction is undoubtedly in favour of the view of the learned Subordinate Judge. As Mr. Mayne puts it, "gifts by a husband to a wife of immoveable property, even though accompanied by express words of inheritance, are not alienable unless distinctly declared to be so." In this case, there is no specific provision for alienation, and the special clause relied on by the appellants is simply the words sarva swathanthrathudan ; and I am not satisfied that they are sufficiently clear and specific to outweigh the usual presumption and present the donee with a full title. I have considered the numerous reported cases quoted by both sides in which various documents of different wording have been interpreted by Courts. The only case in which this phrase occurs is an unreported case, Appeal No. 26 of 1896, in which they were re-inforced by another clause, "without any one else having any right to the property." The learned Judges also commented on the improbability of the testator employing so much verbiage to, confer no larger an estate than would have come to the beneficiary if he had died intestate. I do not think the interpretation of the words in that case is of much help now.

(2.) I would dismiss this second appeal with costs. Tyabji, J.

(3.) The ordinary rule of law is that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof." (Section 8 of the Transfer of Property Act, paragraph 1. See also Section 82 of the Indian Succession Act.) The authorities are clear that ordinarily a gift to a Hindu lady implies a different intention, viz., that the lady takes not a full estate with power of alienation, etc., but merely a woman s limited estate, and so when all that appears is that there is a transfer and it is in favour of a Hindu lady, she takes a limited estate. When, however, there are words showing that a larger estate was intended to be given, that intention is given effect to.