(1.) IN order to make this case intelligible, the following facts require to be stated. Odan Thakoor was one of three brothers. Shortly before his death, which occurred in February, 1827, he had adopted a son of the name of Girdhari Thakoor, who was a son of his brother. At that time he had a wife, Mussumat Chunderbutti, and he had a daughter, Mussumat Suntbutti. He shortly before his death, on the 21st of January, 1827, executed a document which will have to be referred to hereafter, upon which the question in this case arises, and a document of a similar character and very similar in terms was also executed by Girdhari. Under these documents the present Defendant, Mussumat Bhagbutti Daee, who is the granddaughter of Odan Thakoor and of Mussumat Chunderbutti, claimed all the land in question, being thirty-four lots. The Plaintiffs, who are nephews or grand-nephews of Odan Thakoor, brought their suit to obtain possession of these lots, and they have succeeded with respect to the first twelve of them in both Courts. As far as the lots up to No. 12 are concerned there is now no dispute. Those lots were, in fact, lots of real property which belonged to Odan Thakoor in his lifetime, and which, it is now agreed, upon the death of Mussumat Chunderbutti reverted to the Plaintiffs as the heirs of Odan Thakoor, or at all events of Girdhari, his adopted son; nor is there now any dispute as to lots Nos. 15, 16, and 17, which both Courts have given to the Defendant.
(2.) WITH regard to the greater part of the other lots, the Plaintiffs contend that the Mussumat held the property out of the proceeds of which these lots were purchased as a Hindu widow, and that they were an increment to that property, and did not descend to her heir.
(3.) THE Subordinate Judge has construed this document in what would certainly appear to be its plain ordinary meaning, namely, that it was in the nature of a family settlement, giving to Chunderbutti an estate for life, with a power to appropriate the profits; and to Girdhari what would be termed in the phraseology of English law a rested remainder on her death. According to this construction, she would have the power of making whatever use she chose of the proceeds of her estates; and if she bought land or personal property with them, that land and that property would be hers, and would devolve on the Defendant who represents her. Applying this principle he gave the Plaintiffs a decree for the first twelve lots of the thirty-four lots claimed, affirming the title of the Defendant to the remainder. The view of the High Court was different; they indeed agreed with the finding of the Subordinate Judge with respect to the first twelve lots, in which he was manifestly right, for the documents referred to certainly gave to Chunderbutti no more than a life estate. They also affirmed, but on different and special grounds, his judgment as to Lots 15, 16, 17. But they differed from him upon the construction of these instruments, expressing their opinion in these terms : " Shortly, the effect of the two ikrarnamas which have been read to us appears to be this, that by an understanding between Odan Thakoor and his adopted son, carried out in those instruments, it was agreed that notwithstanding the adoption Chunderbutti should take and enjoy the estate of her husband, whose death was then apprehended, and which did shortly afterwards occur, in the same mode as she would have taken and enjoyed it if ho adoption had taken place," that is, in her character as a Hindu widow.