1. The appellant in both these appeals is Bai Kevli, widow of PopatlalSakhalchand,, the original defendant in a suit in which the principal question that arose for consideration was the construction of a will dated June 27, 1934, made by her husband Popatlal Sakhalchand who had died on September 16, 1934. The plaintiffs wereSakarchand, the brother of Popatlal, and his three sons.
2. The will first gives the description of the properties belonging to the testator which are stated to be of his own exclusive ownership. The properties consist of one house in Ahmedabad, the outstandings recoverable from his debtors, ornaments, utensils and an insurance policy of Rs. 2,000. Then occur these words in paragraph 5 of the will :-
I am the owner (malik) of the said properties so long as I live. Of these properties I may eat, spend or do whatever I like with them during my lifetime. But in case of my death, I appoint or nominate my wife Bai Kevli as full and absolute owner (Kul swatantra malik) of all my moveable and immoveable properties after my death. So that after my death my wife Bai Kevli should take possession of all moveable and immoveable properties under her full and absolute right therein and manage the same.
This is followed by a direction that after the testator's death Bai Kevli should spend Rs. 3,000 out of the estate for such ' good purposes ' as are mentioned in a yadi made in the testator's book. This is followed by further directions as under :-
(2) My wife Bai Kevli should use and enjoy the above-mentioned house during her lifetime and after her death my wife Bai Kevli may give that house to any one of the three sons of my brother Sakarchand and if my wife has not given that house to any one of the sons of my brother then after my wife Bai Kevli'a death the three sons of my brother should be owners thereof in equal shares. (3) My wife Bai Kevli should realise or recover all my dues or outstandings as absolute owner and she may do whatever she pleases with all the moveable properties including dues, ornaments, etc., i.e., and should dispose of the same in any manner she likes.
After some further statements and instructions we get the date of the will ' Samwat 1990, Jeth Sud 15, Wednesday, date June 27, 1934,' which is followed by the writer's name and address. Then follows this sentence :-
And my wife Bai Kevli before her death should give Rs. 2,000 to the three sons of my brother Sakarchand in equal shares. Date as above.
3. The trial Court held that under the decree the defendant Bai Kevli had obtained an absolute interest in the estate and also that the plaintiffs were entitled to the sum of Rs. 2,000 as provides by the last clause in the will. A decree was made accordingly. The plaintiffs appealed, and the lower appellate Court held that the will created merely a life estate in favour of the defendant in respect of her husband's property, It agreed with the trial Court's finding that the plaintiffs were entitled to Rs. 2,000.
4. The two questions that arise in this appeal are whether the plaintiffs have not been rightly awarded the sum of Rs. 2,000 and whether the interpretation put by the lower appellate Court on the will, viz. that it created merely a life estate in favour of the defendant, is correct. On the first question, even taking it for granted that the will was intended to create an absolute estate in favour of the defendant, there can be little doubt that the two clauses, one directing the spending of Rs. 3,000 in charity and the other directing that Bai Kevli should give Rs. 2,000 to the three sons of Sakarchand, are actually intended to be given effect to, the first clause being put directly after the statement that Bai Kevli was appointed the full and absolute owner of all the testator's moveable 'and immoveable properties and the last clause having been inserted as a kind of after-thought after the date of the will was written as well as the name of the writer thereof; and it seems to me that the most reasonable construction to be put on both these clauses would be that the rest of the will was to be read subject to these two provisions; so that if an absolute estate was intended to be vested in Bai Kevli, that intention would have to be given effect to with respect to the residue of the estate after these two amounts were paid or spent in accordance with the directions. It seems to me therefore, that the finding of the Courts below with respect to the amount of Rs. 2,000 is correct.
5. The more important question is as regards the interpretation of the will with reference to the question whether it created an absolute estate or merely a life estate in favour of the defendant. The lower appellate Court has relied mainly on two facts in discussing this question. In the first place, it has held that in construing a will of a Hindu, it would be proper to assume that he desired that his estate should be retained in hisfamily and that he knew that as a general rule women do not take an absolute estate by inheritance. Secondly, it has considered the fact that no power of alienation of the house has been given under the will to BaiKevli as significant, i.e. as showing that the testator did not intend to vest an absolute interest in her. With regard to the last point, however, it conceded in one passage in the judgment that the words ' kulswatantra malik' import 'full proprietary rights including a full right of alienation'. With regard to this point, it may be observed that, as remarked inShadiq Ram v. Charanjit Lal (1930) L.R. 57 IndAp 282 at some time it was held by some Courts in India that, under Hindu law, in the case of immoveable property given or devised by a husband to his wife, the wife had no power to alienate unless the power of alienation was conferred upon her in express terms. Their Lordships at page 289 pointed out that the Board had held that proposition as unsound. The learned advocates for the respondents also do not now rely on the absence of any express power given to the wife in support of their case.
6. No oral evidence has been adduced on either side in this case. In support of the. conclusion arrived at by the lower appellate Court, Mr. Thakore on behalf of the respondents has pointed out that the assumption which that Court has made in view of the fact that the testator was a Hindu is based on Mahomed Shumsool v. Shewukram where their Lordships remarked (p. 14) :-
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. It may be assumed that a Hindu generally desires that an estate, especially an, ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general, rule, at all events, women do not take absolute estates of inheritance which they t are enabled to alienate.
It is contended that the provisions contained in Clause (2) of the specific directions in the will must be due to the testator's desire to see that it did not pass out of his family on thedeath of his wife; and that when it is natural for a Hindu to have such a desire and when he has deliberately given effect to it by inserting a specific provision as to the devolution of the property after his wife's death, that provision must be regarded as significant in construing the nature of the will. It has been further pointed out that whereas Bai Kevli has been allowed the power of disposing of the outstandings, ornaments and other moveable properties in any way she thought fit, there is no mention of such power with respect to the house, the contention being that this differentiation must be regarded as deliberate on the part of the testator.
7. As against these contentions, Mr. Chhatrapati on behalf of the appellant-defendant has emphasized the words ' kul swatantra malik ' occurring in paragraph 5 of the will. He has contended that these words must be given their full meaning, that the Court must necessarily presume that it was the intention of the testator to constitute his wife the full and absolute owner of all his properties, moveable and immoveable, after his death, and that if the question of the construction of the will is approached from that aspect, the next point that would arise for consideration would be whether the absolute estate that was intended to be vested in Bai Kevli can be said to have been qualified or cut down by any of the specific provisions. There is no doubt that, as provided in Section 82 of the Indian Succession Act, the meaning of any clause in a will is to be collected from the entire instrument and that all its parts have to be construed with reference to each other. The word ' malik ' is to be found in many of the wills that have been construed in the reported decisions. In Surajmani v. Rabi Nath Ojka there was a did of gift or testamentary disposition by a husband to a Hindu widow wherein the words used were malik wa khud ikhtiyar, and their Lordships held that in order to cut down the full proprietary rights that the word ' malik ' imports something must be found in the context to qualify it, and that the fact that the donee was a woman and a widow did not suffice to displace the presumption of absolute ownership implied in the word ' malik.'
8. Mr. Thakore on behalf of the respondents however, has pointed out that in certain cases where the word ' malik ' had been used in a will with reference to the donee, the latter was not held as entitled to an absolute estate. In Mahomed Shumsool v. Shewukram the testator declared :
Only D.K., widow, of my son, who, too, excepting her two daughters, born of her womb, S. and D., has no other heirs, is my heir. Except D.K., none other is nor shall be my heir andmalik. Furthermore, to the said D.K., too, these very two daughters named above, together with their children who, after their marriage, may be given in blessing to them by God Almighty, are and shall be heir and ' malik'.
In this case several persons were designated by the expression ' malik ', and it was held that the intention of the testator was that D.K. should not take an absolute estate but an estate subject to her daughters succeeding her therein. The facts, therefore, of this case, it will be seen, are not similar to those in the present case.
9. In Mithibai v. Meherbai I.L.R. (1921) 46 Bom. 162 the will stated that as to whatever surplus of the testator's property might remain after his decease the malik thereof should be his wife Bai Diwali. In view, however, of the further direction that she should during her lifetime apply and spend the same ' in a good way ', it was held that those words cut down the absolute estate created by the word ' malik ' to a life estate. It will thus be seen that the Court started with the initial position that the use of the word ' malik ' created an Absolute estate.
10. In Basantkumar Basu v. Ramshankar Ray I.L.R. (1931) Cal. 859 the words ' malik dakkhalikar' and ' unaradhikari' were used in a will, though no power of absolute disposition was given to the widow. Besides the widow was authorised to adopt five sons in succession. In these circumstances the Court could not naturally regard the words in question as creating an absolute estate. In the document before me, however, which was executed by a businessman living in Ahmedabad, the very positive and emphatic expression ' full and absolute owner' (kull swatontra malik) has been used. Such a person would be expected to know the proper meaning to be attached to those words, not only in view of the emphasis given thereto but also because of his position as a businessman and the fact that he has used the expression with regard to matters mentioned in the earlier part of the will. He was no doubt correct in describing himself as the malik of the property. In RaghunathPrasad Singh v. Deputy Commissioner, Partabargh (1929) 32 Bom. L.R. 129 their Lordships remarked (p. 134) :-
Attempts on the part of a testator in India to restrict devolution of properties which he bequeaths to a legatee absolutely and to prevent alienations of such properties are quitecommode, and wills containing such provisions have often come up for decision before the Board. The question for determination has always been whether there are dispositive words creating an estate of inheritance, in the first instance; and if so, whether the subsequent restrictive clauses are sufficient to displace the effect of such dispositive words or whether such subsequent clauses are merely repugnant to the absolute estate. (Bhaidas Shivdas v. Bai Gulab (1921) L.R. 49 IndAp 1
It is the contention of the learned advocate for the appellant that in this case the subsequent restrictive clauses do not displace the effect of the dispositive words but are merely repugnant to the absolute estate. Their Lordships held that:-
Where there are clear dispositive words in a will creating, in the first instance, an absolute estate of inheritance in the legatee, subsequent restrictive clauses which are tocosafe into operation after he has so inherited, cannot displace the effect of such dispositive words, but must be regarded as merely conditions subsequent which, being repugnant to the absolute estate, are void and must therefore be rejected.
11. In Rameshwar Baksh Singh v. Balraj Kitar : (1935)37BOMLR862 . a Hindu testator made a will in favour of his wife providing that after his death she was always to remain in possession and enjoyment of the estate with full power of transfer of every description. Subsequent clauses dealt with the question of devolution in case no male issue of the testator existed and there were no male or female issues from all the testator's daughters. It further directed that in no case should any right of inheritance devolve on any descendant of the testator's uncle. Such subsequent clauses in the will were held to be repugnant to the absolute estate created in favour of the wife and therefore invalid, and it was held that the wife, therefore, took an absolute estate on inheritance under the will.
12. In Saraju Bala Debi v. Jyotirmoyee Debi : (1931)33BOMLR1257 . a Raja grafted a portion of his zemindari estate to his daughter by three documents, one of which purported to give an absolute estate to the donee and the other two expressly constituted her a ' malik '. The grant remained subject to conditions, first, that the estate should not pass to the heirs of the daughters of the donee, secondly, that neither the donee nor her heirs should make a gift of the property, and, thirdly, in certain events the Raja and his heirs should have a right of pre-emption. It was held that the documents conveyed the full proprietary rights to the donee, that the first condition was an attempt to alter the legal course of succession to an absolute estate and was, therefore, void, that the second condition was more consistent with an attempt to restrict the powers of an absolute owner than an intention to enlarge the powers of a life tenant, and that the third condition implied a power of sale and was inconsistent with the notion of an estate for life. In view of these decisions, it seems to me that the principle enunciated in Section 95 of the Indian Succession Act will apply :
Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restrict interest was intended for him.
so that the Court must in this case start with the presumption created by the use of the words 'swatantra malik' viz., that the defendant was entitled to the whole interest of the testator.
13. In Haradhone v. Dasarathi : AIR1939Cal38 it was held that where the terms indicate that a bequest is an absolute one and further interests are given merely after or on the termination of that donee's interest and not in defeasance of it, the absolute interest isnot cut down and the further interests fail. In Govindbhai v. Dahyabhai (1935) 38 Bom. L.R. 175 it was held that an absolute estate may be made defeasible in certain circumstances, but that it cannot be cut down to a life estate merely by a gift over of the residue; and the following passage from the judgment in In re Stringer's Estate : Shaw v. Jones Ford (1877) 6 Ch. D. 114 was quoted (p. 183) :
It is settled by authority that if you give a man some property, real or personal to be his absolutely, then you cannot by your will dispose of that property which becomes His You cannot do that if you once vest property absolutely in the first donee, That is because-that which is once vested in a man, and vested de facto in him, cannot be taken from him out of the due course of devolution at his death by any expression of wish on the part of the original testator.
There is no doubt that it was possible that the testator shared the common Hindu sentiment against alienation of the family property in favour of any outsider. But if it can be held that he also intended that his estate should vest absolutely in his wife on his death, the mere fact that he makes a direction in his will regarding the manner in which the devolution should go after his wife's death will not make such a direction operative. It will have to be regarded as repugnant to the dominant or paramount intention of the testator and, therefore, void. It does not seem to me unlikely that the reason for the testator's inserting Clause (2) in the operative part of the will was his desire that the house after Bai Kevli's death should go to one of the three sons of his brother or to all of them in case Bai Kevli did not appoint any specific nephew as the successor after her death. There is no doubt that the terms of the said Clause (2) bear a good deal of resemblance to those of the illustration to Section 92 of the Indian Succession Act:
A, by his will, bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.
Mr. Thakore has argued that Clause (2) was intended to be a direction under the provision of Section 92 and that such a direction would not have been given if the intention was to vest an absolute estate in the defendant. I do not think that this consideration is sufficient to detract from the presumption that the Court is entitled to draw from the use of the words ' full and absolute owner ' in paragraph 5 of the will. Mr. Thakore has also tried to show that the intention of the testator was that Bai Kevli should merely manage the estate during her life-time and should use and enjoy the same. No doubt the word ' manage ' occurs in paragraph 5 and the words ' use and enjoy ' occur in Clause (2). But there are the words ' full and absolute right in them (the properties)' immediately preceding the words ' manage the same '; and I do not think it possible to hold that the only power intended to be given to Bai Kevli, the defendant, was the power of management, nor does the use of the words ' use and enjoy ' appear to be intended to exclude the vesting of an absolute estate. In any case, these words are to-be found only in Clause (2), and if we have to start with the initial presumption created by the expression ' full and absolute owner ', the words which are repugnant to the said presumption or cannot be regarded as displacing or modifying the .same must be held to be void....
14. In Matru Mal v. Mehri Kunwar  All. 416 it was held that where the will of a Hindu gave a full and absolute estate to his wife, with a gift over in favour of his daughter of full ownership of any part of the property that might remain at the wife's death, the gift over in favour of the daughter was void. This is in accordance with the other authorities relied on by the appellant.
15. It is difficult for me to give in this case a greater emphasis on a Hindu testator's desire that his estate should remain in the hands of his own relations than to the intention clearly expressed by him in the operative clauses of his will which, in my opinion, must be regarded as the dominant intention, viz. to confer an absolute right to property on his wife. As remarked inKaankkhya Dot Ram v. Kushal Chand (1933) 36 Bom. L.R. 399 in each case the Court must ascertain the dominant intention of the testator, reading the will as a whole, in order to see what is the vocabulary of the testator and how he expresses himself with regard to other matters. The language in Clause (2) is less emphatic than in the fifth paragraph where he speaks of his wife's ' full and absolute ' right' at two places. As I have pointed out, the first passage in Clause (2) 'My wife, Bat Kevli, should use and enjoy the above-mentioned house during her life' is not incompatible with that right. The next passage ' after her death my wife Kevli may give that house to any one of the three sons of my brother Sakarchand ' is not mandatory in form but appears to be nothing more than the expression of a pious hope. The last passage,
If my wife has not given that house to any one of the sons of my brother than after my wife Bai Kevli's death the three sans of my brother should be owners thereof in equal shares', is, in my opinion, compatible with the possibility that the testator mistakenly thought that he could direct the course of devolution after his wife's death, in case she left no directions herself. I fail to detect in this clause any intention nullifying the important right he had expressly and consciously conferred on his wife only a few lines before.
16. In the above view which I have taken, the interpretation of the lower appellate Court cannot be upheld, and it must be held that the defendant got an absolute estate under the will. Second Appeal No. 586 of 1940 will, therefore, be dismissed with costs, and Second Appeal No. 585 of 1940 will be allowed with costs throughout, the decree of the lower appellate Court being set aside and the decree of the trial Court restored, the last sentence therein being deleted.