Norman Macleod, Kt., C.J.
1. One Ranchhoddas died seven years back leaving a lunatic son by name Chimanlal and a widow. He left a will in which he stated after setting out his property:
So long as I am living I am heir and owner of the said property, the same I may consume, enjoy, use or do what I like. Rut if by the will of God I die, on my death I appoint my wife Bai Rukhi alias Juma to be the owner of my property. Therefore after my death my wife is to take ray property into her possession with full authority, and is to perform the funeral and obsequious ceremonies with respect; to my death. And after doing the same my wife Bai Rukhi alias Juma is to consume, enjoy or do what she like with respect to what remains out of my property, and after the death of my wife, my son Chimanlal is the owner of my estate, the said Chimanlal may do what he likes with respect to my property. Therein none of my relatives, friends or other persons have a right or claim.
2. Chimanlal died before the widow, and the present suit has been brought by persons asserting their rights as reversioners to restrain the widow from wasting the estate. The suit has been dismissed in both the lower Courts on the ground that under the terms of the will the widow took an absolute estate.
3. The principles of construction to be applied to a will of this kind have been quite clearly laid down by various decisions of the Privy Council. At one time it was considered by the Indian Courts that the husband did not confer an absolute estate by his will on his wife, unless he gave express powers of disposition, that it was not sufficient for him to say that the wife was the owner of the property, he must also say that she had the power of alienation. But in Surajmani v. Rabi Nath Ojha (1908) L.R. 35 I.A. 17 : 10 Bom. L.R. 59 it was held that if words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended.
4. That decision was referred to with approval in Bhaidas Shivdas v. Bai Gulab . In that case the testator by his will appointed his wife executrix, and by clause 3 constituted her owner (Malik) of his property, and provided that she should leave whatever property might remain after her death to two named daughters as she liked. It was argued that later clauses in the will in their terms were inconsistent with the view that the provisions of the earlier Clause 3 constituted the wife an absolute owner, but it was eventually held by their Lordships that the subsequent clauses in the will were not sufficient to displace the language of Clause 3.
5. In the present case, we have to see whether the words which purport to give an absolute estate to the widow have been displaced by the later disposition of the property to Chimanlal as Malik after the death of the widow. In Lallu v. Jagmohan I.L.R. (1896) 22 Bom. 409 the testator provided as follows: '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 Mahaluxmi is owner of the said property after that (death).' It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death. That decision was before the decision in Surajmani's case. It may be that the Court might not have considered the words in that will sufficient to give the widow an absolute estate apart from the gift over to the daughter. It seems obvious in this case that the testator did not intend that the widow should have absolute powers of disposition during the life-time of the son ; considering the ideas a Hindu testator ordinarily has with regard to what will happen to his property on his death, he would not be anxious if he had a son alive to give an absolute estate to the widow ; especially as in this case he only gave powers to the widow because the son was incapable of managing his own affairs. Nor do we think that it was intended that the son should only have a contingent interest as the learned Judge thinks. That would be contrary to the usual ideas of a Hindu testator, nor was there anything in the will to show that Chimanlal's interest was merely a contingent one, as the case would have been if such words had been used as 'if my son Chimanlal survives my wife then he will be Malik of my property.' We think Chimanlal took a vested interest in his life-time, and on his death that would go to his mother, who would under Hindu Law take only a limited interest, and if the disposition in her favour did not give her an absolute interest in the first instance, the fact that she succeeded as heir of her son would not enlarge that estate.
6. We think, therefore, that the widow has not an absolute estate with powers of disposal over the property. The appeal must be allowed and the suit must be remanded for decision on the remaining issues. The appellants to have costs here and in the Court below. Costs in the first Court will be coats in the cause.