Mushtaq Ahmad, J.
1. This is an appeal arising out of certain proceedings under the Insolvency Act. The order appealed against was led by the learned District Judge of Kanpur dismissing an appeal by the present appellants against an order of the Insolvency Judge. The facts giving rise to that appeal and leading to the present appeal are as follows:
2. The Official Receiver, on 18th January 1939, attached a certain house in the course of the realization of the debts due from the insolvents Ram Charan Das and his son Kanhaiya Lal. Mt. Parbati, wife of Ram Charan, objected as she claimed to be the owner of the house, and with a view to have this matter adjudicated upon she filed an application under Section 68, Insolvency Act, before the Insolvency Judge on 23rd January 1939. That was Misc. case No. 33 of 1939. The basis of the claim made by Mt. Parbati was that she had acquired an absolute title in the house under a deed of gift executed by her husband Ram Charan Das, one of the insolvents, on 30th July 1923. She further said that she had rightfully transferred the house under a will dated 23rd September 1938, to the present appellants, one of whom, appellant 3, is an idol of Shri Thakur Ram Lachman Janki and Mahadeo Jee.
3. Before the adjudication of the insolvency, a certain creditor Parshotam Das had attached this very house in execution of a decree against the insolvents. Mt. Parbati had objected to this under Order 21, Rule 58, Civil P.C., and that was allowed on 29th October 1938 on the finding that the gift was good. Admittedly, this order in the execution proceedings was not challenged within the statutory period of a year by the aggrieved party.
4. On 23rd July 1941, the Official Receives filed an objection under Sections 4 and 53, Insolvency Act, challenging the deed of gift dated 30th July 1923 and praying for its annulment by the In-solvency Judge. This was registered as Misc. case no. 13 of 1941. On 10th July 1943, the Official Receiver also filed objections in the Court of the Insolvency Judge to the order of the execution Court dated 29th October 1938, under Order 21, Rule 58, Civil P.C. About two years later, on 4th July 1945, Mt. Parbati died and the present appellants were brought on the record in her place. The Official Receiver then challenged the right of these persons to be impleaded, as, according to him, the will set up by them was also invalid.
5. These three cases were disposed of by the learned Insolvency Judge through a single order, by which he held that the deed of gift in question, though genuine, had conferred only a limited estate on Mt. Parbati, who, therefore, had no right to bequeath the property to the present appellants. An appeal against this order was dismissed by the learned District Judge and the present appeal is directed against the latter order.
6. A preliminary objection was taken by Mr. R.C. Ghatak, learned Counsel for the respondents to the hearing of this appeal. That was that no second appeal lay. That again was on the basis that proviso 2 to Sub-section (1) of Section 75, Provincial Insolvency Act, would not apply, inasmuch as the order of the Insolvency Judge could not be taken to be one under Section 4 of the Act. As we have already pointed out, there were a number of proceedings before that learned Judge which he professed to dispose of by means of a single order, and all that we have to see is whether the questions raised before him were questions 'arising in insolvency' as mentioned in the marginal note to Section 4 of the Act. It has not been shown as to how those matters could not be deemed to be covered by these words. Indeed, everyone of those questions appears to be expressly within the language of the section, and we are definitely of opinion that the learned Insolvency Judge, while disposing of the matters raised before him, did purport to pass an order under Section 4 of the Act. We, therefore, find our-(selves unable to give effect to the preliminary (objection and we disallow it.
7. The main point argued by the learned Counsel for the appellants was with reference to the nature of the estate conferred by Ram Charan Das on his wife Mt. Parbati under the deed of gift dated 30th July 1923. The said deed, which we have carefully examined, recites that the donor, with the object of safeguarding his wife's comforts against all possible trouble in future that might arise from his adopted son, was making her under the gift an absolute owner, but with the rider that the donee would not be entitled in any manner or form to transfer the property by sale, gift or will. The question is whether this document created an absolute or only a limited estate in favour of the donee.
8. A great deal of case law has clustered round the question of interpretation arising in this appeal. In the case of Moulvi Mahomed Shumsool Hooda v. Shewukram alias Boy Doorga Pershad 2 LA. 7, their Lordships of the Privy Council pointed out that:
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 Hindu 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 are enabled to alienate.
9. Where a transfer is made by a husband to his wife, this presumption is taken to assume even a more intensified form. A. Bench of this Court in the case of Jamna Das v. Ramautar Pande 27 ALL. 364, particularly emphasised this aspect. Of course, there was no discrimination in the case of other female transferees, for instance, a daughter, and even in her case, the same rule of presumption was applied, as for instance, in the case of Radha Prosad Mullick v. Ranimoni Dassi 35 I.A. 118 at p. 119.
10. The important question is what is the effect of the insertion of a clause permitting alienation or one prohibiting alienation in a deed of transfer by a Hindu in favour of his wife. There can be no doubt that where such a power has been conferred under a deed, it is indicative of an intention to confer an absolute estate and not only a limited estate. We may, for example, refer to the case of Jogeshwar Narain Deo v. Ram Chand Dutt 23 I.A. 37. Ex hypothesi, where, on the other hand, such a power is denied in the deed, it has been consistently held that the wife acquires only a limited estate, as we find in the case of Mt. Sheoraji v. Ram Sawari Devi : AIR1935All43 .
11. It was strenuously argued by Mr. Raina, appearing for the appellants, that the deed of gift in this case, having used the words 'malik mutlaq,' it must be taken that an absolute estate was intended to be conferred on Mt. Parbali, It is true that this expression occurs in the deed, but it is also true that it is followed by a controlling clause, namely, that the lady shall not be entitled to transfer the property in any shape' or form. The question of the effect of the word 'malik' or its synonyms has been considered by their Lordships of the Privy Council in a number of cases, and particularly in those of Lalit Mohan Singh Roy v. Chukkun Lal Roy 24 I.A. 76 at pp.88 and 89 and Mt. Surajmani and Ors. v. Rabinath Ojha and Anr. 35 I.A. 17. In both these cases, it was emphasised that the word 'malik 2 would certainly indicate an intention to confer an absolute estate, but only if the context did not indicate a different meaning. In the present case, as already shown, there is an express prohibition against transfer following the words 'malik mutlaq.' This certainly does indicate a different meaning, and as such, there is, in our opinion, no escape from the conclusion that the document in question was not at all intended to confer an absolute but only a limited right on the donee,
12. Clauses modifying the normal effect of words conferring an absolute title may be conceived in different forms, where for instance, there is a recital that the female donee would be entitled to transfer the property but only in cases of necessity. That also, in our opinion, is an indication of an intention modifying and curtailing the original clause appearing to confer an absolute title. Such was the case of Jamna Dass v. Ram Autar Pande 27 ALL. 364, where their Lordships, speaking respectfully, rightly held that the deed, although it conferred a power of alienation in case of necessity, did not: confer an absolute estate. Such is not the case here.
13. It was also contended that where an absolute estate has been conferred under a document and later on words have been used which cut out that estate, then those words must be taken to embody a condition void in law. In other words, the clause conferring the absolute estate remains unaffected by the later modification. This contention may be true only in a certain sense. Where a complete and self-sufficient recital has been made in a document conferring an absolute title on a female, and nothing remains to clarify .; the donor's intention to confer such a title, but in spite of this, either in the same document or in a separate document, a statement is made which has the effect of modifying the right originally created, this statement may be taken to carry a void condition. Where, on the other hand, the original clause conferring rights on the donee yet admits of a supplementary declaration, for instance, where an absolute estate has not been conferred by the language previously used, it is certainly open to the donor to complete the indication of his mind by finally expressing it, though it may 'be by way of curtailing the right appearing to have been conferred by the original clause.
14. In support of his contention, the learned Counsel for the appellants cited the Privy Council case of Rameshwar Bakhsh Singh v. Balraj Kuar . There, under a will, the husband first conferred certain rights with a power of alienation though later on, in the same document, a limitation was imposed on those rights by a recital that she would be entitled to sell the property only in cases of necessity. That document was followed by a separate codicil in which the donor recited that he had intended to confer an absolute title under the first disposition. Their Lordships taking into consideration both the documents held that an absolute estate had been conferred on the donee. There, the question purely was what had been the actual intention of the donor. No doubt possibly remained after the making of the subsequent codicil by him. It definitely declared that his intention was to make his wife an absolute and not only a limited owner. This being so, their Lordships had no alternative, we may say so respectfully, but to hold, in spite of the conditions as to the existence of necessity to justify a sale by the donee, that she had acquired an absolute and unqualified title.
15. In considering all these aspects, we are definitely of opinion that Mt. Parbati in the pre-sent case had never acquired an absolute estate under the deed of gift dated 30th July 1923, and, by parity of reasoning, she had no right to exe-cute the subsequent will dated 23rd September 1938.
16. It was next contended by Mr. Raina that the site of the house having been purchased by Mt. Parbati herself under the sale deeds dated 22nd August 1925 and 5th April 1928, from the nazul authorities, she should have been held the full owner of that at least. It will be remembered that the question of the site was considered in the Courts below only as a part of the larger question as to what title Mt. Parbati had acquired under the deed of gift dated 30th July 1923 and not as an independent question. That is clear from the fact that no separate issue was struck on that question either. The Courts below went into the question and the lower appellate Court also actually found that the sale consideration of these two sale-deeds had been paid by Ram Charan Das, husband of Mt. Parbati, That was a finding of fact which was not challenged in the grounds of appeal here, and we do not feel justified in allowing it to be raised for the first time at the stage of arguments.
17. It was next argued that whatever title Mt. Parbati might have acquired under the gift-of 30th July 1923, the will made by her having been assented to by her husband Ram Charan must be upheld. Of course, if this could be done, the appellants would have a clear way through. The only basis of this argument suggesting consent by Ram Charan Das is the fact that at the time of the registration of the deed of will dated 23rd September 1938, Ram Charan Das appears to have identified his wife Mt, Parbati before the Sub-Registrar. There is nothing else in the deed suggesting this consent. It would be too much to hold that a mere identification of the executant of a deed by a particular person at the time of its registration proves his knowledge, much less his consent to the disposition evidenced by the deed. We are, therefore, unable to endorse this argument also.
18. In view of all these reasons, we see no ground to interfere with the order of the lower appellate Court and we dismiss this appeal with costs.
19. There is also a cross-objection by the Official Receiver raising the question of invalidity of the deed of gift dated 30th July 1923, as conferring any title at all. Mt. Parbati having already died on 4th July 1945, this objection is not pressed. It is accordingly dismissed, though without costs.