1. The question involved in this appeal is: what was the intention of Mt. Budhia, towards Phundu as regards her property, as expressed by her in her will?
2. It appears that on the death of Mt. Budhia, Phundu took possession of her property which consisted of two houses and some moveables and mortgaged one of these to plaintiff 2. Phundu died without any heir. Defendant 1 obtained letters of administration to the estate of Mt. Budhia and by the permission of the District Judge, who granted the Letters of Administration sold the property, mortgaged by Phundu to defendant 2. Plaintiff 1 is a transferee from plaintiff 2 and has joined with the original mortgagee in the suit. The Court of first instance dismissed the suit holding that Phundu got nothing under the will but the lower appellate Court decreed the suit holding that Phundu was the legatee under the will and was entitled to make the mortgage. It is common ground that defendant 1 is not an heir to Mt. Budhia. It is also the case that no one has so far claimed any interest in Budhia's property as her heir-at-law.
3. We have been furnished with a translation of the will and we have also examined the original will which is in Drdu. Briefly what Budhia said was as follows:
Budhia's mother-in-law had brought up one Gauri. Gauri was married and had a son Phundu. Gauri became immoral of character and was turned out of the house by Mt. Gyani. Phundu's mother died leaving Phundu a child of one year. Budhia brought up this child Phundu who was eleven years of age at the date of the execution of the will.
4. Having said all this Budhia expressed herself as follows:
I am maintaining him (Phundu) and also intend to maintain him in future. I have also in mind the future management of my property. Therefore in health (of) body, and mind I put down the following provisions which should be carried out after my death by the said Phundu who is appointed executor herewith : 1. Of all my property the said Phuudu shall be the executor. 2. The said executor will not have any right to sell the property. 3. Whatever may be the income of the property, the executor will have the right to spend the same for his own maintenance and for the maintenance of all the members of the family (ahlekhandan) but will have no further right. 4. The said executor will have no right to commit any act which will in any way encumber or cause loss to the property.
5. Having said so, Mt. Budhia further expressed her idea that if Phundu also turned out to be of immoral character, her castemen and certain other persons (including some Brahmans) would be entitled to take the property out of Phundu's hands and to sell one of the properties and build a temple in the other. The question then is : Did Mt. Budhia intend to give and did she give Phundu the right to appropriate the income of her estate and whether she having in no way limited the duration during which this appropriation is to take place, it followed from the provisions of Section 172, Succession Act, that the corpus of the estate should be taken as having been bequeathed to Phundu? I have already mentioned that neither in the will nor in any of the pleadings nor in the evidence so far as it can be gathered from the two judgments, was there any suggestion that Budhia left any relation whom she wanted to benefit if her idea to benefit Phundu failed. We have seen that she clearly set forth in her will that, if Phundu turned out to be a man of dissolute character, her property was to be utilized in raising money and in constructing a temple. Budhia expressly says in the will that she was maintaining Phundu and she wanted to maintain him in future. She authorized him to deal with her property by appointing him the executor and gave him the liberty to spend the entire income of her estate for maintaining himself and his family. It has been conceded in argument that the maintenance of the family or khandan could mean only the maintenance of Phundu's family which would come into existence if he married and reared up a family. We have to consider, now what was in the mind of the testatrix. Did she give to Phundu unreservedly the income of her estate? For if she did so without indicating any limitation of duration, it would follow as a matter of law that the estate would belong to the legatee : Section 172, Succession Act 1925.
6. It has been contended that Budhia gave to Phundu authority to maintain himself and his family and nothing more and therefore it cannot be said that the 'interest or produce' of the estate had been bequeathed to Phundu within the meaning of Section 172, Succession Act. In my opinion this is taking rather a narrow view of the whole situation. Phundu was the executor of the estate and was prima facie the person fully authorized to deal with the income. The fact that he was prohibited from transferring the property did not debar him from spending the entire income of the property. It is true that Phundu was told that he was to spend the money on the maintenance of himself and his family but there is no limitation as to the portion of the income that was to be utilized for the purpose. Undoubtedly it was the idea that the whole income might be spent, at the discretion of Phundu, if he thought that the money was needed for his own support and the support of his family. The income from the property was not very large. The property consisted of two houses and a few moveable properties. In my opinion the Court below was right in holding that Budhia intended to give and did give the income of her estate to Phundu on this condition and this condition alone that he was to be of good character.
7. It is nobody's suggestion that Phundu was of immoral character and forfeited the bequest. If he did not forfeit it, he was the owner of the property and was not divested of it under the only condition under which he could be divested. The mortgage made by him must be taken therefore to be valid. The prohibition against alienation is bad in law. The case of Ashutosh Dutt v. Doorga Charan  5 Cal. 438 and the remarks to be found at p. 444 made by their Lordships of the Privy Council in my opinion bear out the plaintiffs' contention as regards the construction of the will. The only other point urged on behalf of the appellant is that the lower appellate Court was not right in holding that any consideration had been paid to Phundu. This is a decision on a point of fact. Besides the admission of Phundu in the deed which is relevant against the defendants under Section 19, Evidence Act and the evidence on the record would be good enough in the circumstances of the case, to prove the payment of the consideration. I would dismiss the appeal with costs.
8. On the construction of the will in question, I was very doubtful as to the correctness of the view taken by the lower appellate Court but I find that in Ashutosh Dutt v. Dorga Churn  5 Cal. 438 their Lordships of the Privy Council have construed an exactly similar clause as conferring an absolute title on the devisee. There a Hindu lady left to her sons lands belonging to her to support the daily worship of an idol and to defray the expenses of certain other religious ceremonies with a provision that in the event of there being a surplus after those usages had been satisfied out of the revenue of the said land, such surplus should be applied to the support of the family. It was held by their Lordships of the Privy Council that the last provision amounted to a bequest of the surplus to the members of the family for their own use and benefit and that each of the sons of the testatrix took a share in the property. After considering the terms of the will, which as I have said are similar to those contained in the will before me:
Their Lordships not without some doubt and hesitation came to the conclusion that these words amount to a bequest of the surplus to the members of the joint family for their own use and benefit. It is true that the testatrix further declares : 'this property of mine will not be liable for debts of any person, none will be able to transfer it; none will have the rights of gift and sale'; But these directions being inconsistent with the interest given were wholly beyond her powers and must be rejected as having no operation.
9. In this view, I must hold that the decree passed by the lower appellate Court is correct, and I agree with my learned brother in dismissing the appeal with costs.
10. The appeal is dismissed with costs including counsel's fees in this Court on the higher scale.