1. The litigation that has culminated in the present appeal owes its origin to a deed of gift dated 14th August 1916, executed by one Kalap Nath in favour of his wife, Mt. Sampata, and has been occasioned by the uncertainty attending construction of deeds, of transfer executed in favour of Hindu women and the difficulty in deciding whether an absolute estate or a limited estate peculiar to Hindu females was intended to be transferred. The deed of gift of 1916 is couched in plain and simple language and is free from legal technicalities. It begins by reciting that Kalap Nath is the owner of the properties transferred by the deed and that he has no male issue and has become old. The deed then goes on to say that Kalap Nath was very pleased with Sampata and 'made a gift of the shares and houses' with all its inherent and adventitious rights in her favour and put her in possession thereof and that:
She should enter into possession of the gifted property and enjoy the same, pay the Government revenue and get her name entered in the public documents in place of the name of me, the executant.
2. Then there is the following clause in the deed restraining alienation:
She cannot make any temporary or permanent transfer of any sort without the permission of me, the executant.
3. The deed concludes by declaring that:
All the powers which I, the executant, had as a zemindar shall be exercised by Mt. Sampat-Dubain aforesaid. I, the executant, have no objection to this.
4. The family pedigree of Kalap Nath Dube, that is explanatory of the parties to the present litigation, is simple except possibly in one respect, viz., that Kalap Nath married more than one wife. By Mt. Ganga, his first wife, he had a daughter named Mt. Sheoraji who was the plaintiff in the suit, Mt. Sampata, the second wife of Kalap Nath, also has a daughter, Ram Sawari Debi. Sampata, her daughter and her daughter's sons were the defendants in the suit.
5. Kalap Nath Dube died in the year 1919, leaving certain properties that were not included in the deed of gift. On 10th September 1929, Sampata executed a deed of gift, with respect to the properties covered by the deed of 1916 and also the properties left by Kalap Nath at the time of his death in favour of her daughter and daughter's sons. It was recited in the deed that Kalap Nath had made an oral will in favour of Sampata with, respect to the properties owned by him at the time of his death. In the deed of gift executed by her, Sampata claimed to be the full owner of the properties mentioned above and purported to make an absolute transfer in. favour of the donees.
6. The plaintiff prayed for a declaration that the donees of Sampata were entitled to remain in possession of the properties gifted to them only during the life-time of Sampata and that after her death all the heirs of Kalap Nath Dube would be entitled to that property. The deed of gift of 1916 was characterized by the plaintiff as 'fictitious' on the allegation that Kalap Nath had no intention to transfer his property by the said deed. In the alternative the plaintiff maintained that by the deed of 1916 only life-interest in the property gifted was given to Sampata. The plaintiff denied the alleged will recited in the deed of gift executed by Mt. Sampata. But as Mt. Sampata, as the widow of Kalap Nath, was entitled to remain in possession of all his properties as a Hindu widow during her life time, the plaintiff did not claim immediate possession of any of the properties in dispute.
7. The defence to the suit was that the deed of 1916 was an operative document and that full proprietary rights in the property gifted by that deed were transferred to Mt. Sampata. An oral will by Kalap Nath devising the properties left by him at the time of his death in favour of Mt. Sampata was also put forward by the defendants.
8. The learned Judge of the Court below held that the will set up by the defendants was not proved and, accordingly, granted the declaration prayed for to the plaintiff with respect to the properties left by Kalap Nath at the time of his death, and there is no controversy about that property in the present appeal. The learned Judge however held that by the deed of gift of 1916, Kalap Nath did intend to, and did as a matter of fact, transfer absolute proprietary rights in favour of Sampata and, accordingly, dismissed the claim with respect to the properties included in that deed. By the present appeal the finding of the learned Subordinate Judge that by the gift of 1916 Sampata was made absolute owner of the properties gifted in her favour is assailed.
9. It is now admitted that the deed of 1916 was followed by mutation of names in favour of Sampata in the revenue papers and that she all along remained in possession of the gifted property, and the only question for consideration is, whether absolute or limited estate in the properties gifted was transferred in favour of Sampata by that deed.
10. It is well settled that considerations governing the construction of one particular document cannot be of much help in construing another document, and, as such, judicial decisions dealing with the interpretation of documents are by no means an infallible guide when the construction of a particular document is in question. But there are certain, principles peculiar to transfers in favour of Hindu females that cannot be lost sight of, and those principles were laid down by their Lordships of the Privy Council so far back as in the year 1874 in Maulvie Mohammed Shumsool Hooda v. Shewak Ram (1876) 2 I.A. 7. Their Lordships obs0erved in that case that:
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 knows that, as a general rule, at all events, women do not take absolute estate of inheritance which they are enabled to alienate.
11. It is needless to observe that in each case the deed under consideration must be considered whole and that it is not permissible to insist upon one portion of the document to the exclusion of other portions of the same. In other words, the intention of the transferor must be gathered by giving legitimate and due effect to all the terms of the deed, but when the transfer is in favour of a Hindu female, the fact that under the Hindu Law women do not ordinarily get absolute estate of inheritance must be kept in view. The principle laid down by the legislature in Section 8, T.P. Act, (4 of 1882), that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, is also not of much practical utility when the interpretation of a transfer by a Hindu in favour of a Hindu female is in question as the words 'by necessary implication' in that section do attract the operation of the general notion of a Hindu that a Hindu woman ordinarily gets an estate for life and not an absolute estate.
12. Mr. Upadhiya, the learned Counsel for the appellant, mainly relied on the clause in the deed of 1916 that provides that Sampata would not be competent to transfer the property without the permission of Kalap Nath and contended that that clause demonstrates that absolute estate was not transferred to Sampata.
13. The learned Counsel for the respondents, on the other hand, maintained that according to the true construction of the document of 1916 Sampata was given a heritable and transferable interest in the properties gifted to her and contended that even if the document was not open to that contraction, Sampata, at any rate, got a heritable right in the properties by operation of the rule of Hindu Law that has been summed up by Mr. Mayne in para. 664 of his book on Hindu Law. The paragraph runs as follows:
Thirdly, immovable property, when given or devised by a husband to his wife, is never at her disposal, even after his death. It is her stridhanum so far that it passes to her heirs, not to his heirs. But as regards her power of alienation, she appears to be under the same restrictions as those which apply to property which she has inherited from a male even though the gift is made in terms which create a heritable estate (x). It is different if the gift or devise is coupled with an express power of alienation (y).
14. The learned Counsel further in support of his argument relied on the decision of their Lordships of the Privy Council in Narsingh Rao v. Beti Mahalakshmi Bai 1928 PC 156. In that case their Lordships are reported to have observed as follows:
In their Lordships' opinion there is nothing so far in the deed to cut down the gift or prevent the Rani from taking such an estate in the properties, which are the subject of the gift, as a wife takes in an immovable property given her by her husband. According to the Hindu law, such property is taken by her as stridhan and is descendible to her heirs and not to his, and would devolve first on her daughter and her daughter's daughter, and failing them on her daughter's son, thus effectually excluding Balwant; but over such property, it is stated by Mr. Mayne, para. 664, she would have no right of alienation unless the gift was coupled with an express power of alienation, or, as has been held by this Board, unless there are words of sufficient amplitude to confer it upon her.
15. The proposition of law contended for by the learned Counsel for the respondents is in our judgment of no help to the respondents in the present case. That proposition is with reference to stridhanam and can have no application to cases where only life, estate was intended to be transferred by a particular deed in favour of a Hindu female. In passing, we may note that in a recent decision in Salig Ram v. Bawa Charanjit Lal 1930 P.C. 239, their Lordships observed as follows:
The proposition that under the Hindu law in the case of immovable property given or devised by husband to his wife, the wife has no power to alienate unless the power of alienation is conferred upon her in express terms is not sound.
16. It follows that in order to set at rest the controversy between the parties the intention of Kalap Nath as disclosed by the deed of 1916 and the surrounding circumstances must be ascertained. The omission of the use of any express words in the deed indicating the transfer of a heritable interest in the property is significant and cannot be lost sight of. There are no words in the deed to the effect that after the death of Sampata her heirs would succeed to the property gifted to her. Then there are express words in the deed forbidding alienation of the property by Sampata without the permission of the donor. In short, there are the following three important features of the document : (1) The transfer was in favour of a Hindu wife who ordinarily gets an estate for life under the Hindu Law. (2) Heritable estate was not by express terms transferred to her. (3) Restraint on the donee's power of alienation was put by express words in the deed.
17. These facts, in our judgment, clearly indicate that Kalap Nath intended to transfer only limited estate peculiar to Hindu females in the properties gifted to Sampata. The clause in the deed that the powers which the donor had as a zamindar shall be exercised by the donee do not in any way indicate the transfer of an absolute estate in favour of Sampata. All that that clause means is that Sampata like the donor shall be entitled to realise rent, to bring suits for recovery of rent, to make distraints, etc.
18. The circumstances attending the execution of the document also point to the conclusion that estate for life only was transferred to Sampata. It was suggested by the plaintiff that Kalap Nath executed the deed of gift of 1916 in order to protect Sampata from the assertion of adverse claims by the other reversioners of Kalap Nath. This suggestion of the plaintiff is borne out. by a passage in the evidence of Sampata herself. She admitted that Dwarka Dube and others raised objection in connection with the mutation of her name in the revenue papers. Again there is nothing in the evidence to suggest as to why Kalap Nath should have intended to disinherit the plaintiff, his daughter by the first wife. Sampata stated that when a daughter was born to her the plaintiff got displeased. We are not prepared to accept this statement of Sampata. We find that Dhanpat Ram, the husband of the plaintiff, attested two simple money bonds executed by Sampata in the year 1919. This fact shows that cordial relations existed between Sampata and the plaintiff's husband.
19. For the reasons given above, we hold that by the gift of 1916 Sampata got only life estate in the property gifted by that deed. Accordingly we allow this appeal and modifying the decree of the Court below decree the plaintiff's suit with costs here and below.