1. Mr. Upadhiya has argued this case very ably and strenuously on behalf of the defendant-appellant, but he has not succeeded in convincing us that the decision of the Subordinate Judge is erroneous and that we should be justified in interfering with it.
2. The suit was a suit by reversioners for possession of certain property, the last male owner of which was one Sheo Agyan Upadhiya who died in the year 1880. Sheo Agyan left a widow Musammat Subhrani who remained alive till the year 1923. Her daughter Musammat Manraji had predeceased her in the year 1911.
3. It is clear on all hands and there is no doubt that when Musammat Subhrani died the present plaintiffs were the next reversioners of Sheo Agyan.
4. The defendant in the suit was one Radha Kishun who was the father-in-law of Musammat Manraji, the daughter of Sheo Agyan, and he set up a title to certain property which he said had been conveyed to him by a deed of gift which was executed in or about the year 1895 in his favour by the widow, Musammat Subhrani. That document is to be found at page 29 of our record.
5. Radha Kishun relied on this document and put forward the defence that the plaintiffs were not entitled to get possession of the property covered by the document in his favour. He asserted that Musammat Subhrani had not merely the estate of a Hindu female in the property which was left by her deceased husband; he said that under a deed of gift, which Sheo Agyan had executed in favour of his wife in the year 1878, Musammat Subhrani was the absolute owner of the property which had belonged to Sheo Agyan and was, therefore, entitled to dispose of this property in his favour.
6. The Subordinate Judge has come to the conclusion that under the deed of gift which Sheo Agyan executed in his wife's favour in the year 1878, assuming that this document was intended to take effect, Musammat Subhrani did not acquire an absolute interest but only the limited estate of a Hindu female.
7. We may mention here that the Subordinate Judge has also found with respect to this deed of gift of 1878 that it was never acted upon and was never intended to take effect.
8. If we are in agreement with the Subordinate Judge in his interpretation of the language of the deed of gift of 1878 then we are not called upon to enter into any of the other questions which were raised in the Court below, for if the Subordinate Judge is not wrong in saying that this deed of gift conferred only a limited interest, it follows that the defendant-appellant Radha Kishun has no case. Any inerest he derived from Musammat Subhrani came to an end when that lady died in the year 1923.
9. The deed of gift in question is marked Ex B. and is printed at page 18 of our record. It bears the date 8th of February, 1878. It begins by reciting that Musammat Subhrani is the second wife of the donor Sheo Agyan. It is recited that the lady had served her husband well and that he was much pleased and satisfied with her and that by reason of her good conduct he, of his own accord and free will, was making a gift of the property which he specifies below together with sir, khudkasht lands and all other appurtenances. It is recited in the deed that Sheo Agayan had put his wife into proprietary possession (qabza malikana) of the gifted property and it is farther recited that the lady is authorised to get mutation of names effected in her favour. The deed winds up by a declaration saying that the lady may 'enjoy, profit or sustain loss in connection with the property specified in the deed' and that the executant Sheo Agyan would have no objection to it.
10. The words by which the property purports to be transferred to the lady are 'bakhsh diya o hiba kar diya', that is to say, I have bestowed and made a gift of this property to my wife. The words in the later clause are the words which have occasioned difficulty and which require to be construed. In describing the position of his wife with regard to this property, the donor Sheo Agyan uses the following words: 'malik milkiyat nafa nuqsan jaedad mufassila zail ka howe'.
11. The Subordinate Judge interprets these words as meaning that the intention of Sheo Agyan was to put the usufruct of the property at his wife's disposal and he laid particular stress in this connection on the words 'nafa nuqsan' He would interpret this clause by saying that the lady was appointed to be the owner of property which consisted of the 'nafa and nuqsan' of certain immoveable properties specified in the deed.
12. We are not prepared to differ from the opinion of the Subordinate Judge on this point. At best the language is ambiguous and certainly it is a remarkable circumstance that the words 'nafa nuqsan' should occur in a document which really intended to confer an absolute proprietary title. In the deed of that kind these words would be superfluous because an absolute owner is, of necessity, entitled to such profit as the property yields and has to bear such loss as results from the ownership. We are disposed, therefore, to agree with the interpretation which the lower Court has put upon this document and we are certainly not prepared to go the length to say that the construction of the Subordinate Judge is clearly wrong. The Subordinate Judge rightlyreferred to the case of Mahomed Shumso-Hooda v. Shewuk Ram 21. A. 7 : 22 W.R. 409 : 14 B.L.R. 226 : 3 Sar. P.C.J. 405 : 3 Suth. P.C.J. 43 (P.C.). The passage which he cites in his judgment is a well known passage indicating that in construing a 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. That case has been a guide to the Indian Courts for many years and has been followed again and again. It is quite true that a document executed by a Hindu in which there is an express and clear intention of conferring an absolute estate will take effect according to its purport notwithstanding the well known ordinary notions and wishes of Hindus in making transfers of this nature. In short, the position is that if the language of the document is so clear as to leave no doubt in the mind of the Court, it must take effect according to its tenor. But if, on the other hand, there is an ambiguity in the language which is used, then for purposes of construction Courts are entitled to take into consideration the notions and wishes of Hindus with respect to the devolution of their property. It is quite clear to us that in the present instance it cannot be argued that the language of the document is so unequivocal as to leave no doubt whatever as to the intention of the donor Sheo Agyan Upadhiya. We cannot say that it is clerly shown that Sheo Agyan intended to make his wife the full owner of this property.
13. As we agree, therefore, with the Subordinate Judge on this point, the case need not go any further, it is not necessary for us to enquire whether the document was intended to be acted upon or whether it ever was acted upon. All we need say is that assuming that it was a real transaction and that effect was duly given to it, the only result was to confer upon Musammat Subhrani an estate which could not enure beyond her own life time. As the defendant-appellant is claiming under Musammat Subhrani, it necessarily follows that any interest which was given to him under the deed of gift upon which he relies came to an end when Musammat Subhrani died in the year 1923.
14. The appeal fails and is dismissed with costs.