1. This is an appeal by the third defendant against the judgment of the Subordinate Judge of Berhampur dated October 27, 1954, decreeing the plaintiffs' suit Originally there were three defendants including the appellant. Defendants 1 and 2 during the pendency of the suit compromised with the plaintiffs whereby the plaintiffs after receiving Rs. 1500/- in cash from the said defendants relinquished all their rights in Schedule A properties. The defendants 1 and 2 in their turn admitted to have no right in respect of B Schedule properties. Defendant 3, the appellant before this Court, alone contested the suit.
2. Plaintiffs' case was short and simple. Late N. Krishnamurty, the brother of the two plaintiffs executed a will (Ext. 1) on August 18, 1932, whereby he gave away all his properties to his mother, Rukmini with certain directions. Krishna Murty had two other sisters, Thyaramma and Ammajiamma. At the time of the execution of the will, Ammajiamma was unmarried. Accordingly, Krishna Murty gave directions by the aforesaid registered will to Ms mother to alienate certain properties to discharge certain existing debts and to meet the expenses of the marriage of Ammajiamma. Ammajiamma in due course was given in marriage to defendant No. 3. Defendant 1 is the husband's brother of Thyaramma and defendant 2 was her co-wife. Both Ammaiiamma and Thyaramma died in the year 1939. From the date of the will until their mother's death in 1936, the properties left after discharging the debts and meeting the marriage expenses of the youngest daughter, Ammaiiamma, were in possession of their mother, 'Rukminamma. Krom after the death of their mother till 1939, all the four sisters enjoyed the said properties jointly. After the deathof the two sisters, Thyaramma and Ammajiamma the plaintiffs became entitled to all the properties left by their mother and they alone were in possession of the same till about 1944 when the three defendants colluded together and set up a claim that the properties of the four sisters had been partitioned and divided by metes and bounds amongst themselves. Schs. A and B properties according to them had fallen to the share of Thyaramma and Schedule C properties fell to the share of the third defendant's wife.
Accordingly, they trespassed and disturbed the possession of the plaintiffs. According to the plaintiffs there was no such division or partition of the lands as alleged by the defendants and they inherited the entire properties left by the will of their brother by way of survivorship. Accordingly, the plaintiffs filed the present suit for recovery of possession of the A, B and C schedule lands as described in detail in the plaint and for mesne profits for three years, that is, for the years 1948, 1949 and 1950. They also prayed for a direction to determine the future mesne profits from the date of the suit in respect of the suit lands. In this appeal we are not concerned with A and B Schedule properties. The third defendant claims title only to G Schedule properties.
3. The defence of defendant 3, however, was that all the four sisters of late Krishnamurty took the properties bequeathed in equal shares as donees. The contention was that Krishnamurty as the last male owner executed the registered will, bequeathing all his properties to his mother, Rukminamma absolutely and on her death to her four sisters and gave certain instructions to discharge the debts and for meeting the marriage expenses of his youngest daughter. Rukminamma enjoyed the properties as her Stridhan with full rights over it and died in 1936 whereafter the two plaintiffs and their two-deceased sisters inherited all properties and enjoyed them as tenants-in-common. The four sisters took the properties as donees and there was a diversion by metes and bounds as a result of which the C Schedule properties along with certain other lands in village Bhatanoyi were allotted to the share of his wife.
4. The trial judge on a careful consideration of the plain language of the will came to the conclusion that the mother of Krishnamurty got an absolute interest in all the properties left under the will and he enjoyed the same till her death in l936 as absolute owner thereof. After the death of Rukminamma the four daughters including the plaintiffs got the remaining properties only as Stridhan heirs of their mother and not as donees under the will of their brother. Thus after the death of the two other sisters, the interest in the properties passed to the plaintiffs by the rule of survivorship. Accordingly he decreed the plaintiffs' suit.
5. The sole contention that was raised before this Court by Mr. Ramdas was that reading the will Ext. 1 as a whole, Rukminamma did not get an absolute estate. Whatever rights she had by the 1st clause of the will had been cut away by the subsequent clauses. Hence all the four sisters of Krishnamurty inherited as donees.
6. The controversy between the parties is also simple. The plaintiffs' case is that their mother deriv-ed an absolute estate in all the properties left by their Brother by the will, Ext. 1, whereas the defence case was that the will did not create any absolute interest in favour of the mother; the ultimate intention of the testator being to benefit all the four sisters. It is now well-settled that the properties bequeathed to a Hindu female is her stridhan property. If the gift to a female, i.e. the mother, daughter, brother's daughter, sister etc. passes an absolute interest in the estate then on her death intestate, the property passes to her stridhan heirs with the right of survivorship.
But in case, the gift passes a limited interest only the estate passes on her death to the donor's heirs (Vide Ramaswami v. Papayya, ILR 16 Mad 466; Basant Kumari Debi v. Kamikshya Kumari Debi, 32 Ind App 181 (PC) and Annaji Dattatraya v. Chandrabai, ILR 17 Bom 503). The original will is in Telugu. A faithiful English translation to which both the parties agreed was filed before the trial Judge. No objection to the translation was also raised before this Court. In paragraph 2 of the will the testator after recounting about the existence of several debts which had to be repaid proceeded to state as follows:
'I hereby authorise my mother to perform the marriage etc. of my younger sister Ammojamma mentioned in para 3 and to discharge the above debts together with the interest thereon by selling so much of the property specified in para 4 below which may be required for the above two purposes. I bequeath the remaining movable and immovable properties to my mother together with the right of alienation by sale, gift etc. On the death of my mother the properties remaining by then should be divided into four equal shares and they shall be enjoyed by my four sisters together with the right of alienation by gift, sale, etc. If my mother so desire she may adopt a boy. In that case the properties will go to the adopted boy after her death and not to my sisters. If during the lifetime of my mother, she and the adopted boy after ' attaining majority do not pull on well and if he does not support her, then the entire properties shall be divided into two equal shares and be enjoyed separately by each of them with absolute rights. If they live separately, the properties that my mother would get to her share, shall go to my four sisters in four equal shares with all the rights of alienation by sale, gift, etc. after her death.'
In view of the above provisions Mr. Ramdas contended that only a limited interest was given to the mother and the dominant intention of the testator was to benefit all his sisters. For this purpose, Mr. Ramdas relied upon certain cases which are either distinguishable on facts or do not support his contention in full.
7. Before referring to the cases cited by Mr. Ramdas, I would like to state what the position in law now is. When a property is given to a female by a deed or will the question arises more often than not whether the gift passes an estate of inheritance, that is absolute estate, or merely a limited estate. Section 95 of the Indian Succession Act (Act 39 of 1925) provides that where a property is bequeathed to any person he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him. Thus, as far as bequest by a male Hindu is concerned, there can be no question that the Hindu Law is in any way different from the law enacted in this Section. But the question frequently arises whether the same can be said of a woman such as a wife, mother, daughter etc. As early as 1871 in the case of a transfer by a Hindu to a female relation, it was held in the case of Pabitra Dassi y. Damudar Jana, 7 Beng LR 697 that a gift by a Hindu to his wife passed an absolute estate on the ground that there was no ambiguity in the language and that the Court was bound to give effect to the document. This view was reiterated by the Supreme Court in some of their recent decisions to which 1 will advert a little later.
8. Although it was decided in the Pabitra Dassi's case, 7 Beng LR 697 that an absolute estate passed to the Hindu female, the Privy Council in the case of Mohammad Shumshool v. Shewukram 2 Ind App 7 (PC), held that the daughter-in-law took only a limited estate. The observation of the Privy Council in that case was:
'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 Hindus 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 estate of inheritance which they are enabled to alienate. Having reference to these considerations together with the whole of the will, all the expressions of which must be taken together without any one being insisted upon to the exclusion of others, their Lordships are of the opinion that the two Courts in India who both substantially agree upon this point, are right in construing the intention of the testator to have been that the widow of his son should not take an absolute estate which she should have power to dispose of absolutely, but that she took an estate subject to her daughter succeeding her in that estate'.
9. Subsequent to this decision this very question was mooted in a number of cases both before, the High Courts in India as well as before the-Privy Council with varying answers; some taking the view that the bequest simpliciter to a woman would confer on her only a limited estate while others taking the view that in the absence of a contrary intention such a bequest would pass to her the absolute estate of the testator. It is unnecessary to refer to this long catena of cases. It would be sufficient to refer to the case of Bhaidas Shivdas v. Bai Ghulab, 49 Ind App 1: (AIR 1922 PC 193), in which their Lordships of the Privy Council held: The decision of Mt. Surajmani v. Rabi Nadi Ojha, ILR 30 All 84 (PC), showed that provision namely the rule laid down by the High Court and referred to above was no longer sound and that where the, words were used conferring absolute ownership upon the wife, the wife enjoys the right of ownership without their being conferred by express additional words unless the circumstances or context were sufficient to show that such absolute ownership was not intended.
Whatever doubt still lingered had been clarified by the Privy Council in the case of Ramachandra Rao v. Ramachandra Rao, AIR 1922 PC 80. After this case the view appears to have been settled. Whether or not a Hindu female takes an absolute interest in the properties bequeathed depends upon the interpretation of the document. The same view was reiterated by the Privy Council in two cases reported in Shaligram v. Charanjitlal, AIR 1930 PC 239 and another case in the same volume at p. 253 Jagmohan v. Srinath. Thus, a gift simpliciter to a wife or to a daughter, mother, or to any other female relation without any words therein indicating a contrary intention, would be taken by the legatee or devisee as an absolute owner with powers of alienation in the same way as a male legatee under a similar devise or bequest.
10. The question came up for consideration before their Lordships of the Supreme Court in the case of Ram Gopal v. Nand Lal, AIR 1951 SC 139 and Nathoo Lal v. Durga Prasad, AIR 1954 SC 355. In Nathoo Lal's case, AIR 1954 SC 355 their Lordships held that a will made by the father in favour of his daughter should be presumed to confer on her an absolute and not a limited estate. Mahajan, C, J., in that case observed as follows :
'It seems clear that the intention of the testator was to benefit his daughter Laxmi and to confer upon her the same title as he himself possessed. . She was the sole object of the bounty and on the attendant circumstances of his case it is plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and under the law devolved on Laxmi's husband who had full right to alienate it.'
Mahammad Shamshool's case, 2 Ind App 7 (PC) was considered and the view taken therein has been held to be unsound. Their Lordships of the Supreme Court thus observed :
'The matter has now been set at rest by the decision of this court in AIR 1951 SC 139. The position therefore is that to convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership. Thus, the will as a whole has to be considered. There may be cases in which language may be used in such a way in the will itself that it may work down to an absolute estate which may otherwise be inferred from the use of that expression. There may also be words in the will which confer upon the widow a bare life estate without powers of alienation of the corpus for legal necessity and not the widow's estate under the Hindu Law'.
11. This being the position in law the will having given the mother in most unambiguous terms the absolute rights and powers of disposition, it cannot be contended that an absolute estate was not conferred on her. In the case of Jogeshwar Narain Deo v. Ramchandra Dutt, 23 Ind App 37 (PC) the Judicial Committee held that the testator having given four annas share of his estate to his daughter and her son 'for your maintenance' with power of making alienations thereof by sale or gift on the true construction of such gift each took an absolute estate with two annas share therein and the words 'for your maintenance' did not reduce the interest of either to one for life only. A similar view was taken in the case of Kesserbai v. Hansraj, 33 Ind App 176 (PC). The further provisions in the will appear to be in the nature of a gift-over arrangement which cannot limit or cut down the absolute estate given by the first clause.
12. In the case of Golak Bihari v. Suradhani Dassi, AIR 1939 Cal 226 the question arose whedier in the case of there being an absolute grant the subsequent conditions of gift-over would be deemed to be void for repugnancy. Their Lordships held:
'Where the intention of the donor or testator is to maintain the absolute estate conferred on the donee, but he adds some restrictions in derogation of the incidents of such absolute ownership the clause is repugnant one and is therefore void. If, however, the intention expressed, or to be necessarily implied, is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said absolute estate would not be the violation of any rule or law, the clause is a defeasance clause and would operate according to its tenor'.
13. Mulla in his Hindu Law under Article 392 regarding the conditions repugnant to interest created states :
'Where by the terms of a deed or will an absolute estate of inheritance is created in favour of a person any subsequent clause purporting to restrict that interest is invalid and the donee would take an absolute estate as if the document contained ne such clause.' (vide 49 Ind App 1: (AIR 1922 PC 103); Raghunath Prasad v. Deputy Commr., partabgarh, 56 Ind App 372: (AIR 1929 PC 283); Saraju Bala Debi v. Jyotirmoyee Debi, 58 Ind App 270: (AIR 1931 PC 179); Partab Chand v. Makhani, ILR 14 Lah 485: (AIR 1933 Lah 365) and Kandarpa Mohan Goswami v. Akshoy Chandra, ILR 61 Cal 106: (AIR 1934 Cal 379)).
14. Mr. Ramdas sought to rely upon the following cases; Menumallaswami v. Narayanaswami, AIR 1932 Mad 489. What was held in that case was that where a will contains a gift and then is followed by a gift-over the rule is if the intention of the testator as represented by his words was to confer an absolute estate that estate cannot be cut down by anything that follows. This is directly against the contention of Mr. Ramdas. The next case cited was the case of Mitha Bai v. Meher Bai, AIR 1922 Bom 179. In the will itself the testator stated; 'As whatever surplus of my property may remain over after my decease the Malik thereof shall be my wife. She shall during her life-time apply the same and spend it in a good way'.
The words 'she shall during her life-time apply and spend the money in a good way' cut down the absolute estate created by the use of the word 'Malik' to a life-estate. There is no such word of restraint in Ext. 1. The next case that was cited was the case of Habibullah v. Ananga Mohan, AIR 1942 Cal 571. The dominant intention of the testator in that case was the exclusion of his son from his property and his estate to pass intact to his widow and after her to his grandsons (son's son) in succession and on the death of grandson or grand-sons to the objects specified in the will. Their Lordships heldthat the second dominant intention was inconsistent with the series of absolute interest and therefore the widow took a life-estate only though the words used by the testator would have conferred an absolute estate on the widow.
There being no ambiguity in the dominant intention of the testator in the present case this case does not help the contention of Mr. Ramdas. In the case of Harakumari Dasi v. Mohini Chandra Sarkar, 12 Cal WN 412, their Lordships held that giving effect to all the words of the will the widow took an estate for life with the power of alienation and to the extent which such power was not exercised the daughter similarly took the property. The language of the will in this case is widely different from the language employed in Ext. 1. The case in Radha Krishnayya v. Sakuntala, 1950-2 Mad LJ 239 concerns a deed of family settlement and I need not refer to the same. The only other case relied upon is the case reported in Thayalai Achi v. Kannammal, AIR 1935 Mad 704.
In that case it was held that on a construction of the will and of the words used, the testator had the intention of giving to his wife a right to enjoy the property as absolutely as possible and that if she did not, during her lifetime, get rid of the property or that into which it had been turned and did not leave it by will, her enjoyment would come to an end with her death and what was left (subject of course to the payment of debts and expenses) would pass to Natraj Pillai. The case came up to be considered in a later decision of the Madras High Court reported in Krishnaswami v. Srinivasan, AIR 1945 Mad 362, Chandra Sekhar Aiyar J. considered this decision and did not quite approve of the same. His Lordship however on a consideration of the words employed in the will in question held that the properties belonged absolutely to the donee after the testator's death and the testator had no power to make a disposition after death of A after giving her an absolute estate.
15. Thus, when there is no ambiguity in the plain language employed in the will, the will must be construed as a whole and effect must be given to the dominant intention of the testator. If the testator confers an absolute estate on the donee after his death, he has no power of disposition left to him thereafter. Accordingly, the subsequent directions if repugnant to the clause conferring an absolute right must be held void.
16. The only other case I need refer to is the case in Suresh Chandra Palit v. Lalit Mohan Dutta, 20 Cal WN 463: (AIR 1916 Cal 775). In that case a Hindu testator left a will the material portions of which were as follows: The second and third clauses of the Will appointed the testator's widow as executrix and authorised her to meet the expenses and pay the debts by sale, if necessary, of a portion of the estate. The fourth clause provided that the widow shall obtain as Nirbudha Malik whatever movable and immovable properties shall be left by the testator and she shall be the absolute owner with rights of gift, sale and all other kinds of transfers. In the next three clauses the testator authorised the widow to adopt a son and prescribed the devolution of the estate in the event of such adoption and in the last clause he provided that if at the time of the death of his widow there be no adopted son or ifno son or wife of the adopted son be alive then the testator's heir according to the Hindu Sastras who shall be alive at the time shall get the properties which shall remain after disposal by the widow by way of gift or sale of the same.
In the circumstances, their Lordships held that under the fourth clause of the will the widow took an absolute interest in the estate devised and the gift-over contained in the last clause of what might remain undisposed of by her was void and inoperative in law. Where an absolute interest is given the Court will not cut it down by subsequent words in the will unless they clearly have an effect to restrict it. Where a devisee takes an absolute interest a gift-over on her failure to dispose of the property or whatever part of the property she does not dispose of is void.
17. From the above, it appears clear that the testator after once having given the absolute interest to his donee, has no power to legislate or appoint; and cannot be allowed to cut down the absolute interest by subsequent words unless they have an effect to put restraint on the donee's taking an absolute interest. Once a devisee takes an absolute interest the gift-over would be void in the eye of law. In the present case Krishnamurty conferred an absolute interest in his mother by Ext. 1 and as such, she inherited an absolute estate after his death. Once she inherits the absolute estate, the subsequent clauses are void and on her death her daughters took the properties in equal shares subject to the rule of survivorship, the estate in the hands of the mother being her Stridhan property. The other two sisters being dead, the plaintiffs inherited the property left over by their mother Rukminamma. No other point was argued at the Bar.
The sole contention raised by Mr. Ramdas fails and there is no merit in this appeal. In the result, the appeal is dismissed with costs,
18. I agree.