1. It is first argued before is that the defendants are not entitled to claim under the will as they have not taken out probate or Letters of Administration. Section 87 of the Indian Succession Act is relied upon. But it has been decided that a defendant not precluded by that section from relying upon a will, as he is not seeking to establish a right as executor or legatee Janaki v. Dhanu Lall 14 M.k 454 and Original Suit Appeal No. 7 of 1905.
2. The next question is, whether, under the will left, by Cota Thevaperumaliah who died in 1874, his widow took an absolute state or only a widow's estate. After making certain bequests the testator made the gift in question in the following terms. I give all the remaining properties of every sort which fell to my share to my wife, Andalu. Therefore, my aforesaid wife Andalu herself should enjoy all the remaining property.' Under Section 82 of the Succession Act, when 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. This is, undoubtedly, in conflict with the rule that where a husband bequeaths immovable property to his wife without words expressly creating an absolute estate, she takes only widow's interest. This rule is based on the fact that a Hindu presumably knows that widows do not take absolute estates of inheritance which they are entitled to alienate. We cannot now apply this rule to cases to which Section 82 applies. We can restrict the widow's interest, therefore, only if the other terms of the will justify such restriction. The circumstance that she is a widow, that there are no words of inheritance, or words authorising her to alienate, are not in themselves sufficient to show that the widow takes only a restricted estate, as, in such cases, there is no presumption to be raised under Section 82, the words themselves showing that she took an absolute estate. But we may take the circumstances into consideration in construing the other provisions of the will. The recital in the will that his wife should enjoy' the property is important to indicate the intention of the testator. He does not leave any specific property to his wife, and without words of inheritance or words empowering her to alienate, which are usually inserted when it is intended to give an absolute estate, he leaves the property to her to enjoy. We are inclined, therefore, to think that he did not intend that his widow should have the power to alienate the estate. At the time of the will and of his death he had a nephew and daughters and it is not likely that he intended to enable the widow to alienate the estate to strangers.
3. We, therefore, dismiss the appeal with costs.