Arnold White, C.J.
1. The only question which has been raised on this appeal is as to the nature of the estate to be taken by a lady called Amirthammal in certain lands devised to her by a will executed by her uncle. The learned Judge of the Court below has held that she takes an absolute estate in this property. Mr. Ananthakrishna Aiyar on behalf of the appellants has contended that she only takes a life estate.
2. There are no doubt, decisions--of which the case reported in Seshayya v. Narasamma I.L.R. (1899) M. 357, is one which proceed upon a rule of construction, or a presumption that where a Hindu testator devises or bequeaths property to a daughter or wife--(one of the beneficiaries under the will in the 22 Madras case was the daughter-in-law), the intention is that the female should only take the estate which she would have taken if she could have claimed title to the property otherwise than under the will. It seems doubtful whether this canon of construction or presumption would be applicable to the facts of the present case, because under the will in question Amirthammal who is the niece of the testator, the testator being her father's brother, could have no title to the property in question, apart from the will. If there were no will she would take nothing.
3. It is scarcely necessary to observe that this rule of construction or the presumption, to which I have referred is only intended to assist the Court in giving effect to the intention of the testator and that if a will, read as a whole indicates that it was the intention of the testator that the female in whose favour the devise or bequest was made should take an absolute estate therein, the rule of construction or presumption, whichever we iike to call it, has no application.
4. Now what are the provisions of this will The testator devises certain land to his wife and to his daughter; under this devise the wife and the daughter take the land in question as tenants-in-common. There is a further devise of other lands to his elder brother's eldest daughter. Then there is a devise to Amirthammal who is another niece of the testator and the son of another niece. These two also take as tenants-in-common. Then we have a devise to an idol. Now the words of disposition with reference to all these devises are the same and they are translated in the will as ' granted away.
5. Mr. Ananthakrishna Aiyar has been driven to contend, in view of a decision of this Court reported in Sambasiva Aiyar v. Venkateswara Aiyar I.L.R. (1907) M. 179, that the effects of the devise to Amirthammal and the son of another niece is to give a life estate to Amirthammal and the son of the other niece. In the case reported in 31 Madras to which I have referred the words of gift were the same.
6. There were two donees : one was a male and the other was a female and we held that the effect of the gift was to give the woman the same estate as to the man, namely the full estate. Mr. Ananthakrishna Aiyar has had to carry the matter a step further and to contend that the words of the gift being the same and there being two donees, one a woman and the other a man, the effect of the will is to give the man the same estate ' as the woman, namely, a restricted estate. That seems to me to be obviously contrary to the intention of the testator. The effect of the will according to Mr. Ananthakrishnier's contention is to create a number of life estates no provision being made as to what was to happen when those life estates came to an end. I think that is clearly contrary to the intention of the testator. We have been referred to a recent Privy Council decision Radha Prasad Mullick v. Raneemani Dassi (1908) I.L.R. 35 C. 896. (P.C.). There the Privy Council reversing the decision of the Calcutta High Court, no doubt held that under the will the female took a limited estate. But they arrive at the conclusion after considering the provisions of the Will read as a whole and they come to that conclusion because they think the Will, read as a whole indicates that it was the intention of the testator that the woman in that case should take nothing more than a restricted estate. Their Lordships observe:--' No language could more clearly show that the intention of the testator was to exclude his. daughter's daughters from the succession, to which they would have been entitled under the ordinary Hindu Law if their mother's estate had been absolute.
7. This question has come before this Court quite recently on one or two occasions and has been dealt with in judgments to which my learned brother was a party. In one of these cases the learned Judges make this observation :--They say ' There is no presumption of law that a gift by a man to his widowed daughter-in-law is only the gift of a life estate, as whatever might have been the tendency of certain earlier decisions it has been held in more recent cases that documents of gift to daughters or other female members of a Hindu family need not be construed with a bias in favour of the view that an absolute interest could not have been intended to be transferred.' I agree with those observations. Mr. Ananthakrishna Aiyar suggested that this will was a will of 1857 and that in construing it we ought to apply the rule of construction which he suggests would have been applicable in 1857. I am not at all sure that the rule of construction which he asks us to apply would have been applied by the Courts in 1857. But however that may be, it seems to me that in construing the will, the fact that the will is an old will does not prevent us from applying to this what seems to me to be the real test, namely, what was the intention of the testator'? I think the learned Judge was right in the view he took as to the construction of the will and I would dismiss the appeal with costs.
Seshagiri Aiyar, J.
8. I entirely agree with my Lord. The rule of construction enunciated in Seshayya v. Narasamma I.L.R. (1899) M. 857 must greatly qualified having regard to the tendency of the more recent decisions of the Privy Council and of the various High Courts. The true principle seems to me to be that, where the words of a gift are capable of conferring an absolute estate on a person the fact that that person is a female will not derogate from the point. In the present case there are four considerations which lead me to conclude that the testator intended to convey an absolute estate in favour of Amirthammal. In the first place the words used in the vernacular disposing of the property in favour of Amirthammal when translated, would mean ' assigned to her.
9. Those words convey an absolute estate. Secondly the disposition in favour of Amirthammal happens to be coupled with a gift in favour of a male. It is a strong circumstance indicating that both the male and the female were intended to take the same kind of estate in the property. This was pointed out by the learned Chief Justice in the case of Sambasiva Aiyar v. Venkateswara Aiyar I.L.R. (1907) M. 179; there is no room for the suggestion that ordinarily when property is given to a male he takes other than an absolute estate, and when a female is given an estate along with a male, she should be given the same estate as would go to a male. Another circumstance is that there is a bequest in this will to a charity and I do not think that by any stretch of imagination it can be argued that that gift was intended to confer a limited estate. The words employed in conveying the property to the charity are exactly the same as those employed in conveying the property to Amirthammal. And the fourth circumstance is that this is a gift in favour of a lady who had, no claim upon the testator. She was practically a stranger entitled neither to inheritance nor to maintenance and that is a strong circumstance which shows that the testator did not intend to confer upon this lady a qualified estate which might be presumed to have been his intention in case a female who was an heir under the Hindu Law was intended to be benefitted by the gift. For all these reasons I agree with the learned Chief Justice in thinking that the District Judge arrived at a right conclusion and that the appeal should be dismissed with costs.