1. The foundation of the lower appellate Court's judgment is that Ex. IV is a surrender of the interest of the 1st defendant. The appeal is argued on the footing that Ex. IV operates merely as a gift to the 1st defendant's daughter Subbamma. now deceased, of the 1st defendant's interest in the suit property under the Will, Ex. V, purporting to have been executed by her husband now deceased. It is necessary to add that Ex. V has been found not to be genuine. Though there is no finding before us as to the 1st defendant's responsibility for its being put forward, the basis of our decision as to the character of Ex. IV must be the intention of the executant, the 1st defendant.
2. The intention we have to collect from the wording of the document; and that wording fortunately is in our opinion clear. Ex. IV is headed as a gift-deed, that description being repeated in its first paragraph. The 2nd paragraph runs in this way: 'My husband late Korumadi Venkata Papayya Garu had executed a will on 2-5-1903 arranging among others that I should enjoy until my death the undermentioned immoveable property and other moveable property blonging to my husband as his self acquisition, and that after my death you and your descendants should enjoy the same with powers of gift and sale. As I too am now 68 years old, as I have much affection towards you and as you and your husband have been protecting me amicably from the time of my husband's death till now, I have arranged that you should protect me in future until my death and have this day given away to you as gift the right and enjoyment possessed by me at present in the immoveable property worth Rs. 3,000 comprised in the said Will executed by my husband. Therefore you yourself shall henceforth pay the entire taxes payable and enjoy the property from generation to generation with powers of gift and sale.' The material fact, on which we base our finding as to the 1st defendant's intention in this document is that she proceeded throughout with reference to her husband's Will, first referring to it as the origin of her right to the property she was disposing of, next referring to it as defining the estate, which she was disposing of. In these circumstances our construction of Ex. IV is that she was giving away what the Will purported to give her. Reference has been made to the will, as purporting to give her (he estate she conveyed, not as really giving it to her, in consequence of the lower appellate Court's finding that the Will is not genuine. But that finding cannot affect the view we have to take of the 1st defendant's intention in Ex. IV. We must reach a conclusion as to what she wished to give with reference to what she was assuming in the document as to the genuineness of the Will.
3. Construction of the actual terms of the document as a justification for the lower appellate Court's judgment failing, we have been asked to construe it in favour of the plaintiff respondent with reference to what is alleged to be a rule of construction authorized by two decisions of the Allahabad High Court. That rule as proposed to us is that gift by a widow to a daughter or more generally a gift by a widow to another reversioner must be regarded whatever its terms, as an acceleration of the other reversioner's interest. The exact question which the learned Judges were dealing in Bhupal Ram v. Lachma Kuar I.L.R. (1883) All 253 is not clear. But we do not find that they intended to enunciate such a general rule as we are asked to adopt. In Rup Ram v. Musammat Rewati I.L.R(1910) . All 582, Bhupal Ram v. Lachma Kuar I.L.R. (1883) All 253 is no doubt followed, though apparently with some hesitation on the part of one of the learned Judges. But in fact we are unable to collect from either of these decisions that the Allahabad High Court has held anything, which will be of any use to the plaintiff in the present case. The two decisions we have referred to no doubt lay down that a transfer by a widow to her daughter or other next reversioner will ordinarily be regarded as an accelaration of the next re-versioner's interest; but the learned Judges do not say and we do not think that they meant that this would be the case, when, as here, there are material portions of the particular document by which the transfer is effected, to support the existence of a different intention. Taking this view we cannot read Ex. IV as effecting accelaration of the plaintiff's interest or as anything except a gift of what the widow believed to be her own interest in the suit property under the Will to her daughter Subbamma and Subbamma's heirs in case Subbamma should die before the widow herself. The result is that the second appeal must be allowed, the plaintiff's suit being dismissed with costs throughout.