Sadasiva Aiyar, J.
1. The 2nd defendant is the appellant. He purchased the plaint house from the 1st defendant, who is the plaintiff's father. The plaintiff is the son of the 1st defendant by the 1st defendant's deceased first wife. The 1st defendant made a gift of the house in November 1903 to his first wife (that is, plaintiff's mother) by Exhibit I. The plaintiff was born after the date of the gift deed and he claims the property as the heir of his mother and seeks to recover possession of it from the purchaser, the 2nd defendant, after declaring that the sale-deed by the 1st defendant in September 1908 in favour of the 2nd defendant is not binding on the plaintiff. The defendants' contentions were that the gift deed to plaintiff's mother was a nominal transaction which was never acted upon and that the sale to the 2nd defendant, by the first defendant acting for himself and as guardian of the plaintiff, was made for proper purposes binding on the plaintiff. When this suit was brought the plaintiff was a minor and the suit was, therefore, brought by his next friend, his paternal aunt's husband. (It is clear from the written statements that the 1st and 2nd defendants have been acting together, the 1st defendant having married a second wife.) The plaintiff also claims mesne profits for 3 years before suit and the only defence so far as this claim is concerned is that the claim is excessive.
2. In the first Court no contention was raised in dispute of the allegation in paragraph 6 of the plaint that an absolute interest in the plaint house had vested in Kuppammal under the gift deed. The learned District Munsif found that the gift deed was a real transaction and that the plaintiff's mother did enjoy the house with full rights. He found also that the sale deed was not binding on the plaintiff as it was not executed for the advantage of the minor. In appeal a new contention seems to have been raised in the appeal memorandum that the deed Exhibit I, even if effective, gave the mother, in law, only a life interest and that the reversion came back to the plaintiff's father on plaintiff's mother's death. It does not, however, appear that this point was argued before the Appellate Court, as no reference is made in the judgment of the learned District Judge to this contention. The contention, however, has been strongly pressed before us in second appeal and I shall at once deal with that contention.
3. Exhibit I states that the husband, who is contemplating retirement from the world and pilgrimage to holy shrines, makes a gift of the suit house to his childless wife in lieu of her maintenance. A husband is bound to make provision for the maintenance of his wife before retirement from temporal affairs and that obligation is evidently intended to be discharged by this gift. Under the deed the donor gives the house 'with its site, water-courses, treasures and stones' with power of alienation by sale expressly conferred on the donee and recites that he gives also possession of the title deeds. Construing this document in its ordinary sense according to the plain meaning of the language, I can find no difficulty whatever in arriving at the conclusion that it conferred an absolute heritable interest on the donee. It was, however, argued by Mr. T.R. Venkatrama Sastriar, on the strength of some judicial observations in the decisions he has quoted, that because the gift was made to a Hindu woman, more especially to a wife, we must construe the document restrictively having regard to the supposed intention of a person who makes a gift to a Hindu woman not to give her more than a life-interest. I shall refer to a few of those cases. The first case I shall refer to is the decision of the Privy Council in Moulvie Mohamed Shumsool Hooda v. Shewukram 2 I.A. 7. The facts and the course of decision in that case were' rather peculiar. The document in that case was a disposition in favour of his daughter in-law by a testator. He made her the heir and malik of his properties after his death. Then he said that her daughters shall be her heirs. There were no words of inheritance (such as putra poutradi) in the document and no powers of alienation were expressly conferred. That document bad been construed by Bayley and Hobhouse, JJ. in Chutter Lall Singh v. Shewuk Ram 5 B.L.R. 123 as granting an absolute heritable estate to the daughter-in-law, where the learned Judges had to construe it in the first of the two suits in which the document had to be construed. In the later suit the decision of the High Court which is reported in the foot-note See Syad Mahomed Shumsal Hoda v. Shewakram 7 B.L.R. 700-Ed to Srimati Pabitra Dasi v. Damudar Jana 7 B.L.R. 697 (foot note) that same document was construed by two out of three Judges as giving only a life-interest to the daughter in-law (D.K.) having regard to the notions of Hindus about the extent of women's interest in the property inherited by them, but the third Judge who was one of the Judges who took part in the decision in Chutter Lall Singh v. Shewuk Ram 13 W.R. 285 dissented and he adhered to his former opinion. Then the case went up to the Privy Council and their Lordships, on the particular facts of that case and having regard to the surrounding circumstances, thought that the majority of the Judges in Srimati Pabitra Dasi v. Damudar Jana 7 B.L.R. 697 (foot note) came to the right conclusion on the construction of a rather difficult deed. The decision of their Lordships of the Privy Council seems to have been considered in several decisions of the High Courts as if it laid down the broad proposition that a gift to a Hindu female (and especially to a wife or widow by her husband) should be construed with a prejudice in favour of the view that only a life-interest was intended. I must say with the greatest respect that no such rule of law can be deduced from the said decision of the Privy Council. On the other hand, so long ago as in 1875 a very learned Judge, Romesh Chunder Mitter, laid down in Kollany Kooer v. Luchmee Pershad 24 W.R. 395 that he was not aware of any provision of Hindu Law that a gift to a Hindu female means a limited gift or carries with it only a limited estate. Even as regards the wife the text of Narada quoted in Bhujanga Rau v. Ramayamma 7 M. 387 what has been given by an affectionate husband to his wife she may consume as she pleases when he is dead or may give it away except the immoveable property, does not, in my opinion, mean that a gift even of immoveable property, if accompanied with express power of disposal, cannot confer an absolute estate on the wife--of course Narada was not considering the case of a disposition by Will in favour of a widow to take effect after the testator's death.
4. In Bhujanga Rau v. Ramayamma 7 M.A 387 it was held that a gift with the words putra poutra paryantam added did not confer on the wife a power of alienation though the land became her stridhanam. With the greatest respect I am not prepared to assent to the correctness of that decision, which, in my opinion, requires reconsideration when the same question arises again. So far as the cases in Annaji Dattatraya v. Chandrabai 9 Ind. Dec. 327 and Nanjamma v. Nacharammal 17 M.L.J. 622 are concerned, the decisions rested upon a particular words found in the deeds executed in favour of the female donee; in the one case that she should enjoy for her maintenance and in the other case that she could enjoy for her life. Their Lordships of the Privy Council have themselves indicated that they did not mean by their decision in Moulvie Mohamed Shumsool Hooda v. Shewukram 2 I.A 7 to lay down any such general rule as is contended for see Jcgeswar Narain Deo v. Ram Chandra Dutt 23 C.A 670; 7 Sar. P.C.J. 13 where even the words indicating that the gift was for maintenance were not held to detract from the absolute character of the estate given by the deed. Also Surajmoni v. Rabi Nath Ojha 5 A.L.J. 67 ; 7 C.L.J. 131. In Vencataraju v. Kottayya 16 Ind. Cas. 139; 12 M.L.T. 230 ; (1912) M.W.N. 861. I ventured to express the opinion that a gift by a female should not be construed less liberally than a gift to a male. See also Ramanuja Aiyangar v. Satagopacharar 27 M.L.J. 329. As regards the case in Manika Mudali v. Muthachi Kavandan 30 Ind. Cas. 685. I respectfully dissent from the opinion of Ayling, J., that the words sarva swathanthrathudan did not confer an absolute estate on the female donee. The other learned Judge, Tyabji, J. was inclined to differ but naturally felt too diffident to differ, especially as two Hindu Judges in the lower Courts had expressed a contrary opinion. The decision in Appeal No. 26 of 1896 decided by Subrahmania Ayyar and Benson, JJ., was sought to be distinguished by Ayling, J, on the ground that, besides the words sarea swathanthrathudan, there were other expressions in the document construed in Appeal No. 26 of 1896 which indicated the intention to grant an absolute estate, I venture to think that with full proprietary powers', the meaning of sarva swathanthrathudan, is the strongest expression that an alienor can employ to confer an absolute estate on the aliened and that the addition of other expressions is superfluous. Mr. Venkatrama Sastri tried to make a point of the fact that only the power of sale was given in the document now construed and not the general power of alienation by sale, gift, etc., words usually found in documents intended to confer an absolute title. I am not much impressed with this argument. The grant of a power of sale, in my opinion, fully and sufficiently indicates the grant of an absolute estate. I, therefore, agree with the lower Courts in their construction of the document Exhibit I.
5. A minor point was urged that because the father, the 1st defendant, had obtained interest for some time on behalf of himself and the plaintiff on the amount of a mortgage deed which the 2nd defendant executed for the greater portion of the purchase-money mentioned in the sale deed executed to him by the 1st defendant, the plaintiff is not entitled to claim rent till the date of the document executed by the 1st defendant acknowledging receipt of such interest. In the first place this point seems not to have been taken in the first Court, or even in the ground of appeal to the lower Appellate Court. In the next place, the money was obtained by the 1st defendant, not for the benefit of the plaintiff who is the only person entitled to the mesne profits, but was obtained as interest on the amount of a mortgage bond which was a part of the course of transactions created by the 1st defendant with the intention of acting adversely to and creating evidence against the plaintiff's claim as heir of his mother. This contention, therefore, must also be overruled.
6. In the result I would dismiss the second appeal with plaintiff's costs. The time for removing the superstructure allowed to the 2nd defendant is extended till the expiry of 4 months from this date.
7. I agree. On the somewhat belated contention that the gift deed in this case, Exhibit 1, which contains the words: I have gifted this day in lieu of maintenance the undermentioned house with rights of alienation by sale' confers on the wife only a life-estate, I wish to add a few words in deference to the very full arguments we have listened to. In Toolsi Dass Kurmokar v. Madan Gopal Dey 28 C. 499 it was laid down by Harrington, J, that one of the tests which may be applied to see whether the estate given is intended to be absolute or not, is to see whether the donee has a power of disposition over it. I respectfully agree with this and adopt this test. In Jogeswar Narain Deo v. Ram Chandra Dutt 23 I.A. 37 the Judicial Committee of the Privy Council has no hesitation in construing a gift deed which contained an express power given to the donees of making alienations by sale or gift as conveying an absolute estate. There were other words in the deed which led to the same conclusion. But the decision supports the view that where words giving powers of alienation or of absolute estate occur in the document, the ordinary implication is that the grant is an absolute one. Manika Mudali v. Muthachi Kavandan 30 Ind. Cas. 685. was a decision which turned mainly on the meaning of the words sarva swathanthrathudan, which do not occur in the document before us. If in that case there had been a distinct provision for alienation, it is clear from Ayling, J's remarks that be would have come to the conclusion that an absolute estate was gifted. But in that case only the words sarva swathanthrathudan occurred and the power of sale that occurs in the document before us was not present in that document. In Annaji Dattatraya v. Chandrabai 9 Ind. Dec. 327 there were no words giving expressly the power to alienate the property. In Nanamma v. Nacharammal 17 M.L.J. 622 the question that arose was whether there was a grant of a life estate or a widow's estate. The learned Judges held that what was given in that case was a life estate, and they came to this conclusion on account of the words 'you shall enjoy the same all your life.' They commented on the absence of apt words for the purpose of clothing the widow with powers of alienation for purposes of family necessity, and they decided that the mere expression with power to sell and give away' did not necessarily indicate the grant of a widow's estate. On the construction of the suit gift deed I agree with my learned brother that the District Judge was right in his opinion that an absolute estate passed and that the second appeal should be dismissed with costs.