1. In this case, both the lower Courts after careful consideration have construed the gift-deed, Exhibit I, as conveying to the donee (the wife of the donor) only a limited interest in the property. I do not feel justified in coming to a different conclusion. The general rule of construction is undoubtedly in favour of the view of the learned Subordinate Judge. As Mr. Mayne puts it, 'gifts by a husband to a wife of immoveable property, even though accompanied by express words of inheritance, are not alienable unless distinctly declared to be so.' In this case, there is no specific provision for alienation, and the special clause relied on by the appellants is simply the words sarva swathanthrathudan'; and I am not satisfied that they are sufficiently clear and specific to outweigh the usual presumption and present the donee with a full title. I have considered the numerous reported cases quoted by both sides in which various documents of different wording have been interpreted by Courts. The only case in which this phrase occurs is an unreported case, Appeal No. 26 of 1896, in which they were re-inforced by another clause, 'without any one else having any right to the property.' The learned Judges also commented on the improbability of the testator employing so much verbiage to, confer no larger an estate than would have come to the beneficiary if he had died intestate. I do not think the interpretation of the words in that case is of much help now.
2. I would dismiss this second appeal with costs.
3. The ordinary rule of law is that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.' (Section 8 of the Transfer of Property Act, paragraph 1. See also Section 82 of the Indian Succession Act.) The authorities are clear that ordinarily a gift to a Hindu lady implies a different intention, viz., that the lady takes not a full estate with power of alienation, etc., but merely a woman's limited estate, and so when all that appears is that there is a transfer and it is in favour of a Hindu lady, she takes a limited estate. When, however, there are words showing that a larger estate was intended to' be given, that intention is given effect to.
4. There are numerous cases in which similar points have come up for decision. Thus where the power to adopt was given and where together with immoveable property moveable property was also given and the rights to the latter were expressly limited, the limitation has been attached to the immoveable property also Koonjbehari Dhur v. Premchand Dutt 5 C.L.R. 561 and Seshayya v. Narasamma 22 M. K357: similarly, where the wife arid adopted son are jointly given the property Bhujanga Rau v. Ramayamma 7 M.K 387 without express words that the wife has powers of alienation, etc. Jogeswar Narain Deo v. Ram Chandra Dutt 23 C.K 670.
5. On the other hand, when the word 'malik' which means (full) owner was used, the Privy Council held that that implied that the full estate was intended to be conveyed and was sufficient to displace the inference from the ordinary wishes of o Hindu. The strongest case in favour of the respondent cited to us seems to me to be Harilal Pranlal v. Bai Rewa 21 B.K 376. There the Judges were very doubtful, the words being: Just as I am the owner of the property at present, in the same way after my death my wife Ujam is the owner,' but the decision proceeded at least in part on the fact that the other circumstances made those words ambiguous, and in the lower Courts all that was suggested that they meant was that the wife was to be kept in joint possession, and not that the wife took the full interest. The Court did not consider itself justified in reversing the decision of the lower Courts. In the present case, we have the express words you and your heirs (offspring) should enjoy the lands with all rights.' The operative part of the deed is very short: As I have married you, I have given you this day as a matter of favour all the dry and wet lands belonging to me and worth Rs. 400. You must yourself pay the principal and interest on the mortgage deed for Rs. 100 in respect thereof executed by me in favour of Unniyur Veerappa Udayan and you and your heirs should enjoy the lands with all rights.' I see great difficulty in interpreting the reference to the offspring and to the enjoyment and to all rights' if the donee is to have only the limited right of a Hindu female, as has been held by the lower Courts.
6. I find, however, that both the lower Courts presided over by Hindu Judges have in very careful judgments arrived at a conclusion different from that which I am inclined to take and my learned brother also agrees with their view. I am, therefore, not prepared to hold that that conclusion is wrong and with some hesitation I agree that the second appeal be dismissed with costs.