1. The question which this case raises is as to the manner in which certain proceeds of land acquisition should be dealt with. The claimant is the widow of one Jamnadoss Govardhanadoss and the counter claimants are his reversioners. The question turns upon whether the widow gets an absolute estate or only a life estate under a will Jamnadoss Govardhanadoes executed on the 10th December, 1899. This will begins by reciting that being ill in body and wishing to make a will while he is in the enjoyment of his understanding he has written the will, and proceeds as follows:
It is a long time since a division was made between me and my pangalis. They have no right whatever to my properties, namely, the house, ground, jewels, ready money and all immovable and movable properties and all the properties I have been enjoying. But they have only to observe pollution but have no other rights. Therefore my wife Jukore Bai has the right to my properties and all the properties which I have been enjoying up to this time. No others have the least right thereto.
2. It then proceeds to authorise the widow to make an adoption if she wishes to do so The District Judge before whom the reference came has come to the conclusion that this document is not a will at all. He considers that the instrument which was dealt with by their Lordships of the Privy Council in Jagannatha Bheema Deo v. Kunja Behari Deo 64 Ind. Cas. 458 : 41 M.L.J. 648 : 44 M. 733 : 14 L.W. 398; (1921) M.W.N. 7l3 : 30 M.L.T. 124 : 26 C.W.N. 374 : 21 Bom. L.R. 600 : 4 U.P.L.R. (P.C.) 32 : A.I.R. 1922 P.C. 162 : 48 I.A. 482 (P.C.) affords a parallel. But that was plainly not so because that related to a bare power to adopt and did not make, or purport to make any reference to the disposition of property whatsoever. He finds then that if it be a will, the widow takes only a limited estate for the reason that coupled with the disposition of property is an authority to adopt. I do not think that he is right upon the legal aspect of this question because it has been held in 108 Ind. Cas. 202 Erram Reddi v. Maram Deddi : AIR1928Mad271 that where there is an absolute disposition of property with an authority to adopt, the implied intention of the testator must be that on an adoption being made the widow is divested of the absolute estate, which passes to the adopted son. However, as we have only to discover what was in the testator's mind when he made the will, we need merely concern ourselves with what he might have thought would be the effect of an adoption, and that cannot be discovered by discussing case law. The only question which caused me some doubt was whether he would not have thought that the power of adoption was ordinarily speaking incompatible with giving his wife an absolute estate and I think that such a combination of provisions would be a rather unusual one for a testator to make. But I am not prepared to say that this can afford us any clear indication as to the dispositive part of the will. On that point it appears tome that two constructions are possible. In the first place, as the portion of the will which I have quoted will show, the testator appears to have been somewhat apprehensive that his co-parceners might lay claim to the property on the ground that no partition had taken place and that, therefore, his status was still one of jointnees. That seems to me to be rather indicated by his reference to their having no right whatever to his property since a division had taken place a long time ago. Then there is the objection that the actual grammatical form in which the reference to the properties descending upon his wife is couched is not dispositive but merely declaratory. He says 'My wife Jukore Bai has the right to my properties', which no doubt can be construed as 'will have the right to my properties upon my death', and 'no others have the least right thereto'. These two features of this will occasioned me a good deal of doubt as to whether he was not merely making a statement, in order to protect his wife's interests, as to what her legal position would be upon his death. But against that there has to be set the circumstance that he not only termed what he was executing a will but also recited, as is ordinarily done in wills, that he was ill in body but in the possession of his faculties, and I think, therefore, that a considerable presumption is raised that he intended to do something more than merely define what would be the existing, lights of his wife if he died intestate. There is certainly no obligation upon an unskilled draftsman, as in this case the testator appears to have been, to select words which mutt be clearly dispositive in grammatical effect and although no actual cases have been put before us in which a phrase of this sort has been discussed and found to be sufficiently dispositive to make the document a will, yet in some cases such, for instance, as Parkash v. Chandar Parkish 138 Ind. Cas. 365 : A.I.R. 1932 Lah. 215 : 33 P.L.R. 35 : Ind. Rul. (1932) Lah. 493 and Churilal v. Bai Muli 24 B. 420 the language is very similar in form of expression, though I cite these cases only to show that documents have been drafted in such terms and have been acted upon as wills. I think after a careful consideration of this point that it must be taken that the testator had something more than the intention simply to safeguard the interests of his wife and that he did in fact intend the document to be of testamentary elect.
3. The second question which then arises is with regard to the estate which his wife would take under it. Judicial opinion has altered very much upon this question and a large cumber of cases have been rendered obsolete by recent deliverances by the Privy Council upon it. No useful purpose will, therefore, be served by referring to any case law that originated before Shalig Ram v. Charanjit Lal and Jagmohan Singh v. Sri Nath . The latter of these two cases related to a gift and not a will and the document contained the phrase 'from generation to generation'; moreover, it was conceded that an absolute estate was given and the only question that arose was whether a power of alienation was included within it. I do not, therefore, rely upon, that casa so much as upon Shalig Ram v. Charanjit Lal , where the trend of recent decisions upon the question of how far it is necessary for a testator in the case of females to express himself with regard to conferring an absolute estate is considered. In that case the phrase used was that the three widows who were eventually to get the property would be the 'heirs' to whatever was left of the property after meeting the expenses. Their Lordships after adverting to the earlier view taken of this question cited a passage from Bhaidas Shivdas v. Bai Gulab 65 Ind. Cas. 974 : 46 B. 153 : A.I.R. 1922 P.C. 193 : 49 I.A. 1 : 26 C.W.N. 129 : 15 L.W. 412 : 20 A.L.J. 289 : 42 M.L.J. 385 : 35 C.L.J. 314 : 24 Bom. L.R. 551 (P.C.) to the effect that, if words were sued conferring absolute ownership, a wife would enjoy such ownership unless circumstances for the context were sufficient to show that such an absolute ownership was not intended, and commenting upon this decision they add their view that there was nothing in the circumstances of the case which they had under consideration or in the context to indicate that it was the testator's intention to limit the estate bequeathed to 8ny of the three persons to a life estate or a limited estate similar to a widow's estate under the law of inheritance. So here it appears to me that if the words which this will contains are dispositive at all, they are dispositive without restriction and that nothing in them can be pointed to which would go to show that the estate to be enjoyed by the widow was no more than an ordinary woman's estate with reversion. In fact, if the words are dispositive at all, such a construction of the will would mean that no occasion whatever existed for the will to have been made.
4. In these circumstances I am unable to agree with the learned District Judge either that the instrument is not a will or that there are grounds for holding that it would confer only a limited estate. I would, therefore, allow the appeal and direct that the money in question be paid to the claimant, who will get costs in both courts.
Sundaram Chetty, J.
5. I agree with the judgment just now pronounced by my learned brother and wish only to say a few words.
6. The dispute in this case in respect of the will in question is twofold; whether it is a will at all and (2) whether the estate conferred upon the widow of the testator is an absolute estate or only a limited estate of a Hindu widow. As to the first point, the terms of the will have to be considered, in order to see whether there is any dispositive clause or not. The sentences in the will, namely, 'My wife Jukore Bai has the right to my properties and all the properties which have been enjoying up to this time. So others have the least right thereto may at first sight seem to be of a declaratory nature. But we have to take into consideration the fact that the document in styled as a will both in the beginning and at the end and also the fact that after declaring his status to be that of a divided member or separate owner, the testator proceeds to say that his dayadies have only a right to observe pollution and have no other rights whatever. He further says that his wife alone has the sole right to his properties and no ethers have the least right thereto. Obviously, he seems to have meant that his dayadies should have lo sort of rights whatever in his properties in the sense, that they should not even have the right of reversion after the death of his widow. If that was his intention, necessarily he must have meant to confer an absolute estate on his widow so that the reversioners would not have the right to take the property on the death of the widow. I may also add that if he only wanted to safeguard the interests of his widow by declaring that he was a separate owner, the further clause that she has the right to his properties would be unnecessary, because even without any such declaration on his part, she would have such a right as a Hindu widow in case her husband dies as a separate owner. There must be some purpose in his laying special emphasis on the fact that she alone has the right to his property and none else has. Considering this clause in the light of the surrounding circumstances, it seems to me that it is virtually a dispositive clause, whereby he wanted to Confer an absolute estate in his properties on his widow. As observed by my learned brother, the recent Privy Council decision Shalig Ram v. Charanjit Lal , would govern this case in the matter of interpreting a clause of this kind as to whether he conferred absolute rights or only a limited estate. In the Privy Council case, with respect to the residue of the estate, the testator declared that his two widows and the widow of his son should be the heirs; in other words, that they should have the right to the residue of the estate. In the present case, the testator has declared that his widow should have the right to his properties. In considering the terms of the will which was the subject of the case before the Privy Council their Lordships observed that the intention of the testator was to confer upon each of his two widows and his daughter in-law full proprietary rights in one-third share of the residue of the estate. This decision, I think, is a clear authority in favour of the appellant in the matter of determining the legal consequence of this clause. The authority to adopt given by the testator to his widow under this will, is not, in my opinion, inconsistent with the absolute disposition in favour of the widow. Even if the authority to adopt is conferred upon the widow, she can have an absolute estate in the property of the husband till she chooses to make the adoption, and once she exercises that power she must necessarily be divested of her estate in favour of the adopted son. This result would occur even if she has the ordinary estate of a Hindu widow. Once she chooses to exercise the authority given by her husband, she must be divested of her interest in the property, whether it is an absolute estate or limited one, and, therefore, the giving of the authority to adopt is not necessarily inconsistent with conferring on her an absolute estate.
7. As to the nature of the estate conferred upon her by the provisions of the will in question, the trend of the recent decisions clearly goes to show that even in the case of a disposition made in favour of a female, the same rules of construction as are applicable to males must apply and, in the absence of words of restriction or limitation, it must be presumed, as in the case of males, that an absolute estate was intended to be conferred on a female member. In the will in question there are no words of limitation or restriction or express words giving absolute power of alienation. In the absence of restrictive expressions, the same rule must apply and I am, therefore, of opinion that not only is the document a will, but the disposition thereunder amounts to conferment of an absolute estate on the widow.
8. I, therefore, agree to the allowing of this appeal and to the appellant getting the amount in deposit as the sole claimant.