1. The facts out of which this appeal arises are as follows: One Ramaji Bavaji Pandit a Mahratta Brahman of Tanjore died on August 10, 1858. Before his death he had adopted a son Bavaji Ramji Pandit whose son is the present plaintiff. He also left two widows Kamakshi Boyee and Thulja Boyee. He had also executed a will dated August 6, 1858 (Ex. V) making various dispositions of his property. After giving certain properties to his relations, half of the remaining properties he devised, to his two widows who 'shall be entitled to and take the same.' By an arrangement in the year 1860 between the two widows Thulji Boyee got the suit house belonging to the deceased. A creditor of the widows filed 0. Section No. 275 of 1872 against them for the recovery of a debt contracted by them after their husband's death. A decree was obtained and in Court auction in execution of the decree the house was sold and purchased by the decree-holder and one Krishnaji Kottadya. They sold their rights in the house by sale-deeds to one, Chinnasami Ayya whose legal representatives are defendants Nos. 1 and 2. Defendants Nos. 3, 4 and 5, are lessees under defendants Nos. 1 and 2. Thulji Boyee died on April 2, 1916, and on her death the plaintiff and his undivided younger brother Jeevanna Rao became the reversioners to the suit property on the footing that the widow had only a life-interest. Jeevanna Rao died in June 1921, and the whole of the reversionary interest survived to the present plaintiff; The suit was filed on April 2, 1928, exactly within 12 years of the death of Thulja Boyee to recover the suit property on the ground that the decree in O.S. No. 275 of 1872 and the sale in execution thereof do not bind the reversionary estate after the. death of Thulji Boyee. The plaintiff contends that on a proper construction of the will of Ramaji Bavaji the widows had only a life-estate Hence the suit to recover possession of the property from the defendants.
2. Between 1872 and the present suit there were two other litigations which should be noticed. The earlier litigation came up to the High Court in Appeal No. 74 of 1896 which was disposed of by Collins, C.J. and Shephard, J. on July 13, 1897. They held that there being no indication of intention to give a large estate we must assume that the husband intended that a widow's estate only should pass. The judgment is now Ex. C. Again in the year 1917 there was another litigation. The present plaintiff and his brother Jeevanna Rao sued to recover certain other properties belonging to the estate from some other defendants on the ground that only a life-estate passed to the widows under the will and that the plaintiffs were entitled to the estate as reversioners. The matter came up to the High Court and Wallis, C.J. and Seshagiri Ayyar, J. held that an absolute estate passed under the will : Vide Ramachandra Rao v. Ramachandra Rao 52 Ind. Cas. 94 : 42 M. 283 : A.I.R. 1920 Mad. 557 : 36 M.L.J. 306. The plaintiff ook the matter to the Privy Council. The judgment of the Board was delivered by Lord Buckmaster. Their Lordships held that the points argued as to the effect of the gift in the present case are not now open to consideration, for in their Lordships' opinion the decision given on July 13, 1897, by the, High Court at Madras is a clear and complete determination as between the parties to that suit and those claiming under them which the present litigants cannot dispute. In other words it was held that the litigation of 1917 was bound by the rule of res judicata by reason of the decision in the earlier case. On this ground the plaintiff's suit was. decreed : Vide Ramachandra Rao v. Ramachadra Rao : (1922)24BOMLR963 .
3. The defendants in the present suit have nothing to do with the defendants in the former suits and it was expressly stated before us that the defendants do not rely upon any rule of res judicata in this case. The sole question before us, therefore, is one of construction of the will which was left open by the Judicial Committee in Ramachandra Rao v. Ramachandra Rao : (1922)24BOMLR963 . It may be observed that Wallis, C. J, and Seshagiri Ayyar, J. decided the question of construction in favour of the defendants i.e. that the widows got an absolute estate under the will. But that decision cannot be relied upon as res judicata but only like any other authority.
4. So early as in Surajmani v. Rabi Nath Ojha 30 A. 84 : 15 I.A. 17 : 5 A.L.J. 67 : 12 C.W.N. 231 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 18 M.L.J. 7 : 3 M.L.T. 144 (P.C.), the Judicial Committee held that where a testator gave a property to his two wives and daughter-in-law as owners with proprietary powers the widows took an absolute estate. This case was explained in Ramachandra Rao v. Ramachandra Rao : (1922)24BOMLR963 in the following words:
The decision of this Board did no more than establish that that proposition was not. accurate, and that it was possible by the use of words of sufficient amplitude to convey in the terms of the gift itself the fullest rights of ownership, including, of course, the power to alienate, which the High Court had thought required to be added by express declaration.
Then we have got a case in Narasingh Rao v. Mahalakshmi Bai : (1928)30BOMLR1331 where a husband gave some property to his wife by a deed of settlement. Sir John Wallis who delivered the judgment of the Board observed that 'according to the Hindu Law, such property is taken by her as stridhanam and is descendible to her heirs and not to his.' His Lordship then referred incidentally to her power of disposition over such property. Reference was made to Mayne, para. 664, where it is staled that she would have no right of alienation unless the gift was coupled with an express power of alienation. This statement in para. 664 was contrasted with the proposition as laid down by the Board 'unless there are words of sufficient amplitude to confer it upon her.' This passage was very much relied upon by the respondent before us as showing that Mr. Mayne's statement in para. 661, was approved by the Judicial Committee. Their argument is that in the present case there are no words of sufficient amplitude to confer upon the widows the power of alienation, therefore, they had no right to alienate and, therefore, they had no absolute estate. In that case the argument of Sir John Simon was that the Ranee took an absolute estate even though she had no power of alienation. On the other hand it was contended by Mr. Upjohn, K. C. that if there was no absolute power of alienation there was no absolute estate, and that one cannot have an absolute estate without an absolute power of alienation. The decision of the Judicial Committee was that the Ranee had an absolute estate and as to the contention of the respondent that there can be no absolute estate without power of alienation they said that the gift itself contained words of sufficient amplitude to confer the power of alienation upon the Ranee and that no express words were necessary. So that there was no need for the Judicial Committee to hold, that there was an intermediate kind of estate viz., an absolute estate but without powers of alienation i.e., they went beyond Sir John Simon's contention. In my opinion it cannot be said that the statement in para. 664 of Mr. Mayne was approved by the Judicial Committee. But on the other hand it was contrasted with their own statement of the law. This decision, therefore, cannot help the respondents in this case.
5. But apparently the particular passage relied on did give rise to some misconception: for in Chalapathi Rao v. Subba Rao 117 Ind. Cas. 289 : A.I.R. 1929 Mad. 691, it was held by our brothers Odgers and Jackson, JJ. relying on Naraslngh Rao v. Mahalakshmi Bai : (1928)30BOMLR1331 that as there were no words of sufficient amplitude in that case to confer upon the wife an absolute estate she had no power of alienation and took only a widow's estate. The actual words were 'my wife is the only one entitled and no one else.' Whatever doubts there might have been at that time the matter is clearly set at rest by the decision of the Privy Council in Shalig Ram v. Charanjit Lal , though a slightly different test was applied by their Lordships in that case. There the widows of the testator and the widow of his son were made the heirs and there was no gift over upon the death of the widows. It was held that the will conferred an absolute estate. In the light afforded by the above decision, I would say that the words of sufficient amplitude required to give the power of alienation need not be express but can be found from the words of the gift itself. This is what Sir John Wallis, said in Ramachandra Rao v, Ramachandra Rao : (1922)24BOMLR963 In my opinion the words of the will referred to in Chalapathi Rao v. Subba Rao : AIR1929Mad691 , are such words of sufficient amplitude and are not narrower than the words of the gift referred to in Shalig Ram v. Charanjit Lal . There is no gift over in the will, in Chalapatti Rao v. Subba Rao : AIR1929Mad691 . In my opinion Chalapathi Rao v. Subba Rao : AIR1929Mad691 , was erroneously decided. Anyhow following the latest decision of the Privy Council in Shalig Ram v. Charanjit Lal , I hold that in this case the widows got an absolute estate. There are no express words cutting their right to a widow's estate. Only if there is any ambiguity could the principle in Mahomed Shumsool Hooda v. Shewakram (7), namely that only if the construction is doubtful a Hindu should be presumed to give only that estate which a Hindu widow holds in an inherited property, be applied. There is no necessity to resort to that principle in this case.
6. The respondents' learned Advocate raised another contention which deserves to be noticed. Whatever may be the state of the law now, he contends that at one time it was the law that a wife or a widow getting property from her husband under a will or other instrument got only a limited estate and that if her property was sold in Court auction in execution of a decree it might be presumed that the Court was selling and the purchaser was purchasing only such an estate as was supposed to be possessed by her according to the decisions then in force. In the present case when the property was sold in Court auction in 1874 only the limited estate of a widow must be held to have been sold and in support of this contention he relies on the decision of the Privy Council in Abdul Aziz Khan v. Appayasami Naicker 27 M. 131 : 311 A 1 : 6 Bom. L.R. 7 : 8 C.W.N. 186 : 8 Sar. 568. In this last case a decree was obtained against the holder of an impartible zemindari and his interest in the property was purchased in Court auctions in 1873 and 1876. The property was at the time subject to a lease for 30 years and after the expiry of the lease the purchaser sued to recover the property. Meanwhile the impartible zemindar died. The question arose whether the purchaser in the Court auctions got an absolute estate in the villages or only a life-estate. At the time when the suit for the recovery of possession was filed it had been decided by the Privy Council that for purposes of alienation an impartible zemindar was the complete owner of the estate and was competent to alienate property. But this principle was settled only some time after 1889. Prior to 1889 it was supposed to be the law in Madras that an impartible zemindar had only a life-interest in the zemindari during his lifetime and had no power of alienation so as to operate beyond his life time. In these circumstances it was held by the Judicial Committee that what was purchased in the Court auctions of 1873 and 1876 was only the life-estate of the zemindar. Sir Andrew Scoble who delivered the judgment of the Board observed at p. 142 Page of 27 M.--[Ed.]:
As regards the law of the matter in 1673 and 1876, when the sales took place, it was the accepted law in Madras that the holder of an impartible zemindari who was himself a member of an undivided family, could not alienate or encumber the corpus of the estate so as to bind his co-parcener, except for justification especial causes. Prior to 1889, there had been a series of decisions to this effect in the Madras Courts, but in that year, following the judgment of this Committee in the case of Sartaj Kuari v. Deoraj Kuari 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 : 12 Ind. JUr. 213 (P.C.) the High Court of Madras overruled those decisions, etc. The contention raised by the respondent in this form would be a good contention if he could show that prior to 1874 it was the accepted law in Madras that a widow obtaining property under the will of her husband had only a widow's estate in the property. To establish this position he relied in the first instance on Gangadaraiya v. Parameswaramma 5 M.H.C.R. 111 decided by Holloway and Collett, JJ. The judgment is very brief. It was held that land received by a woman from her husband, as stridhanam cannot be alienated even after the husband's death to the prejudice of the daughters as next heirs without their consent. They observed 'there is a 'consensus' of the highest authorities, Native and Europeans, for a restriction to this effect.'
Now what does this decision exactly mean? First it says that the property is received as stridhanam. If it is stridhanam, the property would pass to her stridhanam heirs. The reference to daughters is be cause they occupy the place of such heirs. That is, the widow becomes a fresh stock of descent and the property passes to her heirs. This does not look like a widow's estate for if she held only a widow's estate the property would pass to her husband's heirs and not to her heirs. The decision of the learned Judges does not, therefore, imply that the woman in that case had only a widow's estate but that she had sridhanam property in the subject-matter of the gift and that it would pass to her heirs but she had no power of alienation without the consent of her heirs and to their prejudice. This conclusion is some what like the argument of Sir John Simon in Narasingh Rao v. Mahalakshmi Bai : (1928)30BOMLR1331 where he contended for an absolute estate in the widow though she had no powers of alienation. Then again if she had an ab solute estate as sridhanam though it may be that she had no power of alienation to the prejudice of her heirs, it cannot imply the proposition that her creditor cannot seize the property in execution of their debts. The lack of power to effect a voluntary alienation cannot necessarily imply the existence of such a disability on the creditors for otherwise it would mean that a person with an absolute estate can go on incurring debts and cheat the creditors and the property would pass on to her heirs. That could not have been the position in tended by the decision in Gangadaraiya v. Parameswaramma 5 M.H.C.R. 111. From this decision only, it cannot be said that it was decided that a Woman taking under the will of her husband had only a widow's estate.
7. Another decision relied on by the learned Advocate for the respondents is Kotarbasapa v. Chamberova 10 B.H.C.R. 403. The head-note is not very clear. The first sentence of Melvill, J.'s judgment shows that the property was regarded as stridhanam in the hands of the wife and that it was held that she could not alienate it to the prejudice of the daughter would have inherited it as part of her mother's stridhanam. This is somewhat like the decision in Gangadaraiya v. Parameswaramma 5 M.H.C.R. 111 and does not say that the widow had only a widow's estate in the property given by her husband.
8. The third decision cited was Prosunno Coomar Ghose v. Jamicknath Sirkar 10 B.L.R. 267, There it was held that the husband had expressly given his wife an absolute power' of disposing of the property. The alienation being upheld on that ground the further question raised, viz., whether on her death the property would descend to her husband's heirs or her own heirs was held not to arise. Therefore, it was not decided in that case that she had only a widow's estate. She had certainly an alienable estate and the further question as to who should succeed was not decided. This decision does not, therefore, help the respondents. It is impossible to say that it was the accepted law in 1874 that a widow getting property under the will of her husband had only a widow's estate in that property. Whatever doubts existed at that time as to her powers of alienation those doubts did not amount to saying that her interest in the property is only the limited interest of a widow. For these reasons I do not think the principle in Abdul Aziz Khan v. Appayasami Naicker 27 M. 131 : 311 A 1 : 6 Bom. L.R. 7 : 8 C.W.N. 186 : 8 Sar. 568 (P.C.), can be applied to the present case.
9. The result is that the appeal must be allowed and the plaintiff's suit dismissed. The plaintiff will pay the costs of defendants Nos. 1 and 2 in the Court below one set and the Appellants costs in this Court.
10. I am of the same opinion. When this same will was before the Court in Ramachandra Rao v. Ramachandra Rao 52 Ind. Cas. 94 : 42 M. 283 : A.I.R. 1920 Mad. 557 : 36 M.L.J. 306 it was construed by Sir John Wallis, C. J. and by Seshagiri Aiyar, J. as conferring an absolute estate in the property devised by the testator to his two widows. It is true that the decision of the High Court was reversed by their Lordships of the Judicial 1 Committee on the ground that the question 1 of the estate given to the widows was res judicata by reason of the earlier decision in A. Section No. 74 of 1896. But the Judicial Committee did not nor was t v necessary that it should, disapprove of the construction put upon the will in Ramachandra Rao v. Ramachandra Rao 52 Ind. Cas. 94 : 42 M. 283 : A.I.R. 1920 Mad. 557 : 36 M.L.J. 306. In the present appeal we are not debarred by the rule of res judicata from construing the will. The language of the will is quit simple. The testator after making certain bequests disposes of the residue as follows-
As regards the rest of the property excluding the same, my adopted son being given the name of Bavaji Pandither shall be entitled to half of the property and enjoy the same. As regards the remaining half of the property, my senior wife Sow. Kamakshi and my younger wife Tulaja--these two persons shall be entitled to and take the same.
11. It must now be taken as settled that in construing the will of a Hindu testator disposing of immovable property in favour of his wife there is no presumption that the devise is of the qualified estate of a Hindu widow. In Shalig Ram v. Charanjit Lal their Lordships observed.-
At one time it was held by some of the Courts in India that, under the Hindu Law in the case of immovable property given or devised by a husband to his wife, the wife had no power to alienate unless the power of alienation was conferred on her in express terms. It has been held by decisions of this Board that that proposition was not sound.
12. Their Lordships' judgment then cites the following passage from Baidas Shivdas v. Bai Ghulal : (1922)24BOMLR551 p>
If words are used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended.
13. Applying these remarks to the will before us, it seems to me that the circumstance that there is no material difference between the terms of the devise to the adopted son (which are undoubtedly sufficient to carry an absolute estate) and the terms in which the devise to the widows is expressed, serve to show that the testator intended to make no distinction in the quality of the estate given in either case. My conclusion, therefore, is that the widow took their portion as absolute owners.
14. According to the older authorities, immovable property given to the widow by her husband was not at her absolute disposal unless the gift was accompanied by an express power of alienation or unless the widow's stridhanam heirs consented to the alienation. See Muhammad Noorkhan v. Har Dayal 1 N.W.P.C.R. 67 Gangadaraiya v. Parameswaramma 5 M.H.C.R. 111 Kotarbasapa v. Chanverova 10 B.H.C.R. 403 and Rudra Narain Singh v. Rup Kaur 1 A. 734 . But it is now established that a power to alienate may be inferred from the terms of the instrument by which an absolute estate has been conveyed to the widow. In Ramachandra Rao v. Ramachandra Rao : (1922)24BOMLR963 their Lordships referring to the decision of the High Court in Surajrani v. Rabi Nath 25 A. 351 : A.W.N. 1903 66 and to the appeal therefrom said:
It had been stated that under the Hindu Law in the case of a gift of immovable property to a Hindu widow she had no power to alienate unless such power was expressly conferred. The decision of the Board did no more than establish that the proposition was not accurate, and that it was possible by the use of words of sufficient amplitude to convey in the terms of the gift itself the fullest rights of ownership, including of course the power to alienate which the High Court had thought required to be added by express declaration.
15. Their Lordships' judgment in Narasingh Rao v. Mahalakshmi Bai 52 Ind. Cas. 94 : 42 M. 283 : A.I.R. 1920 Mad. 557 : 36 M.L.J. 306 is to the same effect. In the case last mentioned the deed in favour of the widow contained a power of appointment. But it is not essential, according to what he said in Ramachandra Rao v. Ramachandra Rao : (1922)24BOMLR963 that the gift or devise should be expressly coupled with a power of alienation. For example in Sasiman Choudhatain v. Shil Narayan Ghowdhury : (1922)24BOMLR576 where a testator devising property to his two widows stated that they should 'Have, in every way, full power and proprietary right' over the property, it was held that the widows took the property with complete rights of proprietorship including the right to alienate the property. On the other hand there is Ghalapati Rao v. Subba Rao 117 Ind. Cas. 289 : A.I.R. 1929 Mad. 691, which illustrates a devise that was held to be not of sufficient ineptitude to convey an alienable estate to the widow.
16. In the present case the will does net expressly confer a power of alienation over the property devised. But we have a testator making to his widows, in practically the same language: a devise corresponding to the devise which he has made to his adopted son. I think that the inference from this circumstance must be that the testator intended to clothe his widows with the same heritable and alienable estate which he had conferred upon his adopted son. It follows that a voluntary alienation of her property by the widow Tulaja Boyee would have bound the estate a fortiori an involuntary sale in execution of a decree against her would be binding. In my judgment, therefore, the plaintiffs' suit failed and ought to have been dismissed.