Richard Garth, C.J.
1. The question in this case is, whether under the will of Narain Dutt, his widow Kristo Kaminey Dossee took an absolute interest in his property, or only the ordinary estate of a Hindu widow.
2. Narain had two wives. His first wife died in his lifetime, leaving one daughter, the plaintiff. His second wife, Kristo Kaminey Dossee, was the toother of the defendant.
3. Narain made a will, dated the 1st of February 1844, which was in these terms.: (Beads the passage set out, ante p. 343).
4. After the testator's death his widow Kristo Kaminey Dossee did not adopt a son. She took possession of his property, and remained in possession till she died in the year 1875.
5. One of the daughters mentioned in the will died; and only the plaintiff and the defendant were alive at the time of the widow's death; and they have ever since enjoyed the larger portion of the testator's property in equal shares.
6. But there is a house in Neemoo Khansamah's Lane, and some moveable property, of which the defendant, it appears, has been in sole possession, and the plaintiff has brought this suit for a partition of the testator's estate, and for an account of that part of the property which has been in the sole possession of the defendant.
7. This suit induced the defendant to raise the question, whether she as her mother's heir is not entitled to the whole estate as against the plaintiff, on the ground that under the will her mother took an absolute interest, and' the Court below decided in her favour.
8. The learned Judge appears to have considered that the words of the will, describing the defendant's mother as 'the malik' of the property, were sufficient, to show that he intended her to take an absolute interest.
9. From this decision the plaintiff has appealed; and having heard the case argued on both sides, we expressed an opinion in the course of Mr. Kennedy's address to us on the part of respondent, that the view which had been taken by the learned Judge could not be upheld.
10. It appears to us that he attached too much weight to the meaning of the word 'malik.' It is true that in some cases the use of that word in a will or other instrument has, coupled with other expressions, been considered as evincing an intention to pass an absolute or proprietary interest. But the word by no means necessarily imports that intention. There are other cases, where, although that word was used, it has been held that an absolute interest did not pass. In Moulvi Mahomed Shumsool Hooda v. Shewukram 14 B.L.R. 226 : L.R. 2 I.A. 7 a Hindu testator, after reciting the deaths of his son and others, declared 'only D K, widow of my son (who, too, excepting her two daughters, S and D, has no other heirs), is my heir. Except D K none other is or shall be my heir and malik. Furthermore to the said D K these very two daughters, together with their children who shall be born to them, are and shall be heir and malik.'
11. In holding that this disposition did not give the widow more than a life interest in the estate, Couch, C.J., referred to the rule laid down in Soorjeemoney Dossee v. Denobundo Mullick 6 Moore's I.A. 526 that in construing a will one of the circumstances to be regarded is ' the law of the country in which the will is made and its dispositions are to be carried out, that the intention of the testator was that the estate should be kept in his own family, and that malik meant merely 'immediate heir.' 'This view was affirmed in the Privy Council, their Lordships observing that' in construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with regard to devolution of property, and that having regard to these considerations, they ought not to hold that the widow took an absolute estate, which she was at liberty to alienate.'
12. Much reliance has been placed on the observations of Mitter, J., in Mussamut Kollany Koer v. Luchmee Persad 24 W.R. 395 but that case does not appear to govern the present, because it WHS held that the language of the will imported a distinct intention on the part of the testator that his widow and daughter should immediately on his death take a joint interest in his estate, and the contention which the Court had to consider, and which it disallowed, was that according to Hindu Law a gift to a female, though absolute in terms, conveyed merely a limited interest similar to that of a Hindu widow. In the present case we do not consider that the words of the will indicate an intention on the testator's part that his widow should take an absolute estate. The direction to the widow to adopt a son, to adopt a second son in case of the first dying, and that on attaining majority the adopted son should become malik indicate, in our opinion, very clearly the limited nature of the widow's interest. Nor again does our present ruling in any way conflict with that of Couch, C.J. in Prosonno Coomar Ghose v. Taraknath Sircar 10 B.L.R. 267 because there the words of the will, in the opinion of the Court, 'unequivocally showed that it was the testator's intention that his wife should become the absolute mistress of his estate,' and, there being nothing in the will to displace that intention, the mere fact of there being two sons of the testator, who were thus disinherited, was not considered to justify the construction of the will according to which the widow merely took as trustee for the sons.
13. In each case we must endeavour to ascertain the true meaning of the instrument, and here it appears to us that the testator did not intend his widow to take an absolute interest in the property. It seems evident that he intended her to adopt a son; and in the event of that son's death, to adopt another; and he provides that in either case, when the son comes of age, he should become the malik of the property.
14. This fact of itself seems to indicate that, so far as his wishes and intentions were concerned, they were opposed to his widow taking an absolute interest. He evidently only intended her to hold the property until his adopted son came of age; she would then, in the ordinary course of law, take the estate of a Hindu widow until a son was adopted, and under the provisions of the will she would also be a trustee for her son until he came of age; but in either case, so long as she was possessed of the property and had the management of it, she might properly be described in the will, and called in common parlance, the malik or proprietress.
15. In point of fact the widow did not adopt a son; and in point of law, whatever her husband's intention may have been, she was at liberty to disregard them in that respect.
16. So far as the costs are concerned, we find that the parties have proposed an arrangement amongst themselves, which we are quite prepared to confirm; namely, that the costs on both sides shall be paid out of the estate. A decree will therefore be made for partition of the property in accordance with the prayer of the plaint, it being declared that the plaintiff and defendant are entitled, for the reasons we have given, to the whole of the testator's estate as his co-heirs, and we direct, with the consent of the parties, that the costs on either side in both Courts shall be paid out of the estate.