Amiya Kumar Mookerji, J.
1. This appeal is by the plaintiff No. 1. It arises out of a suit brought by her and one Sambhu Mukherjee for a declaration that premises No. 51/A & B. Lansdowne Road were Debuttar properties of the deities. Sree Durgajee and Sree Baraha Kaliiee and, they were the respective Shebaits.
2. The plaintiff No. 1 is a granddaughter (daughter's daughter) of Kalidashi Devi who executed a Will, by which, she dedicated 51/B, Lansdowne Road, to the deity -- Sree Dursaiee, and appointed her only daughter Durgarani, the Shebait and after her death, her daughter, -- the plaintiff No. 1. The premises No. 51/A, Lansdowne Road was dedicated to the deity Sree Baraha Kalijee and Sambhu Nath Mukheriee, her grandson (son of the defendant No. 1) was appointed a Shebait. After the death of Kalidashi Devi, who died on the 24th of November, 1949, plaintiff No. 1 applied for letter of administration in respect of the will of the said Kalidashi. Three days thereafter, defendant No. 3 brought a partition suit being title suit No. 65 of 1950, in the 1st court of Subordinate Judge, Alipore. The plaintiff No. 1 applied to the learned Subordinate Judge for being added as a party in that suit. Her prayer was reiected. The plaintiff No. 1, after contest, however, obtained a letter of administration regarding the Will of Kalidashi. Thereafter, a Receiver was appointed in thesaid partition suit. As the Shebaits were deprived of the income of the Debuttar Estate, the plaintiffs brought the above suit for necessary declaration and for an injunction restraining the defendants from realising rents from the tenants of the Debuttar Properties.
3. The defendants Nos. 2 and 3, Sekharesh and Sunilesh, the sons of Kalidashi, contested the suit. Their defence, in substance, was, that Kalidashi had only a limited interest with regard to the disputed properties. She had no right to dispose of the same by a Will. W. C. Banerjee, the father of Kalidashi was a rich coal mine owner, who advanced the loan to one Durgadas Chatterjee and, subsequently, purchased the property with his own money for the benefits of his widowed daughter -- Kalidashi, during her life time and thereafter for the absolute benefits of her sons--the defendants. Since the death of their mother, the defendants have been possessing the properties.
4. The trial court decreed the plaintiffs' suit upon the findings that Kalidashi advanced Rs. 30,000/- to Durgadas Chatterjee; W. C. Baneriee -- the father of Kalidashi, made a gift of the said money to his widowed daughter; Kalidashi became absolute owner of the suit premises by purchase and the limitation of her interest created in the Conveyance was unlawful under Section 11 of the Transfer of Property Act and not binding upon the plaintiffs. The learned Subordinate Judge further observed that under the Indian Law the vendor has no right to limit the interest of the purchaser in the deed by which the property had been transferred absolutely to the purchaser. The vendor was not competent to abridge the interest of the vendee in the habendum.
5. On appeal, the court of appeal below set aside the judgment and decree of the trial court and dismissed the plaintiff's suit upon the view that Kalidashi was the holder of a life estate only, so the Will made by her, upon foundation of which the plaintiffs brought their action must fail. It found, that total consideration for the Conveyance was Kalidashi's money; the disposition the Conveyance Ext. I made, was not absolute interest in favour of Kalidashi. So that grant did not offend Section 11 of the Transfer of Property Act.
6. Mr. Ghosh, appearing on behalf of the appellant, contended that having found that the consideration for the Conveyance was Kalidashi's money, the court of appeal below erred in holding that Kalidashi by a 'self-denying ordinance' limited the right, title and interest which passed to her by the said Conveyance to a life estate. Absolute rightwas conveyed by the vendor upon Kalidashi and it was beyond the competence of the vendor who transferred all his right, title and interest in properties covered by the said Conveyance to the purchaser, to limit or restrict the right of Kalidashi in properties transferred, to a life estate only or to create rights in favour of persons who were not parties to the said Conveyance. Mr. Ghosh, further contended that Court of appeal below erred in law in holding that the restrictive covenant provided for, in the habendum in Ext. 1, did not offend Section 11 of the Transfer of Property Act.
7. The habendum in the Conveyance reads as follows:--
'To have and to hold the said messuages tenements or dwelling houses lands hereditaments and premises hereby granted or expressed so to be free from all encumbrances unto and to the use of the said purchaser Sreemati Kalidashi Devi to be held by her for the term of her natural life as the estate of a Hindu widow and from and after her death to her three sons Samaresh Chandra Mukherjee, Sikharesh Chandra Mukherjee and Sunilesh Chandra Mukheriee to be held by them as tenants in common during their representatives lives without power of anticipation and after their death unto and to the use of their respective heirs absolutely and forever'.
8. In a gift the donor may impose condition upon the donee or restrict the enjoyment of the property gifted and that condition and limitation must be accepted by donee during the life time of the donee. A limited interest can also be created by a Will; by a deed of partition or by a family settlement. But it is impossible to conceive a deed of Conveyance creating a life estate by the vendor in favour of the vendee. The Conveyance is not required to be accepted by the purchaser as in the case of a gift. There is no evidence that Kalidashi imposed upon her the 'self-denying ordinance' or created 'an implied trust' by imposing a limitation upon herself. Undoubtedly she was capable and competent to impose upon her restriction on her proprietary rights but she could not by a collateral agreement annex a condition to an absolute grant. The learned Additional District Judge found no word of limitation being there in the premises, but the habendurn, a special provision prevailed over the general provision in the Conveyance. It was not open to Kalidashi to say that she had accepted the Conveyance minus 'habendum'. According to the learned Judge, Kalidashi created an implied trust by imposing a limitation on herself, it was her creation, a 'self-denying ordinance'. Vendor divested himself of all he had. His right, title and interest wasextinguished. The new right came into being was the right of Kalidashi for her life and after her, of others. Kalidashi could and did limit her own interest.
9. When a property is transferred absolutely, it must be transferred with all its legal incidents, the vendor is not competent to sever from, the right of property incidents which the law inseparably annexes to it, and thereby to abrogate the law by private arrangement, creating a life estate in favour of the vendee in a deed of Conveyance.
10. A purchaser cannot limit her own interest in a Conveyance executed by her vendor. She can do so by executing a deed by herself.
11. Mr. Mukherjee, appearing on behalf of the respondent, contended that in the instant case, transfer was not absolute, so provisions of Section 11 of the Transfer of Property Act, were not attracted. In support of his contentions he referred to the following decisions:--
(a) Kedarnath v. Gayanath, AIR 1930 Cal 731; (b) Kandarpa Mohan Gossain v. Akhoy Chandra Bose. AIR 1934 Cal 379; (c) Kamakhya Dat Ram v. Khushal Chand, 38 Cal WN 477 = (AIR 1934 PC 72); (d) Ammireddi Sooramma v. Ammireddi Venkataratnam. : AIR1952Mad166
12. I will deal with the cases referred to by Mr. Mukheriee later on.
13. The court of appeal below held that grant was absolute, no word of limitation being their in the premises, the habendum was the only place where intention should manifest itself. The habendum, a special provision, therefore prevails over the general provisions elsewhere in the Conveyance.
14. Mr. Mukheriee could not place a single decision in support of the proposition as laid down by the learned Judge of the court of appeal below that a habendum prevails over the general provisions elsewhere in the Conveyance.
15. Mr. Mukherjee referred to Norton's On Deed and Prideaux's Forms and Presidence in Conveyancing. It is said in Norton's On Deed's that the right conferred in the premises cannot be abridged in the habendum. With regard to English Rules of conveyancing, in Barmanaya v. Kalicharan Singh, (1911) 15 Cal WN 393 (PC) the Privy Council observed 'Rules of construction are rules designed to assist in ascertaining intention, and the applicability of many such rules depends upon the habits of thought and modes of expression prevalent among those to whose language they are applied. English rules of construction have grown up side by side with a very special law of property in a very artificial system of conveyancing and the success of those rules in giving effect to the real Intention of those whose language they are used to interpret depends not more upon their original fitness for that purpose than upon the facts that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instrument of Hindus, who view most transaction from a different point, think differently, and speak differently from Englishmen and who have never heard of the rules in question.'
16. The Rules of English mode of Conveyancing cannot prevail over the conception of 'sale' in Transfer of Property Act.
17. In AIR 1930 Cal 731 the first case cited by Mr. Mukherjee, the question arose whether a direction against the alienation made in a Will bequeathing a life estate on the donee was valid under Section 138 of the Indian Succession Act. It is held that where the bequest is of a life estate it cannot be said that it is bequeathed absolutely. That decision is not applicable to the facts and circumstances of the present case.
18. In AIR 1934 Cal 379, Mr.
Mukherjee drew my attention to certain observations at page 383 of the report where it was observed 'you may prohibit alienation absolutely; you may restrict it by prohibiting a particular class of alienation; you may restrict it by prohibiting it to a particular class of individual; or you may restrict alienation by restricting it to a particular time:' That observations were made in the context of one's power to dispose of the Shebaitship. It was not a case of sale. In 38 Cal WN 477 = (AIR 1934 PC 72) it was also a case for construction of a Will.
19. The Madras case referred to by Mr. Mukherjee reported in AIR 1942 Mad 166 is, with regard to a construction of a partition deed. As I have said already that by a gift, by a Will, by a partition or by a family settlement, a limited interest can be created. So, all the decisions referred to by Mr. Mukherjee do not solve the real point in controversy.
20. Where a transfer is not absolute, Section 11 of the Transfer of Property Act has got no application. That proposition is well-settled and it Is not disputed by Mr. Ghose. The real point for consideration is, whether a life estate can be created by a deed by the vendor. If it can be created, then the transfer in the instant case is not absolute. So, the provision of Section 11 of the Transfer of Property Act do not come In at all. But once it is found that a transferee of a property, takes an absolute interest, he cannot be restrained in his enjoyment of dispossession of it by condition inserted in the transfer. The transferor has no right to prescribe the methods in which property transferred should be applied or enjoyed by the transferee (Vide. Chamaru Sahu v. Sona Koer, (1912) 16 Cal WN 99 = 14 Cal LJ 308).
21. So, in my view, a haben-dum cannot override Section 54 of the Transfer of Property Act. A sale is a transfer of ownership of the property. By a transfer, a transferor divested himself of his interest in the property to the transferee. Thereafter he has got no right to create a life estate in favour of a transferee. If any condition or limitation is imposed in the deed of Conveyance that are repugnant to Section 11 of the Transfer of Property Act.
22. Accordingly, I hold that restrictions imposed in the habendum in the deed of Conveyance Ext. 1, are invalid and repugnant under Section 11 of the Transfer of Property Act. Kalidashi became the absolute owner of the premises No. 51/A & 51/B, Lansdowne Road, by purchase and she had right to dispose of the same by a Will.
23. Let the plaintiff No. 1 be declared as Shebait in terms of the Will of Kalidashi Devi.
24. In the result, this appeal is allowed with costs, the judgment and decree of the court of appeal below are set aside and that of the trial court with respect to plaintiff No. 1 are restored. Hearing fee being assessed at 5 gold mohurs. Leave under Clause 15 of the Letters Patent is prayed for and granted.