1. The main question in this case is, whether under the will of Kristo Lall Bhadury, his widow Bhubunessari Dabee took an absolute interest in his immoveable property or merely the ordinary estate of a Hindu widow.
2. Kristo Lall Bhadury died many years ago, leaving an only widow, but no issue surviving. He made a will in Bengali, dated the 2nd of June 1862, of which the translation is as follows. (Beads will: see ante, page 45.)
3. After the testator's death his widow took possession of his property and remained in possession of it until her death on the 17th of January 1898. She died intestate leaving the defendant Ashutosh Chuckerbutty her sole heir. The plaintiffs are grandsons of Roodnarain Bhadury, who was brother of Joynarain Bhadury, the grandfather of the testator Kristo Lall Bhadury, and as such are the reversionary heirs of Kristo Lall Bhadury. They contend that under the will of Kristo Lall Bhadury Bhubunessari Dabee only took the ordinary estate of a Hindu widow in his immoveable property, and that upon her death they became entitled to this property as reversionary heirs.
4. The testator having died prior to the passing of the Hindu Wills Act, which incorporates Section 82 of the Indian Succession Act;, the construction of his will is not affected by these enactments.
5. The rule as to the construction of the will of a Hindu is thus stated by their Lordships of the Privy Council in Soorjeemoney Dossee v. Denobundoo Mullick (1857) 6 Moore's I.A., 526 (550): 'The Hindu law, no less than the English law, points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition; nor, so far as we are aware, is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator's wishes; but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the case those circumstances, no doubt, must be regarded. Amongst the circumstances thus to be regarded, is the law of the country under which the will is made and its disposition is to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition a particular effect, it must be assumed that the testator, in the dispositions which he has made, had regard to that meaning or to that effect, unless the language of the will or the surrounding circumstances displace that assumption.'
6. Again in the case of Mahomed Shumsool Hooder v. Shewukram (1874) 14 B.L.R., 226 (231, 232): L.R., 2 I.A., 7 (14), their Lordships observed: '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 respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family, and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.'
7. It is a well settled rule of construction that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention. Here there is Do expression of intention discoverable in the will to control or qualify the dispositive words; consequently the plaintiffs are compelled to rely upon the view affirmed by their Lordships of the Privy Council 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,' and 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.' The plaintiff's also relied upon the language used by the testator in a mukhtearnamah executed by him on the 23rd of June 1862 for the purpose of having his will registered as showing that the property was given to his widow for the purpose of its preservation only. In this document the following passage occurs: 'Owing to ill-health * * * I have made a will in favour of my wife Srimati Bhubunessari Dabee for the preservation of my said house, etc., in Calcutta.' I shall presently refer to this document.
8. Counsel for the plaintiffs has strongly relied upon the case of Harilal Pranlal v. Bai Rewa (1895) I.L.R., 21 Bom., 376. In that case one Pranlal by his will directed that after his death his wife Ujam should take possession of and enjoy his property as owner. Then after making certain provisions for his daughters he again directed his wife to take possession after his death and added: 'Just as I am the owner of the property at present in the same way after my death my wife Ujam is the owner.' It was held by Farran, C.J., and STEACHEY, J., that the widow took only a life-interest in the property. After referring to the scheme of the will FARRAN, C.J., in delivering judgment, adds: 'His (the testator's) main objects appear to be the protection of his property and the maintenance of his wife and children. His wife is to take possession of and enjoy the property, but he adds to this no words of inheritance, nor does he directly give her any power of disposition over it. The Courts have always leaned against such a construction of the will of a Hindu testator as would give to his widow unqualified control over his property. By the use of such expression as 'my wife is the owner after me' or 'my wife is the heir,' it is usually understood that the testator is providing for the succession during the life-time of the widow and not altering the line of inheritance after her death. In the present case the testator is no doubt very emphatic in his declarations that his wife is to be the owner after his death, in one passage stating that just as he is the owner so she is to be the owner. The phrase is however ambiguous. It may mean that he intended emphatically to protect her peaceable possession and management during her life-time against the claims of the husbands of his daughters and their own, or it may be intended to confer as full ownership and power over the property as he had.' It is unfortunate that only extracts from the will appear in the report of this case. The intention of a testator is to be gathered from a perusal of the entire instrument and not from passages here and there. From the judgment however it would appear that the main objects of the testator were apparent, and that they were the protection of his property and the maintenance of his wife and children.
9. In Punchoomoney Dossee v. Troylucko Mohiney Dossee (1884) I.L.R., 10 Cal., 342, one Narain Dutt had two wives, one of whom died in his lifetime, leaving a daughter, the plaintiff, and Kristo Kaminey Dossee, the mother of the defendant, who survived him. Narain Dutt made a will, the material portion of which ran as follows: 'Whatever I have of immoveable and moveable property and ready money anywhere my wife Srimati Kristo Kaminey Dossee is the malik or proprietress thereof. She will deal with my debts and dues agreeably to the particulars below; she will pay whatever debts exist and recover and receive whatever dues there are receivable, and I have given commandment (permission) to my wife she will adopt a son; when the adopted son attains his age he will become the malik or proprietor of the whole of my property and will perform the shrad and tarpan of my father and father's father, and in the event of any good or evil befalling the said adopted son, in that case she will again adopt a son.' It was held by Sir Richard Garth, C.J., and Cunningham, J., overruling the decision of Wilkinson, J., that the use of the word, malik as applied to the widow did not necessarily mean that she should take an absolute estate, and that the directions in the will for the adoption of a son indicated an intention that the widow was only to take a limited estate.
10. In the earlier case of Koonjbehari Dhur v. Premchand Dut (1880) I.L.R., 5 Cal., 684, there was also internal evidence in the will itself that the testator did not intend to give his wife an absolute estate in his immoveable property. No doubt, however, the learned Judges, Jackson and Tottenham, JJ., did in their judgment lay down the wide proposition that a Hindu wife takes by the will of her husband no more absolute right over the property bequeathed than she would take over such property, if conferred upon her by gift during the life-time of her husband, and whether in respect of a gift or a will it is necessary for the husband to give her in express terms a heritable right or power of alienation. The Court, however, did not rest its judgment upon the rule so stated, but rather upon the finding that there was internal evidence in the will of the testator's intention that the property should not pass to the widow absolutely.
11. In the case of Bhobo Tarini Debya v. Pyari Lall Sanyal (1897) I.L.R., 24 Cal., 646, a clause in a will of a Hindu testator ran thus: 'My first and second wives shall together be entitled to twelve annas of all the properties left by me and Doorga Nath Chuckerbutty and Rajoni Nath Chuckerbutty, sons of my father's sister's son Badha Nath Chuckerbutty, deceased, who have been living in commensality from the time of my predecessor, shall be entitled to a four annas share in equal shares according to the following rules.' Then followed the rules, but according to the judgment there was nothing in the will either in what followed or in what preceded expressly stating that the widows were to take an absolute estate. It was held by Banerjee and Rampini, JJ., that the will only gave the widows a restricted interest. In the course of their judgment after reading the terms of the gift the learned Judges say: 'If this stood alone and Section 82 of the Indian Succession Act was not applicable to the case, then as the bequest (which in this respect follows the same rule as a gift) was one of immoveable property by the husband to his wives, they would take a limited estate under the Dayabhaga. They would take the property without having any power to alienate it; and property over which they have not the power of alienation cannot constitute their stridhana or absolute property (see Dayabhaga, chapter IV, Sections 1, 18, 19 and 23), and must on their death pass to the heirs of their husband--(see Colebrooke's Digest, Book V., 515, Commentary).' The learned Judges in that case found that it amply appeared from the will that only a restricted interest was intended to be created in favour of the widow.
12. There is nothing in the will which is now the subject of consideration, either in what precedes or in what follows the gift to his wife, which throws much, if any, light upon the meaning of the language used by the testator. It becomes necessary, therefore, to determine what is the legal effect of the appointment by a Hindu testator of his wife to the malikatwa (ownership) of his immoveable property. The words are 'I appoint (literally, 'make) my wife Srimati Bhubunessari Dabee to the malikatwa (ownership) after my demise as exercised (literally done) by myself, in respect of the family dwelling house, wearing apparel, utensils, etc., whatever there is, that is in respect of all the properties aforesaid, I of my own free will make (this) will.' Did this gift confer upon the testator's widow an absolute estate heritable and alienable in his immoveable property, or merely the limited estate of a Hindu widow
13. In the case of Mahomed Shumsool Hooder v. Shewukram (1874) 14 B.L.R., 226: L.R., 2 I.A., 7, a Hindu by a petition to the Collector of Patna recited the deaths of his son, of his brother, without leaving issue, of his brother's wife and his own wife and then proceeded to dispose as if by testament of his property as follows: 'Only Mussamut Rani Dhun Kowar, widow of Roy Kalika Pershad, my deceased son, above mentioned, who, too, excepting her two daughters born of her womb Mussamut Bibi Sitatoo and Bibi Dulari, has no other heirs, is my heir. Except Mussamut Rani Dhun Kowar aforesaid none other is nor shall be my heir and malik,' Later on occur the words: 'Furthermore to the said Mussamut Rani too these very two daughters named above together with their children, who after their marriage may be given in blessing to them by God Almighty, are and shall be heir and malik.' Sir Robert Collier, in delivering the judgment of their Lordships of the Privy Council, says that the expressions in which the gift is made to Mussamut Rani Dhun Kowar if they stood alone would in their Lordships' opinion show that the testator intended to make an absolute gift to Rani Dhun Kowar; but that the latter expressions qualified the generality of the former, and that the will taken as a whole must be construed as intimating the intention of the testator that Rani Dhun Kowar should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. The gift in this case, it is to be observed, was made not to the testator's widow but the widow of his son.
14. In Lalit Mohun Singh Boy v. Chukkun Lal Roy (1897) I.L.R., 24 Cal., 834 (849), Lord Davey, in delivering the judgment of the Privy Council, states as follows: 'The words became malik of all my estates and properties would, unless the contest indicated a different meaning, be sufficient for that purpose (i.e., to confer an heritable and alienable estate) even without the words 'enjoy with son, grandson and so on, in succession,' which latter words are frequently used in Hindu wills and have acquired the force of technical words conveying a heritable and alienable estate. The gift in this case was not to the testator's widow but to his sister's son.
15. In Lala Ramjewan Lal v. Dal Koer (1897) I.L.R., 24 Cal., 406, in which a testator provided (inter alia), by his will that his daughters and brother's daughters 'shall be maliks, and come in possession in equal shares of all the moveable and immoveable properties,' Trevelyan and Beverley, JJ., say 'prima facie there can be no question, but that a gift where there are no controlling words is an absolute gift and the expression maliks used here would ordinarily imply an absolute gift. But it is contended that we must introduce into this will what is said to be the prevalent Hindu idea, that a female ought not to obtain anything beyond an estate for her lifetime, and therefore, although the word maliks is used, we must cut down the estate to the extent of an estate given to a Hindu daughter. There is no authority for such a proposition. The words are absolute, and if they stood by themselves without anything to the contrary it would be impossible for us to say that they did not give an absolute estate.'
16. This decision is in consonance with the earlier decision of Glover and Mitter, JJ., in the case of Kollany Koer v. Luchmee Pershad (1875) 24 W.R., 395, in which the effect of the language used by a Hindu in a petition whereby he directed that after his death his widow and daughter should be 'maliks' and his entire estate, real and personal, should devolve upon them was considered. It was held that it was plain that the testator intended to make an absolute gift, and that where it was plain, as far as the words of a will went, that the testator intended to make an absolute gift of his property in favour of his widow and daughter the gift must be construed as absolute, unless it could be shown that by the Hindu law a gift to a female meant a limited gift.
17. Where a Hindu husband gives immoveable property to his wife with express power of alienation, or where the giving of such power is implied the terms of the gift, she will acquire an absolute estate in the property. Words of limitation, such as are ordinarily used to convey an estate of inheritance, are not necessary. The intention of the husband may be expressed in other ways and is a matter of construction. Ram Narain Sing v. Peary Bhugut (1883) I.L.R., 9 Cal., 830.
18. Their Lordships of the Privy Council in the case of Lalit Mohun Singh Roy v. Chukkun Lal Roy (1897) I.L.R. 24 Cal., 834, above referred to, at p. 849 of the report, state that the words 'become owner (malik) of all my estate and properties' would, unless the context indicated a different meaning, be sufficient for the purpose of conferring a heritable and alienable estate.
19. I find nothing in the will before me to qualify or control the language in which the gift to the testator's wife is expressed. The testator appoints his wife 'to the malikatwa, as exercised by myself in respect of the family dwelling house.' The words as exercised by myself,' so far from limiting the gift, seem to me rather to extend it and to indicate an intention on the part of the testator to confer on his wife the same absolute rights of ownership as he himself enjoyed. The intention of the testator was, I think, to give his wife an absolute heritable and alienable estate. If this were not his intention it is remarkable that no reference whatever is made in his will by the testator to any other object of his bounty or of his regard. He was childless and the plaintiffs were but distantly related to him. There was no great object indeed in his making the will if his widow was only to obtain under it the same limited estate, which she would have enjoyed in the event of his dying intestate. It is observable that the gift of the immoveable property is a combined gift. This tends, I think, to show that the testator intended his widow to have the same absolute interest in the realty as under the gift she would take in the moveable property.
20. Upon the whole I see no sufficient reason in this case for attaching a restricted meaning to the expressive words used by the testator in the disposal of his property.
21. I was pressed by Counsel for the plaintiffs with this further consideration. For the purpose of having his will registered the testator executed a power-of-attorney (muktearnamah) on the 23rd of June 1862, in which is the following recital: 'I have made a will in favour of my wife Srimati Bhubunessari Dabee for the preservation of my said house, &c;, in Calcutta.'
22. It is contended that the object of the testator being expressed in this instrument to be the preservation of his house an absolute gift was not intended to be made by the will. Even if this document is admissible in evidence to explain or control the language of the will there is nothing in the use of the words 'preservation of his house,' so far as I can see, which helps the plaintiffs' contention. The question, for whom was the house to be preserved, would still remain. Was it to be preserved for the widow and her heirs, or for the widow and after her the reversionary heirs of the testator? It is too vague and general an expression to be relied on one way or the other.
23. Having regard to the view which I have formed as to the true construction of the testator's will, it becomes unnecessary for me to determine the remaining issues raised in the case. It may, however, be well for me to state that, in my opinion, the house and premises, known as Shampooker House in Calcutta, were purchased with the proceeds of the sale of the testator's house No. 41, Kally Prosad Dutt's Lane, and so formed part of his estate. Further that the evidence has not satisfied me that the plaintiffs ever released their claim to the immoveable property of Kristo Lall Bhadury as alleged by the defendant.
24. I shall declare that upon the true construction of the will of Kristo Lall Bhadury, his widow became absolutely entitled to his immoveable property and dismiss the action with costs.