1. This appeal has arisen out of a suit for declaration of the plaintiff's 8 annas share of the property in suit and for recovery of possession of the same. His case in the plaint is that he is the adopted son of one Jagatbandhu Dutta and he claims 8 annas of the property in that character. His further case is that Jagatbandhu executed a will, on 13th October 1882 and died, shortly thereafter. By the said will, the said testator gave absolutely to his widow Mahamaya Dutta 8 annas share of his property and a life interest to the said lady in respect of the other 8 annas share. Mahamaya died on 2nd August 1922; after haying executed a will on 7th September 1921. By the said will Mahamaya dedicated 16 annas interest in all the. immovable, properties to the family idol. The plaintiff says that Mahamaya had the right to dispose of the 8 annas share of the property in which she had absolute interest ,by her husband's will, but had no power to devise the remaining 8 annas share in which she had only a life interest under the will of Jagatbandhu. The plaintiff accordingly prays for a declaration of title and possession of the 8 annas share of the properties in which, according to him, she, Mahamaya, had only a life interest under her husband's will. Defendant 1 is the executor under Mahamaya's will and his defence was of a two-fold nature. He said firstly that the plaintiff was not the adopted son of Jagatbandhu, that is to say, he had never been adopted by Mahamaya and. assuming that Mahamaya adopted him, that adoption was invalid in law, because the authority given to Mahamaya by her husband had already been exhausted by her exercising her authority by adopting another person Sachinath. The learned Subordinate Judge has held that the plaintiff is the adopted son of Jagatbandhu; and on the construction of the will has come to the conclusion that Jagatbandhu, by his will gave absolute interest to his widow only in respect of an 8 anna share in the properties and in the remaining'. 8 annas share his widow had a life interest. In that view, he has decreed the plaintiff's suit. Defendant 1 has appealed against that judgment.
2. Mr. Das appearing for defendant 1 appellant has not challenged the finding of the learned Subordinate Judge that the plaintiff is the adopted son of Jagatbandhu. He has confined his argument to the construction of the will of Jagatbandhu, and according to him, that will had conferred upon the widow Mahamaya an absolute interest in 16 annas of Jagatbandhu's properties. It is therefore necessary to examine the terms of the will in order to see if this contention is correct or not. The will of Jagatbandhu which has-been duly probated is Ex. A-1 p. 1, part 2. To follow the will, it is necessary to state one fact. Jagatbandha was an educated man who had no issue, During his life-time, he had adopted a son of the name of Madan Gopal and that son was living at the date of the will.
3. The will is a short one, consisting of a short preamble and 4 paragraphs In the pre, amble he states that he was executing, the will for the management, preservation and enjoyment of his entire ancestral and self-acquired moveable and immovable properties. In para. (1) he states that after his death all his properties will vest in his wife Mahamaya. Then he states that Mahamaya would be entitled to enjoy and possess all his properties till her lifetime. In the latter portion of this paragraph, he makes a distinction between the two halves of his estate, with regard to an 8 anna share of all his properties, he states that Mahamaya would be competent to sell the same according to her requirement. With regard to the remaining 8 annas share, he says that she would have no power to sell the same or settle it at a less jama, but if there be any urgent necessity, she will be, competent 'to sell any mehal as a whole'. If this para, graph had been the only paragraph dealing with the disposition of his properties, it would be fairly contended that an 8 anna share was given; absolutely to her and in the other 8 annas her interest was a life interest. But there are other paragraphs, in the will which will have to be taken into consideration; for it is a well-known principle of construction that no part of a will should be discarded and the will as a whole should be construed. An attempt should be made to reconcile apparent inconsistencies; and if the different clauses of the will, cannot in any way be reconciled, resort must be made in last instance, to the principle that the last clause of the will dealing with the particular disposition of the properties should be taken to be' the real intention of the testator.
4. This being the principle well settled it is now necessary for us to consider the remaining paragraphs of the will. Paragraph (3) contemplates the case of his widow predeceasing the testator and his adopted son Madan Gopal, surviving him and in that contingency, all his properties should be divided half and half, his adopted son taking eight annas share and the remaining eight annas would go to his brother Sriman Dinabandhu Putta or his son. By Clause (3), a, contingent interest is created in favour of his adopted son Madan Gopal and his brother Dinabandhu and his Son, the contingency being of, his wife predeceasing him. Para. (4) gives the widow power to adopt a second son, if Madan Gopal happened-to die. In para. (2), the testator says that his wife would be at liberty to devise to anybody she likes the, property left by him. Clause (2) of the will deals, in our judgment with the whole of his properties. In the preamble of the will the testator says that he is making disposition of his entire-estate. He contemplates two contingencies, the first being that his wife surviving him and in the second the wife predeceasing him. Clauses (1) and (2) deal with his estate on the first contingency and Clause (3) deals with the estate if the second Contingency happened. Clause (2) is inconsistent with the wife being-given a life estate in the eight annas of the properties, for, if only a life interest had been intended, there would be no meaning in giving to her the power to devise the properties, that is to say, to deal with the properties effectively by her will. This Clause, namely Clause (2), accordingly indicates that the testator intended his wife to take absolute interest in the whole of the estate, namely 16 annas. There is accordingly an apparent conflict between Clause (2) and Clause (1) of the will, so far as eight annas share of the properties is concerned.
5. In our judgment, having regard to the preamble to the will, and the fact that the testator does not make any express provisions in the will for the adopted son or any relations in the contingency of his wife surviving him, an absolute estate in 16 annas was intended for the wife, for if by Clause (1) read with other clauses of the will, the testator intended to give a life interest to her only in an eight annas share, express provisions would have been made for the devolution on her death of the said eight annas share. In view of the preamble to the will, it is quite clear that the testator never intended a partial intestacy. We accordingly hold that the testator intended to give his wife absolute interest in the 16 annas of the properties on the contingency of his wife surviving him and the last part of Clause (1) which appears to cut down the power of alienation with regard to the eight annas share was only a pious wish and nothing more. If an absolute interest was intended the power restricting alienation would be void in law. On the construction of the whole will, we accordingly come to the conclusion that Mahamaya was given an absolute interest, that is to say with power of disposition over the whole of the properties left by Jagatbandhu. Mahamaya has in fact by a will made a disposition of the whole of the estate which she had got from her husband by his will and also of the properties which she herself had acquired. This disposition by Mahamaya by her will dated 7th September 1921, which has been duly probated is an effective disposition. In this view of the matter, we hold that the plaintiff has no right to the share claimed in the plaint, and his suit ought to be dismissed. The result is that this appeal is allowed, the decree of the learned Subordinate Judge reversed and the plaintiff's suit dismissed. The appellant is entitled to his costs in this Court, hearing fee being assessed at two gold mohurs. Bach party will bear his own costs in the lower Court.