1. This is an appeal against the judgment of the 3rd Subordinate Judge of Mymensing, dated the 25th March 1907. The suit, which has given rise to it, is one for recovery of possession of certain undivided shares in two revenue paying estates, mentioned in the schedules attached to the plaint after declaration of title thereto.
2. The plaintiff, Durga Sundari Debya, is the third daughter of one Manik Chandra Biswas, who is said to have died on the 11th January 1874 (Magh 1280). He is said to have made a Will which was registered on 19th January 1874.
3. The above Will provided, that on his death all his property should be taken by a son to be adopted by his widow Siva Sundari Debya. It also provided that, in case no such adoption was made, the widow and, after her, his four daughters should take all his properties in equal shares. There were other provisions also in the Will as to how the succession should devolve in case of the death of anyone of the daughters, which have no relevancy to the present appeal; but there is an important direction in the Will that the widow should, in administering the estate, always be guided by the advice of defendant No. 1 and his kinsmen, Mohesh Chandra Bhattacharjee and Shashi Kamal Bhattacharjee, all of whom are members of the family of the spiritual guide of the testator.
4. The plaintiff alleges that defendant No. 1 Biswanath Bhattacharjee stood in a fiduciary relation towards the widow of the testator and taking advantage of his position, brought his influence to bear on her and induced her to execute a kabala in his own favour, transferring the major portion of all the properties mentioned in the plaint without any consideration. This kabala is said to have been executed in favour of the defendant without the plaintiff's knowledge.
5. Defendant No. 3, (Magnomoyee Debi), the fourth daughter of the testator, also appears to have obtained a kabala from her mother transferring to her one-third share of one taluk and four-anna share of another. The plaintiff alleges that this transaction also was collusive and without any consideration and made without her knowledge.
6. Siva Sundari Debi died in Bysak 1301, leaving her four daughters surviving her. The third daughter, Durga Sundari Debi, is the plaintiff, and defendants Nos. 3--5 are the other daughters. The plaintiff alleges that she was not aware of those transfers and being under the impression that her sisters were in possession and enjoyment of her fourth share in the estate, did not attempt to take possession of it; but when in 1310, she attempted to take possession of her one fourth share, the defendants Nos 1,2 and 3 did not allow her to do so. She then came to know of the transfers in favour of defendants 1 and 3 and of the purchase by defendant No. 2 from the latter.
7. The plaintiff then took out Letters of Administration with a copy of the Will annexed and then attempted to take possession of her share, when she was prevented from doing so by defendants Nos. 1, 2 and 3 and hence the present suit for recovery of possession and mesne profits.
8. Defendants Nos. 1 and 2 contested the suit in the lower Court and it is defendant No. 1 only who has preferred the appeal to this Court. He has made various allegations in his written statement, with which we; are not concerned for the purposes of the present appeal. The principal contention with regard to the Will, urged before us, is that under the terms of that Will, Siva Sundari, the widow, took an absolute interest. It was also urged that she could not pay off the whole debt due from her husband by the sale of 15 ganda share of the Taluk Kismat Dholekun and Changpara as provided in the Will and that she had to incur debts for her own maintenance and for going to Ganga to offer Pinda to her deceased husband and his ancestors. The appellant further contends that the plaintiff cannot get the relief asked for without a prayer for setting aside the kabalas, but this contention is clearly untenable.
9. The decision of this appeal depends, to a great extent, on the construction of the Will in question. There is no doubt that if, under the authority given in the Will, the widow had adopted a son, she would have been entitled, only to maintenance from the date of adoption. It is incumbent on a Hindu under his religion to have a son and it is, therefore, frequently the wish of a Hindu testator if he has not a son that his widow should adopt one to become the means of salvation to his soul. The testator's wish, therefore, could not have been to give an absolute interest to his widow as, if that were so, there was no necessity for him to direct that his widow after his death should adopt not one son but five sons successively one after the death of another. And the testator appears to have anticipated the possible contingency of no son being adopted and in anticipation he directs in the Will that, in the event of that contingency, his widow should take the property and after her death his four daughters in equal shares.
10. We have read the Will most carefully and we are of opinion that the intention of the testator was that the ultimate successors in case of no adoption, should be his four daughters in equal shares and that after the death of any one of them, her son or sons should succeed. It is evident that he never intended, that the widow should, under the Will, take an absolute interest in the properties left by him and deal with them in any manner she liked. We are of opinion, therefore, that under the Will she was entitled to take no more than a life interest in the properties left by the testator.
11. Our attention has been directed to the case of 3. M. Hara Kumari Dasi v. Mohim Chandra Sarkar 12 C.W.N. 41.2. In this case although in the Will authority was given to the widow to alienate by gift or sale all the properties covered by the Will, still it was held that in giving effect to all the words of the Will, the widow took an estate for life with the power of alienation, and to the extent to which such power was not exercised, the daughter similarly took the properties. In spite of the power of alienation, it was held that the widow took only a life interest. In the present case, the power of alienation is restricted to certain properties and from the tenor of the wording of the Will it seems to us clear that the widow was given only a life interest with the power to sell only the shares in the properties mentioned in the Will.
12. It was held in the case of Moulvie Mohamed Shumsool Hooda v. Shewak Ram L.R. 2 I.A. 7, at page 14; 22 W.R. 409; 14 B.L R. 226 (P.C) 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 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, as a general rule, at all events, women do not take absolute estates of inheritance which they are able to alienate.
13. In the case of Radha Prasad Mullick v. Ranimoni Dassi 12 C.W.N. 729 (P.C.), it was held that notwithstanding the wish of the testator to benefit his daughters, yet under the wording of the Will in that case, they were not entitled to have more than what is generally known to be a woman's estate. This was a Privy Council case. In the Will there was a gift to the daughters and their respective sons and a proviso, that in the event of one of the daughters dying without leaving any male issue, the share of the deceased daughter was to go to the surviving daughter and her sons. It was held that the daughters took only a life interest. In the present case, we have a similar provision in the Will of Manik Chandra Biswas. We, therefore, do not think that, in accordance with the wording of the Will, the testator intended to give to his widow anything more than a life interest. That being the case, we are of opinion that she was not entitled to an absolute interest under the Will.
14. This being our view, we have next to consider whether the widow as a life tenant was entitled to make the transfers of the properties, mentioned in the schedules attached to the plaint, by reason of such necessities, as are allowed by the Hindu Law to justify a sale by a widow.
15. We find in para 3 of the Will that the testator stated that, in order to pay off the debts incurred by him, he was ready to sell 15 gandas shares of his Taluk Kismat Dholekan and Changpara and he enjoins that, for the purpose of the payment of his debt, his widow may sell the said shares.
16. It is alleged that the widow had incurred debts for the performance of such acts as were enjoined in the Will of her husband as necessary for the performance of ceremonies attending on the worship and service of Iswar Gopi Nath Bigraha, a deity established in his house.
17. There is really no evidence worth the name on the record that the widow incurred any expenditure at all and if any such expenditure was incurred, it is not in any way proved that it was necessary or unavoidable. A widow is not entitled to spend all her estate on religious ceremonies, regardless of her income, even assuming for the sake of argument that in this case the widow did spend money and fall into debt for such purposes. The Will, certainly, does not authorise extravagance.
18. The expressions used by the testator with regard to this matter are that his widow and his daughters and their heirs in succession should pay proper expenses from the estate for the existing ceremonies. The expression 'proper expenses' does not mean extravagance. Assuming, therefore, that the widow did incur debts for religious purposes, we have next to be satisfied that she was not extravagant in spending more than the income of the estate permitted. If she was, and if consequently she had to make transfers of properties other than Kismat Dholekan and Changpara, we do not think that her daughters are bound by those transactions.
19. The kabala, executed by Siva Sundari Debya in favour of Biswa Nath Bhattacharjee defendant No. 1, which is Ex. I in the case, shows that it was executed by only Siva Sundari Debya and consented to by Sasi Sundari Debya and Ganga Moyee Debya, the first and second daughters of Siva Sundari. The plaintiff, Durga Sundari, was not privy to this contract. It is alleged by defendant No. 1 that on the death of Manik Chandra Biswas, his widow had to pay off certain debts incurred by the deceased and that for that purpose she had to sell a portion of the estate to one Kali Nath Pal. This sale to Kali Nath Pal is admitted by the plaintiff. The defendant No. 1 then goes on to say that as there was no other means to clear off the balance of the debt of the deceased, the widow, in order to pay off that balance and for other legal necessities, sold the shares in dispute to him and to one of her daughters, Magnamoyee Debya, with the consent of defendants Nos. 3, 4 and 5. On behalf of the defendant No. 1, reliance has been placed on Ex. A, which is a registered mortgage kistbundee, dated the 6th Aghan, 1297 (1st December 1890), in favour of one Kali Nath Pal, as containing an admission by the plaintiff of her mother's indebtedness. Durga Sundari Debya, the plaintiff, purports to be one of the executants of this document. But she denies all knowledge of it. It appears that the widow Siva Sundari Debya and her three daughters namely, Sasi Sundari, Durga Sundari and Magnamoyee were identified before the Registrar by one Pran Nath. Chackraverty, who also appears to have signed for Durga Sundari Debya. But we find that there is no evidence that it was really Durga Sundari Debya whom he identified. This Pran Nath Chackraverty is not a witness in the case. We cannot, therefore, hold in the absence of all evidence that one of the ladies whom Pran Nath identified was the plaintiff or that she was a party to this contract. It cannot, therefore, be construed as an admission by her of her mother's indebtedness. We have already found that she was not a party to the kabala, executed by the widow in favour of Biswa Nath Bhattacharjee.
20. It appears, again, that Magnamoyee, the fourth daughter of the testator, sold the share, that she had purchased from her mother, to the defendant No. 1 under registered deed of sale, dated the 11th Jaistha 1302. It is admitted by the plaintiff that her mother, Siva Sundari Debya, executed a kabala in favour of Magnamoyee, her fourth daughter.
21. These kabalas relate not to the properties directed in the Will to be sold for the purpose of payment of the debts of the testator but to other properties. We have already observed that the authority given to the widow to sell some properties of the estate left by the testator was restricted to the sale of the properties mentioned in the Will. We find that the widow has not only exceeded the authority given to her under the will, but that she has also failed to show that her alienations were justified by any real necessity. In the above circumstances, we hold that the plaintiff is not bound, by the debts incurred by her mother; nor is she bound by the sale of properties not enjoined by the Will to be sold.
21. It has been strenuously contested that even if the plaintiff is not bound by the conveyance to the 1st defendant, still that that conveyance covered loss than 3/4ths of the property. And it is argued that as three out of the four reversioners consented to it, it ought to be taken as good against the plaintiff whose one-fourth share can be satisfied out of the remainder. The answer to this contention if that the Subordinate Judge has not directed that the plaintiff's claim shall be satisfied out of the 1st defendant's share. Indeed as the share is undivided and undefined, such a direction is impracticable. Two days after the sale to the 1st defendant, the widow sold the remainder to the 3rd defendant, who again sold most of what she purchased to the 1st defendant. The plaintiff cannot be prejudiced by these transactions. She is entitled to her fourth share and it is no concern of hers how it has been juggled about between the widow and the 1st, 2nd and 3rd defendants.
22. Another point raised is that in the Will there is a special provision made for Gangamoyee Devi, one of the daughters of the testator, who has been enjoined to take Mantra from the spiritual guide of the testator and to dwell in his dwelling house. She has, therefore, been provided with an additional share of 10 gandas out of the shares of 2 annas of the testator of Kismat Baniabari No. 556 and the dwelling house. The contention before us as regards this matter relates to the construction of the following provision in the Will:
23. 'My second daughter, Sreemutty Gangamoyee Debya shall take mantra from my spiritual guide and shall dwell in my family dwelling house. Hence I give her 10 gandas share out of 2 annas share of Kismat Baniabari No. 556 and the dwelling house as Domi share.' The original has been read to us and we think that the interpretation given to the document by the Subordinate Judge is certainly a possible one. He takes it to mean that out of 16 annas share belonging to the testator in village Baniabari, Gangamoyee should be allowed 10 gandas share and that the remaining 15 annas and 10 gandas should be taken by the four sisters in equal parts. The Subordinate Judge is a Bengali and well able to construe this portion of the Will, and we are not prepared to say that he is wrong.
24. Finally, it is argued that the first defendant ought not to be made liable for mesne profits. It is certainly difficult to see why the 2nd defendant has not also been made liable. But this not an appeal by the plaintiff and there can be no doubt that the first defendant is liable, whether the second defendant is liable also or not.
25. To recapitulate we find that the widow of Manik Biswas took but a life estate and was not authorised to alienate the property in suit. There is no real evidence, beyond a mass of more or less flimsy conjectures, that she ever fell into any necessity such as would justify her in selling the property. In these circumstances her dealings with the property cannot possibly bind the plaintiff.
26. We think there is no real substance in the appeal and direct that it be dismissed with costs.