B.K. Mukherji, J.
1. This is an appeal on behalf of defendants Nos. 1 to 4 who are the principal defendants in a suit commenced by the plaintiffs for declaration that a rent decree obtained by them against pro forma defendant No. 5 is not liable to be attached in execution of a money decree obtained by the principal defendants against one Hiralal Roy in Money Suit No. 560 of 1919. The material facts which are not in dispute stand as follows:
2. The property in respect of which the rent decree was obtained belonged to one Rajballav who made a gift of the same along with other properties to his widowed daughter Nistarini. The deed of gift purported to create a life estate in her favour and after her death the property was to go to Rajballav's heirs. Hiralal was the grandson and heir of Rajballav and he adopted a son named Radhika whose wife is Prafulla Bala, plaintiff No. 2 in the suit. Nistarini died in the month of Pous 1335 B.S. leaving behind her a will by which she disposed of amongst others the rents due to her by defendant No. 5 for the years 1333 and 1334 B.S. The plaintiffs are the executors under the said will of Nistarini and they obtained a rent decree against defendant No. 5 in respect of the said arrears of rent, in the year 1930. Both Hiralal and Radhika died during the lifetime of Nistarini and the principal defendants who had obtained a money decree against Hiralal in the year 1919, took out execution of the same in the year 1931 and in execution proceedings attached the rent decree which the plaintiffs obtained against defendant No. 5. The defendant presumably proceeded on the ground that the decree constituted a part of the assets of the estate left by Hiralal who had a reversionary interest in the properties given to Nistarini for her life. The plaintiffs preferred a claim which was rejected and the present suit was commenced subsequently consequent upon the adverse decision in the claim case. The whole controversy centres round the point as to who was entitled to realise the rents for the years 1333 and 1334 B.S. which accrued during the lifetime of Nistarini and the decree in respect of which was obtained by her executors after her death. If the right to realise the rents vested absolutely in Nistarini it would be her stridhan property and the plaintiff's contention would succeed. If on the other hand it became a part of Hiralal's estate as soon as Nistarini died, the defendants would be entitled to attach the same in execution of the decree which they obtained against Hiralal.
3. The trial Court dismissed the plaintiffs' suit. It held first of all that Nistarini had no right to the rents due by defendant No. 5 which accrued due during her lifetime bat were not actually realised by her, arid the will executed by her did not create any right in favour of the executors in respect of the said rent. The decree, therefore, was held to be one which was really obtained by plaintiff No. 2 as legal representative of Hiralal and forming part of Hiralals estate. The trial Court further held that the plaintiffs' suit was barred under Section 47, Civil Procedure Code. An appeal was taken against the decision to the lower Appellate Court which reversed the judgment of the trial Court on both these points. It is against this decree that the present second appeal has been preferred. Mr. Atul Chandra Gupta who has appeared for the appellants has not challenged the propriety of the decision of the lower Appellate Court in so far as it has held that the suit was not birred under Section 47 of the Code. He confined his argument to one point only, namely, as to whether Nistarini had any right to dispose of by a will the rents due by the tenant for the years 1333 and 1334 B.S. which accrued due but were not realised by Nistarini during her lifetime. Mr. Gupta's argument is that the deed of gift executed by Rajballav in favour of Nistarini gave her certain properties for her enjoyment merely go long as she was alive. She was given less than what a Hindu daughter would set by succeeding to her father's estate and on her death the outstanding arrears of rent would go along with the corpus which remained vested throughout in Rajballav's heir. Mr. Gunada Charan Sen who has appeared for the respondents has argued on the other hand that the entire rents and profits were assigned to her and she had absolutely a right of disposal for the rents and profits that fell due during her lifetime. It would not make any difference as to whether the rents claimed came to her hands or not.
4. Now, if we look to the deed of gift, we find that the grantor purports to grant 34 items of property for enjoyment (Bhogartha) by the donee. She was to possess the properties with all rights and appurtenances and pay all rents to the superior landlord and enjoy the entire usufruct. She is expressly forbidden to transfer her own life interest. The last restriction may or may not be valid in law, but the document taken as a whole gives her an unrestricted right to enjoy the entire rents and profits which would accrue during her lifetime. We are unable to accept the contention of Mr. Gupta that the word Bhogartha (for purposes of enjoyment) indicates that the profits should be only enjoyed by herself personally, and if she was not in a position to do it herself, her rights ceased at the moment and the profits would revert to the corpus. In an ordinary case of a female heir succeeding to the property of a male owner under the Hindu Law she has absolute power of disposal over the income and is not bound to save even a single farthing for the benefit of the reversioner. If she does save and make any accumulation a question may arise as to whether the savings would go with the estate or would go to her stridhan heirs and the trend of decisions goes to show that it would be determined with reference to the intention of the widow: Ishri Dut Koer v. Hunsbutty Koe-rain 10 C. 324 : 10 I.A. 150 : 13 C.L.R. 418 : 4 Sar. 459 (P.C.) Nirmala Sundari Dassi v. Deva Narayan Das Choudhuri : AIR1927Cal868 . If she evinces a distinct intention on her part to appropriate such income to herself or separate it from the corpus of the estate, it would certainly be her absolute property. If on the other hand she deals with it in the same way as she treats her husband's property, there is no doubt that it would follow the estate from which it came.
5. In the present case, however, Nistarini got the property by a deed of gift and no question arises here as to how she expressed her intention, for the estate never vested in her and she never-represented the estate as a Hindu widow would do under normal circumstances when she inherits any property of any male owner. There was a separation of the income from the estate from the very start and she could not possibly express any intention to treat the income or the savings as a part of the estate: vide Saodamini Dasi v. Administrator-General of Bengal 20 C. 433 : 20 I.A. 12 : 6 Sar. 272 (P.C.). To quote the language of their Lordships of the Judicial Committee in the last case the father's estate was not in her hands which she could augment in any way. Mr. Gupta dees not really dispute this proposition, that had the rent been realised by Nistarini it would become her stridhan which she could dispose of in anyway at her pleasure: but as she did not get the money in her hands he says that it would go along with the corpus the very moment she died, as she would be incapable of enjoying the income any further. As we have said already, this would be putting a narrower construction on the deed, and as we hold there was an assignment of the entire income of properties which would become due during her lifetime, no difference can be made in principle between profits which fell due and were realized and those which were still outstanding. In Rashik Lal Mandal v. Singeshwar Roy 16 C.L.J. 107 : 14 Ind. Cas. 147 : 39 C. 813 : 16 C.W.N.1103, the profits which had not reached the hands of the widow were dealt with in the same way as profits already realized and the question as to whether it would be an accretion to the estate was held to depend upon the intention of the female heir. In Bhagabati Koer v. Sahudra Koer 16 C.W.N. 834 : 13 Ind. Cas. 691, the unrealized rents in the hands of the tenants were held to be an accretion to the estate. But there again, the test of intention was applied and it was held that no intention could be imputed to the lady to treat these outstanding arrears of rent as temporary savings. If, as we have said above, the question of intention does not arise in this case at all, we cannot make any difference between profits already realized and what is still outstanding. Mr. Gupta has drawn our attention to the case in Sar at Chandra Mitra v. Charusila Dasi 55 C. 918 : 112 Ind. Cas. 508 : A.I.R. 1928 Cal 724, where it was held by Page, J. that a Hindu widow is incapable of disposing of the property of the husband as she is incapable of disposing of the corpus. It may be seen that Page, J. did not proceed on any distinction between profits which had already become due and were not realized and those which had already come in the hands of the widow. His Lordship held that the Hindu Law did not allow a widow, even though she was given a power of spending the income in any way she likes, to dispose of the said income whether realized or unrealized by means of a testamentary document which would become operative after her death. Whether this is good law or not it is unnecessary for us to discuss in the present case as we have said already that the present, case depends upon the construction of the document and Page, J. himself has made a distinction with regard to cases like these where the widow does not get the property under the law of inheritance. The present case is very similar to the case in Guru Prasad Roy v. Nafar Das Roy 11 W.R. 497 : 3 B.L.R. 121 (P.C.), and in agreement with the view taken by Markby, J. in that case we hold that Nistarini was competent to dispose of by will the unrealized arrears of rent which fell due during her lifetime. The result is that this appeal is dismissed with costs; hearing fee two gold mohurs.
M.C. Ghose, J.
6. I agree with my learned brother. The sole question in this case is whether the widow Nistarini could bequeath the uncollected rent by a will. If she could do so, the plaintiff will succeed. If she had no right to do so, then the defendant will succeed in the suit. Now, Nistarini was a childless widowed daughter of Rajballav Roy who died leaving a son. Before his death he made a deed of gift of 34 items of property and gave the widowed daughter the right to enjoy the same during her lifetime. She was to enjoy all the income of the property during her lifetime. The corpus of the property would return at her death to his heirs. The lady died in 1335 B.S. leaving by a will the uncollected rents of 1333 and 1334 B.S. to the plaintiffs who in due course realized the same. The defendants had a decree against the heir of Rajballav and seek to attach the rents. The position of a childless widowed daughter who is simple given the right to enjoy the income of the property during her life is different from the position of a Hindu widow who gets a limited right to the properly itself. In the case of a Hindu widow it has been held that if she makes any accumulation it depends upon her intention whether it is part of the corpus or it remains her separate property. The question whether a widow may dispose of the uncollected rents by a will was considered by Page, J. in Sarat Chandra Mitra v. Charusila Dasi 55 C. 918 : 112 Ind. Cas. 508 : A.I.R. 1928 Cal 724. There he held that the answer to the question whether the widow was competent to dispose of by a will the arrears of rent would depend on the question whether the said sum formed part of her stridhan. Now in the case of a widow, he held that the uncollected rent became at her death not her striahan but part of the corpus. In the case of a widowed daughter who is given the right to the income for life all her accumulation would be her stridhan. The question of intention would not arise and the arrears of rent would also be her stridhan when realized, and there can be no objection on principle why she should not dispose of the? same by a will. This view is supported by the case in Guru Prasad Roy v. Nafar Das Roy 11 W.R. 497 : 3 B.L.R. 121 (P.C.). I, therefore, agree that the appeal must be dismissed with costs: hearing fee two gold mohurs.