1. The question involved in this appeal turns upon the construction of the Will of one Kali Kinkar Chakravarty.
2. Kali Kinkar died leaving his mother, Tori, and his widow, Karatara. By his Will he gave certain properties to the mother and the widow absolutely. The 4th paragraph of the Will provides as follows: 'The tank and the homestead in Betagi which belongs to me will remain in half and half share in possession of my mother Sreemoti Tori and my wife Karatara but they will not have the power to sell the properties. On the death of both, my heirs will get it. If in the meantime they go elsewhere by leaving my homestead, they will not get this property.'
3. It appears that the mother sold the property and left the house, the widow then ratified the sale and also left the house. That was some time in 1867, the exact year being unnecessary for the purpose of the present case. The mother died more than 12 years before the suit but the widow died in 1908, i.e., within 12 years of the suit.
4. The plaintiff is the heir of Kali Kinkar and on the death of the two ladies he brought the suit for recovery of possession of the properties from the defendants who are purchasers from the mother and the widow. Both the Courts below have decided the case against the plaintiff and the plaintiff has appealed to this Court.
5. It is contended on behalf of the appellant that, on the mother leaving the house, her share devolved upon the widow, that on the widow leaving the house, her share devolved on the mother, that on the mother's death her share devolved on the widow by right of inheritance and that, on the widow's death, again, the entire property was inherited by the plaintiff as heir.
6. This argument is ingenious, and of course, a person can take as heir although the Will expressly provides that he should not get the estate, provided there is no gift over. In this case, however, we are of opinion, upon a proper construction of the Will, that it was the intention of the testator that the interest of the mother and the widow should cease in the event of their death and also in the event of their leaving the family-house. The words 'on the death of both my heirs will get the property' certainly refer to heirs other than the mother and the wife. Then the Will says: 'If in the meantime they go elsewhere by leaving my homestead, they will not get this property.'
7. It seems to us that the heirs were to come in not only in the event of the death of the widow and the mother but also in the event of their leaving the family house. The idea that some one of his family should reside in the bastu bhita was uppermost in the mind of the testator, as is generally the case with Hindus, and that is the reason why the testator provided for forfeiture of the rights of the mother and the widow in case of their leaving the house. In such a contingency, it was but natural of the testator to desire that his heirs should take the homestead.
8. On the whole, we are of opinion that there was a forfeiture of the estate by the widow and the mother leaving the house in about the year 1867 and that the heirs ought to have come in within 12 years from that time. The suit, therefore, was properly held to have been barred by limitation. This disposses of the appeal.
9. It has, however, been contended on behalf of the appellant that with regard to the jala (the watery portion of tank) the case ought to go back to the Court below for a consideration of the question of confirmation of possession.
10. It is admitted on behalf of the respondent that there is no dispute as to the possession of the plaintiff in the jala although the extent of his share is disputed. The learned Pleader for the respondent says that, for the purpose of avoiding a remand, he will admit the share in the watery portion of the tank, claimed by the plaintiff.
11. The result is that the plaintiff's title to the extent of the share claimed by him in the watery portion of the tank will be declared and his possession in respect of that share confirmed. In other respects, the appeal will stand dismissed with costs.