1. This appeal, arises out of a suit brought by the present respondent to recover possession of land, on establishing her right of inheritance thereto together with wasilat.
2. The plaintiff is the daughter of one Dhan Kumari, and she claims right to the property in suit through her mother to whom the property was, according to her allegations, made over by gift by her (Dhan Kumari's) father as an absolute estate. Dhan Kumari died leaving her daughter alone surviving her. After her death the property was taken possession of by the defendants Nos. 1 to 4, who are the next heirs to the father of the plaintiff's mother. Their allegation is that the plaintiff has no right to the property in suit under the terms of the gift made to her mother.
3. Both the lower Courts have held that the gift made by the father to Dhan Kumari was an absolute gift, and that, therefore, the property passed on the death of Dhan Kumari to the plaintiff as her heir, and have given the plaintiff a decree for the reliefs claimed.
4. Defendants Nos. 1 to 4 have appealed, and the question which we have to determine in this appeal is whether the gift to the mother, Dhan Kumari, was a gift of an absolute estate, or whether it was made subject to reservations, in consequence of which the property did not pass to the plaintiff.
5. In support of the appeal, reliance is placed on a passage in the deed of gift which is quoted in full in the judgment of the Court of first instance. The passage after stating that the gift is made to DhanKumari and that she is vested with the right and possession from the date of the gift goes on to say: You do remain in possession of the land held by myself, down to your sons, sons' sons and so on in succession' the words used being putra poutradi krame. It then states that you shall not give up any land comprised within the boundaries in favour of any body and that your sons and heirs in succession will have a right to own and possess the property, your husband and husband's heirs or any member of another family being excluded.' It is argued on behalf of the appellants that although the words putra poutradi krame'are used on these two occasions the passage must be read as a whole and the intention of the donor should be gathered from the entire terms. It is contended that under the terms of the gift what was intended to be given was not an absolute estate of inheritance but a life-estate to the donee with remainder to her sons or her sons' heirs and that under the terms of the gift the daughters of the donee and the husband and the heirs of the husband of the donee were expressly excluded.
6. We agree with the learned Counsel for the appellant that in considering the document, it is necessary to take the whole into consideration and to endeavour to find out the intention of the donor from all the terms.
7. In support of the contention that under the terms of the gift a restricted interest only passed to- the daughter, reliance is placed on the decision of the Privy Council in the case of Radha Prasad Mallik v. Rani Moni Dassi 8 C.L.J. 48 : 12 C.W. 729 : 30 Bom. L.R. 604 : 5 A.L.J. 460. In the judgment in that case their Lordships referred to the previous ruling laid down by the Judicial Committee in the case of Mahomed, Shamsool Hoda v. Shewakram 2 I.A. 7 at p. 14 : 22 W.R. 409 : 14 B.L.R. 226, in which it is stated that in construing a Will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of a Hindu 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. It may be assumed that a Hindu knows that as a general rule at all events, women do not take an absolute estate of inheritance which they are enabled to alienate. In that case the testator bequeathed his property to his daughters in equal shares subject to the condition that if either of the daughters died without leaving male issue, the surviving daughter and the sons would, be entitled to- the share of the deceased or in the case of the death of any of the daughters leaving sons, the share of such daughter should be paid ' to such her son and sons, share and share alike.' It was held that the intention of the testator was to create in favour of his daughters estates for life only with remainder over to their sons, and that the effect of the devise was to exclude from succession female heirs of the daughters. In the present case it is contended that though the words in the deed declare that the property was given to Dhan Kumari and that it would remain in her possession and in the possession of her sons and sons' sons in succession, the words putra poutradi krame being used, which ordinarily would create an absolute Estate of inheritance, still the words following indicate that the intention of the testator was to retain the property within his own family and the directions that neither the husband nor his heir nor any member of a different family should succeed, indicate that his intention was to restrict the succession to the male issue of his daughter so that the property might not go out of the family. The daughter's sons, it is to be observed, would perform the necessary ceremonies to confer spiritual benefits on the donor. It is contended that under these restrictions, the plaintiff, that is, the daughter of Dhan Kumari, would be excluded from the inheritance. The question, therefore, which we have to determine is whether under this deed of gift what was intended to be given by the donor was the property to his daughter with an absolute right of inheritance or only a lire-estate to her with a remainder over 'to her sons and sons' sons.
8. On behalf of the respondent, reliance has been placed on the decision of the Privy Council in the case of Ram Lal Mookerjee v. Secretary of State for India in Council 8 I.A. 46 at p. 61 : 7 C. 304 : 10 C.L.R. 349, in which it is stated that the words putra poutradi krame, imply an absolute heritable estate, and after such an estate has been given any other terms in the deed either restricting alienation or interfering with the right of succession would be void and inoperative, and it has been argued, that under the terms of the deed of gift, an absolute estate of inheritance passed to Dhan Kumari. Reliance is also placed on the decision of the Privy Council in the case of Lalit Mohun Singh Roy v. Chukkan Lal Roy 24 I.A. 76 at p. 88 : 24 C. 834, in which it is held that where the words used have acquired a definite technical meaning in relation to an estate, such as the words putra poutradi krame, these words in themselves are sufficient to convey a heritable and alienable estate without any other words. Therefore, after the gift had been made to Dhan Kumari in these terms, the rest of the passage in the document so far as it purported to restrict the estate created by them must be regarded as inoperative.
9. We have given our best consideration to the arguments urged on both sides and we are of opinion that we must ascertain what the intention of the donor was from a consideration of the entire passage in the deed of gift and that in considering that passage we must also give effect to what is known to be the usual intention of a Hindu in disposing of his property. We think that the authorities to which we have been referred leave no' doubt that the ordinary intention is to keep the property in the family so that it may pass to persons who may be able to confer spiritual benefit on the testator or donor. Applying this test to the present case, we hold that the intention of the donor was to give the property to his daughter and to his daughter's sons or sons' sons who would be able to confer spiritual benefit on the donor after his death. The daughter's daughter and the husband and heirs of the husband of the daughter would not be able to confer any such benefit, and if the property passed into their hand it would pass to persons who would not be able to confer any spiritual benefit on the donor. In these circumstances we think the words used in the deed indicate that the intention of the donor was that the property should not pass to the heirs of the husband: or to such of the heirs of the daughter as would pass into a different family, this being the meaning of the words anya paribar. We hold, therefore, 'that the effect of the gift in this case was the same as that in the case before the Privy Council which has been relied on by the appellant, namely, to create a life-estate in favour of the daughter with the remainder over to her sons or sons' sons in succession. We think under the gift no heritable right passed to the plaintiff the daughter of the donee. The result, therefore, is, disagreeing with the findings of both the lower Courts, we set them aside and their decrees. We decree the appeal and dismiss the suit of the plaintiff with costs in all the Courts.