1. This is an appeal on behalf of the defendant in a suit for declaration of title to immoveable property and for recovery of possession thereof. The disputed property admittedly belonged originally to one Dhir Naran Pandey. On the 8th May 1903, Dhir Naran made a gift of this property to his daughter, Annoda Dasi. On the 4th June 1905, Dhir Naran made a testamantary disposition in favour of his son-in-law, Radha Madhab Bera. Annoda Das died on the 12th January 1906. Dhir Naran himself died in January 1908. Shortly after, on the 13th May 1908, Radha Madhab Bera sold the disputed property to the defendant. The case for the plaintiff is that the property formed part of the estate of Dhir Naran at the time of his death, either because the gift was fictitious and inoperative or because, assuming the gift to be genuine, the property reverted to Dhir Naran as heir to the donee, his daughter, and that in either view, the plaintiff is entitled, as the nephew of Dhir Naran, to take the property by right of inheritance, as there was no disposition of it by the Will. The defendant resists the claim on three grounds; first, that upon the death of Annoda Dasi, the property vested not in her father but in her husband, his' vendor; secondly, that upon the death of Annoda Dasi, if the property did not vest in her husband, it passed to the son of her co-wife and, consequently, Dhir Naran did not re-acquire title to the property and, thirdly, assuming that the property re-vested in Dhir Naran upon the death of his daughter, it passed under his Will to Radha Madhab as the universal legatee.
2. In so far as the first of these defences is concerned, it is clear, upon the authority of the decision in Ram Gopal Bhattacharji v. Narain Chandra Banerjee Bandopadhya 33 C. 315 : 3 C.L.J. 15 : 10 C.W.N. 510 that as between the father and the husband, the former was entitled to succeed to the ajantuka stridhan property of Annoda Dasi.
3. In so far as the second ground is concerned, it is equally clear, upon the decision in Purna Chandra Bysack v. Gopal Lal Sett 8 C.L.J. 369 at p. 427 that the son of the co-wife of Annoda Dasi was not entitled to take the property by right of inheritance.
4. In respect of the third ground, upon which the defendant is driven to rely, we observe that the Courts below have construed the Will and have held that, beyond a specific bequest in favour of his son-in-law, the testator did not make a general gift of his estate in his favour. In our opinion, this view is clearly well founded. The Will recites, in the first place, that the son-in-law has been very attentive to the father-in-law and has gained his affection. It then states that no property has yet been transferred in his favour; the testator then proceeds to describe the properties which he intended to leave to his son-in-law. The immoveable properties are specifically described in the body of the instrument while the boundaries are set out in the schedule. The moveables also are described in full detail in the body of the testament. It is wortly of note that, in so far as properties other than immoveables are concerned, the testator expressly bequeathes not only those in existence at the date of the execution of the Will but also such as he might acquire before his death; he refers specifically to debts which might accrue due to him between the date of the execution of the Will and the date of his death, and these he leaves to his son-in-law. The document further recites that the son-in-law, after becoming the owner in possession of the properties left by the testator, and described in the Will, would take out a certificate from the District Judge, and, becoming fall owner of the properties left, would be entitled to recover the sums due from the debtors, amicably or by recourse to suits, if necessary. Our attention has been invited to the circumstance that in one place the properties left to the son-in-law are described as 'moveable and immoveable properties left by the testator, and described in the Will,' while in a later part of the same sentence, the properties are described as 'properties left by the testator.' It has been contended that although the former portion of the sentence embodies a specific bequest, the latter portion of the same sentence includes a general gift of the estate to the son-in-law. In support of this proposition, reference has been made to the cases of In re Butlins Estate (1907) 1 Ir. R. 159 and Castle v. Fox L.R. 11 Eq. 542 : 40 L.J. Ch. 302 : 24 L.T. 536 : 19 W.R. 840. Neither of these decisions, however, is of any real assistance to the appellant. In the former case, it was ruled that where there was a specific devise of land which, at the date of the Will, was subject to a charge, and after the date of the Will, the testator acquired the charge under circumstances which showed that he intended to merge it, the devise passed the land free from the charge. In the second case, the testator made a devise of his cottage and all his land as a specific place and afterwards bought an adjoining field and threw it into the land belonging to the cottage; it was held that the after-acquired properties passed under the devise, unless the circumstances were such as to negative this construction. In the case before ns, there is no bequest in the Will to any person other than the son-in-law. If the testator really intended that all properties in existence at the date of the execution of the Will as also all properties which he might thereafter acquire up to the moment of his death, would vest in his son-in-law, he might have used appropriate words to give effect to his intention. In fact, it would have been sufficient to state that he left to his son-in-law all the properties which he might die possessed of, or again, he might have made the later clause of wider import, if he intended to make a general gift in favour of his son-in-law. In our opinion, taken as a whole, the Will makes it clear that the testator intended to leave to his son-in-law only the specific properties mentioned in the Will, It has not been disputed that he did not expressly leave the disputed property to his son-in-law, because, at the time of the execution of the Will, Annoda was still alive, and was the owner of the property under the gift in her favour. If it is conceded, therefore, as it must be conceded, that the testator did not intend to make a bequest of this property in favour of his son-in-law, the onus lies heavily upon the appellant to show that there is any general clause in the Will by virtue of which the property has vested in the son-in-law. In our opinion, he has wholly failed to establish this view.
5. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.