1. The events which led to the litigation oat of which the present appeal arises he in a narrow compass and may be briefly narrated. One Lokenath Ghose, the admitted owner of the properties in dispute, died in May 1894. On the 16th February of the same year, he had made a testamentary disposition of his properties, the legal effect of which is now in controversy between the parties. Lokenath left a widow, Mangala Dasi and a son Hem Chandra Ghose. Mangala died in April 1905 and had previously executed on the 13th January 1905 a deed of gift in Respect of the disputed property in favour of her daughter-in-law Surodhani Dasi and grand daughter Rajabala Dasi, who are the plaintiffs in the present litigation. On the 2nd January 1900, Hem Chandra had, however, executed a mortgage in favour of the first three defendants in which he professed to deal with the property as if he was absolutely entitled thereto. The mortgagees sued to enforce their security, and, on the 9th June 1906 obtained an ex parte decree. On the 8th August 1906, the plaintiffs commenced this action against the mortgagees, decree-holders and Hem Chandra Ghose, for a declaration that the mortgage was invalid and also for an injunction to restrain the decree-holders from executing the mortgage decree against the disputed property. The plaintiffs alleged that the effect of the will of Lokenath Ghose was to vest the property absolutely in his widow, Mangala, and that inasmuch as the latter transferred the same by way of gift to her daughter-in-law and grand daughter, Hem Chandra never acquired any title to the property, so that the mortgage executed by him did not transfer any interest therein to the first three defendants. The mortgagees defended the suit substantially on the ground that the effect of the will was to create a life-interest in favour of Mangala, and that consequently Hem Chandra was entitled to deal with the property subject to such prior limited interest. The learned Subordinate, Judge has found that the effect of the will was to vest the property absolutely in Mangala. He has also found that the mortgage is collusive inasmuch as no Consideration is proved to have passed thereunder. In this view, of the matter, he has degreed the salt and granted a permanent injunction against the mortgagees, by which they, are restrained from bringing the property to gale in execution. This decree has been assailed before us on behalf of the mortgagees, on three grounds, namely, first, that, the Court below has taken an erroneous view, of the true effect of the provisions of the Will, secondly, that the evidence justifies the inference, that the mortgage represents a genuine transaction supported by ample consideration, and thirdly, that the plaintiffs as representatives of Mangala are estopped from denying the validity of the mortgage on the ground; that Hem Chandra had no right to the mortgaged premises, because Mangala had permitted Hem Chandra to deal with the property as if he was absolutely entitled thereto. In our opinion there is no foundation for any of these contentions.
2. In support of the first point urged on behalf of the appellant, our attention has been invited to the, provisions of the Will. The Will first recites that the testator was dissatisfied with the conduct of his son, Hem Chandra and that for the protection of his properties and for the benefit of his heirs, he was anxious to make such a disposition of his property as would keep it put of the hands of his son, so long, at any rate, as he, did not reform his habits. The provision in question is as follows:
On my death lest my wife, daughter-in-law, grandsons and granddaughters are put into difficulty for maintenance, and in order to sea that my property is not ruined after my death, it is necessary to express my intentions, and so I do, by executing this-last Will, express my intention that all the aforesaid property will remain under my control during my, life-time. After my death my wife, the said Mangala Dasi (will) be malik like myself having right to give away, sell etc., and will manage, look after and possess these properties, and after the death of my wife, the said Mangala Dasi, all that property will come, under the control of my said son, if he is reformed, otherwise, if the said son's character is not reformed, up to the death of my said wife, in other words, if it remains the same as it is now, that property etc., will come after my wife's death, on behalf of the grandsons, under the control and management pf their mother Sm. Surodhani Dasi.
3. The learned Vakil for the appellant has contended that the mere use of the term malik did not vest an absolute interest in Mangala and that the effect of the provisions of the Will taken as a whole is to constitute her the holder of a life interest. In support of this proposition, reliance has been placed upon the cases of Shib Lakshan Bhakat v. Tarangini Dassi 8 C.L.J. 20 and Surajmani v. Rabinath Ojha 30 A. 84. Now it may be conceded, as pointed out in these cases, that the use of the word 'malik' does not conclusively show that the donee was intended to take an absolute interest in the property, and that the effect of the disposition must be gathered from all the terms of the Will. In fact the cases of Punchoomony Dossee v. Troylucko Mohiney Dossee 10 C. 342 and Shib Lakskan Bhakat v. Tarangini Dassi 8 C.L.J. 20 show that in spite of the use of the word 'malik', the donee may take a limited interest in the property. On the other hand, the decision in the case of Rajnarain Bhadury v. Ashutosh Chakerbutty 27 C. 44, which was affirmed on appeal under the name of Rajnarain Bhaduri v. Katyayani Dabee 27 C. 649 : 4 C.W.N. 337, shows that where the testator uses the expression 'malik like myself,' the effect is ordinarily to create an absolute interest in the donee. Again, the case of Toolsi Dass Kurmokar v. Madan Gopal Dey 28 C. 499, shows that when a power of disposition is conferred on the donee, there is an indication that, the testator intended to create an absolute interest in favour of the donee. To the same effect is the decision of the Judicial Committee in Jageswar Narain Deo v. Ram Chandra Dutt 23 C. 670 : 23 I.A. 37, which shows that although the use of the word 'malik' is not conclusive, if in addition to, that description a power to sell or make a gift is conferred on the donee, the effect of the provision is to create an absolute interest. Let us now test the provisions of the Will before us in the light of the principles deducible from these cases. The testator first says that his widow Mangala was to be 'malik' like himself and also was to have the right to give, away and sell the property. It is not disputed, and in view of the authorities to which we have referred, it cannot, be seriously disputed, that the effect pf this provision is to create an absolute interest in the donee. But it is suggested that the effect of the subsequent clause is to cut down to a life-estate the, full proprietary right conferred on the widow by the clause just mentioned. Now what is this subsequent clause? It is to the effect that after the death of the wife pf the testator, the property is to come under the control of the son if he reforms his habits in the meanwhile, and that if he fails to do so, the property is to vest in the grandsons. The learned Vakil for the appellant suggests that if his contention does not prevail, the subsequent clause may prove wholly inoperative, because if the widow be taken to have absolute power of alienation, and she freely exercises her right of disposition, there may be nothing left for the son or the grandsons to take. He argues on this assumption that the testator must have intended to give a limited interest to his widow. In our opinion there is no force in this contention. The obvious intention of the testator was to keep the property out of the hands of the son so long as he did not reform himself. If the testator had contended himself with a gift in favour of his wife and made no other disposition to take effect after her death, his primary object might have been completely defeated, for whatever portion of the estate might be left indisposed of by his widow would have passed by inheritance to his son. It was to meet this possible contingency that the testator provided that if any portion of the estate was left intact at the time of the death of his widow, it was not to find its way into the hands of his son except in the event of a complete reformation of his habits in the testator intended to confer an absolute estate on his widow, he could not legally provided for the disposition of the estate upon her death, because an absolute interest in favour of one person cannot be followed by an absolute interest in favour of another. It is needless for us to discuss whether such a disposition is valid and operative under Indian or English Law, though, as observed by Cairns, L.C. in Barstow v. Black L.R. 1 H.L. Sc. 392, the creation of anestate with unlimited power of ownership and disposition followed by substitutions or limitations over, is not unknown to some systems of jurisprudence; All that we are now concerned with is to determine the true effect of the disposition in favour of the widow. In Our opinion, there is no room for reasonable doubt, upon all the provisions of the Will taken together, that the testator intended that his widow should take an absolute interest with full power of gift and sale. In this view of the matter, Mangala was competent to execute a deed of gift in favour of her daughter-in-law and granddaughter, and Hem Chandra never took any interest in the estate of his father. The first contention of the appellant, therefore, completely fails.
4. The second question raised on behalf of the appellant relates to the reality of the mortgage transaction and turns upon the evidence as to the payment of the consideration money. The learned Subordinate Judge has examined this evidence very fully and has come to the conclusion that no consideration was paid for the mortgage bond. The evidence has been placed before us and we see no reason to differ from the conclusion at which the Court below has arrived. The Subordinate Judge has pointed out that according to the case of the appellants, substantial portion of the mortgage money was paid to an either creditor of the fourth defendant by name Kedar Nath Kundu Chowdhury. In order to prove this payment, the defendants have relied mainly upon oral evidence. The best evidence, however, admittedly would have been the books of Kedar Nath who has considerable money-lending business. These books have not been produced; indeed no attempt was made in the Court below to produce them, though admittedly there are regular books of account. In the absence of the books of Kedar Nath, it is impossible for us to place any reliance upon the oral testimony of his officers and to hold that he was paid any money on account of the mortgage transaction alleged to have been entered into with him. The evidence as to the payment of the remainder of the mortgage money is also extremely unsatisfactory. The Subordinate Judge was, therefore, amply justified in his view that no reliance can be placed on the evidence as to the payment of the consideration money.
5. The third ground, urged on behalf of the appellants, raises the question of estoppel. It is clear, however, that if the first three defendants are not bona fide transferees for value, no question of estoppel arises. The result, therefore, is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed with costs.