1. The decision of these appeals tarns upon the construction to be put upon the Will of Tara Prosad Banerjee, dated the 13th August 1902. Tara Prosad Banerjee died at Benares on the 20th April 1906, leaving his third wife, Durga Sundari Debi, and two grandsons, the sons of his daughter, Khetramoni Debi. One of these sons, Sarat Kumar Chatterji, has since died and is represented by his sons, Tarak Das and Durga Das, plaintiffs Nos. 2 and 3. Plaintiff No. 1, Jitendra Kumar Chatterji, is the other son of Khetramoni.
2. By his Will, Clause (2), the testator said: 'Upon my death, my wife Srimati Durga Sundari Debi shall get the taluks, rent-bearing, rent-fee, and Jabd Bahali (confirmed or held valid after resumption) lands and jamas, orchards, gardens, tanks, and cash money and Government Promissory-Notes, etc., and all other immoveable and moveable properties of which I am in possession and enjoyment gave and except the lands and the buildings mentioned in the schedule and marked with, the letters (cha) and (chha), and she will possess and enjoy the same, with the right of transfer by gift or sale; and no one will be entitled to raise any objection regarding any gift or sale to be made by her.' By Clauses (3), (4) and (5), the testator left the properties specified in schedules (cha) and (chha) to his daughter, Khetramoni Debi and, after her, to her sons and he declared that his wife should not have any right, possession or claim in respect thereof. He appointed his wife, Darga Sundari Debi, to be the executrix of his Will.
3. The suit has been brought by the plaintiffs to recover possession of the properties left by the testator on the ground that Darga Sundari, the widow, only took a widow's estate in the property left to her by her husband and that, on her death, which occurred on 29th January 1903, the property passed to the plaintiffs as heirs of the testator. The Subordinate Judge has decided against the plaintiffs on this contention. He has given them a decree in respect of a house at Benares on the ground that it was purchased by the testator after the date of the Will and did not, therefore, pass under the bequest contained in Clause (2) of the Will. He has held that there was an intestacy as to this item of the property and that the plaintiffs are entitled to succeed as heirs-at-law to this and to the moveable property specified in schedule (ga). Appeal No. 36 is presented by the plaintiffs against the main decision in the case, while Appeal No. 42 is presented by defendants Nos. 1 and 2 and relates to the house at Benares and the moveable property in schedule (ga).
4. It was conceded that a simple gift by Will by a Hindu to his widow will give her merely a widow's estate in the property bequeathed, and it was argued by the learned Pleader for the appellants that the words in Clause (2), conferring upon her the right of alienation, were not sufficient to enlarge that gift into an absolute heritable estate. We must not, however, in considering this Will, restrict ourselves to the consideration of Clause (2). The Will must be read as a whole and the intention of the testator gathered from it. We may, however, state that the cases referred to by the learned Pleader for the appellants do not, in our opinion, support his contention. In the case of Mahomed Shamsool Hoda v. Shewakram 2 I.A. : 14 B.L.R. 226 : 22 W.R. 409 their Lordships of the Privy Council intimated that had the gift to the lady stood alone, they would have regarded it as an absolute gift; and that it was only because it was followed by a gift over that they held it to confer merely a widow's estate. The same was the case in Hara Kumari Dasi S.M. v. Mohim Chandra Sarkar 12 C.W.N. 412 : 7 C.L.J. 540. There the testator said to his widow you will have the right and power to alienate by gift or sale all the aforesaid moveable and immovef able properties. There had been no clear and absolute gift to the widow preceding these words: but the learned Chief Justice remarked that, if the Will had stopped there, it might have been difficult to say that the widow did not take the property absolutely. But very important words followed to which effect had to be given, namely, a gift over to Hara Kumari Debi after the widow's death. Here, we not only have no such gift over, but Khetramoni, the testator's daughter, is specially provided for by a bequest of the properties contained in schedules (cha) and (chha). Further, in Clause (5), it is clearly indicated that Khetramoni will only get the properties in (cha) and (chha) for her life and that her sons will get them after her death. The sons were, after their mother, the testator's heirs, and it is difficult to suppose that, if the testator really meant to cut down his widow's estate in the properties bequeathed to her, he could not have done so in the same express terms as he has cut down the bequest of properties to his daughter. We have no hesitation, therefore, in holding with the Subordinate Judge that, by his Will, the testator intended to leave all his property of whatever kind to his widow Durga Sundari with the exception of those properties left to his daughter, Khetramoni, and her sons.
5. Turning to Appeal No. 42, it was argued that, because the present tense is used in Clause (2), 'all other immoveable and moveable properties of which I am in possession and enjoyment,' the Will did not operate to dispose of any property acquired after its date, i.e., 13th August 1902. Section 77 of the Succession Act, which is applied by the Hindu Wills Act (1870), enacts that the description in a Will of property, on the subject of a gift, shall, unless a contrary intention appears by the Will, be deemed to refer to and comprise the property answering that description at the death of the testator: in other words, the Will speaks from the death of the testator. This corresponds to Section 24 of the English Wills Act. It was argued that, in this case, the Will was made at Benares and the property in question in this appeal is situate at Benares and that, therefore, the Hindu Wills Act (1870) had no application. This is so: but, in our opinion, it makes no difference. No authority has been cited to us to show that the mode of construction of Wills in this respect was varied by the passing of that Act or that, in parts of India to which the Act does not apply, the ordinary rule that the Will speaks from the death of the testator does not obtain. In England, it has been frequently held that a mere use of the present tense is not sufficient to prevent property from passing under a Will which may have been acquired between the date of the Will and the testator's death. (See Theobold on Wills, 7th Edition, pages 145, 146). The Courts will certainly not, where the testator has purported to make a complete disposition of his property, decide in favour of an intestacy as to a portion of that property unless it is absolutely unavoidable. The words in Clause (2) 'upon my death, my wife shall get all my property of which I am in possession' clearly indicate that she was to take all the property which the testator would possess at the time of his death. This is made the more clear by the inclusion in that bequest of cash money. It cannot be suggested that the testator intended to bequeath to his wife only the identical rupees which he might then have in his possession and to die intestate with regard to any other cash which he might hold at the date of his death.
6. The result is that Appeal No, 33 will be dismissed and Appeal No. 42 will be allowed. The plaintiff's suit will be dismissed with costs in both the Courts. We assess the hearing fee in Appeal No. 36 at Rs. 100 for defendant No. 1 and Rs. 50 for defendant No. 3 and in Appeal No. 42 at Rs. 200.