W. Comer Petheram, C.J.
1. This appeal arises out of three proceedings. The first of them was a petition for obtaining the probate of the will of a person called Badam Kumari, which is numbered 58 of 1887; the second was a suit brought by Grish Chunder Roy against Mr. Broughton, the Administrator-General of Bengal, Surut Kumari Dassi and Sowdamini Dassi to carry out the trusts of two deeds, dated the 12th July 1886, and that is numbered 64 of 1887; and the third was a suit brought by Sowdamini Dassi against. Mr. Broughton. Grish Chunder Roy and Surut Kumari Dassi to obtain a declaration that the deed of trust of the 12th July 1886 is void, and that the plaintiff Sowdamini is entitled to a share of the funds dealt with by that deed, and that suit is numbered 141 of 1887.
2. The property which is in dispute in these suits are the savings from the income of an estate left by a person called Nobo Kumar Mullick. Nobo Kumar Mullick died on the 16th March 1856, leaving him surviving his widow Badam Kumari, whose will is in dispute in these proceedings, and four daughters, of whom one is Sowdamini, the plaintiff in the third proceeding, and another, Surut Kumari, one of the defendants in that suit and in the other suit.
3. Nobo Kumar Mullick left a will, and by the terms of that will, and that is the only thing in it which is material here, he appointed his widow and his brother, Shama Charan Mullick, his executrix and executor, respectively, and in the 9th clause of the will he provided that 'should my executor Sreeman Shama Charan Mullick, my younger brother, have more than two sons within eight years from this date, in that case such son shall be made my adopted son; should such adopted son die within the said appointed period of eight years, in that case should there be other sons of my brother, within the specified time of eight years, power is reserved for adopting up to the extent of a third time; should my brother have no more than two sons, or the adopted sons should die one after the other, in that case the share belonging to me of Company's Paper, and lands and houses and gardens, and so forth, the whole real and personal estate, will be received by my younger brother, Sreeman Shama Charan Mullick.'
4. Shama Charan Mullick had not more than two sons within eight years of the date of the testator's death, and so the residuary estate became his. The testator made no provision for the disposal of the rents and poets for the eight years during which the succession to the property remained in abeyance, and then his widow, as his heiress, became entitled to them; but during these eight years she did not receive these rents and profits.
5. Disputes arose between Badam Kumari and Shama Charan Mullick regarding their respective rights to the accumulations of these eight years, and in settlement of those disputes Shama Charan, on or about the 13th August 1866, paid Badam Kumari a sum of Rs. 2,89,000.
6. The dispute which arises in these proceedings is with reference to that sum, and the first point which it is necessary to note here, it is not specifically noted in Mr. Justice Trevelyan's judgment, is that at the time that sum was paid by Shama Charan Mullick to Badam Kumari, the eight years had expired, and Shama Charan Mullick had himself become entitled to the entire estate of the deceased, and was actually in possession.
7. That being the state of things, when that money was paid over Badam Kumari executed a deed of release to Shama Charan Mullick, and she recites in it that a question had arisen between her and Shama Charan as to who was entitled to this money, she describes it as the accumulations of the property of Nobo Kumar Mullick, which was then in the hands of Shama Charan Mullick, and that upon the payment of that sum of money by him to Badam Kumari, she, Badam Kumari, executes to him an absolute release.
8. Badam Kumari lived for twenty years after executing that release. During that time these funds remained in her hands, and were dealt with by her, a portion of the income from that sum being spent by her, and a portion of it reinvested in Government Securities in the same way as the fund itself had been, and on the 12th of July 1886, she handed over a large sum of money to Mr. Broughton, and endorsed notes to the extent of Rs. 2,69,500, part being principal and part the accumulations of the interest which she herself had invested in that way, to Mr. Broughton, and executed a deed by which she constituted him the trustee of that fund, settling it upon one of her grandchildren, the son by a daughter; and these proceedings are now brought by the other daughters to contest that transaction. First of all they say that as a matter of fact, at the time this deed was executed and this will was made, this being done about the same time, she did not know what she was doing, and that the documents were not explained to her, and that consequently they must be set aside; and in the next place they say, even if that were not so, she legally had not power to dispose of this property, because it consisted of accumulations to her husband's estate, and so could not be dealt with by her.
9. The first point was a question of fact as to whether this transaction was explained to her, so that she knew what she was doing, and her mind went with what she was doing. Mr. Justice Trevelyan has come to the conclusion that the deeds were properly explained to her, and that she knew what she was doing, and intended to do what appears by the documents she has done; and I do not think it necessary to say more as to that than that I agree with the view taken by Mr. Justice Trevelyan on the facts, so that if she had power to make this disposition of the property, this disposition is valid.
10. The question that then arises is as to whether she had power to deal with this fund, or whether it had become a portion of the corpus of the husband's estate which she could not deal with.
11. As to that, it is to be noticed that her position was that she had a Hindu widow's estate for the eight years which elapsed before Shama Charan's interest vested. And he took possession of the residue, and this claim is not made by Shama Charan, the person who is now entitled to the corpus of Nobo Kumar's estate and who took possession of it on the expiration of the eight years, but is made by the daughters of Nobo Kumar who would have been the persons who would have taken anything which remained of the accumulations of those eight years if this woman had died pending the eight years, and who would not have been entitled to the corpus of the estate in any sense whatever, because that was to go to Shama Charan by the will of Nobo Kumar if no son were adopted.
12. Therefore the present claim is made not by the person entitled to the estate of Nobo Kumar, but by persons who would have been entitled only to a small share of it, if this woman had died before the expiration of the eight years.
13. The cases on the subject are fully examined and discussed in the case of Isri Dutt Koer v. Hansbutti Koerain L.R. 10 I.A. 150, and the discussion is continued in the case of Sheolochun Singh v. Saheb Singh I.L.R. 14 Cal. 387, and so much of the law as is applicable to this case is to be found in the judgment of Sir Richard Couch in the last case. He says there, when a widow comes into possession of the property of the husband, and receives the income, and does not spend it but invests it in the purchase of other property, their Lordships think that, prima facie, it is the intention of the widow to keep the estate of the husband as an entire estate, and that the property purchased would, prima facie, he intended to be accretions to that estate. If the case here were that the persons who were claiming this fund were the persons who were entitled to the entire estate of Nobo Kumar, that dictum would be strong to show that, prima facie, this money having accumulated in the hands of the person possessed of a particular estate, and having been invested by her, must be taken to have been so accumulated and so invested in order to increase the estate of the husband. But that is not the case here, and that cannot be the case here, because the accumulations were handed over by the person entitled to the reversion to this woman after the entire estate had vested in him, and the matters were released as between themselves. Therefore it seems to me that there is no presumption here of its having been accumulated by her for the benefit of the other heirs of Nobo Kumar. Then the case of Sheolochun Singh v. Saheb Singh I.L.R. 14 Cal. 387 would indicate that, if there is no presumption of this kind, then you must look to the facts of the case to ascertain what the intention of the parties was with regard to this fund.
14. Mr. Justice Trevelyan, in his examination of the evidence in this case, has come to the conclusion that there is nothing to indicate an intention on the part of Badam Kumari to invest these moneys for any one's benefit but her own. There is nothing from what took place, to indicate that she intended to hold this money for the benefit of any other person, or to give up the control of it by herself. In my opinion, that view is a correct view of the evidence in this case. I think that the conduct of Badam Kumari during these years shows that she had no intention of accumulating this fund for any one's benefit but her own or that she ever intended to give up the power of disposing, spending, and dealing with it any way, and, as in this case it does not seem to me that the presumption that the money, prima facie, was supposed to be accumulated for the benefit of the husband's estate arises, I think that the conclusion to which Mr. Justice Trevelyan came was correct, and that this appeal must be dismissed with costs.