Lakshmana Nadar and Others v. R. Ramier

Jfah.itjau J. execution of this will cannot be sustained. Tho

properties disposed of by the will nnd mentioned in the schedule were considerable in extent nnd it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. Indeed we find that within four years of the denth of the testator the widow was able to pay a lump sum of I{s. 3,350 in cash to the daughter-in-law without alie-nating any part of the immovable properties and presumably by this time she had discharged all the debts. It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 yearn after the death of her husband, except-ing one, which she rdienated in the year 1937 to raioc a sum of Rs. 1,000 in order to buy some land. Uy this transaction she substituted one property by another. .For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obliga-tions without having recourse to alienations and hence he did not give her any power to do so. In this situation the· inference that the testator must lmve of necessity intended to confer on the widow power of alienation for those limited purposes ca.nnot he raised. In onr opinion, even if that suggestion is accepted that for the limited purposes meutioned in the will the widow could alienate, this power would fall far short of ~he powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for tho benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for

S.C.H. SVPREME COFRT REPOitTS 855

other authori.zed purposes. It cannot be said that a 1953 Hfodu widow can only alienate her husband's estate Lakshrnana.. for payment of debts, to meet maintenance charges .1..Vadar and and for her own maintenance. She represents the Others estate in all respects and enjoys very wide power v. except that she cannot alienate except for necessity Ji.. Raniier and her necessities have to be judged on a variety of J. .1..li ahajan considerations. We therefore hold that the estate conferred on Ranganayaki A mrnal was more like the limited estate in the English sense of the term than like a full Hindu widow's estate in spite of tho directions above-mentioned. She had complete control over the income of the property during her lifetime hut she had no power to deal with the corpus of the estate and it had to he kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got, an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jar-man (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death.

It was Btrenuously argued by .Mr. K. S. Krishnaswami lyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely tu be one analogous to a Hindu woman's estate than a life estate as understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow's estate and the dnughter got under it a contingent remainder in the nature of 8JJes and on her death tliere was nothillg which could devolve on the plaintiff and he thus had no loc,us ~t(l,ndi to question the alienations made by the widow,

856 SBPREME COURT REPORTS [1953]

1953 The learned counsel in support of his CO\ltention drew

our attention to a number of decisions of different High La.ksh1na na Courts and contended that the words of this will should Nadar and

Othrrs be construed in the manner as more or less similar

v. words were construed by the courts in the wills dealt n. Ra·mier with in those decisions. This rule of construction by

analogy is a dangerous one to follow in construing wills Mahajan J. different.Iv worded and executod in different surround-

ings. [V.ide Sasiman v. Shib Narain (1)]. However, out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them.

Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur v. Jager Nath Pmsad ('). The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece S. would get a heque,~t of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece. The remainder was disposed of in the following words: -

"If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother's daughter, then two-thirds of the mova-ble property will belong to the son and one-third to the daughter. But as regards the immovable property none shall have the lest right of alienation. They will of course be entitled to enjoy the balance left after pay-ment of rent".

This '~ill was construed as conveying an absolute estate to the son and the daughter of the nieue. It was remarked that in spite of an express restriction against alienation, the estate taken by S. (the niece) was an estate such as a woman ordinarily acquires by inheritance under tho Hindu law which she holds in a completely representative Pha.racter but is unable to

(1) 49 !. A. 25. (2) 3 Pat. LJ. 199.

alienate excep~ in case of legal necessity and that such 1953 a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of Laksh1nana Nadar and his property. The provisions contained in this will Othera bear no analogy to those we have to construe. The v. restraint against alienation was repugnant to both a R .. Rainier life estate and a widow's estate and was not, therefore, taken into account. But there were other indica- .Ji ahajan J. tions in that will showing that a widow's estate had been given. The fact that the gift over was a contin-gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow's estate. There is no such indication in the will before us.

Reliance was next placed on the decision in Pavani Subbamma v. Ammala Rama Naidu (1). Under the will there dealt with, the widow S, was to enjoy the prnperties and after her lifetime the properties were to be taken in the ratio of three to five by the son's daughter and the daughter's son 1:espectively. A suit was instituted by the son's daughter for the recovery of possession of her share in one item of property form-ing part of the estate which had been sold by S. The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand-children was of the entire properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest.

This doeision therefore goes against the contention of the learned counsel but he placed reliance· on the obser-vations made in the judgment when the learned Judge proceeded to say " In deference to the view taken in 111ahara;ia of Kolhapur v. Sundararn Iyer('), it may be possible to create an interest analogous to a woman's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by S. need not necessarily be only a life estate in the English law

(1) (1937) l ll.L.j. 268, (2) (1925) l.Ll<. 48 lfad. I.

858 SVPREME COURT REPORTS [1953]

1953 sense of the term." We do not understand how such

passing observations can be helpful in' deciding the Lakshmana present case. Assuming that it is possible to create a Nadar and

Others Hindu woman's estate notwithstanding the addition of

v. a gift over, the question nevertheless whether that R. Ra·mier had been done in a given case must depend on the

terms of the particular instrument under consideration. ,"\fahajan J,

The following remarks in the Privy Council decision in Nathu Ram ilfahajan v. Gangabai(') were next cited:-

As the will gave her the right to 'enjoy' the income of the estate during her lifetime, it was evidently con-templated that she should, as provided by ·the Hindu law in the case of a widow, be in possession of the estate."

Such casual observation made in respect of a will couched in entirely different terms cannot afford much assiHtance in the decision of the case.

In Va.santharao Ammannamma v. Venkata Kodanda Rao Pantulii('), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows :-

"Out of the afore;;tated ancestral lands, the one-ninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second elder brother deceased. My self-acquired properties shall on my death he enjoyed by my wife till her death and after her death they shall pass to my daughter. There-after they shall pass to my grandson through my daughter".

The will was construed as ·giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take under the law of inheritance, that is a limi-ted estate analogous to a widow's estate. At page 193 of the report it was observed as follows:·-

"The question therefore arises, did he intend to con-fer only a life estate or a daughter's estate ? It seems

(I) (1938) Z M.L.J. 562. lz) (1940) l M.L.J. 188.

to us that he meant to give a daughter's estate rather 1953 than a life estate. lie omits the words 'rforing her life'

with reference to the disposition ·in fuvour of the dau{Jhter. Laksh1nana 1'..tadar an.a The words 'pass to my daughter' would rather indicate Otheh that in the ordinary comse of devolution the estate v. should pass to her, that is, the daughter and then to H. lfa1nier the grandsons. The words used in favour of the grand-sons seem to indicate that the estate conferred on the Mahajan J. daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons. Either he must have intended that the daughter should convey the property either by will or inter vivas to the grandsons or Rhe having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution. If it was the daughter's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a ve1ited interest".

This line of reasoning which appealed to the learned judges is not of much help to us here as the language in this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widow's estate is delimited by the words " till yom lifetime."

Reliance was next placed on 21Iaharaja of Kolhapur v. Sundaram Iyer('). That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that "the widows of Sivaji Haja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance." These remarks do not throw much light on the point before us.

The last decision referred to was the decision of the Privy Council in Jlfohomed Shumsool v. 8he1rnkram (').

There a Hindu inhabitant of Bihar by a document of

(I) (1925) l.L.R. 48 }lad. 1. (2) (1874-75) 'I.A. 7·

860 SUPREME COUR'r REPORTS [1953]

1953 a testamentary character declared his daughter who

had two daughters, as his heir, and after'her, her two Lakshmana daughters together with their children were declared Nadarand

Others heirs and malik. One daughter of the daughter prede-

v. ceased the testator without issue and the other daugh-R. Ra·~nier ter died after the death of the testator leaving an only

son, the respondent in that case. In a suit by the res-MahajanJ. pondent against his grandmother the daughter of the

testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daugh-ters succeeding her. In this judgment the following obser_vations were emphasized as relevant to this enqmry :-

" It has been contended that these latter expres-sions qualify the generality of the former expressions, and that the will, taken as a whole, must be con-strued as intimating the intention of the testator that 2\'Ist. Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devo-lution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate."

These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to con-fer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every ease he may not confer upon her by will a Hindu widow's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a Hindu wishes to give to his widow a more res-19~3 tricted estate than she would get on intestacy or a much larger estate than that. The question in every La!~shm~na Nadar and case cannot be determined merely on the theory that Others every Hindu thinks only about a Hindu widow's estate v. and no more. \Vhat is given must be gathered from R. Ra1nier the language of the will in the light of the surrounding circumstances. ~lfahajan J,

The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. In the first instance, he placed reliancP on a decision of the Madras High Court in Ratna Chetty v. ,Narayanaswami Chetty( 1). There the testator made a will in favour of his wife providing, inter alia, "all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chctty (nephew) and my wife should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live to-gether amicably, :\fothu Arnnachala Chetty himself would enjoy the properties which remain after the death of the widow." It was held upon the construc-t.ion of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry.

Reference was also made to the decision of their Lordships of the Privy Council in M st. Bhagwati Devi v. Chowdry Bholonath Thalcur('). This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms :-

(I) I 1914) 20 M.L.J. 616. 12) (1874-75) 21.A 256.

1953 " the remaining ' milkiut ' and • minhai ' estEctes,

together with the amount of ready rrionoy, articles, Laksh1nar~u slaves, and all household furniture I have placed in Nadar and

Others the possession of Mst. Chunderbutti Thakurain, my

v. wife, to be enjoyed during her lifetime, in order that ll. Rainier she may hold possession of all the properties and

milkiut possessed by me, the declarant, during her ilfahaja.n J. lifetime, and by the payment of government revenue,

appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son)."

The subordinate judge held that Chunderbutti got an estate for life with the power t,o appropriate profits and Girdhari -got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privv Council on this will held as follows :--- "

" Their Lordships do not feel justified, upon mere conjecture of what might probably have been intend-ed, in so interpreting it as materially to change the nature of the estate taken by Chunderlmtti. If she took the estate only of a Hindu widow, one con-sequence, no doubt, would be that she would be unable to alienate the profits, or that. at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be en-titled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral ex-penses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested re-mainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, 1953 whoever they inight be.

Laksh1nana Their Lordships see no sufficient reason for import- }.tadar and ing into this document words which would carry with Others them all these consequences, and they agree with the v. subordinate judge in construing it ttccording to its It. Ramier plain meaning." J Mahajan These observations have to a certain extent relevance to the present case but on the facts this case is aho distinguishable. This will was couched in different;

language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiut estates and the slaves.

Reference was also made to a decision of the Bom-bay High Court in Lallu v. Jagmohan('). The will there ran as follows:-

"When I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am pre-sent, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that."

It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not con-tingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs.

After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was con~istent with the testator's intention of conferring a life estate in the English sense as well as with the intention of confer-ring a Hindu widow's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance

(r) (1898) I.LR. 22 Born. 409.

864 SUPREME COGRT REPORTS [1953]

1963 negatived the view that the testator intended to confer

upon his widow a Hindu widow's estate' as she wo,.ild Lakshniana. get in case of intestacy. He also emphasized that the Nadarand words of the gift over to the daughter as supporting

Others

v, his construction which was further reinforced by the R. Ratn-ier words of the will limiting the widow's estate "till your

lifetime " and of the omission from therein of words Mahajan J, such as malik etc., while describing the widow's estate.

Mr. Krislrnaswami Iyengar, on the other hand, 0011-tended that the absence of any words in the will 1·eR-tricting her powers of alienatio~1 and putting a restraint on them, suggested a contrary intE'ntion and that the daughter's estate was described as coming into being itfter the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the' notions of Hindus a full Hindu widow's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated nnd in the result, therefore, we dismiss this appeal with costs.

Appeal dismissed.

Agent for the appellant: JYI. S. K. Aiyangar.

Agent for the respondent : Ganpat Rai.