http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: LAKSHMANA NADAR AND OTHERS

       Vs.

RESPONDENT: R. RAMIER.

DATE OF JUDGMENT: 14/04/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1953 AIR  304            1953 SCR  848

ACT: Hindu  law-Will--Bequest  to wife for her  lifetime  and  to daughter  absolutely after wife’s lifetime-Estate  taken  by wife-Whether  ordinary life estate or Hindu  widow’s  estate -Daughter’s  estate-Whether vested-Death of daughter  before widow,   effect  of  -Construction  of  Hindu   will-Guiding principles.

HEADNOTE: A  Hindu Brahmin governed by the Mitakshara law made a  will in which he gave the following directions: " After my  life- time,  you, the aforesaid Ranganayaki Ammal, my wife,  shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs  shall enjoy them with absolute rights and  powers  of alienation  such  as  gift, exchange and sale  from  son  to grandson and so on for generations.  As regards the  payment of  maintenance to be made to C, wife of my late son, H,  my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testator  his wife  entered into possession of his properties  but  before the  death  of his wife, his daughter and all  her  children died: Held,  (i) that on a proper construction of the will in  the light   of  surrounding  circumstances,  the  testator   bad conferred on his 849 wife  only an ordinary life estate, and alienations made  by her would not endure beyond her lifetime ; (ii) that the testator’s daughter obtained under the will  a vested interest in the properties after the lifetime of  the widow, to which her husband succeeded on her death. The  rule of construction by analogy is a dangerous  one  to follow in construing wills differently worded, and  executed in different surroundings. Ram Bahadur v. Joger Nath Prasad (3 Pat.  L.J. 199),  Pavani Subbamma v. Arumala Rama Naidu ([1937] 1 M.L.J. 268),  Nathu Rain Mahajan v. Ganga Bai ([1938] 2 M.L.J. 562), Vasanta Rao Ammennamma  v.  Venkata Kodanda Rao ([1940] 1  M.L.J.  188), Maharaja  of Kolhapur v. Sundaram Iyer (I.L.R. 48  Mad.  1), Mahoned  Shumsool v. Shewakram (2 I.A. 7), Ratna  Chetty  v. Narayana  swami Chetty (26 M.L.J. 616), Mst.  Bhagwati  Devi

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

v.  Choudry  Bholonath  Thakur (2 I.A.  256)  and  Lallu  v. Jagmohan (I.L.R. 22 Bom. 409) referred to. Judgment of the Madras High Court affirmed.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 95 of  1952. Appeal from the judgment and decree dated the 27th February, 1950,  of  the High Court of Judicature at Madras  (Rao  and Ayyar  JJ.)  in  Appeal  No. 635 of  1946  arising,  out  of judgment  and  decree dated the 13th August,  1946,  of  the Court  of  the Subordinate Judge of Tinnevelly  in  Original Suit No. 50 of 1945. K.   S. Krishnaswamy Iyengar (S.  Ramachandra with     him) for the appellants. K.   Rajah  Iyer  (R.   Ganapathy Iyer, with  him)  for  the respondent. 1953.  April 14.  The Judgment of the Court was delivered by MAHAJAN J.-- One Lakshminarayana Iyer, a Hindu Brahmin,  who owned  considerable properties in the Tirunelveli  district, died  on 13th December, 1924, leaving him surviving a  widow Ranganayaki,    and   a   married   daughter    Ramalakshmi. Ramalakshmi  had married the plaintiff and had a  number  of children  from him.  They were all alive in December,  1924, when Lakshminarayana died, Before his death he 850 executed a will on 16th November, 1924, the construction  of which  is  in controversy in this appeal.  By this  will  he gave the following directions -- "After my lifetime, you, the aforesaid Ranganayaki  Amminal, my  wife,  shall  till your lifetime,  enjoy  the  aforesaid entire  properties,  the outstandings due to me,  the  debts payable  by me, and the chit amounts payable by  me.   After your  lifetime Ramalakshmi Ammal, our daughter and  wife  of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy  them  with absolute rights and powers  of  alienation such as gift, exchange, and sale from son to grandson and so on  for generations.  As regards the payment of  maintenance to  be  made to Chinnanmal alias Lakshmi Ammal, wife  of  my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed". Ranganayaki entered into possession of the properties on the death  of her husband.  On 21st February, 1928, she  settled the  maintenance claim of Lakshmi Ammal and obtained a  deed of release from her by paying her a sum of Rs. 3,350 in cash and  by executing in her favour an agreement stipulating  to pay her a sum of Rs. 240 per annum. Ramalakshmi died on 25th April, 1938 during the lifetime  of the widow.  None of her children survived her.  On the  24th July,  1945,  the widow describing herself  as  an  absolute owner of the properties of her husband sold one of the items of  the property to the 2nd defendant for Rs. 500.   On  the 18th  September,  1945, the suit out of  which  this  appeal arises was instituted by the plaintiff, the husband and  the sole  heir of Ramalakshmi, for a declaration that  the  said sale would not be binding on him beyond the lifetime of  the widow.  A prayer was made that the widow be restrained  from alienating  the other properties in her possession.  On  the 19th September, 1945, an ad interim injunction was issued by the  High  Court restraining the widow from  alienating  the properties  in  her  possession  and  forming  part  of  her husband’s estate, In 851 spite  of this injunction, on the 27th September, 1945,  she

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

executed  two  deeds of settlement in favour  of  the  other defendants comprising a number of properties.  The plaintiff was allowed to amend his plaint and include therein a prayer for  a  declaration in respect of the  invalidity  of  these alienations  as  well.  It was averred in  the  plaint  that Ramalakshmi   obtained  a  vested  interest  in   the   suit -properties  under the will of her father and plaintiff  was thus entitled to maintain the suit. The  defendants pleaded that the plaintiff had no  title  to maintain  the  suit, that the widow was entitled  under  the will  to  an  absolute  estate or  at  least  to  an  estate analogous  to and not less than a widow’s estate,  that  the estate  given  to  Ramalakshmi  under the  will  was  but  a contingent  one  and she having predeceased  the  widow,  no interest  in the suit properties devolved on the  plaintiff. The main issue in the suit was whether- the widow took under the  will  an absolute estate or an estate  like  the  Hindu widow’s  estate and whether the daughter’s interest  therein was in the nature of a contingent remainder, or whether  she got in the properties a vested interest. The  subordinate  judge held that the widow took  under  the will a limited life, interest, and not an absolute estate or even a widow’s estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to  which the  plaintiff  succeeded  on her death.  In  view  of  this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for  life in the suit properties and that the alienations made by  her would not enure beyond her lifetime.  The question as to the validity  of  the alienations was  left  undetermined.   The unsuccessful  defendants  preferred an appeal  against  this decree  to the High Court of Judicature at  Madras.   During the pendency of the appeal the widow died on 14th  February, 1948.  The High Court by its judgment under appeal  affirmed the  decision of the trial judge and maintained his view  on the  construction  of  the will.  Leave  to  appeal  to  the Supreme Court was 852 granted  and the appeal was admitted on the  27th  November, 1951. The substantial question to decide in the appeal is  whether the  estate granted by the testator to his widow was a  fall woman’s  estate  under Hindu law or merely  a  limited  life estate in the English sense of that expression.  It was  not contested  before us that a Hindu can by will create a  life estate, or successive life estates, or any other estate  for a  limited  term, provided the donee or the  persons  taking under  it are capable of taking under a deed or  will.   The decision of the appeal thus turns upon the question  whether the  testator’s  intention  was to give  to  his  widow  ail ordinary  life, estate or an estate analogous to that  of  a Hindu  widow.   At one time it was a moot  point  whether  a Hindu  widow’s estate could be created by will, it being  an estate  created by law, but it is now settled that  a  Hindu can confer by means of a will oil his widow the same  estate which  she  would get by inheritance.  The widow in  such  a case  takes  as a demisee and not as an heir.   The  court’s primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary  notions as  a  Hindu in respect to devolution of his  property,  his family relationships etc.; in other words, to ascertain  his wishes by putting itself, so to say, in his armchair. Considering  the  will in the light of  these  principles,it seems  to us that Lakshminarayan Iyer  intended by his  will

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

to  direct that his entire properties should be  enjoyed  by his  widow  during her lifetime but her  interest  in  these properties  should  come to an end on her  death,  that  all these  properties  in their entirety  should  thereafter  be enjoyed  as  absolute owners by his daughter and  her  heirs with  powers  of alienation, gift, exchange  and  sale  from generation to generation.  He wished to make his daughter  a fresh  stock of descent so that her issue, male  or  female, may  have the benefit of his property.  They were  the  real persons  whom  he earmarked with certainty as  the  ultimate recipients of 853 his  bounty.  In express terms he conferred on his  daughter powers  of alienation byway of gift, exchange, sale, but  in sharp  contrast to this, on his widow he conferred  no  such powers.  The direction to her was that she should enjoy  the entire properties including the outstandings etc. and  these shall thereafter pass to her daughters.  Though no restraint in express terms was put on her powers of alienation in case of  necessity, even that limited power was not given to  her in express terms.  If the testator had before his mind’s eye his daughter and her heirs as the ultimate beneficiaries  of his bounty, that intention could only be achieved by  giving to the widow a limited estate, because by conferring a  full Hindu  widow’s estate on her the daughter will, only have  a mere  spes successions under the Hindu law which may or  may not  mature and under the will her interest would Only be  a contingent one in what was left indisposed of by the  widow. It is significant that the testator did not say in the  will that  the  daughter  will enjoy  only  the  properties  left indisposed of by the widow.  The extent of the grant, so far as  the properties mentioned in the schedule are  concerned, to  the  daughter and the widow is the same.   Just  as  the widow was directed to enjoy tile entire properties mentioned in  the  schedule  during her lifetime in  like  manner  the daughter and her heirs were also directed to enjoy the  same properties   with   absolute  rights  from   generation   to generation.  They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow’s estate and had the power for any purpose to dispose of them and did so.   If that was the intention, the testator would  clearly have  said that the daughter would only take the  properties remaining after the death of the widow. The  widow  cannot be held to have been given a  full  Hindu widow’s  estate  under the will unless it can be  said  that under  its terms she was given the power of  alienation  for necessary purposes, whether in express terms or by necessary implication.   As  above pointed out,  admittedly  power  of alienation  in express terms was not conferred on  her.   It was argued 854 that  such  a  power was implicit within the  acts  she  was authorized  to do, that is to say, when she was directed  to pay  the debts and settle the maintenance of Ramalakshmi  it was   implicit  within  these  directions  that  for   these purposes,  if  necessity  arose,  she  could  alienate   the properties.     This   suggestion   in    the    surrounding circumstances attending the execution of this will cannot be sustained.   The  properties  disposed of by  the  will  and mentioned in the schedule were considerable in extent and 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 death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter-in-law without alienating any part of the immovable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

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 years after the death of her husband, excepting one, which  she alienated in the year 1937 to raise a sum of  Rs. 1,000  in order to buy some land.  By 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  obligations 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 have of necessity  intended to confer on the widow power of alienation for those limited purposes  cannot  be raised.  In our opinion, even  if  that suggestion  is  accepted  that  for  the  limited   purposes mentioned  in the will the widow could alienate, this  power would fall far short of the powers that a Hindu widow enjoys under  Hindu  law.   Under that law she  has  the  power  to alienate  the  estate  for the benefit of the  soul  of  the husband,  for pilgrimage and for the benefit of  the  estate and for 855 other  authorized purposes.  It cannot be said that a  Hindu widow can only alienate her husband’s estate for payment  of debts,   to  meet  maintenance  charges  and  for  her   own maintenance.  She represents the estate in all respects  and enjoys  very  wide  power except that  she  cannot  alienate except  for necessity and her necessities have to be  judged on  a variety of considerations. We therefore hold that  the estate  conferred  on Ranganayaki Ammal was  more  like  the limited estate in the English sense of the term than like  a full Hindu widow’s estate in spite of the directions  above- mentioned.  She had complete control over the income of  the property  during her lifetime but she had no power  to  deal with  the corpus of the estate and it had to be 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  Jarman (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 strenuously argued by Mr. K. S. Krishnaswami  Iyengar 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 to be one analogous to  a Hindu  woman’s estate than a life estate a,-, 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 daughter  got under it a contingent remainder in the  nature of  spes  and  on her death there was  nothing  which  could devolve on the plaintiff and he thus had no locus standi  to question the alienations made by the widow, 856 The  learned counsel in support of his contention  drew  our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

attention to a number of decisions of different High  Courts and  contended  that  the  words  of  this  will  should  be construed  in the manner as more or less similar words  were construed  by  the courts in the wills dealt with  in  those decisions.   This  rule  of construction  by  analogy  is  a dangerous  one  to follow in  construing  wills  differently worded and executed in different surroundings. [Vide 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 Prasad (2 ). 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 bequest 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  movable  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 payment of rent". This  will was construed as conveying an absolute estate  to the son and the daughter of the niece.  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 the Hindu law which she  holds in a completely representative character  but  is unable to (1) 491. A. 2 5. (2) 3 Pat.  L. J. 199. 857 alienate  except in case of legal necessity and that such  a construction  was  in accordance with the  ordinary  notions that  a Hindu has in regard to devolution of  his  property. The  provisions  contained in this will bear no  analogy  to those we have to construe.  The restraint against alienation was  repugnant to both a life estate and a widow’,-,  estate and was not, therefore, taken into account.  But there  were other indications 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 properties  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 respectively.   A suit was instituted by the son’s  daughter for  the recovery of possession of her share in one item  of property forming, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

it indicated that the prior gift in favour of the widow  was only  of a limited interest.  This decision  therefore  goes against the contention of the learned counsel but he  placed reliance  on the observations made in the judgment when  the learned  Judge proceeded to say " In deference to  the  view taken  in Maharaja of Kolhapur v. sundaram Iyer (2), 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) 1 M.L.J. 268. (2) (1925) I.L.R. 48 Mad. 1. 111 858 sense  of the term." We do not understand how  such  passing observations  can be helpful in deciding the  present  case. Assuming  that  it  is possible to create  a  Hindu  woman’s estate  not with standing the addition of a gift  over,  the question nevertheless whether that had been done in a  given case  must depend on the terms of the particular  instrument under consideration. The  following  remarks  in the Privy  Council  decision  in Nathu, Ram Mahajan v. Gangayabai(1) were next cited:-- As the will gave her the right to ’enjoy’ the income of  the estate  during her lifetime, it was  evidently  contemplated 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  assistance  in the decision of the case. In Vasantharao Ammannamma v. Venkata Kodanda Rao Pantalu(2), the  next  case cited, a Hindu testator who  was  a  retired subordinate judge provided by his will as follows:---- "Out, of the aforestated ancestral lands, the oneninth 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 be enjoyed by my wife till  her death  and after her death they shall pass to  my  daughter. Thereafter  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  limited  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 confer only a life estate or a daughter’s estate ? It seems (1) (1938) 2 M.L.J. 562. (2) (1940)  M.L.J. 188, 859 to us that he meant to give a daughter’s estate rather  than a  life estate.  He omits the words ’during her  life’  with reference to the disposition in favour of the daughter.  The words  ’pass to my daughter’ would rather indicate  that  in the ordinary course of devolution the estate should pass  to her,  that is, the daughter and then to the grandsons.   The words used in favour of the grandsons seem to indicate  that the  estate conferred on the 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 vivos to the grandsons  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

she  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 vested interest".  This line of reasoning which appealed to the learned judges is not of much he]-) to us here as the language hi 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 your lifetime." Reliance was next placed on Maharaja of Kolhapur v. Sundaram Iyer  (1).   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 Raja 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 Mahomed Shumsool v. Shewukram(2) There  a  Hindu inhabitant of Bihar by a document of (1) (1925) I.L.R. 48 Mad. 1. (2) (1874-75) 2 I.A. 7. 860 a  testamentary character declared his daughter who had  two daughters, as his heir, and after her two daughters together with  their  children were declared heirs  and  malik.   One daughter  of the daughter predeceased the  testator  without issue  and  the other daughter died after the death  of  the testator  leaving an only son, the respondent in that  case. In  a  suit by the respondent 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 daughters  succeeding her.  In this judgment  the  following observations were emphasized as relevant to this enquiry :- "  It  has  been contended  that  these  latter  expressions qualify  the generality of the former expressions, and  that the will, taken as a whole, must be construed as  intimating the  intention  of the testator that Mst.   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 devolution 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 confer a  limited life  estate  on his widow or even a larger  estate  than  a widow  takes  as an heir and that in every case 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 861

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

where a Hindu wishes to give to his widow a more  restricted estate  than  she would get on intestacy or  a  much  larger estate  than  that.  The question in every  case  cannot  be determined merely on the theory that every Hindu thinks only about  a  Hindu widow’s estate and no more.  What  is  given must be gathered from the language of the will in the  light of the surrounding circumstances. 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 reliance on a decision  of the  Madras  High Court in Ratna Chetty  v.  Narayana  swami 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  Chetty (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  together amicably,  Muthu Arunachala Chetty himself would  enjoy  the properties  which remain after the death of the  widow."  It was held upon the construction 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 Mst.  Bhagwati  Devi  v.  Chowdry Bholonath Thakur(2).  This was a case of a gift inter vivos. The gift to Mst.  Chunderbutti, his wife, was in these terms (1) (19I4) 26 M.L.J. 616. (2) (1874-75) 2 I.A 256. 862 "the  remaining ’milkiut’ and ’minhai ’  ’estates,  together with  the amount of ready money, articles, slaves,  and  all household furniture I have placed in the possession of  Mst. Chunderbutti  Thakurain, my wife, to be enjoyed  during  her lifetime,  in order that she may hold possession of all  the properties  and  milkiut  possessed by  me,  the  declarant, during  her  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 to 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 Privy Council on  this will held as follows "   Their  Lordships  do  not  feel  justified,  upon   mere conjecture of what might probably have been intended, in  so interpreting  it as materially to change the nature  of  the estate  taken by Chunderbutti.  If she took the estate  only of  a Hindu widow, one consequence, 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 entitled to recover possession of all such property, real and  personal.   But,  on the other  hand,  she  would  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

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  expenses   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 remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute 863 of  limitations might run against the heirs to  the  estate, whoever they might be. Their Lordships see no sufficient reason for importing  into this  document words which would carry with them  all  these consequences,  and they agree with the subordinate judge  in construing it according to its plain meaning." These observations have to a certain extent relevance to the present   case   but  on  the  facts  this  case   is   also 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 milkiuit estates and the slaves. Reference  was  also made to a decision of the  Bombay  High Court  in  Lallu  v. Jagmohan(1).  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 present, 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 contingent 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  consistent  with  the  testator’s  intention   of conferring  a  life estate in the English sense as  well  as with the intention of conferring 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 (1)  (1898) I.L.R. 22 Bom. 409. 864 negatived the view that the testator intended to confer upon his  widow  a Hindu widow’s estate as she would get in  case of intestacy.  He also emphasized that the words of the gift over  to the daughter as supporting his  construction  which was further reinforced by the words of the will limiting the widow’s  estate " till your lifetime " and of  the  omission from therein of words such as nialik etc., while  describing the widow’s estate.  Mr. Krisbnaswami lyengar, on the  other hand,  contended that the absence of any words in  the  will restricting her powers of alienation and putting a restraint on  them,  suggested  a  contrary  intention  and  that  the daughter’s  estate was described as coming into being  after 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  and  in  the   result,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

therefore, we dismiss this appeal with costs. Appeal dismissed. Agent for the appellant: M. S. K. Aiyangar. Agent for the respondent    Ganpat Rai. 865