Haripada Ojha and Others vs Sm. Ichhamayee Debi and Others

Fazl Ali, C.J.—This is an appeal from a decree of the Subordinate Judge of Purulia confirming a decision of the Munsif of Purulia dismissing the plaintiff''s suit. The plaintiffs are admittedly the grandsons of one Bhuban who had two brothers Haradhan and Srikanta. Haradhan left a son Paran who died childless and Srikanta left a daughter Ichhamayee who is defendant 1 in the suit. The principal question with which we are concerned in this appeal turns upon the construction of a deed of gift executed by Srikanta in favour of defendant 1. By this deed Srikanta gave certain properties to defendant 1 and defendant 1 has transferred some of those properties to some of the other defendants. The question which has to be decided is whether by the deed of gift defendant 1 acquired an absolute estate or only a life estate. The deed of gift has been reproduced in the judgment of the learned Subordinate Judge in these terms:

You are my childless widowed daughter. You are living in my house. After my death there is no means of your maintenance. For that reason I give up to you the lands and baris as detailed with boundaries in schedule below of the value of Rs. 499 in Mauza Dimdiha Fergana Lakhda... From this day you shall be in uninterrupted and peaceful possession thereof as an owner like myself by exercising of the right of gift, sale and transfer as you like, and I and my heirs will have no right or objection thereto. You acquire right to the properties, land and bari as per boundaries with all appurtenances thereof.

Be it noted that you shall pay the rent fixed for the lands and baris to the superior landlords after mutation of your name in the landlord''s sherista.

Hence I execute this deed of gift of my own accord without the pressure of others and being in senses sound mind. Dated 1313, 25th Falgoon.

It is contended on behalf of the appellants that by this deed of gift, defendant 1 acquired only a life-interest in the properties which were the subject-matter of the deed. On the other hand, it was contended on behalf of the respondent that this deed conferred upon her an absolute interest. A number of cases were cited on behalf of the appellants in support of their contention, these being Moulvie Mohamed Shumsool Hooda v. Shewukram (1974) 2 I.A. (P.C.) 7, Radha Prosad Mullick v. Ranimoni Dassi (''08) 35 Cal. 896 Lallu v. Jagmohan (''98) 22 Bom. 409 Mangamma v. Dorayya AIR 1937 Mad. 100 and Rameshar Baksh Singh v. Arjun Singh (1901) 23 All. 194. The first two cases were relied upon because they lay stress upon the fact that in construing the will of a Hindu it is not improper to take into consideration what are known to be his wishes with respect to the devolution of property and that it may be assumed that a Hindu generally desires that an estate, specially an ancestral estate shall be retained in his family and that it may also be assumed that a Hindu knows that as a general rule at all events women do not take an absolute estate of inheritance which they are unable to alienate.

In Lallu v. Jagmohan (1998) 22 Bom. 409 there was a will in favour of the wife in the following terms:

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 the words which gave the widow such ample power over the property were only intended to enlarge the Hindu widow''s ordinary power and to provide that she was to be perfectly untrammelled in its enjoyment and management so long as she lived, but that the estate was still to pass to Mahalaxmi upon her death. The view which the learned Judges took was that Suraj took only a life-estate with remainder over to Mahalaxmi after her death. The point to be remembered about this decision is that though; the expression "owner" was used by the testator with reference to his wife the same expression was also used with reference to his daughter and the document contained a specific provision as to who was to succeed to the property upon the death of Suraj.

In Mangamma v. Dorayya AIR 1937 Mad. 100 it was held that, when a grant is made to a Hindu female and the grant is ambiguous, the question of quantum of interest should be decided upon taking into account the surrounding circumstances and the notions and dispositions of the parties to the transaction in the course of which the properties came to the female independently of any presumption or burden of proof. In Rameshar Baksh Singh v. Arjun Singh (1901) 23 All. 194 a gift of villages was made by a talukdar to a junior member of the joint family as a maintenance grant, but it was held that it was prima facie the intention of the gift that it should be for life and in a maintenance grant the words "proprietor" and "for ever" will not per se create a heritable estate. As against these cases reference may be made to the cases upon which reliance was placed on behalf of the respondents. In Ram Narain Singh v. Peary Bhugut (1983) 9 Cal. 830 the relevant document was a deed of gift from a husband to his wife and it set forth that it conveyed all the rights of the grantor to the lady without exception; that she shall take possession of his property; that neither the donor nor his heirs shall at any time have any claim either to the property or to the price or value of it. The learned Judges who decided the case in dealing with this document refer, red to the argument which was put forward before them on behalf of the appellant in these words:

It has been contended on behalf of the appellant first, that, unless there are express terms in the grant, such as will convey ordinarily an estate of inheritance, the gift must be taken to be only one lasting for the life-time of the lady.

They did not, however, accept this argument but held that having regard to the fact that the husband had divested himself of all his rights and had prohibited his descendants from claiming the property or its price, the gift was a gift Out and out. In Varada Pillai v. Jeevarathnammal AIR 1919 P.C. 44 the document to be construed was a will in the following terms:

I have given my half share...to my wife...on account of her maintenance and other absolute use. She is at liberty to enjoy the same with powers of alienation by sale, etc.

Their Lordships pointed but that both in the District Court and in the High Court it was held that this clause gave an absolute interest to the testator''s wife and they observed that they fully agreed with this construction of the will. In AIR 1933 67 (Privy Council) a deed of gift by a Hindu in favour of his daughter-in-law stated that the property was being given for her support and maintenance; that the donee should remain malik mastakil and pay Government revenue; that the donor or his heirs would have nothing to do with the property and that the donor would have the donee''s name enter, ed in the Government papers. In view of these recitals, it was held that the donee was given an absolute estate in the property and not a life-estate.

In Surajmani v. Rabi Nath Ojha (1908) 30 All. 84 a Hindu had executed a deed of gift of immovable property to take effect after his death to each of his two wives and his daughter-in-law, "as owners (maliks) with proprietary powers." One of his widows on coming into possession of her share made a will disposing of it in favour of her brother and in a suit by the next heirs of the donor questioning her power of alienation it was held that in the true construction of the deed the widow took a heritable and transferable estate in the property and that the use of the word "malik" implied absolute ownership unless there was anything in the context or surrounding circumstances to qualify such meaning and it was not so qualified by the fact that the donee was a widow. It is unnecessary to refer to any more cases because the law on the subject has been very concisely summarised in Mulla''s Hindu Law, Edn. 9 at p. 469. The learned author after referring to Moulvie Mohamed Shumsool Hooda v. Shewukram (1974) 2 I.A. 7 (P.C.), states as follows:

In most of the cases referred to above the High Courts interpreted the rule in Moulvie Mohamed Shumsool Hooda v. Shewukram (1974) 2 I.A. 7 (P.C.) to mean that a gift of immovable property to a woman cannot be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation, but there was no warrant for such an interpretation. In fact later decisions of the Judicial Committee have made it clear "that if words are used conferring absolute ownership upon the wife, the wife enjoys the rights of ownership including a full right of alienation without their being conferred by express and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended" or that it was possible by the use of words of sufficient amplitude to convey in the term of gift itself the fullest rights of ownership including the power to alienate which the High Court thought were required to be added by express declaration.

It seems therefore to be clear that the mere fact that the donee happens to be a Hindu female does not necessarily show that the gift is a gift for life only and not an absolute gift. Nor will that conclusion necessarily follow from the fact that no estate of inheritance is expressly conferred. Each document has to be construed upon its own terms. If words like "malik mastakil" or "absolute owner" occur in the document, that would strongly suggest that an absolute estate and not merely a life-estate was conferred. If, on the other| hand, it is stated in the document that after the death of the female other persons will succeed to the property, then the mere fact that it is stated generally that the female will be the owner of the property will not necessarily show that she was intended to possess an absolute right in the property.

In the deed of gift which is before us the donor has expressly stated that his widow will be an owner like himself and will exercise the right of gift, sale and transfer as she liked and neither he nor his heirs would have any right or objection thereto. This recital, in my opinion, quite clearly shows that the donor meant her to possess an absolute interest in the properties. She was to have all the rights of an owner and she was free to alienate any of the properties and neither the donor nor any of his heirs could question the alienation. If it had been intended that she was to have a life-estate only, it would not have been stated that she would have free right of alienation and that the donor will not be able to question her alienation.

The mere fact that it was not stated in express terms that she would have an estate of inheritance does not necessarily show that she did not possess an absolute estate. The cases to which reference has been made are mostly cases of bequests, but here the donor has given away the property during his own life-time and divested himself of all rights in the property and in this respect the present case bears a close resemblance to the facts in Ram Narain Singh v. Peary Bhugut (1983) 9 Cal. 830.

Upon a construction of the document 1 have no doubt in my mind that defendant 1 possessed an absolute right in the property, and that being so, the only point raised in the appeal fails and I would dismiss it with costs to respondents 2 to 4.

Reuben J.

I agree.