Mt. Sheo Dani Kuer vs Ramji Upadhya and Others

Sen, J.—There is only one point in this appeal and that is whether upon a proper construction of the last will of one Sheogopal Upadhya the property in dispute passed to the plaintiff''s mother, Kishun Kuer, absolutely or only for life.

It appears that Sheogopal had two sons both of whom predeceased him. Sheogopal died leaving one Bacha Kuer, the widow of his son Anmaul Upadhaya and Kishun Kuer the widow of his son Ratan Upadhaya. In his will, Sheogopal provided that the property in question should be enjoyed by Bacha Kuer so long as she might live, and that Bacha Kuer should be able to maintain herself out of the property, but that she would have no power or right to make any sort of transfer of the same; and on her death the property would come to the possession of Mt. Kishun Kuer.

As regards the character of the enjoyment of Mt. Kishun Kuer provided for in the will, there is a great deal of dispute between the parties. The appellant before us contends that there are words of disposition which would clearly amount to conferring an absolute estate upon Kishun Kuer, whereas the respondent contends that there are certain terms in the will which would clearly show that the intention of the testator was not to confer an absolute estate but only the interest of a limited owner. A great deal of stress is laid upon the use of the words "malik mokamit." The learned vakil for the appellant contends that the very use of the word malik shows that the estate that was purported to be granted to Kishun Kuer was an absolute estate and that once that absolute estate was conferred upon Kishun Kuer then the restrictions laid down in the later portions of the will would be of no avail. Various rulings are cited in support of this proposition, but the matter is now beyond all doubt that the use of the word malik does not necessarily imply that the estate conferred is an absolute estate. As observed by their Lordships of the Judicial Committee in the case of Bhaidas Shivdas v. Bai Gulab AIR 1922 PC 193 the word malik is not a term of art, it does not necessarily define the quality of estate taken, but in the context of the will before their Lordships in that case, their Lordships thought that the estate conferred was an absolute estate. Therefore, the real question before us as to whether, reading the context, the word malik mokamit in the present case indicates that an absolute estate was intended to be given to Kishun Kuer. I think it is clear that the testator did not intend to give an absolute estate to Kishun Kuer for he observes that "it shall also be within the power of the said Kishun Kuer that at times of real necessity she will meet the same by mortgaging and giving in zurpeshgi portions of the lands; further she will do what she likes and from the income and produce of the above she will afford her livelihood, perform pilgrimages, have Khata Puran etc."

Now, if the testator really intended to grant an absolute estate it would be entirely unnecessary for him to state that at times of real necessity the donee would be at liberty to mortgage the properties or otherwise deal with the same and out of the income and produce of the properties to find means for her livelihood. There is not a word in the will to show that the testator ever contemplated that the corpus of the property would be alienated by Kishun Kuer in any way.

The learned vakil for the appellant points out that the words "she may do what she likes" indicate that the testator intended to give her absolute powers of disposal over the property. That does not appear to me to be a correct construction of the words, for they must again be taken together with the context and judging from the manner in which those expressions have been used, it seems to me that what the testator intended to say was that she would be at liberty to do what she chose with the income and produce of the property. At any rate, it does not appear that those words would confer upon the devisee the power to deal with the corpus. In view of the fact that no absolute estate was conferred upon Kishun Kuer, the question does not arise as to whether there were in the later portions of the will expressions repugnant to an absolute estate which would, therefore, have to be declared to be invalid and of no effect. Taking the instrument in its entirety, I am of opinion that what was really intended to be conferred upon Kishun Kuer was the estate of a Hindu woman subject to alienations, only in the event of legal necessity.

In the circumstances the appeal must be dismissed with costs.

Adami, J.

I agree.