Judgement

Appeal (No. 144 of 1919) from a judgment and decree (February 23, 1917) of the High Court affirming a judgment of the Subordinate Judge of Darbhanga.

The respondents, as the reversionary heirs of one Bachcha Chowdhury, a deceased Hindu, governed by the Mithila school of Hindu law, sued for a declaration that certain alienations of the movable and immovable property made by the first appellant, the surviving widow of the deceased, were void and inoperative beyond her life. Most of the property alienated had formed part of the estate of the deceased husband, but part was alleged to have been purchased by the first appellant, or by her and her co-widow, out of the income of the husbands estate. The appellants by their written statement pleaded (inter alia) that under the will of Bachcha Chowdhury his widows acquired an absolute interest in his property; they also denied that the purchased property was bought out of the income of the estate. The terms of the will and the material facts appear from the judgment of the Judicial Committee.

The High Court (Roe and Chapman JJ.), affirming the Subordinate Judge, held that the widows took under the will merely a Hindu widows estate, and that the alienations were invalid.

1921. Oct. 28, 31. De Gruyther K.C. and H. N. Sen for the appellants. The devise was expressed in terms which conferred an absolute estate, and there is nothing in the context which cuts down that effect; the fact that the devisees were the testators widows does not of itself have that effect Surajmani v. Nath Ojha (( 1907) L. R. 35 I. A. 17.); Fateh Chand v. Rup Chand. (( 1916) L. R, 43 I.

A. 183.) [Reference was also made to Mahomed Shumsool Hooda v. Shewukram (( 1874) L. R. 2 I.

A. 7.); Amarendra Nath Bose v. Shuradhani (( 1909) 14 Gal. W. N. 458.); Sures Chandra v. Lalit Mohan (( 1915) 22 Cal. L. J. 316.); and Bannerjis Hindu Marriage and Stridhan, 1st ed.5 pp. 333, 408.] The family being governed by the Mithila school, the widows took the movables absolutely; the will shows an intention that both movables and immovables should be enjoyed in the same way. In any case the will gave a power of alienation during life; that is sufficient for the appellants, but they desire a decision on the wider question.

Their Lordships desired that the respondents should be heard as to the construction of the will before the question of accumulations of income was argued.

Dube for the respondents. Upon the true construction of the will the widows took only a widows estate. The devise to them was as "heirs," and a widow in that capacity has no power of disposition save for necessity; if the testators intention was to give them a greater interest he should have expressed it clearly. The reference in the will to the testators wish to perpetuate his name, the use of the word "ancestral," and the direction to pay an annuity, are inconsistent with the appellants contention. Assuming that the word "malikiyat" was intended to convey the idea of "malik," the authorities show that that is not conclusive. A Hindu widow while enjoying merely a widows estate is a "malik" Mahomed Shumsool Hooda v. Shewukram. (L R. 2 I. A. 7.) [Reference was also made to Shib Lakshan Bhakat v. Tarangini Dasi (( 1908) 8 Cal. L. J. 20.); Janki v. Bhairon (( 1896) I. L. R, 19 A. 133.) ; Wilsons Glossary, s.v. " milk or milkiat."] The contention that the appellant had, in any case, a power of alienation, has not previously been put forward.

De Gruyther K.C. replied.

Dec. 2. The judgment of their Lordships was delivered by

SIR JOHN EDGE. The suit in which this appeal has arisen was brought on August 12, 1912, in the Court of the Subordinate Judge of Darbhanga in Behar by the plaintiffs, who are the presumptive reversioners of Bachcha Chowdhury, deceased, who in his lifetime was a landholder in and a resident of Mauza Subhankarpur in Tirhoot. Bachcha Chowdhury died in 1865. The principal defendant is Musammat Sasiman Chowdhurain, who is the surviving widow of Ba