IN THE HIGH COURT OF MARAS
C G Spencer, K Sastri
Maharaja Of Kolhapur
Versus
S. Sundaram Ayyar
Decided On : 21 January, 1924
My Lords, there are two things in construction which ought to be avoided: the first is the danger of misplaced analogy and the second is the treatment of a stated category as necessarily exhaustive of the possibilities of signification of a term employed.
121. I think that unless the terms of the grant, Exhibit A-46, clearly render it necessary to do so the nearer heirs of the Raja under Hindu Law ought not to be excluded in favour of remoter heirs. I can see no such intention in the grant, Exhibit A-46, which only dealt with the widows and daughter, the next heirs under Hindu Law then in existence. It has been argued that the mere fact that the adopted son would ordinarily take before the daughter implied that the Government wanted to exclude him. I do not think this result necessarily follows, It is competent to a Hindu having power to deal with his property by will to direct an adoption to be made by his widow and to postpone the rights of the adopted son to posseasion and enjoyment of the properties till after the death of his widow. It is also competent to the widow and the adopted son if he is a major, to agree that the adopted son shall get possession of the properties only after the death of the widow; and the decision in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C.R., 424 above referred to that the adopted son had no present right may be rested on the ground that the Government having given the properties to the widows as persona designata to be enjoyed by them for their lives with rights of survivorship necessarily excluded the adopted son from claiming possession or enjoyment during the lifetime of the widows. There is nothing to prevent estates being granted to take effect on the death of a Hindu and a womans estate being treated merely as interposition and for succession to be traced to a deceased person on the analogy of the ordinary Hindu Law where the last male owner dies leaving persons who are entitled either simultaneously or in succession to what is known as a womans estate. In such cases it is well settled that succession is traced to the last male holder on the supposition that he died on the date of the death of the holders of limited estates. Persons might come into existence who are nearer heirs to those existing on the date of his will or grant who may have taken earlier if in existence but who are postponed by the express terms of the grant. In cases of a Hindu widow obtaining estate by adverse possession as against a preferential heir of a deceased person, where circumstances indicate that she prescribed only for a widows estate, it has been held that the heir of her husband succeeds even though he might have preference to the widow under the ordinary Hindu Law and would have taken before her but for her taking possession. I need only to refer to In re Prattipati Seshayya (1912) M.W.N., 315. In dealing with, the estate taken by the widows under Exhibit A-46, I do not think it makes any difference whether the widows took what in law would be a strict, Hindu widows estate or whether they took an estate in several respects analogous to it or merely an estate for life, because it seems to me to be clear that whatever view may be taken, it is competent for remainders whether vested or contingent being tacked on to the estate conferred on the widows by the grant. In Mahomed Shumsool v. Shewukram (1874) 2 I.A., 7 property was conveyed by a Hindu to the widow of his deceased son. The document recited that "except her none other is nor shall be my heir and malik." It also recited that his daughter-in-law had two daughters "and that th
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