Jwala Prasad, J.:— (After stating the facts set out above proceeded as follows): The learned Advocate for the appellant in attacking the view of the Court below has adopted the reasoning employed by the learned Munsif. Reliance is placed upon a passage in the judgment of the Judicial Committee of the Privy Council in Bijoy Gopal Mukarji v. Krishna Mahishi Debi wherein their Lordships observe—
“A Hindu widow is not a tenant for life but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court and he shows his election to do the latter by commencing an action to recover possession of the property”.
It is to be observed that although their Lordships made a distinction between the estate of a Hindu widow and that of a life tenant their decision did not declare that acts of a Hindu widow which would affect the property after her death would be valid. In the case of transfers inter vivos, the widow confers upon the transferee the right to hold the property during her life: she has a full right to do so; but where she confers a right which is valid during her life time and gives effect to it by delivery of possession, a distinction is made between the rights acquired by the transferee before the death of the widow and those which he enjoys after her death. He enters into possession of the property under a valid title and his occupation thereof is not ipso facto or ab initio void. The interest which may survive after the death of the widow is not in the circumstances absolutely void, by reason of the fact that the title was validly created at the beginning, but it is voidable at the instance of the reversioners. It is for them to ratify or confirm the act of the limited owner or to treat, the occupier as a mere trespasser after the death of the widow. In fact their Lordships did treat the transaction as a trespass upon the property and the holders thereof as trespassers after the death of the widow; for Article 141 of the Limitation Act which governs the case of the plaintiff seeking to eject a trespasser from an immovable property was applied. That case cannot be cited as an authority for the proposition that the widow can create a valid interest or even voidable title in favour of any person to take effect after her death, that is, by means of testamentary bequest.
‘Will’ has been defined in the Hindu Wills Act as meaning.
“the legal declaration of the intention of the testator with regard to his property which he desires to be carried into effect after his death.”
Mr. Abani Bhusan Mukharji quoted the definition of ‘will’ given by their Lordships of the Judicial Committee in Tagore v. Tagore in support of his contention that a will like a gift transfers the property from the date of its execution with this difference only that in the latter the possession is immediately taken and in the former the possession is deferred till after the death of the donor. The passage upon which he relies is as follows:
“Will means a continuous act of gift up to the moment of the donor's death and though revocable in his lifetime, is, until revocation, a continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designated as beneficiaries”.
These words cannot be held in any way to imply that the property bequeathed by the testator is vested in the legatee from the date of the execution of the will. The essential difference between a will and a settlement or deed inter vivos, as appears from the definition of ‘will’ given in the Act and that given by their Lordships of the Judicial Committee lies in the fact that a will only takes effect after the death of the testator. A deed is an assurance of property from living persons to living persons but a ‘will’ is an assurance of property from the dead to the living. The gift inter vivos operates from the date of its execution, but a will is not operative till after the death of its maker. In the former title is vested from the date of the deed or as indicated therein, in the latter it invariably vests after the death of the testator, for before his death he can revoke the will at any moment he likes. Therefore the legatee under a will made by a Hindu widow does not take any interest until the death of the widow when the widow herself ceases to have any interest in the property which reverts to the heirs of her deceased husband. Hence the widow has no property at her death to dispose of, as was held in the case of Durga Sundari Sen Gupta v. Ram Krishna Poddar where the Chief Justice, Sir Lawrence Jenkins, and Sir Ashutosh Mookerjee upheld the decision of N.R Chatterji, J. This case was followed by the Madras High Court in A.R Srinivasachariar v. A. Raghavacharuar. There it was definitely laid down that disposal of her husband's property by a widow confers no title on the legatee to eject even a trespasser. This ruling applies exactly to the present case. The plaintiffs have acquired no title under the will and cannot eject the defendant even if he is a trespasser. The same conclusion was arrived at by the Lahore High Court in Tirath Ram v. Kahan Devi and by the Bombay High Court in Godadhar Bhat v. Chandrabhagabai.
The distinction between a widow's estate and a life estate seems to be that in the former the exact successor after the death of the widow is not known until she dies, whereas in the life estate the next successor, the holder of the remainder, is known; and the remainder may vest before the death of the life tenant. In the widow's estate which is peculiar to Hindu Law nothing vests in the reversioners during her life the entire property vests in the widow; with this important, difference that her personal heirs do not succeed after her death, but the heirs of her husband, the previous full owner, succeed to the property. But the widow who holds a widow's estate and one who holds a life estate are both subject to this limitation that they cannot create any interest beyond their life time. The view taken by the Court below seems to be correct. The decree is accordingly affirmed and the appeal is dismissed.
James, J.:— I agree.
Appeal dismissed.