Swarna Kotayya v. Karamacheti Vardhanamma

1. This second appeal arises out of a suit by a reversioner for a declaration that certain alienations made by the 1st defendant, daughter of the last male holder, in favour of her daughter's son are not binding on the plaintiff, now appellant, beyond her life-time. The plaint alleged that the last male holder, Mahadevudu, who was the elder brother of the plaintiff's father, died intestate. In her written statement the 1st defendant set up a will said to have been executed by Mahadevudu in her favour in 1877 and the case turns upon the validity and effect of this instrument. It is in the first place disputed that it is a will and not a gift-deed. Both the Lower Courts have found that it is a will and have applied the presumption permissible under Section 90 of the Evidence Act, relying on that provision to find not only that it is genuine, a finding not now disputed, but also that it was executed by Mahadevudu when in a sound disposing state of mind. Whether Section 90 can be used to support a presumption of this latter character is the next question, and the final matter in controversy is the 1st defendant's claim that under the will she took an absolute estate.

2. The document, the nature of which is thus disputed and of which Exhibit I is a copy, was executed on plain paper, a course correct for a will, incorrect for a transfer inter vivos. It is styled a Marana sasanam, a word which is usually translated as "will," but which perhaps more unmistakably than that term connects the execution of the document with the executant's death. Unlike a gift-deed it addresses no transferee in the second person. It states that the executant's properties "have been transferred" to his eldest daughter and proceeds to lav down what she shall do, these instructions appearing to relate to the time when he is gone and she has taken his place. Stress has been laid by the appellant upon the use of the past tense "have been transferred". I do not think that this is necessarily incompatible with the view that the document is to take effect as from the moment of the executant's death. When an English testator writes "I give and bequeath" he does not mean that the words are to operate upon the property at the time of execution of the will. Next, there is the very significant circumstance that the whole estate is transferred, a course not likely to be adopted in the case of a gift, especially a gift to a woman. It is true that no power of revocation is reserved, but it has never been held that the mere absence of an express provision of this nature disproves the testamentary character of a document. In Rajammal v. Authiammal (1909) I.L.R. 33 M. 304 : 20 M.L.J. 519 it was found upon an examination of the terms of the deed that it was not revocable in character. Finally there is the circumstance that the document was registered as a will. I do not attach weight to that fact because it shows what the Registrar's opinion was; but it does show what course was adopted by those who must have been conversant with Mahadevudu's intentions. It appears to me that those intentions are clear enough from the several indications which I have enumerated, and I have no hesitation in holding that the document is a will.

3. The point next raised is that, granting the document to be a will, and that the Lower Courts were justified in presuming execution and attestation under Section 90 of the Evidence Act, yet the section does not authorise any presumption in favour of the disposing power of the testator. There is upon this point singularly little authority. I do not find any useful analogy furnished by oases such as Ubilack Rai v. Dalliad (1878) I.L.K. 3 C. 557 Ramani Kanta Ray v. Bhimnandan Singh (1923) I..L.R. 50 C. 526 and the English case, In re Airey Airey v. Stapleion (1897) 1 Ch. 164, which decides that where a person signs as agent for another the fact of agency cannot be presumed; because it is a fact quite outside and apart from the act of execution. Rather closer comes the decision of an Allahabad Full Bench in Haji Sheikh v. Sukhram Singh (1924) I.L.R. 47 A. 31 (F.B. that when the signature of the executant purports to have been made by the pen of the scribe it may be presumed under Section 90 that the latter was duly authorised to sign for him. Walsh, A.C.J., distinguishes the agency cases referred to above, and with reference to the phrase "duly executed" occurring in the section, says:

In our view the expression 'duly executed' must include all the facts which would be necessary in order to establish due execution before a Court by positive evidence, if the obligation of producing positive evidence were not dispensed with by the presumption.

4. The question really turns upon the construction to be placed upon "duly executed". The term "executed" by itself, may mean no more than, as the definition stands in the new English Dictionary, "to go through the formalities necessary to the validity of a legal act, e.g., a bequest, agreement, mortgage, etc." But, unless the word "duly" is purely otiose, the phrase must embrace more than that. That was the opinion . expressed by Phillips and Odgers, JJ., in an unreported case, A.S. No. 82 of 1924, Phillips, J., observing, It is argued that this presumption does not apply to the fact that the testator was in a sound disposing state of mind, but in my opinion this contention cannot be upheld for it does not give effect to the word 'duly'. A will cannot be said to be 'duly' executed by an insane person or an imbecile, and, therefore, by the word 'duly' I think must be meant the execution by a person legally competent to execute the document.

5. This I think agrees with the statement of the law in Taylor (Vol. I, Section 87) that ancient wills and deeds are said to prove themselves, their bare production from natural custody being sufficient. To hold otherwise would be to render the presumption unavailing in the case of most old wills, because the witnesses to execution, who are ex hypothesi beyond the reach of the Court, would also be the witnesses to the sound disposing state of the testator. I concur, therefore, in the view of the Courts below upon this point.

6. Taking the will to be validly proved, the question remains of the nature of the estate the 1st defendant took under it. There is a considerable number of decisions upon the effect of gifts and devises of immoveable property to females-many of them will be found summarised in the Privy Council judgment in Musammat Sasiman Chowdhurain v. Shib Narayan Chowdhury (1921) L.R. 49 I.A. 25 : I.L.R. 1 Pat. 305 : 42 M.L.J. 492 (P.C.) Before considering them, it will, I think, save some confusion if the relevant provisions of Hindu Law are borne in mind. The cases fall into two classes, according as they are gifts or bequests to (1) a wife, and (2) a female relative other than a wife. Class (1) is thus dealt with in para. 664 of Mayne, 9th Edition:

Immoveable property, when given or devised by a husband to his wife, is never at her disposal, even after his death, it is her Stridhanam so far that it passes to her heirs, not to his heirs. But, as regards her power of alienation, she appears to be under the same restrictions as those which apply to property which she has inherited from a male even though the gift is made in terms which create a heritable estate. It is different if the gift or devise is coupled with an express power of alienation. Whether this is so is of course a question of construction of the terms of the particular gift.

7. Similar restrictions do not by force of law attach to gifts or bequests by relatives other than the husband. The property becomes what is known as Saudayika, "the gift of affectionate kindred", and such property is absolutely at a woman's disposal (para. 662). "She may spend, sell, devise or give it away at her own pleasure."

8. Now, if these are the principles of law governing such gifts or bequests, it necessarily follows, unless any intention appears to the contrary, that the effect of the gift (and here and elsewhere I include a bequest) is to confer an estate in conformity with them. To hold otherwise would be to assume, in effect, that the donor intended that the woman should take an estate the incidents of which would be at variance with the Hindu Law. This observation may appear to be too obvious to be worth making; but no little trouble has arisen during the arguments addressed to me through losing sight of the fundamental provisions of Hindu Law, and failing to distinguish between an inferred intention and a legal consequence.

9. In accordance with the two classes of estates given above, the case-law may be divided into (1) cases relating to gifts to wives, and (2) cases relating to gifts to relatives other than wives. Class (1) does not directly concern us, but some examination of the principles upon which the decisions proceeded will be of assistance before turning to Class (2).

10. Where a gift is made to a wife, the presumption would seem to be, as I have said, that she takes a limited estate unless a contrary intention appears; and this is in general what the cases show. Difference of opinion at one time arose whether the intention must be shown by an express declaration of power to alienate, as was held by the Allahabad High Court in Suraj-mani v. Rabi Nath (1903) I.L.R. 25 A. 351, or whether it was enough that "words of amplitude"-some expression sufficient to show that donor's intention to confer more than the estate which the wife would otherwise get under Hindu Law-are used. In Ramachandra Rao v. Ramachandra Rao (1922) L.R. 49 I.A. 129 : I.L.R. 45 M. 320 : 43 M.L.J. 78 (P.C.) and Bhaidas Shivdas v. Bai Gulab (1921) L.R. 49 I.A. 1 : I.L.R. 46 B. 153 : 42 M.L.J. 385 (P.C.) the Privy Council has set this point at rest by pronouncing for the latter alternative. We are not here concerned with the discussions, as for instance in Ramachandra Rao v. Ramachandra Rao (1918) I.L.R. 42 M. 283 : 36 M.L.J. 306, where the word of amplitude accepted was "inam," and in Surajmani v. Rabi Nath Ojah (1907) L.R. 35 I.A. 17 : I.L.R. 30 A. 84 : 18 M.L.J. 7 (P.C.) and Bhaidas Shivdas v. Bai Gulab (1921) L.R. 49 I.A. 1 : I.L.R. 46 B. 153 : 42 M.L.J. 385 (P.C.), where it was "malik," as to the sufficiency of the language to establish intention. Perhaps the clearest as well as the most authoritative (being the most recent) pronouncement of the Privy Council upon the principle to be observed in dealing with this class of cases is contained in Narsingh Rao v. Maha Lakshmi Bai. (1928) L.R. 55 I.A. 180 : I.L.R. 50 A. 375 : 55 M.L.J. 42 (P.C.)

11. Their Lordships say at page 389:

In their Lordships' opinion there is nothing so far in the deed to cut down the gift or prevent the Rani from taking such an estate in the properties, which are the subject of the gift, as a wife takes in immove-able property given her by her husband. According to the Hindu Law, such property is taken by her as stridhan and is descendible to her heirs and not to his, and would devolve first on her daughter and her daughter's daughter and failing them on her daughter's son, thus effectually excluding Balwant; but over such property, it is stated by Mr. Mayne, paragraph 664, she would have no right of alienation unless the gift was coupled with an express power of alienation, or, as has been held by this Board, unless there are words of sufficient amplitude to confer it upon her.

12. Here we have clearly expressed the principle which I suggested at the start is indisputable, that a woman gets the estate which Hindu Law confers upon her unless there; are words to restrict or amplify it. Odgers and Jackson, JJ., have in Illapavuluri Chelapati Rao v. Patchi Golla Subba Rao (1928) 117 I.C. 289 decided a case upon this basis. It is unnecessary for me to discuss another case of this Court, Kanakammal v. Baktavatsulu Naidu (1922) 44 M.L.J. 23, further than to say that the learned Judge who wrote the leading judgment, Ramesam, J., certainly did not take a less liberal view of the rights passing to a woman by gift or devise than the other authorities I have cited.

13. If that is the principle to apply to a gift to a wife, it is difficult to find any reason why it should not apply to a gift to a woman other than a wife, for instance to a daughter, as here. Under Hindu Law she takes an absolute estate, and the presumption that she takes it can only be rebutted by the employment of restrictive language. It is true that this method of construction does not appear very clearly upon the face of any early Privy Council judgment, Moulvie Mahomed Shumsool Hooda v. Shewukram (1874) L.R. 2 I.A. 7 and if that case stood alone and uninterpreted by later decisions it might be reasonable to deduce from it that whenever a Hindu makes a gift or bequest to a woman not his wife, he intends, unless he demonstrates the contrary, to bestow only a woman's estate. As was pointed out in Mahim Chandra Sarkar v. Hara Kumari Dasee (1914) I.L.R. 42 C. 561 , however, such a view would mean in effect that the presumption was that the donor intended his gift to have an effect different from the effect ordained by Hindu Law; because every Hindu may be supposed to know that a daughter, for example, takes an absolute estate in such circumstances. The judgment, properly understood, seems only to lay down that in construing a will or gift-deed it is necessary to bear in mind that the testator or donor is a Hindu; and, further, that this consideration should not be lost sight of, in particular, where there is ambiguity in the terms. In Rama-chandra Rao v. Ramachandra Rao (1918) I.L.R. 42 M. 283 : 36 M.L.J. 306 Wallis, C.J., observes:

We must, I think, take it to be now settled, at any rate so far as this Court is concerned, and until the decisions to which I have referred are overruled by higher authority, that the rule laid down by the Judicial Committee in Moulvie Mahomed Shumsool Hooda v. Shewukram (1918) I.L.R. 42 M. 283 : 36 M.L.J. 306 is a rule of construction to be applied only when there is some uncertainty or ambiguity in the language of the instrument before the Court.

14. In the same case Seshagiri Aiyar, J., thought that where the language was ambiguous recourse could be had to the ordinary notions of Hindus as a rule of construction to find out what the intention of the donor was; but where the words employed are clear and unambiguous, no matter who the donee is, the language should be given effect to. He supported this principle by a reference to Section 8 of the Transfer of Property Act.

15. A similar view has been taken by Benches of this Court in more than one recent case. In Rajamanicka Chettiar v. Manic-kam Chettiar (1924) 47 M.L.J. 723 (to which in facts and ratio decidendi Yellappa v. Golla Swami (1924) 20 L.W. 579 is closely parallel as to need no separate notice) a brother bequeathed property to sisters directing that they should "enjoy" it. After holding that there is no presumption against a woman taking an absolute estate, the learned Judges deemed "enjoy" to be a word of sufficient amplitude to convey absolute rights. As to this, it is perhaps worth while to point out that the phrase "sufficient amplitude" was used by the Judicial Committee as in Bhaidas Shivdas v. Bai Gulab (1921) L.R. 49 I.A. 1 : I.L.R. 46 B. 153 : 42 M.L.J. 385 (P.C.) and Ramachandra Rao v. Ramachandra Rao (1922) L.R. 49 I.A. 129 : I.L.R. 45 M. 320 : 43 M.L.J. 78 (P.C.), where a transfer to a wife was in question and it was necessary to consider whether the language used raised the estate from qualified to absolute. Where the estate conveyed would without such words be, under Hindu Law, an absolute one, the view to which I can discover no objection, either on general principles or on recourse to the authorities, is that no words of amplitude are necessary.

16. In a Calcutta case, Mahim Chandra Sarkar v. Hara Kumari Dasee (1914) I.L.R. 42 C. 561 which I have already mentioned in connection with the construction of Moulvie Mahomed Shum-sool Hooda v. Shewvukram (1874) L.R. 2 I.A. 7, a bequest to a daughter was in question, and the testator was deemed to have intended to confer an absolute power of alienation. There is nothing, I think, in this case in conflict with the principle I have attempted to extract. It was presumed that the testator knew the Hindu Law and had its effect in contemplation in framing his will.

17. The conclusion I draw is, that where under Hindu Law a bequest to a woman would convey the whole estate, it is permissible to construe the will free from any presumptions created by her sex. If the words used would invest a male legatee with an absolute estate, so would they invest a female legatee. If this test is correct, I regard the words "have been transferred" unattended as they are by any qualification, as sufficient to achieve that object. They are appreciably stronger, in my view, than the word "enjoy" which was held to show a similar intention in the two Madras cases above cited.

18. I agree accordingly with the Courts below that the document in controversy is a will, that it has been proved to be validly executed by Mahadevudu, and that it passed an absolute interest in the property to the 1st defendant. The plaintiff's suit must accordingly fail and it is unnecessary for me to consider the further question whether in the circumstances of the case, and had these findings been in his favour, he should be found entitled to a declaration under Section 42 of the Specific Relief Act.

19. The second appeal is dismissed with costs.