Bankim Behary Maiti v. Prabodh Chandra Maity

1. The only question arising for consideration in this appeal is whether an amount of money, lying in deposit in the Postal Savings Bank, which represents savings out of the income of the property allotted to a Hindu widow for her maintenance, were to be treated as accretion to the estate of her husband. If it were such an accretion, the plaintiff in the suit, out of which this appeal has arisen, is entitled to get the money in suit as executor and legatee. If os the other hand, the savings out of the income of the property which was allotted for her maintenance, was the widow's separate property, the defendant was entitled to get the same. The material clauses in the will by which property was allotted to the widow for her maintenance are Cls. 4, 8 and 12. By the last of these clauses, that is Cl. No. 12, the plaintiff was to get the property on the demise of the widow without any mention of savings, if any, out of the income of the property made by the widow in her life time, going to the ultimate male owner, the plaintiff in the suit. On a construction of the will, which clearly expressed the intention of the husband in allotting the property for maintenance after big death so far as his surviving widow was concerned, this is a case in which effect should be given to the view expressed by Subrahmania Ayyar, Ag. C.J in the case of Subramanian Chetti v. Arunachelam Chetti . 1905 28 Mad 1 FB., that

“where what is given is current income not for mere use and return, but for actual consumption, it would be almost absurd to tails of an intention that there should be any reverter, it being now thoroughly well established that what may not have been consumed, may be disposed of by the female as she likes. In such, circumstances, whether as a matter of common-sense or of legal principle, but one view is possible, viz., that money so received, is the absolute property of the woman descendible as such to her own heirs.”

2. Reliance has been placed in support of this appeal, on some observations of their Lordships of the Judicial Committee in the case of Isri Dut Koer v. Mt. Eansbutti Koerain . 1884 10 Cal 324; as has been pointed out by Subrahmania Ayyar, Ag. C.J in Subramanian Chetti's case referred to above, the obiter dictum in the case of Isri Dut Koer v. Mt. Hansbbutti Koerain regarding a Hindu widow's power of disposition of income of her husband's property, at her disposal, has more than been counter-balanced by the decision of their Lordships of the Judicial Committee in the case of Sowdamini Dossee v. Administrator-General of Bengal . 1893 20 Cal 433.

3. In the above view of the case, the decision of the Courts below dismissing the plaintiff's suit are affirmed; and this appeal is dismissed with costs.

R.G

4. Appeal dismissed.