1. These are applications under the agency rules for a direction to the agent to review his judgment by which, varying the decree of the special assistant agent, he dismissed the plaintiff's suit with costs. The suit was brought for the recovery of certain moveables and cash of nearly a lakh of rupees in value from defendant 1, the Maharajah of Jeypore, to whom they were handed over for safe custody by the Government, defendant 3, after the death of Sri Sulochana Patta Mahadevi whose property they were. The plaintiff claimed them as sole legatee under the will, dated 23rd November 1901, of the patta Mahadevi. Defendant 1 in answer to the plaintiff's claim raised two substantial pleas, one that the will, which was executed by the Mahadevi at a time when she was bitterly hostile to him in consequence of a pending litigation between them, was subsequently revoked by her after the suit was compromised in 1904; and (2) that the Mahadevi had no power of disposition over the suit properties, as they were held by her as part of the Estate of Nowrangapore and Gudari which were settled on her for her maintenance for life in pursuance of the compromise aforesaid. Somewhat inconsistently with his plea of revocation of the will, which assumed that it was the genuine will of a capable testator, defendant 1 also put the plaintiff to strict proof of the genuineness and validity and subsisting character of the will and proceeded to state that if any will was executed, the same must have been brought into existence by the plaintiff and his partisans fraudulently and collusively (para. 5 of the written statement). Defendant 2, who also claimed the properties, was removed from the suit in an early stage of the inquiry and the issues which were raised on his pleas were struck out. The Government took no part in the trial. A considerable number of issues were raised for trial between the plaintiff and defendant 1, of which only Nos. 2, 3 and 4 are now material; they relate to the title of the plaintiff. Of these the second was “whether the will in question is genuine,” the third “whether the will was revoked,” and the fourth “whether the Patta Mahadevi had absolute power of disposal.”

2. The trial Judge held on issues 2 and 3 that the will was genuine and was not revoked, and on the fourth that the Patta Mahadevi had only a Hindu widow's interest in the suit properties except in some clothes of small value included therein and gave a decree for the plaintiff for the clothes and dismissed the rest of his claim. Both the plaintiff and defendant 1 appealed to the agent, who found in favour of the plaintiff on issues 3 and 4 and on issue 2, while holding that the will was genuine in the sense that the Patta Mahadevi signed it however found against the will on the ground that there was no direct proof that it was read and explained to her and was understood by her, that being necessary in his opinion as he assumed that the Patta Mihadevi was the widow of an Uriya zemindar, and therefore must have been a pardanashin lady, and the plaintiff had a particular and peculiar onus to show that the executence thoroughly understood what she was doing and was thoroughly and fully acquainted with its terms, a far higher burden than the ordinary burden of proving the will of a capable testator. The plaintiff contends that there was no plea that the Patta Mahadevi was a pardanashin lady who required special protection when she executed the will, that the whole trial in the first Court was really fought out on the question of revocation, defendant 1 having practically given up his contention as to the genuineness of the will, that no such point was raised even in the grounds of appeal to the agent, that the plaintiff was taken by surprise by such a point being taken in the arguments on appeal and that if such a question has been raised at the original trial, he would have offered evidence to show that the Patta Mahadevi was quite capable of taking care of herself. He also contends that the agent misdirected himself as to what was necessary to be proved before a lady can claim protection as a pardanashin, and also that the agent erred in holding that there must be direct proof that the will was read over and explained to the Rani. There is considerable force in these contentions. It is to be observed that the form of issue 2 raises only the question of the genuineness of the will. In para. 5 of the written statement its validity was attacked, apparently on the ground that the testatrix was not the absolute owner of the property as stated in para. 4 and that was the subject of a separate issue. The subsisting character of the will was questioned because it was said that it had been revoked, and that again was the subject of issue 3. There is no other paragraph of the written statement which in the remotest manner suggests that the Patta Mahadevi, if she did execute the will, did not understand it or know its contents and no notice was taken in either of the lower Courts about the vague statement as to fraud and collusion. No issue was raised on it, and apparently there is no evidence about it. On the other hand there was some attempt made to prove that the genuine will of the Rani was not the will propounded by the plaintiff, but that attempt wholly failed for it was clearly proved, and that is the finding of both the lower Courts, that the Rani deposited her will in a sealed cover in the Registrar's Office and the identical cover with the seals intact was produced by the plaintiff soon after the death of the Rani before Mr. Parsons, the then Agent, and was opened by him and contained the will now propounded by the plaintiff. This again is inconsistent with the plea that the Rani as a pardanashin must be presumed till the contrary is proved, to have had no knowledge of its contents. More than all it is quite clear, as pointed out by Mr. Ramesam, that the defendant himself let in his evidence on the assumption that the Rani knew the contents of her will, for witness after witness was called to prove that the Rani, knowing that she had bequeathed to the plaintiff all her properties including Nowrangapore and Gudari for which she had obtained a decree against defendant 1 in the first Court, which however was then the subject of an appeal to the High Court, after the termination of the litigation by a compromise in 1904, called for the document from the Registrar's Office where it was in deposit and directed its destruction. We therefore think that the Agent should not have allowed this point to be raised in appeal at any rate without giving an opportunity to the plaintiff to adduce evidence of the Rani's capacity and status, the circumstances attending the execution of the will and the means she had of obtaining independent advice.

3. We also think that the Agent was wrong in thinking that the rule as to pardanashins applies to all gosha ladies alike. The rule at the best is one of presumption of want of ordinary capacity which can be rebutted. It has been pointed out that the Patta Mahadevi was at the time of the execution of the will about fifty-five or fifty-six years of age, was transacting her business through agents to whom she gave personal instructions, was interviewing Government officers, was giving evidence before Magistrates, and was directly presenting documents ta registration officers. She had just then successfully emerged from a very heay litigation in which she was represented by the late Mr. V. Krishnaswami Iyer who was subsequently a Judge of this Court, and afterwards a member of the Executive Council. She came to Madras during the pendency of the appeal evidently to give instructions to her vakils. It is difficult to treat a lady in her position and of her capacity as a pardanashin, though she as belonging to a noble family may be gosha when young, and may not needlessly appear in public even when she was advanced in years. Further defendants' 12th witness Mohana Santra, who was her Dewan or principal officer from 1900 to 1907, and who is the principal witness for the defence to prove the revocation of the suit will, states in his examination that the wills (i.e the will and the previous will, dated 10th October 1900, which she joined with her co-widow in executing) were written by the advice of Mr. Krishnaswami Iyer and he knew about them. That statement, if true, is conclusive on this question, even if the Mahadevi was strictly a pardanashin. This witness attested both the wills, was present when it was deposited with the Registrar and it was he who brought it back from the Registrar's office in 1904 under a special power-of-attorney given by the Mahadevi. It appears to be also true that the Agent precluded himself from considering a number of circumstances which go to show that the Maha devi must have been fully conversant with the contents of the will by too narrowly confining his attention to direct proof. As we are not finally deciding the case, it is unnecessary to enter into the details of the evidence here.

4. There were two issues, the 7th and 8th, which the Agent thought it was unnecessary to decide; but they raised subsidiary question of fact which were relevant to the decision of the issues 2 and 3. Both sides complain the Agent should have considered those issues before arriving at a conclusion on issues 2 and 3. In these circumstances we must direct the Agent to review his judgment on issues 2 and 3 in the light of the above observations. If he thinks it right to allow defendant 1 to raise the question as to whether the Patta Mahadevi was a pardanashin lady and whether or not she knew the contents of the will, he must give the plaintiff an opportunity of adducing evidence as to her capacity and position as to her knowledge of the contents of the will.

5. The respondent attempted to support the judgment on the ground that the finding of the Agent on issue 4 as to the Rani's power of disposition over the suit properties was erroneous. He argues first that, as there is no direct evidence as to how the suit properties were acquired, the plaintiff, who has to make out that they were the absolute property of the testatrix, must fail as there is no presumption that they were her stridhana, next that the property was held by her as part of the estate settled on her by the deed of 1904 and must revert to the Maharajah on her death. As to the first it is difficult to see why the ordinary presumption that a person in possession is the owner and an absolute owner should not apply to Hindu women: see Metters v. Brown(1) and Section 110 of the Evidence Act. In Narayana v. Krishna(2), this Court held that property standing in the name of a Hindu lady with which she was dealing was her separate property, and that there was no presumption that it was the common property of the family, and in Diwan Ran Bijai Bahadur Singh v. Indarpal Singh(3) the Privy Council said that there was no presumption that property in the possession of a Hindu widow, of the acquisition of which no account is given, descended to her from her husband though the husband was shown to have died possessed of considerable property and that he who claims property through some other person must show the property to have been vested in that person. In this case both the parties agree that the property was in the Rani's possession at the time of her death; and as the plaintiff claims under her he must succeed unless defendant 1 proves his contention that her interest ceased on her death and the property reverted to him. This appears to have been the view taken in a very recent case in this Court in Bodi Muttayya v. Kavoori Kodandaramagya(4), where the learned Judges held that if nothing is known as to how a Hindu female in possession acquired the property, the presumption is that she is holding it as absolute owner though without title. The decision in Gopala Aiyangar v. Savuri Aiyangar(5) is not against this view.

6. Further it is be observed that defendant 1 is merely the custodian of the property pending adjudication of the rival claims of the plaintiff and defendant 1 and that the plaintiff who claims under the will of the last owner would preferably be entitled to possession. The fact that Government under executive authority chose to hand it over to defendant 1 cannot give him a right to retain it unless he proves a title to hold them, for the representative of the person last in possession is entitled to have possession. However that may be, there is no difficulty in this case; for the nature of the property claimed and the circumstances of the case naturally lead to the conclusion that, except as regards certain items of insignificant value, the rest of them are not likely to have come to the Rani by inheritance. Her husband Sri Ghaitanya Deo died in 1876. She and her co-widow inherited from him the two valuable taluqs of Nowrangapore and Gudari which had been granted to his father, who belonged to the junior branch of the Jeypore family, by the then Maharaja. After Sri Sulochana Patta Mahadevi and her co-widow had been in possession and enjoyment for over 20 years, the present Maharajah, defendant 1, purported to resume the grant and entered into possession of the taluks and the two ladies sued the Maharajah for possession and mesne profits. While the suit was pending, the co-widow died and Sri Sulochana Patta Mahadevi continued the suit and obtained a decree. The Maharajah appealed to this Court and after the hearing began the parties compromised on the terms contained in Ex. 14a, and the compromise decree passed by this Court in pursuance of which the deed Ex. 42 was executed. The construction of this deed is raised in the second contention of the respondent, but it may generally be stated now that the Rani was to have absolute or full enjoyment of the said taluks during her life for her maintenance. This was in 1904. She therefore was not in possession between 1896 and 1904 of the bulk of the property inherited by her and got no mesne profits and was further engaged in a very heavy litigation. It is unlikely that she had any valuable moveables left at the end of that litigation. After that date she was in possession of the taluqs which gave her an income of about Rs. 1,00,000 and the bulk of the moveable property now sued for appears to be savings from the current income or purchased out of it. This was the conclusion come to by the Agent and we agree with him. If the moveable property now sued for represents the savings out of the income which was at her absolute disposal it is quite settled so far as this Court is concerned that she can dispose of it either intervivos or by will Subramanian Chetti v. Arunachelam Chetti(6), Veeraraghava Reddi v. Kota Reddi(7).

7. The respondent however contends that the Patta Mahadevi and defendant 1 agreed that the savings out of the income from the taluks which the Rani did not use or consume in her lifetime should belong to the Maharajah at her death and relies on the following, passage in the deed Ex. 42:

“The Maharaja without reserving to himself or his successors any power to revoke vary or modify it hereby grants to and settles on the Patta Mahadevi as from 1st July 1904 the taluks of Nowrangapore and Gundari with the cists whether in kind or in money accruing due on, from and after the said date to be held by the Patta Mahadevi for her maintenance during the remainder of her lifetime with full rights of enjoyment and to revert on her death to the Maharajah or to his successor for the time being to the Jeypore Samasthanam.”

8. It was said that the intention of the parties was to create an interest in the Rani similar to a widow's estate not merely in the taluks but also in cists or income of the taluks. We think the words “with the cists etc.” were used to denote that every kind of interest in the taluks was granted and not to out down her absolute interest in the income for she is given full rights of enjoyment of the taluks. That this was the intention of the parties is clear from the first clause of the decree in pursunce of which the deed was executed, which is also recited in the deed. It is quite clear and it was not disputed that the Rani could have done anything she chose with the income that she could have spent it or given it to anyone she liked. The grant was really of a life estate in the taluks in compromise of her claim to the absolute interest therein. That maintenance was stated to be the motive for the grant makes no difference in the quantum of the estate granted. Assuming that anything which she left undisposed of would go to the Maharajah, there is nothing in the deed to prevent the Rani from bequeathing the income or the Savings or the properties acquired out of the income which was at her absolute disposal during her lifetime. It is also doubtful if any restrictions on her power of alienation would be legally valid (see Sures Chandra Palit v. Lalit Mohan Dutta(8). The finding of the Agent on issue 5 is therefore perfectly right. There is however one item (viz.), arrears of rent as to which there is no clear finding as to the amount due and payable to the Patta Mahadevi till her death. This must be found under issue 11. Issues 1 and 6 have been decided in favour of the plaintiff and there was no argument about them. Issue 5 is really a part of issue 4 and requires no farther consideration. Issues 7 and 8 have to be considered in connection with issues 2 and 3. If the Agent on a review of his judgment on issues 2 and 3 as directed by us decides them in favour of the plaintiff the Agent must consider under issue 9, if the plaintiff cannot have possession of the properties he is entitled to. He must also consider under issue 10 what sum if any defendant 1 is entitled to for the upkeep of the cattle. With these directions the case must go back to the Agent with a direction to him to revise his judgment and dispose of the appeal according to law. Costs here to abide and follow the result.

S.N/R.K

9. Case remitted.