Judgement Consolidated Appeals (No.39 of 1939) from a judgment and three decrees of the High Court (October 30, 1935), which set aside a decree of the Subordinate Judge of Cawnpore (January 2, 1932), and dismissed the plaintiffs suit as against all the present respondents. The following facts are taken from the judgment of the Judicial Committee The appellants were the plaintiffs. The first appellant claimed the properties in suit as the nearest reversioner of one Pohkar Singh, deceased; and the second appellant was a transferee of half of the properties from the first appellant. Stated generally, the respondents all derived their title directly or indirectly from the transfers of the property made by Musammat Gambhiri, the wife of Pohkar Singh, who survived him and died in 1919. The following pedigree, set out in the plaint, explains the relationship of the principal parties— BADRI SINGH | | | Pohkar Singh (died 1900) = Gambhiri Kunwar Koklat Singh alias Parbati, widow (died 1919). | | | | | Ga jra j Singh | | | | | | Ram Pian Man Kunwar Indramati Kunwar Bishun Singh daughter (died childless before died childless. Plaintiff No. 1. (died 1915 1895) childless) married Gauri married Shiam Shankar Lal defendant No. 1. The last male holder of the properties in question was Pohkar Singh, who died in 1900. He was separate from his brother Koklat Singh. He had three daughters, one of whom, Man Kunwar, had died before October 1, 1895, leaving a widower, Gauri Shankar. Of the other daughters, Ram Piari, who died in 1915, was married to Shiam Lal (first defendant), and Indramati was a minor, unmarried. On October 1, 1895, Pohkar Singh executed a document, purporting to be "a deed of gift," in favour of Gauri Shankar and others. The question for decision before the Board was, what rights were conferred by that document on his widow by Pohkar Singh. After the death of her husband Musammat Gambhiri executed the three following documents —(1) On May 22, 1903, a deed of gift of certain properties in favour of her daughter Musammat Ram Piari. The latter died childless in 1915, and she made a deed of gift in favour of her husband Shiam Lal. (2.) On July 28, 1914, a sale deed of a village and a shop in favour of the father of defendant No. 2. The latter died childless in 1915, and she made a deed of gift in favour of her husband Shiam Lal. (2.) On July 28, 1914, a sale deed of a village and a shop in favour of the father of defendant No. 2. (3.) On September 26, 1917, a deed of gift in favour of Shiam Lal. There had been subsequent transfers by the transferees from Musammat Gambhiri Kunwar. The suit out of which this appeal arose was instituted by the appellants to set aside the alienations of the suit properties made by Musammat Gambhiri and her transferees, on the ground that Musammat Gambhiri had no power to make the said alienations as she took only the limited estate of a Hindu widow in the properties left by her husband, and that the alienations were not made for legal necessity. The respondents pleaded that the deed of gift, above referred to, amounted also to a " will " in favour of Musammat Ghambhiri, by virtue of which she became the absolute owner of the properties in question-, and that she had therefore every right to alienate them, the appellants’ contention on those points being that the " deed " did not amount to a " will " as there were no words of bequest in it, and that it should be ignored altogether, as it conferred on Musammat Gambhiri nothing more than a widows estate in the properties, which as the widow of Pohkar she would ordinarily have. The deed of gift, con tinuous in its narration of facts, consisted in substance of two parts. By its first part Pohkar Singh gifted a sixteen annas share in mauza Malkanpur and a twelve annas share in mauza Deomai to Gauri Shankar, Ram Piari and Indramati in equal shares, reserving to himself the remaining four annas share in mauza Deomai. The deed of gift, con tinuous in its narration of facts, consisted in substance of two parts. By its first part Pohkar Singh gifted a sixteen annas share in mauza Malkanpur and a twelve annas share in mauza Deomai to Gauri Shankar, Ram Piari and Indramati in equal shares, reserving to himself the remaining four annas share in mauza Deomai. The relevant portions of the second part of the document ran as follows— "The transferees, aforesaid, shall have, as proprietors, all powers, like myself to make all kinds of transfers and I have transferred the property, made gift of, with all sorts of interest relating thereto, just like myself, in favour of the transferees without the exception of anything and any interest and after the registration of this document I shall get the mutation of names effected, as required, in favour of the transferees.....as regards other property with 4 anna zemindari share in mauza Deomai, which is in my possession and which under this document has not been transferred, I shall have power of transfer and after my death my wife Musammat Gambhiri Kunwar shall have power of transfer in respect of the remaining property of all kinds" [or, as Shiam Lal contends, "shall have power of making every kind of transfer of the remaining property.”] For the present I do not make any arrangement or transfer regarding that property. If I, the executant, or my wife die without making [any] arrangement or transfer, than my property shall, according to shastra, devolve on my daughters who are alive or on their descendants, entitled to it. Therefore I and my heirs and representatives shall have no objection to it, and if they do so, it shall not be heard, and will be null and void. Hence I have executed these few presents by way of a deed of gift so that it may remain as evidence and be of use when needed.” The document was written in the vernacular language of the parties, and there was dispute with regard to the translation of that part of it corresponding in the original to what has been enclosed within brackets in paragraph 2 of the extract given above. The Board, following the usual practice, adopted the translation accepted as correct by the High Court. Nothing arose in this appeal regarding the construction or subject-matter of the first part of the document. The Board, following the usual practice, adopted the translation accepted as correct by the High Court. Nothing arose in this appeal regarding the construction or subject-matter of the first part of the document. It was, admittedly, what it purported o be, namely, a deed of gift. The dispute between the parties related to the construction of its latter portion. The contentions of the parties with respect to it were raised in the material portion of issue 2 and issue 3, which were as follows—Issue 2, “whether Pohkar Singh made any “will” by means of the deed of gift of 1895....or died intestate?" Issue 3, was Musammat Gambhiri the absolute owner of the properties by virtue of the “will” of Pohkar Singh as alleged by the defendants?" The Subordinate Judge held that the "deed" constituted also a "will" in favour of Musammat Gambhiri, but according to him there was nothing in its provisions "to show that" Pohkar Singh intended to confer an absolute estate, or "anything more than a limited estate on his wife, or that he" wanted to alter the course of inheritance in any way.” He accordingly held that the alienations complained of were invalid as they were not supported by legal necessity. The appellants were therefore given a decree for possession of the properties with profits, except two items about which there was now no dispute. On appeal, the High Court (Sulaiman C.J. and Bennet J.) held, agreeing with the Subordinate Judge, that no absolute estate was conferred on Musammat Gambhiri by her husband. They were also of opinion that the document was not intended by Pohkar Singh to effect an} testamentary disposition of the property; but they held that even if Musammat Gambhiri took the property on the death of Pohkar Singh as a Hindu widow, still the document conferred on her as full a power of transfer over the properties as he himself had and that the alienations in question, which were made by her acting on the power, were therefore valid. The appeals were therefore allowed and the plaintiffs suit was dismissed. 1944. June 12, 13. Khambatta for the appellants. The question turns on the construction of the deed of October 1, 1895. The appeals were therefore allowed and the plaintiffs suit was dismissed. 1944. June 12, 13. Khambatta for the appellants. The question turns on the construction of the deed of October 1, 1895. The document has been treated as in part a testamentary disposition, and the respondents say that by it (a) the widow takes an absolute estate, or (b) in any case it conferred on the widow a power of transfer analogous to the powers she would have if it were the transfer of an absolute estate. The real question, therefore, is, had she the right to deal with her husbands property as though it had devolved on her absolutely? The respondents also contend that the words " shall have power of transfer in respect of the remaining " property of all kinds " gives to the widow a power of transfer in respect of the entire estate, and not the four annas share in the one village, that is, in respect of properties which have not been dealt with by this deed. Had he been intending to dispose of his entire estate there would have been clear words to that effect. She either took a widows estate or an absolute estate; she cannot take a widows estate and at the same time take something which is larger than the widows estate— a full power of transfer. The High Court relied on a number of authorities as strengthening their view that although there was no devise of any property in favour of the wife by this document, yet there could be grafted on to the widows estate a power of transfer which would enlarge it to the equivalent of an absolute estate Bai Motivahoo v. Bai Mamoobai (( 1897) L. R. 24 I. A. 93.), Jogeswar Narain Deo v. Ram Chund Dutt (( 1895) L. R. 23 I. A. 37.), Narsingh Rao v. Mahalakshmi Bai (( 1928) L. R. 55 I. A. 180.), Seth Lakshmi Chand v. Musammat Anandi (( 1935) L. R. 62 I. A. 250.), and Rameshwar v. Balraj (( 1935) 40 Cal. W. N. 8.). The High Court said, however, that the authorities could all be easily distinguished. It is conceded that under the Hindu law this document can be treated as his will, but even so, it confers no more than a Hindu widows estate, not the larger absolute estate. W. N. 8.). The High Court said, however, that the authorities could all be easily distinguished. It is conceded that under the Hindu law this document can be treated as his will, but even so, it confers no more than a Hindu widows estate, not the larger absolute estate. It is submitted, however, that it is simply an out and out deed of gift in relation to the two properties specified therein, and no more; there is no bequest of any sort to the widow. In Hindu law there can be nothing like conferring a widows estate and at the same time grafting on to it a power which really would enlarge that estate into an absolute one. There is no doctrine as to powers under Hindu law as there is in English law, except the power of appointment given to a widow under a will. The whole document is to be looked at, and it either confers a widows estate or an absolute estate Mahomed Shumsool v. Shewukram (( 1874) L. R. 2 I. A. 7,14.); Sasiman Chowdhurain v. Shib Narayan Chowdhury (( 1921) L. R. 49 I. A. 25, 32.). There is not a clear and unambiguous expression of intention to give her an absolute estate. [Reference was also made to Jagmohan Singh v. Sri Nath (( 1930) L. R. 57 I.A. 291.) and to Mullas Principles of Hindu Law, 9th ed., paras. 176, 369A, 389, 398, 399 and 401.] This document, so far as concerns the widow, neither confers a gift to her coupled with the power of alienation, nor contains the word "malik" or words importing absolute ownership. Sir Thomas Strangman K.C. and Pullan for the first respondent, Shiam Lal. There are three broad questions. (a) Is the document, apart from its operation as a deed of gift, of a testamentary character? Both courts in India have come to the conclusion that it is. The test is, is it to come into effect only after the signatorys lifetime? That test is satisfied here, (b) What is its true construction? The document should be construed, as a matter of grammar, as giving a power similar to that which he himself possessed, that is, an absolute power to make any kind of transfer. The test is, is it to come into effect only after the signatorys lifetime? That test is satisfied here, (b) What is its true construction? The document should be construed, as a matter of grammar, as giving a power similar to that which he himself possessed, that is, an absolute power to make any kind of transfer. This can be regarded from two points of view—it is either the gift of an absolute estate, or it is a gift of the power of absolute transfer, anything untransferred to go according to Hindu law as on intestacy, (c) Having ascertained its true construction, are the provisions valid according to law? The nearest to the present case appears to be In re Sandford. Sandford v. Sandford([ 1901] 1 Ch. 939). In England there can be an estate of the type for which the respondent contends, why not according to Hindu law? It is open to him to give her an absolute interest, so why not an interest half-way, such as this. If he can give it absolutely, a fortiori he can give her a limited interest. There is difficulty in saying that she got an absolute estate, but that is immaterial for the purposes of this case, because she is given an absolute power of transfer, and there is nothing in the Hindu law to say that that is bad. None of the cases cited affects this one. Nothing has been, or can be, cited to show that this half-way house is not permitted, and, indeed, that is recognized by the Board in Narsingh Raos case (L. R. 55 I. A. 180.). Khambatta in reply. No one has ever contended that in Hindu law there can be a gift of an absolute power of transfer, and this is the first time that such a conception will be introduced into the Hindu law. Oct. 17. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued In this appeal, the substantial question for decision is, what were the powers conferred on Musammat Gambhiri under the document? Did she get under it rights higher than those which a Hindu widow would ordinarily get over her husbands properties? The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued In this appeal, the substantial question for decision is, what were the powers conferred on Musammat Gambhiri under the document? Did she get under it rights higher than those which a Hindu widow would ordinarily get over her husbands properties? Sir Thomas Strangman, on behalf of the first respondent, does not contend that the document bestows on her an absolute estate in her husbands properties, nor does he contend that it makes any testamentary disposition of the properties. So the question which their Lordships have to consider reduces itself to this, namely, is the interpretation put on it by the High Court correct, or should the correct interpretation be, as strenuously contended for by Mr. Khambatta for the appellants, that the document confers on Musammat Gambhiri nothing more than an ordinary Hindu widows limited estate ? If the High Courts interpretation is accepted as correct, then, the further question— also considered by the High Court—arises, namely, is the arrangement made by Pohkar Singh invalid under the principles of Hindu law? It is clear to their Lordships that the "deed" does not confer on Musammat Gambhiri any absolute estate in her husbands properties. This is easily inferable from the contrast in the language used by Pohkar Singh in connexion with the gift of the property which he has made by the first part of it in favour of Gauri Shankar and others and the language used in describing what has been bestowed on Musammat Gambhiri. It is enough to say that the word "malik" does not appear in the latter portion of the document. It is equally clear that Pohkar Singh has not gifted any property to his wife under the document, for he says, explicity "For the present I do not "make any arrangement or transfer regarding that property." The learned judges have pointed out that the word in the vernacular translated in English as "arrangement means a testamentary disposition of the property, and the word "transfer" would indicate transfer inter vivos, such as transfer by gift. Their Lordships apprehend that it is not the case of any party to the suit that any subsequent gift of the properties had been made by Pohkar Singh in favour of his wife. Their Lordships apprehend that it is not the case of any party to the suit that any subsequent gift of the properties had been made by Pohkar Singh in favour of his wife. Paragraph 31 of the written statement of Shiam Lal, one of the respondents before the Board, makes this clear. It therefore follows—if there was nothing else in the document— that Musammat Gambhiri would take only the limited estate of a Hindu widow in the properties of her husband. This would apply to all the properties of Pohkar Singh as the words the "other property with 4 annas zamindari share" are certainly wide enough to include the rest of his entire estate, though only the properties gifted to his daughters were specified in the brown paper attached to the main sheet. In their Lordships view, that part of the document may well be looked upon as a "will,” as has been accepted by the Subordinate Judge and treated as such by the learned judges of the High Court. The point is not of much importance in the case, but their Lordships are referring to it because it was argued in the courts in India that there are no words of bequest in that portion of the document, and learned counsel for the appellants made an allusion to it in opening the case, suggesting thereby that that part of the document may well be ignored altogether. Their Lordships think that the provisions in the document give a clear indication of the testamentary intentions of Pohkar Singh, and that is all that at this stage need be said on the point. So far, the construction of the document has not been difficult but does it by any means follow from what has been said above, as has been emphasized by Mr. Khambatta, that Musammat Gambhiri gets under the document only a Hindu widows limited estate and nothing more ? Their Lordships think not, for to hold so would be to ignore a significant part of it, to which their Lordships will now draw attention. Khambatta, that Musammat Gambhiri gets under the document only a Hindu widows limited estate and nothing more ? Their Lordships think not, for to hold so would be to ignore a significant part of it, to which their Lordships will now draw attention. With respect to the properties remaining after making the gift, Pohkar Singh says " As regards other property with 4 annas zamindari share in mauza Deomai, which is in my possession and which under the document has not been transferred, " I shall have power of transfer and after my death my wife "Musammat Gambhiri Kunwar shall have power of transfer in respect of the remaining property of all kinds." It is clear to their Lordships that by this portion of the document Pohkar Singh was conferring a power of transfer" in respect of his remaining estate on his widow. Note the words he uses he says "I shall have power of transfer and after my "death my wife Musammat Gambhiri shall have power of "transfer." It is evident that by these words he refers to the free power of transfer which an owner has over his properties, and he uses the same words in the same sense both with reference to himself and to his wife. In the earlier portion of the document referring to the gift, Pohkar Singh confers on the donees all powers like myself to make all kinds of transfers." It is obvious that the word "transfer" must be understood as having been used in the same sense throughout the document, in other words, it means that Pohkar Singh bestows on his wife as full a power of transfer as he, the owner, himself has over the properties. The contention that the power of transfer referred to, with respect to Gambhiri is merely the power of transfer which a Hindu widow has over her deceased husbands properties in cases of legal necessity cannot be accepted, for if that were so, there was no need to confer specifically any such power at all; for, indeed, as his widow, Gambhiri would always get a Hindu widows estate with power to transfer the properties for legal necessity. What appears to their Lordships to clinch the matter is the provision in the document "If I, the executant, or my wife die without making [any] arrangement or transfer, then my property shall, according to shastra devolve on my daughters who are alive . . . ." In their Lordships view, this provision contemplates two things (1.) what it clearly says, namely, that the property should devolve according to shastra if he or his wife died without making any arrangement or transfer"; and (2.) what it implies, namely, that the property would not devolve on daughters according to Hindu law if his widow had made any other arrangements during her lifetime. Arrangements with respect to the properties are here contemplated, which certainly implies that Pohkar Singh had intended to confer powers on his wife to effect such arrangements. There is nothing in the document to show that the transfer herein contemplated is one for legal necessity only. As observed by the learned judges of the High Court had he intended that the property should devolve on the daughters in spite of any transfers having been made by the widow which are invalid under the Hindu law, he would not have prefixed the devolution according to shastra by the condition of his wife dying without making any arrangement or transfer." It is true that their Lordships have said in Mahomed Shumsool v. Shewukram (( 1874) L. R. 2 I. A. 7, 14.), "In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu....knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate,” but that statement is no authority for the proposition that if the terms of the will give the woman an absolute right of disposition those terms should be ignored. It may be assumed that a Hindu....knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate,” but that statement is no authority for the proposition that if the terms of the will give the woman an absolute right of disposition those terms should be ignored. In this connexion their Lordships may well draw attention to the following observations made by Sir George Lowndes in delivering the judgment in Jagmohan Singh v. Sri Nath (L. R. 57 I. A. 291, 294.) "There is, their Lordships think, no magic in the use of any particular word or form of words; the document must be construed as a whole, and its fair import deduced in the ordinary way, and if the conclusion come to is that it confers the estate out and out with no reservation, the right of alienation will be included just as much as any of the other incidents of ownership, and just as much where the gift is to a female as where it is to a male.” Construed in this light, their Lordships have no doubt that by the terms of the deed in question Pohkar Singh has conferred on his widow full power of transfer over the properties which she has inherited from him as his widow. Under the Hindu law a widow or other limited heir has no power to alienate the estate inherited by her from the deceased owner except for the following purposes, namely—(1.) religious or charitable purposes, (2.) other purposes amounting to legal necessity, and (3.) for the benefit of the estate. The question now arises whether, if a Hindu owner confers an absolute power of transfer on his next heir, the widow, who would otherwise have had only a limited power of transfer, does she thereby get any higher rights? It is not free from difficulty. On the one hand it may be said that when a testator dies without making any disposition of property his widow would ordinarily get only such estate as the Hindu law allows her, and where there is no devise of any estate, as here, in favour of the widow, the conferment of an absolute power gives her no more rights than those possessed by a Hindu widow. On the other hand, if the husband could validly confer on her a full power of transferring the estate without limitation then, as stated by the High Court she would acquire an estate almost like an absolute interest differing only in this respect, that in the case of an absolute estate it would devolve on her heirs, whereas in the case of a widows estate with full powers of transfer, the property remaining untransferred would devolve on the next heir of the husband, though where daughter or daughters sons would be the next heirs, they would be the heirs of both" If the conferment of such power of transfer on a Hindu widow is not repugnant to any principles of Hindu law, then it appears to their Lordships that such conferment should be upheld, as by so doing they would only be giving effect to the intentions of the testator, such intentions being not in conflict with the law. It may be stated at once that no decision directly bearing on the point has been brought to their Lordships notice; those that are said to throw some light on it will be referred to presently. On principle, the difficulty presented by the case does not seem to be insurmountable. The objection strongly urged is against the conferment of power of transfer on Gambhiri without any bequest of property in her favour; but the testator knows that she would inherit the estate in the ordinary course. What she will not so get ordinarily has now been bestowed on her by this "deed." The power of transfer has not been conferred on one, while the property devolves on another. Pohkar Singh was the absolute owner of the estate, and had full power to dispose of it in any manner he liked. While he had full power to bestow an absolute estate on his widow, their Lordships cannot find any valid objection to his being allowed to bestow a fuller power of transfer on her who would get the estate as his heir. This conclusion does not clash with any fundamental principle of the Hindu law. While he had full power to bestow an absolute estate on his widow, their Lordships cannot find any valid objection to his being allowed to bestow a fuller power of transfer on her who would get the estate as his heir. This conclusion does not clash with any fundamental principle of the Hindu law. In the course of the arguments counsel drew their Lordships’ attention to Bai Motivahoo v. Bai Mamoobai (L. R. 24 I. A. 93), Narsingh Rao v. Mahalakshmi Bai (L. R. 55 I. A. 180.), and some other cases referred to in the High Courts judgment to show, that conferment of power to adopt, of larger power to alienate, etc., on persons holding limited estates are not illegal, but as these cases are admittedly distinguishable on facts their Lordships do not think it is necessary to discuss them. However, one decision may be referred to as of some interest having regard to its facts. In Promode Bala Debi v. Krishna Sundari Debi (( 1905) 1 Cal. L. J. 301.) a testator " by " his will empowered his two wives to make a patni settlement " of his immovable property," and wished that they would make the patni settlement with his brother. The two widows were given monthly allowances, but no bequest of the estate was made in their favour. By one clause in the "will" full authority was given to three persons to do what they thought fit as regards the performance of the rites and the debts and the dues. It was held by the learned judges of the High Court that the clauses of the "will" by which the executors were authorized to pay the expenses of the rites and. ceremonies and the debts and the widows were empowered to make patni settlement of the immovable property were not inconsistent. The power of the widows to make patni settlement of the immovable property was recognized as it did not clash with the authority given to the executors. As pointed out by the learned judges of the High Court in the present case. "This was a case where there was in reality no bequest of any estate to the wives at all, and they were given some allowances and only a power to make a patni settlement with the testators brother. As pointed out by the learned judges of the High Court in the present case. "This was a case where there was in reality no bequest of any estate to the wives at all, and they were given some allowances and only a power to make a patni settlement with the testators brother. The power to make such a transfer was assumed to be valid by the Bench, and it was not considered that the conferment of such a power by a Hindu owner was in any way repugnant to the principles of the Hindu law.” This case is referred to as an instance to show that the idea of conferring enlarged powers of alienation on widows without making bequest of any estate is not alien to the minds of Hindu testators. However, their Lordships decision in the present case must rest on the principles on which they have based it, and not on any express decision brought to their notice. “For the above reasons, their Lordships hold, agreeing with the High Court, that although Musammat Gambhiri Kunwar did not acquire an absolute estate under the will of her husband, she acquired thereunder a full power of transfer in excess of the ordinary powers of transfer for legal necessity passed by .her as a Hindu widow, and in the exercise of that full power she had authority to make an out and out gift to her daughters, which would remain binding on the reversioners even after her death.” The alienations questioned in these appeals are all valid. In the result, these consolidated appeals should be dismissed, with the costs of the respective respondents. Their Lordships will humbly advise His Majesty accordingly.