John Wallis, C J

[1] Construing this very deed in A.S. No. 74 of 1896 Collins, C.J. and Shepherd, J. observed " There being no indication of intention to give a larger estate we must assume that the husband intended that a widow s estate only should pass." The trend of the later decisions in this Court beginning with Sambasiva Aiyar v. Venkateswara Aiyar 1907) I.L.R. 31 M. 179 is against making any such assumption, and they appear to be supported by the judgment of the judicial Committee in Surajmani v. Rabi Nath Ojha (1917) I.L.R 30 A. 84 which cites with approval a ruling of Milter, J. in Kollany Kooer v. Luchmee Pershad (1875) 24 W.R. 395 that there is no presumption that a gift to a widow means a limited gift.

[2] 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 Moulvi Mahomed Shumool Hooda v. Shewakram (1874) L.R. 2 I.A. 7 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.

[3] The question then is, is there anything in the terms of Ex. III which warrants the application of the rule. The opening recital is to the effect that the settlor made " the following gifts (inams) of the (properties belonging to him on the occasion of his adopting as his son a boy of ten years of age. There is first a gift of chattels and money to a maternal nephew, then directions that certain allowances of paddy should continue to be paid to two descendants of his maternal uncles, that six Brahmins should be fed daily from the income of certain lands, and that a saffron allowance of Ks. 25 should continue to be paid to his sister. Then comes the disposition in favour of the widows. Of the remaining property the adopted boy " is to be entitled to and enjoy one-half." "Of the remaining half these two persons, my senior wife Sowbagiavathi Kamatchi and my junior wife Sowbagiavathi Tulja shall each take a half". On the language of this instrument, I have come to the conclusion that there is no sufficient reason for cutting down the disposition in favour of the widows. Herabai v. Lakshmibai (1887) I.L.R 11 B 573 was decided on the view that there is a general presumption that a gift to a woman is only of a woman s estate, though on the language of that document, which was different from the language here, the rule of construction laid down in Moulvi Malomed Shumsool Hooda v. Shewakram (1874) L.R 2 [LQ/PC/1874/18] I. A 7 may have been applicable as was held, though with a different result in Seshayya v. Narasamma (1899) I.L.R. 22 M. 35

7. Sir Charles Sargent, however, in the course of his judgment spoke of "the extreme improbability that having adopted a son the testator, should have intended to give more than a life-estate, or at the utmost, a widow s estate to his wife," As I stated at the hearing, my very general impression derived from the cases which have come before me is, that there is no such extreme improbability in this Presidency and my learned brother, whose opinion on such a point is entitled to much greater weight, is of the same opinion, I concur in the order proposed.

Seshagiri Aiyar, J.

[4] I entirely agree. The suit is to recover possession of properties which were last in the enjoyment of one Tulja Boyee, Tulja Boyee s husband Ramojee Bavajee adopted plaintiff s father Bavajee. He executed Ex.III on the 6th of August 1858 by which he settled one-half of his properties upon his adopted son and gave the other half to his two wives. Tulja Boyee, the junior wife took possession of a fourth share under that settlement. The defendant claims under her will.

[5] The points for consideration are whether Tulja Boyee took an absolute estate under Ex. III and whether she was competent to dispose of the property by a will.

[6] I shall first deal with a few decisions of the Judicial Committee which were quoted as indicating the principles on which an instrument like the present should be construed. The learned Advocate General relied upon Moulvi Mahomed Shamsool Hooda v. Shewakram (1874) L.R. 2 I.A. 7 at 14 and Radha Prashad Mullck v. Ranee Mani Dassee (1908) I.L.R. 3

5. C. 896 (P.C.) Mr. Ramachandra Aiyar quoted Surajmani v. Rabinath Ojha (1907) I.L.R. 30 A. 84 (P.C.). In the first two cases the facts were almost identical. In both of them the father gave properties to his daughter or daughters and their children. In both, the Judicial Committee held that the daughter or daughters took only a limited estate, and pointed out that in construing wills of Hindus, their ordinary notions as to the devolution of property may be taken into account. In these cases it was clear that the daughters and their children could not have been regarded as tenants in common, because the children were not mentioned by name and it was as a class that they were referred to. The question therefore was whether the words "and their children" should be regarded as mere surplus age or whether they should be referred to to ascertain the intention of the donor. Their Lordships held that ordinarily a Hindu would desire that his properties should remain in the possession of his descendants, and that consequently the donor could not have intended to give absolute powers of disposition to the daughters. I do not think that these two judgments are authorities for the proposition that in all cases where gifts are made to females, a Hindu must be deemed to have given them only an estate for life. On the other hand the decision in Surajmani v. Rabinath Ojha (1907) I.L.R. 30 A. 84 (P.C.) relied on for the appellant shows that in the opinion of their Lordships no difference should be made between a male and a female provided the words of gift are sufficiently clear to convey property. They quoted with approval the dictum of Mitter, J in Kollany Kooer v. Luchmee Pershad (1874) 24 W.R. 395 wherein the learned Judge stated : "Wemust hold that gift in question was an absolute gift, unless it can be shown that by the Hindu Law, a gift to a female means a limited gift or carries with it the effect of creating an estate similar to the " widow s estate" under the law of inheritance. I am not aware of any such provision in the Hindu Law nor have we been referred to any authority in support of it". There can be no doubt that the Hindu Law does not enunciate that women as donees can only take an estate for life. The Judicial Committee say at the end of page 89 : " Nothing has been found in the context here or the surrounding circumstances or is relied upon by the respondents, but the fact that the donee is a woman and a widow, which was expressly decided in the last mentioned case not to suffice". The case referred to is Lalit Mohan Singh Roy v. Chukkun Lal Roy (1897) I.L.R. 24 C 834. If we remember that Mr. Justice Mitter s decision in Kollany Kooer v. Luchmee Pershad (1875) 24 W.R. 395 was given after examining at some length the dictum of the Judicial Committee in Moulvi Mahomed Shumsool Hooda v. Shewakram (1874) L.R. 2 I.A. 7 it is clear that their Lordships advisedly approved the principle enunciated by Mitter J. In recent years there has been practical unanimity in Madras as to the construction to be placed upon similar documents, The first decision was in Sambadva Aiyar v. Venkateswara Aiyar (1907) I.L.R. 31 M. 179 which was contemporaneous with Surajmani v. Rabinath Ojha (1907) I.L.R. 30 A.

84. Venkataraz v. Kotayya Odai Muthayya v. Kavari Kothandaramayya (1814) M.W.N. 387 Rathna Chetti v. Narayanaswami Chetty Ramanuja Aiyangar v. Sadagopachariar and Namadvayam Filial v. Kutkalingam Fillai (1917) M.W.N. 78 have decided that the sex of the donee is not a ground for cutting down an otherwise full estate.

[7] The learned Advocate General relied upon some decisions of the other High Courts. Most of them were earlier than Surajmani v. Rabinath Ojha (1907) I.L.R. 30 A. 84 and I do not think it necessary to examine them at any length. I would only say with reference to the observations of Sir Charles Sargent in Hira Rai v. Lakshmi Rai (1887) I.L.R. 11 B. 573 that at any rate so far as the Southern Presidency is concerned there is nothing improbable in a Hindu giving an absolute estate to his wife when he directs an adoption to be made to him. Cases have not infrequently come before the courts in which in order to avoid possible conflicts between an adopted son and his widow-a Hindu has been found to give a portion of his property absolutely to his widow and the other portion to his adopted son.

[8] In deducing a rule of construction, a few considerations should be borne in mind. Section 8 of the Transfer of Property Act lays down : "Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is capable of passing in the property or in the legal incidents thereof." Therefore unless there is an expressed or implied qualification to the contrary the donor must be deemed to have conveyed all that he was possessed of in the property granted. The Judicial Committee in the supplemental volume of Indian Appeals at page 47 (Tagore v. Tagore) recognised this principle. Consequently, if the words employed are clear and unambiguous no matter who the donee is, whether a male or a female, the language of the gift must be given effect to. This is what was laid down in Surajmani v. Rabinath Ojha (1907) I.L.R. 30 A.

84. But there may be cases in which it may be necessary owing to the language employed not being clear and precise, or being superfluous to find out the intention of the donor. In such cases, as the learned Advocate-General contended, the personal law of the donee may be taken into account. That is to say, the ordinary rule of inheritance applicable to him or her may be called in aid. This is not a rule of presumption so much as it is one for gathering the intention of the donor. Broadly speaking it may be said that if the language of the instrument is capable of conferring an estate of inheritance, considerations regarding the sex of the donee should be discarded. Where the language is ambiguous, then recourse can be had to ordinary notions of Hindus, as a rule of construction in finding out what the intention of the donor wa. Now I shall turn to Ex. III and see whether in the light of the above discussion the document confers only a life-estate upon Tulja Bhoyee. It was not seriously argued that there is any material difference between the words employed in the case of the adopted son and the words employed in the case of the two wives. Nor was it argued that the words employed in the case of the adopted son were not capable of conveying to him absolute rights in the property. I therefore fail to see why a distinction should be made between the two classes of donations. Further the preamble of the deed says: " I am giving these properties as Inam." The donor was a Mahratta Brahmin who lived in Tanjore and the document was written in Mahratti. Wilson in his Glossary says about the word Inam : " In India and especially in the south and amongst the Mahrattas, the term was especially applied to grants of land rent-free, and in hereditary and perpetual occupation." In another dictionary by a Mahratta scholar the word Inam is defined as meaning " a grant in perpetuity without conditions." These definitions support the conclusions at which I have arrived. In my opinion the gift to Tulja Bhoyee was an absolute one. There are certain legacies which have been directed to be paid out of the estate. As they are in terms only for life, the main dispositions are not affected by these life grants.

[9] It was next argued by the learned Advocate-General that even supposing that it was an absolute grant to Tulja Bhoyee she was not competent to dispose of the property by will. He relied upon Bhujanga Rou v. Ramayamma (1884) I.L.R. 7 M. 387 and Nannu Meah v. Krishnaswami (1890) I.L.R. 14 M. 274. At the same time he frankly admitted that the two decisions are inconsistent with the conclusions of the Judicial Committee in Surajmani v. Rabi Nath Ojha (1907) I.L.R. 30 A. 84 where one of the widows who had acquired her property under a deed of gift from her husband disposed of it by a testamentary instrument. Their Lordships upheld the will of the Hindu widow. Reference may also be made to Fatehhand v. Rup Chand (1916) I.L.R, 38 A. 446 where it was held that a widow could dispose by will property which had come to her under a deed of gift. I am unable to find any valid reason for the view that properties in which a Hindu widow has an absolute estate cannot be disposed of by her by a testamentary instrument. These two Madras decisions must be deemed to have been overruled by Surajmani v. Rabinath Ojha (1907) I.L.R. 30 A. 84 and Fatehchand v. Rup Chand (1916) I.L.R, 38 A. 44

6. A portion of the property in suit is governed by the decision of this Court (vide Ex. A). To that extent, the defendants claim is barred by res judicata. The decree of the Subordinate Judge must be reversed and the suit should be dismissed with costs except in respect of the property which was the subject matter of the suit under Ex. A. The memo of objections is also dismissed with costs.