Chandra Reddy, J.

1. This second appeal is placed before a Bench as Umamaheswaram J., who heard it first thought an important question of law was involved.

2. The controversy in the appeal centres round Section 6(d) of die Transfer of Property Act. The facts that have given rise to this appeal may be briefly recalled. The respondent gave two acres of land for maintenance to his brothers widow under Ex. A-1 dated 29-4-1933. He took the property from her on lease under three documents, Ex. A-5 dated 16-7-1934 for a period of three years, there being a renewal under Ex. A-6 dated 30-4-1937 for a period of three years.

On the expiry of this lease, the respondent executed Ex. A-7 on 4-5-1940, for another term of five years. Shortly after the termination of the last lease, the grantee sold her rights in the property to the appellant for a sum of Rs. 1,000/- under Ex. A-8. As the respondent refused to surrender possession of the property to him, he was obliged to institute the present suit to recover possession of the plaint scheduled land. The suit was contested on several defences, but the one relevant for the purpose of this enquiry is that as the interest created in favour of the widow under Ex. A-1 was restricted to her enjoyment personally, the transfer was invalid and the vendee had acquired no rights thereunder.

The Subordinate Judge, who tried the suit, held that since life interest was given to the widow in the concerned property, it was competent for her to convey her interest. On appeal, the District Judge differed from him and dismissed the suit as, in his opinion, the enjoyment of the property was restricted to her personally. We have now to consider which of the two views is correct.

In order to appreciate the point that falls to be determined in this appeal, it is convenient to refer to the terms of Section 6 of the Transfer of Property Act.

"Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

X X X X X

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him".

The question debated before us is whether Ex. A-1 created a life interest in the grantee or whether it bestowed only an interest which was inalienable. The answer to this depends on the relevant clauses in the document Ex. A-1.

"The schedule property worth Rs. 300/- is given to you for maintenance and put in your possesssion this day. From now onwards, you may keep the said property in your possession and enjoy the income therefrom for your life. I and my heirs shall take possession of the property given to you for your maintenance after your death. You should pay the Circar cist due on the land. You should not alienate the property in any manner, nor contract any debt thereon. You should enjoy the produce of this property and should not claim enhanced maintenance. I and my heirs shall not raise any disputes in respect of this property".

Is the language of the document consistent with the creation of life interest or is it something less than that bringing it within the purview of Section 6(d) of the Transfer of Property Act

3. In support of his conclusion, the District Judge relied on Basangowda Virupaxgowda v. Irgowadati Kallangowda, ILR 47 Bom 597 and Lachhmeshwar Sahai v. Mt. Moti Rani, A.I.R. 1939 PC 157 [LQ/PC/1939/26] . In the first of the cases, the document that was to be considered by the learned Judges ran as follows :

"I have taken for myself the property for the period of my life-time. I alone shall pay Judi.............. and I shall go on making Vahivat. I shall not sell or mortgage or give it as present or in any manner give it into the possession of others. If I do so, it will not be valid.............. After my death, the said minor alone is owner of the said property". In execution of a decree obtained against the widow, the decree-holder applied to attach and sell her interest in the property. The question arose whether the restriction on alienation prevented the judgment-debtor from having a disposing power within the meaning of Section 60, and consequently, if the restriction was valid, whether the property could be attached. This was answered in the affirmative having regard to the contents of that document. In A.I.R. 1939 PC 157, [LQ/PC/1939/26] one Narbadeshwar Sahai, a Hindu governed by the Mitakshara, had married thrice and had a son by each of the wives. In a suit brought by one of the sons for partition, the four annas share of the plaintiffs was separated, the father and brother being also entitled each to a four annas share and the 3rd wife, who by that time had no son, being given a four annas share for her life.

The second son brought a similar suit in 1923 for a four annas share out of the remaining twelve annas. Meanwhile, the 3rd wife, who was the respondent before their Lordships, give birth to a son. The matter having thus become complicated, it was referred to arbitration and a partition deed was entered into by Narbadeshwar Sahai, his wile and his three sons by and under which the 3rd wife relinquished her four annas share which was obtained under the decree of 1922 and Narbadeshwar Sahai and each of the three sons was allotted a four annas share in severalty. In its stead she was given an interest after her husbands death in the four annas share, the passage bearing upon it was this :

...... my four annas share (referring to Narbadeshwar Sahai) shall remain in possession and occupation of Bahuria Moti Rani Kunwar, Party No. 4 up to her life time with life-interest, that up to her life-time Bahuria Moti Ram Kunwar shall have a right to appropriate the profits therefrom after paying the Government revenue and the other Government dues, without a Power of making a mortgage or other transfers, that if Bahuria Moti Rani Kunwar dies before the death of me, Babu Narbadeshwar Sahai ............"

The language of this document in so far as it related to the interest created in favour of Rani Kunwar presented some difficulty, and therefore the High Court which disagreed with the trial Court took into consideration the surrounding circumstances in interpreting the language of the document. Their Lordships of the Privy Council, in agreement with the High Court, decided that no lite estate was created in favour of Rani Kunwar, but that she was given only a right to appropriate the profits, thereby attracting the provisions of Section 6(d) of the Transfer of Property Act. It was remarked by the Privy Council that the language of the partition deed was not clear, and for that reason they had to take into account the attendant circumstances viz., Rani Kunwar relinquishing her life-interest in the four annas share which was assigned to her under the decree of the Court and was content to take something less than that. In those circumstances, Their Lordships, thought that the only reasonable inference was that the interest created in favour of the third wife was inalienable. We do not think that either of these two cases renders much assistance to the respondent.

4. In addition to these two cases, reliance was placed by Mr. Ramanarusu, the learned counsel for the respondent, on a judgment of the Patna High Court in Lal Mohan v. Onkar Mall, A.I.R. 1946 Patna 55. In our opinion, this case also is of the same category as the two noticed above. On a construction of the document, which was a compromise petition, it was held that it was a family arrangement which did not involve any transfer and that what was given to the widow was something which was restricted to her enjoyment personally.

The doctrine of this case also is inapplicable to the instant case. None of these cases has laid down as an invariable rule of law that any property given for maintenance to a widow is inalienable falling under Section 6 (d) of the Transfer of Property Act as contended by the learned counsel for the respondent. The stress of the argument on behalf of the respondent is that since a restriction was placed on the power of disposal of the grantee and since she was prohibited from incurring any debts, the interest that was created in favour of the widow was one that was within the purview of Section 6(d) of the Transfer of Property Act and that it did not involve any transfer of property.

We cannot subscribe to this proposition. If by the preceding disposition a life-estate is created the subsequent clause imposing a condition or limitation restraining the transfer comes within the mischief of Section 10 of the Transfer of Property Act and consequently void since the right of transfer is incidental to the beneficial enjoyment of the property for life. If the condition is to be held to be valid and not repugnant to the prior disposition, the grantee would be practically deprived of the enjoyment of that property. Therefore, in our judgment, the subsequent limitation violates the right that was conferred under her in the earlier part of the document.

We also feel that the argument of Mr. Rajeswara Rao that the condition annexed to this enjoyment of the property relates particularly to an outright and absolute transfer of property and was not meant to prevent her from transferring the life estate which she had is not altogether without force. However, we are relieved of the necessity of going into that matter in the view we take on this question.

On the terms of the instrument, we have no hesitation in thinking that what was bestowed upon the widow Somamma was a life estate and her enjoyment of the property was not confined to her personally. The relevant clause only connoted a life estate. There is nothing in the language of the document to indicate that what was given was limited to her personal enjoyment falling short of a life estate. The very fact that the respondent himself had taken this property on lease from his sister-in-law denotes that the parties did not intend to impose any limitation on the enjoyment of the property.

Our view is reinforced by a judgment of the Allahabad High Court in Dhup Nath v. Rama Charitra, ILR 54 All 366 : A.I.R. 1932 Allahabad 662. Here also property was put in possession of the widow in lieu of maintenance. When the widow gifted it, the grantors brought a suit for cancellation of the gift deed. Repelling the contention of the plaintiff that the widow had no right to transfer the property during her life-time, the High Court upheld the transfer during the duration of the widows life. The remarks of the learned Judges are apposite in this connection.

"...............A Hindu widow put in possession of the property in lieu of maintenance may not be able to manage her property herself and may be under the necessity of leasing out the property for purposes of good management. Similarly, in years of dearth and scarcity, she might he compelled to raise money against the security of the property so given to her..." The judgment of a single Judge of the Calcutta High Court, Panckridge, J., in Kamal Chunder v. Sushilabala Dassee, A.I.R. 1938 Calcutta 405 is to the same effect.

5. In our judgment, the test for deciding whether the property allotted to a widow or to some other person for maintenance or for any other purpose comes within the ambit of Section 6(d) or not is whether the deed conferred any right against the properties comprised therein or whether the intention was to give her for her maintenance a personal right to appropriate the profits in the property assigned to her. The answer to this question depends upon the facts of each case and the interpretation of the relevant document. If, on a construction of the relevant terms of the instrument, the Court comes to the conclusion that rights were created against the property, the matter is taken out of the purview of Section 6(d) of the Transfer of Property Act.

6. It follows that the interpretation placed by the Subordinate Judge is correct and the decree and judgment of that Court will have to be restored and that of the District Judge set aside. Having regard to the circumstances, of the case, we think this is a fit case where the parties should be directed to bear their own costs throughout.

Appeal allowed.