Asharfi Singh Vs. Bidya Prashad Narayan Singh

deed of gift by hindu husband to his wife--construction--donee's estate--description of donee as malik--istamrari mokarrari leas granted by donee.;where a hindu husband in a deed of gift to his wife described her as malik but limited her powers of alienation and disposition of the property in certain specified ways:;(1) that the clause in the deed containing the substantive disposition was subject to certain enumerated conditions and conferred upon the wife an ordinary hindu woman's estate with powers to sell or to appoint by deed or will to certain specified persons, and if she did not exercise such powers, they were exercised in favour of these persons by the donor:; (2) that the absence of provisions restricting the wife from granting a mokarrari lease did not by implication confer power to do so. - shaw, j.1. everything that could be said in favour of this appeal has been admirably said by the learned counsel for the appellant. their lordships adopt the opinion of the court below, which is appealed from, but desire only to say that they cannot see their way to acquiesce in the characterisation of the conveyance of the malik as occurring in a preamble in the deed. when the deed is looked at it is seen that the actual gift to the donee of the malik is that which, although characterised as in the preamble, is in truth in the substantive disposition.2. with that correction, however, full assent must be given to the proposition that the deed as a whole must be looked to. in the primary clause, called erroneously a preamble, and now referred to as the actual portion constituting the gift, these words follow the gift--'and all rights appertaining thereto with the following conditions' it appears to their lordships that that fundamentally affects the construction of the deed as a whole, because the whole balance of the document consists in the insertion of these very conditions under which the deed of gift is accomplished. so construed, the deed as a whole leaves no room for doubt that it did not confer the maliki rights without conditions, nor did it confer on the donee those rights of property and alienation which a bare disposition in favour of a person denominated as malik would have involved.3. on the whole without entering upon details, the decision arrived at appears to their lordships to he sound in principle and in accord with authority, and their lordships will humbly advise his majesty that the appeal be disallowed with costs