1. The controversy in appeal here is with regard to the true construction and interpretation of the registered will executed by the testator Dewan Singh in favour of his wife Dhan Kaur. Did he thereby confer an absolute estate upon her or was she left merely as a limited owner with no right of alienation? The contest now is between the widow and the nephews of the said Dewan Singh.
2. The will states,"Upon my death my wife Dhan Kaur shall be the sole full proprietor of my entire moveable and Immovable property situate anywhere". Below the signatures of the testator and the attesting witnesses, at the foot of the will, appears the clause,"I certify that no word in the writing is doubtful and Shrimati Dhan Kaur shall have no right to alienate my Property". This is signed by Dewan Singh but not by any of the attesting witnesses. The plaintiffs, who are the nephews of Dewan Singh, relying upon this later clause, now seek a declaration that his widow Dhan Kaur was not entitled to alienate the property in suit not entitled to alienate the property in suit being only a limited owner thereof.
3. On the face of it, this later clause cannot be reconciled with the main provision in the will bequeathing absolutely to the widow Dhan Kaur all the property owned by the testator and is thus repugnant to it.
4. The rule is well-settled, as summed up in para 392 of Mulla''s Hindu Law (Fifteenth Edition), "Where by the terms of a deed or will an absolute estate of inheritance is created in favour of a person, any subsequent clause purporting to restrict that interest is invalid, and the donee will take an absolute estate as if the document contained no such clause." Illustrative of this rule is the judgment of the High Court of Lahore in Mt. Bishan Devi v. Jagat Singh AIR 1937 Lah 353, where it was held that where the earlier part of a will confers an absolute estate in favour of the testator''s wife, but the later clauses in it seem repugnant to that absolute estate created in her favour, the later clauses must be regarded as invalid, as they cannot cut down the estate. This was later approved in appeal by the Privy Council in
5. Looking to the surrounding circumstances, too, this later clause cannot be taken to reflect the true and dominant intention of the testator. In the recital of the will, the testator mentions in clear terms that Dhan Kaur had been serving him and he wanted to reward her for this. It has come on record that by an earlier will, he had bequeathed to his widow only half the property while the other half he had left to the Akal Takht. By this will, he left the entire property to Dhan Kaur. If he had merely cancelled the previous will, the effect would have been that Dhan Kaur would have inherited the entire estate as full owner in view of the provisions of the Hindu Succession Act, 1956. It is apparent that it is something more that he wanted to give which impelled him to execute this will in favour of his widow leaving her not only all the property but also making her full owner of it. It would be no reward if she were to be left merely as a limited owner.
6. Further, a point of material significance here is that while the will bore the attestation of witnesses, this later clause was merely signed by the testator himself. It is this that led the lower appellate Court to entertain some doubts about this clause too. At any rate, once the testator had divested himself of his entire estate, as he did in the present case by his will, he could not later by adding a subsequent clause to it seek to detract from it by laying down condition clearly repugnant to the earlier bequest. Indeed, as was observed by the Supreme Court in
7. There are, thus, no grounds to warrant any interference with the judgments and decree of the Court below, which are accordingly hereby upheld and affirmed.
8. This appeal is thus dismissed with costs throughout.
9. Appeal dismissed.
