P.N.BHAGWATI, D.P.DESAI, M.U.SHAH - (1.) The short question that arises for determination in this appeal relates to the construction of a will date 30th September 1934 made by one Zaverbhai a resident of Surat. The question is what is the nature and quality of the interest granted under the will to Laxmi widow of Zaverbhai. Zaverbhai died on 18th October 1954 leaving him surviving his widow Laxmi and two sons and a daughter of his sister namely Shantilal Govind and Chhani. Shantilal was living with Zaverbhai at the time of his death and was looking after him and attending to his Deeds. The properties left by Zaverbhai consisted of certain movables about which there is now no controversy between the parties and an immovable property situate in the City of Surat. The disposition of these properties after his death was made by Zaverbhai by his Will dated 30th September 1954. The original will is in Gujarati language and we shall have occasion to refer to some of the Gujarati expressions used by Zaverbhai which have been the subject matter of controversy between the parties but without attempting to give a translation of those expressions at this stage we may for the time being refer to them in Gujarati and reproduce below an agreed translation of the relevant clauses of the will with those expressions retained in Gujarati. The agreed translation is as follows:- I Zaverbhai Narottamdas Caste Gola about 52 years occupation grain business residing at Begampura Golwad Surat hereby make my last will.... . . .In order to see that after my death there is no dispute with respect to my properties and that Vyavastha is done in respect thereof according to my wishes I hereby make this the last will which will come into force after my death ................ (1) There has been separation from my brothers since a long time and I am separate from my brothers and nephews since long. I carry on my trade separately and I have no concern whatsoever with my brothers sons All of them separately carry on their respective trades and they are separate in every respect. (2) I have a wife by name Lakhami who is daughter of Ramu Megha. I have no issue. I have my sisters sons viz. Shantilal Balubhai and Govan Balubhai and sisters daughter viz. Chhani. My sisters son Shantilal Balubhai is at present staying with me and is serving me. There is nobody else except the aforesaid persons in my near relations. (3) xxx xxx xxx xxx xxx (4) make my wife Lakhami to be full and sole Waras of the immovable property stated in para 3 above and of the entire movables including furniture ornaments goods of the trade etc. whatever may be situated therein and of the properties which I may acquire hereafter. After my death my wife Lakhami will obtain possession of all the movable and immovable properties by virtue of Malki Hak. And she can by Malki Hak do such Vyavastha in respect thereof according to her sweet will and desire. Nobody else can raise any dispute therein and even if any dispute is raised the same is void and of no effect by this (Will). (5) I have closed my business because of my indifferent health. I have no debt to be paid. I have some outstanding recoveries. After my death my wife as Malik should recover the balance of my outstandings. If there are any debts my wife should repay the same after verifying the same. (6) After my death my sisters son Shantilal Balubhai will stay with my wife. If he improves his conduct and staying with my wife serves her and gives her satis faction then after my wifes death Shantilal will become Malik of Baki Reheti immovable and movable properties. But he will not be entitled to do any Vyavastha in respect of immovable property. After Shantilal his sons will become Malik thereof in equal shares. But I do not keep any right or claim of Shantilal during the lifetime of my wife. If Shantilal does not carry on well with my wife then after the death of my wife the sons of Shantilal shall be Malik of all my movable and immovable properties in equal shares and I do not keep any claim of Shantilal. (7) If my sisters son Govind Balubhai has got any difficulties and if he is in need of money then my wife should give him the amount of Rs. 100.00 to Rs. 150.00 from my properties. My wife should also incur expenses which are required to be incurred in connection with my sisters daughter Chhanis visits. Shantilal should incur such expenditure after the death of my wife. xxx xxx xxx xxx xxx Pursuant to the will Laxmi took possession of the movable and immovable properties left by Zaverbhai at the time of his death and enjoyed the same. Now it appears that Shantilal did not behave properly with Laxmi and made her extremely unhappy to such an extent that she was driven to file a suit against him for evicting him from the immovable property in which he was residing with her. We are not concerned with that litigation in the present appeal and we need not therefore say anything more about it. Suffice it to state that Laxmi was so dissatisfied with Shantilal that she made a will dated 9th April 1955 giving away all the movable; and immovable properties received by her from her deceased husband to Chhani. Laxmi also executed a deed of gift dated 25th January 1958 giving in favour of Chhani the immovable property acquired by her from her deceased husband. On the death of Laxmi on 20th March 1960 a question arose as to who was entitled to the movable and immovable properties left by Zaverbhai. Chhani claimed these properties under the will dated 9 April 1955 made by Laxmi and also founded her claim to the immovable property on the gift deed dated 25th January 1958 executed by Laxmi. Shantilal and his sons on the other hand laid a claim to the properties under the will of Zaverbhai and contended that on a proper construction of the will Laxmi had merely a life interest in the properties left by Zaverbhai and. she was not entitled to dispose them of either by gift or by will and on her death they came to Shantilal and his sons. Since Chhani tookover possession of the properties on the death of Laxmi Shantilal and his sons filed a suit against Chhani and the executors of the will of Laxmi for recovering possession of the properties and mesne profits. The trial Court held that Laxmi had an absolute interest in the properties left by Zaverbhai and the gift over of the residue of the properties on the death of Laxmi in favour of Shantilal and his sons was void as being repugnant to the absolute estate granted to her and being an absolute owner she was entitled to dispose of the properties inter vivos or by will and the will dated 9th April 1955 and the gift deed dated 25th January 1958 were therefore dispositions of property and by virtue of them Chhani was entitled to the properties left by Zaverbhai and Shantilal and his sons could not make any claim to those properties. The trial Court on this construction of the will dismissed the suit of Shantilal and his sons. This led to the filing of a First Appeal in this court. The Appeal was heard by a Division Bench consisting of J. M. Sheth and S. H. Sheth JJ. The learned Judges were divided in opinion on the construction of the will. J. M. Sheth J. was of the view that an absolute interest was granted to Laxmi in the movable and immovable properties left by Zaverbhai and the gift over of what remained at the death of Laxmi in favour of Shantilal and his sons was therefore void as being repugnant to the absolute estate granted to her and since she was entitled to an absolute estate she had full power of disposition inter vivos as well as by will and the gift deed dated 25th January 1958 were therefore valid and effective to pass title to the properties in favour of Chhani. The view taken by Mr. Justice S. H. Sheth was quite the opposite. He held that on a proper reading of Clauses (4) and (6) of the will the interest given to Laxmi was only a limited interest for the duration of her life and she had no right to dispose of any of the properties of Zaverbhai either inter vivos or by will and both the will dated 9th April 1955 and the gift deed dated 25th January 1958 were therefore invalid and ineffective and did not confer any title to the properties on Chhani. The conclusion reached by the learned Judge was that on the death of Laxmi her life interest came to an end and the properties left by Zaverbhai came to Shantilal as a life tenant in any event to the sons of Shantilal as owners in equal shares. There was thus a difference of opinion between the two learned Judges on the construction of the will and the point on which they differed was formulated by them in the following terms: There is difference of opinion between us on the question whether the Will Ex. 49 confers upon Bai Laxmi only a life estate in the property of her husband Zaverbhai and it vests absolute remainder in Shantilals sons plaintiffs Nos. 2 to 6 or whether the first bequest which was in favour of Bai Laxmi was a bequest of an absolute estate in favour of the wife with all powers of disposition and eventually any directions given to tie down the future devolution in favour of Shantilals sons plaintiffs Nos. 2 to 6 would be repugnant to it and cannot be given effect to it legally and eventually they have got to be ignored. The case was then heard on this point by Mr. Justice Divan who was assigned this work by me as a Chief Justice under Clause 36 of the Letters Patent. Divan J. found himself unable to agree with the view taken by either of the two learned Judges. He preferred to take an intermidiate view namely that on a combined reading of Clauses (4) and (6) of the will Laxmi took a life interest in the movable and immovable properties left by Zaverbhai with power of disposition inter vivos but not by will. This intermediate view he thought would give full effect to all the clauses of the will and effectuate the manifest intention of Zaverbhai. But taking this intermediate view rendered the decision of the appeal under Clause 36 of the Letters Patent impossible since on this intermediate view there would be no majority opinion amongst the Judges in accordance with which the appeal could be decided. Divan J. therefore referred the matter to me as Chief Justice for constituting a Full Bench and it is in these circumstances that the point on which J. M. Sheth and S. H. Sheth JJ. differed has now come up for decision before us sitting in Full Bench.
(2.) When the present reference reached hearing before us Mr. Chhatrapati learned advocate appearing on behalf of the appellants raised a preliminary contention namely that the only point of difference between J. M. Sheth and S. H. Sheth JJ. was whether Laxmi had an absolute interest or a limited interest and the jurisdiction of Divan J. under Clause 36 of the Letters Patent was therefore confined only to deciding which of the two views on the point of difference was correct and he had no jurisdiction to entertain a new point as to whether Laxmi had power of disposition inter vivos. Now it is true that under Clause 36 of the Letters Patent a point which has not been urged before the Division Bench and on which the Judges composing the Division Bench have not differed cannot be urged before the Judge or Judges to whom the point in difference is referred but we do not see how such an objection can arise here in the present case. The point on which J. M. Sheth and S. H. Sheth JJ. differed was no doubt construction of the will but construction of the will became material for determination of the question whether Laxmi had power of disposition inter vivos and by will. The power of disposition of Laxmi was very much in issue before the learned Judges because on the existence of the power of disposition depended the validity of the will dated 9th April 1955 and the gift deed dated 25th January 1958. J. M. Sheth J. took the view that the interest conferred on Laxmi under the will was an absolute interest and she had therefore power to dispose of the proparties left by Zaverbhai inter vivos as well as by will:- S. H. Sheth J. on the other hand was inclined to hold that the interest given to Laxmi under the will was a life interest without any power of disposition inter vivos or by will. This was the point of difference between J. M. Sheth and S. H. Sheth JJ. and it was this point of difference which was referred under Clause 36 of the Letters Patent. The question whether Laxmi had power of disposition inter vivos or by will was therefore very much before Divan J. on the reference made by J. M. Sheth and S. .. Sheth JJ. and it was open to Divan J. to take the intermediate view that though Laxmi did not have an absolute interest in the properties left by Zaverbhai but had only a limited interest it was coupled with power of disposition inter vivos but not by will. But this intermediate view taken by Divan J. would not have helped to decide the appeal because in that event it would not be possible to say that there was any majority opinion amongst the three Judges and therefore Divan J. requested me as the Chief Justice to refer the point of difference to a Full Bench. That could be legitimately done because Clause 36 of the Letters Patent provides that the case shall then be heard upon that point by one or more of the other Judges and the point of difference can therefore be heard by a Full Bench of three Judges. The preliminary contention urged by Mr. Chhatrapati must therefore be rejected.
(3.) That takes us to the merits of the question in controversy between the parties. The question is :- what on a true interpretation of the relevant clauses of the will is the nature and quality of the interest granted to Laxmi under the will of Zaverbhai. Is it an absolute interest with full power of disposition as held by J. M. Sheth J. or is it a limited interest without any power of disposition inter vivos or by will as held by S. H Sheth J. or is it a limited interest with power of disposition inter vivos but not by will as held by Divan J. ? The determination of the question turns wholly on the true interpretation of the different clauses of the will. We shall presently turn to examine these clauses but before we do so we may advert to oDe rather striking feature which always characterises arguments relating to construction of a will. The learned advocates on behalf of the parties in cases of this kind always refer to a large number of decisions to support the construction respectively urged by them. Sometimes we even find the rather unusual spectacle of the advocates of both parties relying upon the same decisions and seeking to derive support from them. But it is necessary in this connection to remember the warning uttered by as high an authority as the Judicial Committee of the Privy Council in Sasiman Chowdhurain v. Shib Narayan Chowdhury 49 I. A. 25 where it has been said :- Their Lordships may observe that it is always dangerous to construe the words of one will by the construction of more or less similar words in a different will which was adopted by a Court in another case. Lord Macmillan repeated this warning in Kamakhya Dat Ram v. Kushal Chand 36 Bom.L.R. 399 where he said that in construing the language and arriving at the intention of a particular testator decisions on the construction of other wills are of little assistance. The only guidance to be obtained from them is that what must be sought in every instance is the dominant intention of the testator. The same warning was again reiterated by the Judicial Committee of the Privy Council in Shalig Ram v. Charanjit Lal 57 I. A. 282 in the following words :- The intention of the testator must be gathered from the terms of the will reading it as a whole and not much assistance is to be gathered from the numerous cases which were cited to the Board and in which the terms of the will under consideration differed from the terms of the will in the present appeal. The proper approach in cases of this kind must therefore be to form an opinion about the construction of the will apart from the decided cases and then to see whether these decisions require any modification of that opinion:- not to begin by considering how far the will in question resembles other wills upon which decisions have been given. ;