Decided on August 06,1935



- (1.) DESAIBHAI Jivabhai, the maternal uncle of the plaintiff, had a one-third share in a recognised sub-division (eleven annas eleven pies) in the Narwadari village of Ode in the Anand taluka. He made a will on September 5, 1891, leaving his property, which was partly narwa and partly non-narwa (sanadia), first to his senior wife Jhaver, then to his junior wife Saker, then to his daughter Divali, and finally to the plaintiff. Jhaver inherited and after her Divali, Saker having died before Jhaver. (Actually it seems there were two wives named Saker; the first one died before the testator ). Divali died on January 27, 1918, and on her death, according to the finding of the trial Judge, plaintiff was for a time in possession of the estate or part of it. The defendants, who were co-sharers with DESAIBHAI in the recognised subdivision of the narwa but are not his heirs nor the heirs of Divali, deny that plaintiff got possession and claim to have been in possession themselves. They have admittedly had possession at any rate from 1921 of all the property left undisposed of by Jhaver and Divali except one house, lot No.193 in suit, which is with the plaintiff. Plaintiff sues to recover possession from them relying firstly on his title under the will and alternatively on his possession after Diva-li's death. The suit was filed first in the Umreth Subordinate Judge's Court in 1925 but was returned for presentation to the Subordinate Judge's Court at Nadiad. The plaint was filed there on September 30, 1928.
(2.) THE trial Court has found on the construction of the will that Jhaver took an absolute estate, that Divali succeeded as her heir and that the plaintiff takes nothing, he not being Divali's heir; secondly, that in any case the will could not affect narwa property owing to the provisions of the Bhagdari and Narwa-dari Act V of 1862; and thirdly, that plaintiff's temporary possession under the circumstances in which it was obtained gives plaintiff no right to evict the defendants. THE suit was accordingly dismissed. We hold that the findings of the lower Court on all these points are substantially correct. The first point to be considered is that of the construction of the will. The provisions which are material for our purpose are the following: After my death I make my first and senior wife Jhaver as kul malik of all my properties because she is advanced in age and has good understanding and so she is not such as to waste away or cause loss to my estate unnecessarily. Hence Jhaver should take all my properties into her possession and management after my death and should do its vahivat in right of khas ownership. Then follow a number of legacies mostly to charities but including a gift of land to the plaintiff. Provision is also made for the maintenance of the testator's step-mother and of Saker and Divali during the lifetime of Jhaver. The next material provision is Clause 12 : My wife Jhaver is old. Hence after her death I make my second wife Saker the heir of the properties that remain and after her death I make my widowed daughter Divaliba the heir of all the properties that remain. These three are the heirs of my properties one after the other and they are entitled; in law to inherit my properties. Hence I of my free will make them my heirs one after the other. As they go on getting inheritance they should take my properties in their possession and manage the same as they please. That is I give all my rights to my heirs which I have in law namely of managing in any way I please. They when they get inheritance have therefore full right of management and none can raise objections. Then it was provided that if a son should be born to the testator, he was to be the owner of all the properties except those given by way of legacy. Then follow Clauses 14, 15 and 16 all of which are important. (14) On the death of one after the other of the heirs abovenamed or one predeceasing the other, the rest should inherit according to their turn and take the property in management and perform funeral ceremony of the dead according to the custom. (15) Just as I am enjoying the abovementioned moveable and immoveable properties as I please, that is as I have a right to sell, gift, mortgage or do anything I please, I give the same rights to my heirs one after the other, that is first to Jhaver, then to Saker and after that to Divaliba. They may sell, gift, mortgage or do anything they like and none can object to it. (16) After the death of all these three heirs named by me Govindbhai Lallubhai, son of my true sister (i. e. , plaintiff), should perform the funeral ceremonies of the last heir and should take the remaining properties in his possession and enjoy it in right of inheritance. He should perform my annual shraddha. So long as the three heirs one after the other are alive Govindbhai has no right to the properties except those given to him. He gets the right after all the three are dead.
(3.) THE argument of the learned counsel for the plaintiff is as follows. He admits that the language used in respect of Jhaver, if it stood by itself, would confer absolute ownership upon her. But he says a contrary intention is expressed later when Sakerba, Divali and plaintiff are made heirs, in succession to her. THErefore the testator cannot have intended to give an absolute estate. THE only way in which these persons could inherit one after the other is if a succession of life estates was intended. It was not the dominant idea of the testator, Mr. Jayakar says, that each of the persons named should have an absolute estate in the strict legal sense which would import that the estate would pass to the heirs of Jhaver. Regard must be had to the notions of Hindus. THE plaintiff was the only male person in whom the testator was interested. THEre is evidence that he brought the boy to stay with him. He would not be likely to give an absolute estate to his widows, and as for Divali, she was a widow herself and had no children, so that on her death the estate would go to her husband's relations. Mr. Jayakar urges that his construction of the will as giving merely a life-interest in the property to the widows and daughter of the testator and ultimately giving the estate absolutely to the plaintiff gives effect to all the provisions of the will. If that is the correct view of the testator's intention, then it is argued that the law will give effect to it. THE cases cited in this connection were Mahomed Skumsool v. Shewukram (1874) L. R. 2 I. A. 7, Radha Prosad Mullick v. Ranimoni Dassi (1908) L. R. 35 I. A. 118 : S. C. 10 Bom. L. R. 604, Lallu v. Jagmohan (1896) I. L. R. 22 Bom. 409, Chunilal v. Bai Muli (1899) I. L. R. 24 Bom. 420 : S. C. 2 Bom. L. R. 46, Mulchand v. Bai Rukshman (1922) 25 Bom. L. R. 189, and an unreported case, Shukla Balashankar Premshankar v. Bai Punji (1927) S. A. No.557 of 1924, decided by Crump and Baker, JJ. , on March 17, 1927, (Unrep ). These authorities, in my opinion, do establish this, viz. , that where it is clear on reading the instrument as a whole that the testator intended an absolute gift over after a life estate or series of life estates, then that intention will be given effect to in spite of the fact that the language used would ordinarily, that is apart from the contrary intention appearing from the context, have sufficed to confer an absolute estate on the person taking in the first instance. Those taking the estate ultimately will then get a vested interest at once. The cases cited by the learned counsel for the respondents in this connection, Surajmani v. Rabi Nath Ojha (1907) L. R. 35 I. A. 17 : S. C. 10 Bom. L. R. 59, Bhaidas Shivdas v. Bai Gulab (1921) L. R. 49 I. A. 1 : S. C. 24 Bom. L. R. 551, Ramachandra Rao v. Ramachandra Rao (1922) L. R. 49 I. A. 129 : S. C. 24 Bom. L. R. 963, Sasiman Chowdhurain v. Shib Narayan Chowdhury (1921) L. R. 49 I. A. 25 : S. C. 24 Bom L. R. 576, and Lalit Mohun Singh Roy v. Chukkun Lal Roy (1897) L. R. 24 I. A. 76, contain nothing inconsistent with this proposition, since what is laid down in those cases as to the nature of the estate taken by a Hindu widow, is all subject to the condition that a contrary intention does not appear from the context.;

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