Rajadhyaksha, J. -
(1.)THE point that arises for consideration in this second appeal is about the construction of a will of one Sadashiv Laxmiram Bhatt who died on May 13, 1939, leaving a will dated April 23, 1939. He left behind him his wife Bai Shiva and his daughter Bai Savita who was married to one Tripurashankar Shiva shankar. After referring to these relatives and giving the description of his moveable and immoveable properties, he proceeded to state as follows in exhibit 27: I appoint my wife Bai Shiva waras of all this because Bai Shiva stays with me and she serves me very well and I have full faith that in future also she will serve me very well and hence by this will I make my wife Bai Shiva waras of all the properties, moveable and immoveable, after my death.
(2.)THE testator then stated that during his lifetime he was full owner of this property and thus entitled to add to or decrease it. But that after his death, all the properties, moveable and immoveable, and all the dues that were due and that might be due and what was omitted to be written in the will but may be found, Bai Shiva was to take in her own possession of her own free-will, that out of the same according to his reputation and custom, Bai Shiva and his daughter Bai Savita and his nephew Lalshankar and his son-in-law Tripurashankar were to perform the funeral obsequies and ceremonies. After the performance of these obsequies and ceremonies, "bai Shiva was to enjoy independently all the remaining property, moveable and immoveable, in a way that was according to her liking and in such way as she liked. " THE testator then went on to say: After the death of my wife Bai Shiva whatever moveable and immoveable property may be left by her the said property both moveable and immoveable is to be taken possession of by my daughter and out of that property my daughter Savita, my nephew Lalshankar and my son-in-law Tripurashankar should perform the funeral rights of my wife Bai Shiva, and whatever moveable or immoveable property was then left should be taken possession of by Savita and, if Savita was not alive, by her waras sons and they should make dispositions of it in any manner they liked.
After the death of the testator, Bai Shiva who obtained possession of the properties made disposition of the moveables worth Rs. 4,345 by a deed described as Dharmadai Settlement on August 10, 1940, and certain persons were appointed as trustees to carry out the directions contained in the Settlement deed, Bai Shiva died on September 7, 1940, and thereupon Bai Savita instituted the present suit on April 20, 1941, to get back the sum of Rs. 4,345 on the allegation that under the will of the deceased Sadashiv, Bai Shiva did not get an absolute estate and was not therefore entitled to effect a settlement of the moveable properties in the manner she had done. The trial Court accepted this contention and decreed the suit. The trustees then appealed to the District Court of Ahmedabad, and the learned Assistant Judge who heard the appeal came to the conclusion that Bai Shiva got an absolute estate under the will of her deceased husband and that, therefore she was entitled to make a settlement in respect of the moveables. He therefore allowed the appeal, set aside the decree of the lower Court and dismissed the plaintiff's suit with costs. It is against that order that Bai Savita the original plaintiff has come in second appeal.
Mr. Thakor on behalf of the appellant has referred to a large number of cases where, according to him in wills similar to the present one, the Courts have come to the conclusion that only a life estate was conferred upon the widow. But in this connection it is just as well to remember the warning which was given by their Lordships of the Privy Council in Sasiman Chowdhurain v. Shib Narayan Chowdhury (1921) L. R. 49 I. A. 25, s. c. 24 Bom. L. R. 576. At p. 32 they say: 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 & Court in another case. The proper way to approach a case of this kind was laid down by this Court in Gulbaji v. Rustomji (1924) 27 Bom. L. R. 380, where Marten J. observed as follows (p. 385): But it is equally clear that the whole of a will has to be looked to, to ascertain the intentions of a testator, and that the Court must, if it can, reconcile the various clauses in a will. Further, as pointed out by Mr, Justice Joyce in Sanford, In re: Sanford v. Sanford  1 Ch. 939 as being an observation which has been made in a large number of cases, one has first to endeavour to see what is the true construction of the particular will before the Court irrespective of any authority, and then to see whether there is any authority which prevents one from coining to that conclusion, and not first to turn to the authorities, and then to see whether the particular will before the Court comes nearest to one will or to another will in the decided cases.
(3.)IN Shalig Ram v. Charanjit Lal (1930) L. R. 57 I. A. 282, s. c. 32 Bom. L. R. 1578 the Privy Council again emphasised the same point when they observed at p. 289 as follows: 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 wills under consideration differed from the terms of the will in the present appeal.
Having regard to these observations as regards the principle to be borne in mind in construing wills, it seems to me that reading the will as a whole, the testator in this case intended to confer upon his wife Bai Shiva an absolute estate and not a limited estate as contended by Mr. Thakor. In the first part of the will the testator makes his wife Bai Shiva the waras of all his moveable and immoveable property. Then after giving directions as regards the performance of the obsequies, he directs Bai Shiva to take possession of the properties of her own free-will and to enjoy the same independently according to her liking, and then he goes on to say that whatever property may remain after Bai Shiva had enjoyed it during her lifetime, it was only that property which Bai Savita was to take possession of and enjoy after the death of Bai Shiva. The use of the word "waras," the direction that she should enjoy the property in accordance with her own wish and liking and that it was only that property which was left, on the death of Bai Shiva, that was to go to Bai Savita, all in my opinion go to show that the testator intended to confer upon Bai Shiva an absolute estate.