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Nathalal Ichhashankar Vs. Bai Manek - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 467 of 1941
Judge
Reported inAIR1944Bom196; (1944)46BOMLR356
AppellantNathalal Ichhashankar
RespondentBai Manek
DispositionAppeal dismissed
Excerpt:
.....of the will the property became vested in the defendant on the death of the testator prabhashankar, subject to the life estate of his widow bai jekor, and once the estate became vested in him, it could not be defeated by subsequent disobedience or failure to render service to her. 725) :i consider that, from the earliest times, one of the cardinal rules on the subject has been this :that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine. 44 it was held that a condition that a bequest would be defeated if the legatee should 'marry a person of ample..........from the earliest times, one of the cardinal rules on the subject has been this : that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.7. applying this test in re moore's trusts ; lewis v. moore (1907) 96 l.t. 44 it was held that a condition that a bequest would be defeated if the legatee should ' marry a person of ample fortune, to maintain her in comfort and affluence ' was not too vague to be enforced but was perfectly good.8. similarly in this case at the date of the death of bai jekor it could be easily ascertained whether the defendant had.....
Judgment:

Lokur, J.

1. This appeal raises a question of interpretation of a will executed by one Prabhashankar Lakshmiram on December 8, 1904. He died leaving his widow, Bai Jekor, two daughters Bai Saraswati, the plaintiff, and Parwati, and a nephew Nathalal, the defendant. The execution of the will is not disputed. In that will he stated that some property was his self acquisition and some was joint property of himself and his brotherIchhashankar, the defendant's father, but that they were separated and were living separate for many years. He then proceeded to dispose of his share in the joint property as follows :-

After deducting three kumbhas which I have already given away, my half share is to be enjoyed by my wife during her lifetime and after her death it (that half share) should be given to my brother's son Natha Ichhashankar if he remains obedient to my wife and attends to her affairs and renders service to her. He should properly meet the expenses of her obsequies.

2. Bai Jekor, the widow of the testator Prabhashankar Lakshmiram, died in December, 1938, and her daughter Bai Saraswati filed this suit to recover her father's share in the joint property on the ground that as Nathalal, the defendant, had failed to remain obedient to her mother, had failed to attend to her affairs and had not rendered service to her, the bequest in his favour had failed and that she had become entitled to it by inheritance.

3. Both the Courts below have found that the defendant quarrelled with Bai Jekor, that there was a litigation between them, that he did not even go to see her during her last illness and that he was neither obedient to her nor was he of any service to her. This finding that the condition laid down in the will before the property could devolve upon him has not been fulfilled is a finding of fact which cannot be challenged in second appeal. Even on merits that finding is fully supported by the evidence. But it is urged that the condition is vague and, therefore, should be treated as a nullity. This contention was not accepted by the lower Courts and the plaintiff's claim was decreed.

4. Mr. C.K. Shah for the appellant contends that it is difficult to say whether the defendant was or was not obedient to Bai Jekor and whether he did or did not render service to her, that the condition imposed on him in the will was void for uncertainty, and, therefore, should be treated as non-existent, and that the property devolved upon him immediately on the termination of the life estate ofBai Jekor. It is also urged that under the terms of the will the property became vested in the defendant on the death of the testator Prabhashankar, subject to the life estate of his widow Bai Jekor, and once the estate became vested in him, it could not be defeated by subsequent disobedience or failure to render service to her. It is clear from the wording of the will that the testator did not intend that his property should be vested in his nephew immediately on his death. On the other hand the vesting was contingent upon his remaining obedient to Bai Jekor and it was postponed till her death. Whether the property would go to him or to the testator's natural heirs was to be determined at the date of Bai Jekor's death, and it was to devolve on the defendant only in case he fulfilled the condition laid down by the testator. It is, therefore, not correct to say that the condition was intended to defeat the estate already vested in him.

5. Mr. Shah has referred to the case of Jeffreys v. Jeffreys (1901) 84 L.T. 417. In that case a testator gave a life interest to A followed by a declaration that if A ' in any way associated, corresponded or visited with any of my present wife's nephews or nieces, the life estate was to be forfeited ', and then followed a gift over and it was held that the condition was void for uncertainty. The reason why the condition was regarded as vague and uncertain is elaborately given in the judgment of Farwell J. at p. 418. The words 'associate' and 'visit' were regarded as too uncertain, and instances were cited to show the difficulty of deciding whether a casual meeting could or could not be regarded as associating or visiting. The decision was based mainly upon the words used and no general principle was laid down.

6. The test to be applied in such cases is laid down by Lord Cranworth in Clavering v. Ellison (1859) 7 H.L.C. 707 as follows (p. 725) :-.I consider that, from the earliest times, one of the cardinal rules on the subject has been this : that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.

7. Applying this test in Re Moore's Trusts ; Lewis v. Moore (1907) 96 L.T. 44 it was held that a condition that a bequest would be defeated if the legatee should ' marry a person of ample fortune, to maintain her in comfort and affluence ' was not too vague to be enforced but was perfectly good.

8. Similarly in this case at the date of the death of Bai Jekor it could be easily ascertained whether the defendant had been obedient to her during her lifetime and had rendered service to her. Such a condition cannot be regarded as vague or void for uncertainty. In view of the finding of fact of both the Courts below that that condition was not fulfilled by the defendant, the plaintiff is rightly given a decree. The appeal is, therefore, dismissed with costs.


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