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Mafatlal Motilal Vs. Kanialal Trikamlal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 231 of 1912
Judge
Reported inAIR1915Bom246; (1915)17BOMLR705; 30Ind.Cas.915
AppellantMafatlal Motilal
RespondentKanialal Trikamlal
Excerpt:
.....will, excluded his son, but bequeathed it to the son's wife, as follows :;'if i die then my son's wife bai ganga is the owner of the abovementioned immoveable and moveable properties.... the said ganga shall during hor life-time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease her two daughters are the owners thereof.';at the date of the will, ganga had two daughters; but one of them died and a third daughter was born to her before the death of the testator.;on a construction of the will:-;(1) that ganga took under the will an estate for life with a power of disposal in her life-time.;(2) that the daughter, who was the survivor of the two named in the will, took a vested interest in the whole residue which was both heritable..........property is disposed of after the testator's death in the following words. 'if i die then my son's wife bai ganga is the owner of the above-mentioned immoveable and moveable properties... the said ganga shall during her life time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease her two daughters are the owners thereof.'at the date of the will the testator had two grand daughters by ganga one of whom predeceased him but before his death another was born and survived him. he, therefore, left two grand daughters by ganga.7. the first question arising in this part of the will is whether ganga took an absolute or some less interest and the second if she did not take absolutely whether of her two surviving daughters one or both.....
Judgment:

Basil Scott, C.J.

1. The only questions with which we have to deal in this judgment arise upon the construction of the will of Mathuradas made in the year 1873 fr the later will upon which the respondent also relied as showing that Gangabai had an absolute interest in the property in suit has been held in litigation between the plaintiff and Ganga not to be proved.

2. By the first clause of the will of 1873 the testator stated that his son Girdhar's conduct not being good he gave him no authority in that will and made no provision for him. We entertain no doubt that the testator excluded Girdharlal by these words from participation in the property dealt with by the will, which, upon the contentions of the parties, must be taken to be the self-acquisition of Mathuradas.

3. The property is then described. It consisted of one house and the middle and third story of another house in Ahmedabad sufficiently capable of identification by the description given. The other immoveable property was one field in Shahawadi Taluka Daskroi in Ahmedabad District bearing Survey No. 123.

4. The moveable property is not capable of identification at the present time.

5. It is contended for the plaintiff that as the will speaks from the testator's death it must be taken to dispose of all the property in his ownership at that date. We think we should apply the rule of construction approved by Lord Justice Davey in In re Seal [1894] 1 Ch. 316, that ' where there is property in respect of which all the facts of the description are found to be true, so that the property exactly fits the description, the whole of that property, and nothing more, passes.' Under that rule no immoveable property would pass but such as answered to the description and was of the testator's ownership at his death. That this was the testator's intention is confirmed by the passage referring to the ' above-mentioned ' moveable and immoveable properties.

6. The property is disposed of after the testator's death in the following words. 'If I die then my son's wife Bai Ganga is the owner of the above-mentioned immoveable and moveable properties... The said Ganga shall during her life time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease her two daughters are the owners thereof.'At the date of the will the testator had two grand daughters by Ganga one of whom predeceased him but before his death another was born and survived him. He, therefore, left two grand daughters by Ganga.

7. The first question arising in this part of the will is whether Ganga took an absolute or some less interest and the second if she did not take absolutely whether of her two surviving daughters one or both took vested remainders.

8. On the first point we think the widow took for life with a power of disposal in her life-time as in In re Pounder (1886) 56 L.J. Ch. 113 In that case a testator by his will gave his residue to his wife absolutely. By a codicil he revoked this gift and after making a specific gift gave his residue to his wife 'for her own absolute use and benefit and disposal' but without prejudice to the absolute power of disposal by his wife of all the said residue in case after her decease any part thereof should remain undisposed of by her he gave the same to two other persons equally as tenants in common: It was held that the wife took a life interest with a power of disposition by act inter vivos but not by will.

9. The same conclusion follows where the gift over in remainder follows a gift for the widow's sole and separate use and benefit in the same testamentary document as in Constable v. Bull (1852) 22 L.J. Ch. 182.

10. The second question is whether Chanchal the only one of the two daughters of Ganga living in 1873 the date of the will who survived the testator took a vested remainder in the whole residue on the death of Ganga. Of the English authorities cited, viz., In re Emery's Estate (1876) 3 Ch. D. 300 Garvey v. Hibbert (1812) 19 Ves. 125, Daniell v. Daniell (1849) 3 De G. & Sm. 337 and Spencer v. Ward (1870) L.R. 9 Eq. 507. In re Emery's Estate alone is in point for here there was no mistake as to the number of grandchildren at the date of the will and the testator must be taken to have intended to benefit only those known to him: see also Sherer v. Bishop (1792) 4 BC.C. 54. Chanchal, therefore, the survivor of those named in the will took a vested interest in the whole residue which was both heritable and transferable. In this case the plaintiff as her transferee takes the whole.

11. The plaintiff, therefore, is entitled to the immoveable property of the testator specified in the will of 1873 which was of his ownership at the time of his death.

12. This does not dispose of the whole property left by Mathuradas. There was other property which descended to Girdharlal by inheritance sufficient to feed the defendant's claim under the adoption by Ganga.

13. As the plaintiff succeeds upon the amended plaint, and the new point set out therein, by virtue of an interest of Chanchal having come to him by assignment subsequent to the plaint, it is clear that he could not have succeeded if he had not taken an assignment. We, therefore, think that he ought to bear all the costs of the respondents throughout.


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