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Gosavi Shivgar Dayagar and Gosavi Jagdevgar Shivgar Vs. L.W.G. Rivett-carnac - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom463
AppellantGosavi Shivgar Dayagar and Gosavi Jagdevgar Shivgar
RespondentL.W.G. Rivett-carnac
Excerpt:
.....therefore, that, according to the well-established rule of construction, the property vested in jagdevgar on the testator's death, but only we think for a life estate, as the will expressly provides for the other disciple shivgar succeeding on his death. 'the principle of this court has always been to recognise the right of all persons who attain the age of twenty-one to enter upon the absolute use and enjoyment of the property given to them by a will, notwithstanding any directions by the testator to the effect that they are not to enjoy it until a later age: and upon that principle, unless there is in the will, or in some codicil to it, a clear indication of an intention on the part of the testator, not only that his devisees are not to have the enjoyment of the property he has..........in this country. here, with the exception of the rs. 500 a year which are given out of the income to shivgar until he succeeds, the rents up to jagdevgar's c attaining thirty years are not given to any other person, and there is no indication of an intestacy being intended as to that income, as he gives the net remainder of the property to jagdevgar on his attaining thirty.3. we are of opinion, therefore, that the income of the property (after deducting rs. 500 to be given to shivgar) should be paid to jagdevgar, supposing him to be of age. the property, however, will remain with the official trustee as directed by the will--at any rate until jagdevgar attains thirty years of age.4. other questions will probably arise on this will, but these are the only questions which the court.....
Judgment:

Charles Sargent, C.J.

1. The plaintiffs in this case seek to have their interests under the will of the Gosavi Kasigarji declared, and that the Administrator-General may be directed to make over to them, respectively, such portion of the estate as they may be entitled to. After appointing certain persons executors and trustees of his will, the testator in the 6th Clause mentions that there are his two disciples, Gosavi Shivgar and Gosavi Jagdevgar (the plaintiffs in the suit), of the age of eighteen and eleven years respectively, and 'appoints them, to be his heirs, subject to the conditions written below.' By the 8th Clause, after having by the 7th Clause directed his trustees to pay each of his disciples Rs. 500 a year for maintenance, he directs that when Gosavi Jagdevgar shall attain the age of thirty, and in case his trustees should, in their opinion, find him fit to carry on business transactions, and he should observe his religious faith, they are then to give to him the net residue of his property remaining at that time. He then proceeds to certain events which might subsequently happen, one of which is Jagdevgar's death, and directs his trustees to give the property to the plaintiff Shivgar if he should have reformed his conduct and be fit to manage worldly affairs and after his decease, and also in other events, he directs them to appoint a good respectable disciple, as they may think fit, for perpetuating his memory. The first question is as to the nature of the gift to Jagdevgar, which depends on the construction to be placed on the appointment of him as heir 'subject to the conditions written below,' one of which is that the net residue of the property is to be given over to him when he should attain the age of thirty and be fit to carry on business transactions. We vi think this amounts to an immediate gift of the property on the E testator's death to the person so designated, whilst postponing the period for the enjoyment of it (except as provided for his maintenance) until he was thirty, or even later, if not fit to manage it, and, therefore, that, according to the well-established rule of construction, the property vested in Jagdevgar on the testator's death, but only we think for a life estate, as the will expressly provides for the other disciple Shivgar succeeding on his death.

2. The important question therefore arises, whether under these circumstances the Court should give effect to the testator's directions postponing the enjoyment to thirty years, or even later. The rule in the case of English wills is stated by Vice-Chancellor Sir W. Page Wood in Gosling v. Gosling Jons 265 at 272, where the immediate devisee took a life estate, as Jagdevdar, in our opinion, did under the present will. 'The principle of this Court has always been to recognise the right of all persons who attain the age of twenty-one to enter upon the absolute use and enjoyment of the property given to them by a will, notwithstanding any directions by the testator to the effect that they are not to enjoy it until a later age: unless, during the interval, the property is given for the benefit of another. If the property is once theirs, it is useless for the testator to attempt to impose any fetter upon their enjoyment of it in full so soon as they attain twenty-one. And upon that principle, unless there is in the will, or in some codicil to it, a clear indication of an intention on the part of the testator, not only that his devisees are not to have the enjoyment of the property he has devised to them until they attain twenty-five, but that some other person is to have that enjoyment,--or unless the property is so clearly taken away from the devisees up to the time of their attaining twenty-five as to induce the Court to hold, that, as to the previous rents and profits, there has been an intestacy--the Court does not hesitate to strike out of the will any direction that the devisees shall not enjoy it in full until they attain the age of twenty-five years.' This practice of the English Courts in thus disregarding the direction for 8 postponement of enjoyment after the coming of age of the devisee, when there is a clear devise, in one which, we think, may be applied with equal propriety in this country. Here, with the exception of the Rs. 500 a year which are given out of the income to Shivgar until he succeeds, the rents up to Jagdevgar's C attaining thirty years are not given to any other person, and there is no indication of an intestacy being intended as to that income, as he gives the net remainder of the property to Jagdevgar on his attaining thirty.

3. We are of opinion, therefore, that the income of the property (after deducting Rs. 500 to be given to Shivgar) should be paid to Jagdevgar, supposing him to be of age. The property, however, will remain with the Official Trustee as directed by the will--at any rate until Jagdevgar attains thirty years of age.

4. Other questions will probably arise on this will, but these are the only questions which the Court can properly dispose of at the present moment.

5. We must, therefore, reverse the decree of the Court below, and direct that accumulations of income since the plaintiff Jagdevgar attained eighteen years of age, and also the income to become henceforth due (subject to the pay of Rs. 500 a year to Shivgar), be paid by the Official Trustee to Jagdevgar.

6. The costs below and in this appeal of all parties to come out of the estate. The Administrator-General's costs to be taxed between attorney and client.


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