1. The point to be decided in this appeal turns upon the construction of a will made by a Hindu by which, after giving some legacies to his relations, he stated that one Trikambhai, who was plaintiff No. 5 in in the trial Court and is the appellant in this Court, ' should manage my property after my lifetime in the same manner in which I am at present managing my property as owner,' and that in doing so he should proceed after taking the joint consent of certain persons named therein. Then follows the material portion of the will that ' after my death the said Trikambhai should make whatever arrangements-whatever dharmada-that are to be made of my properties with the advice of the said four persons.'
2. It appears that the appellant got his name entered in the revenue records along with the others as trustees of the property. Subsequently, however, the defendants, who are the agnates of the testator and their purchasers, took possession of the property from the appellant. Thereafter the appellant purported to sell it to plaintiffs Nos. 1 to 4 but that seems to be a paper transaction in so far as the appellant had no physical possession with him. The suit was filed by the plaintiffs for possession of the property from the defendants on the ground that under the will plaintiff No. 5, i.e. the present appellant, was made the absolute owner of the property and had power to dispose of it as he liked. The defendants contended that he was not the owner, that the will was invalid and the property came to them as if the testator had died intestate. The material issues framed in the suit were whether under the will the appellant was made the full owner of the estate or was merely a trusteei for applying the property to dharmada, whether the will was illegal and void, and if so, whether the defendants were entitled to inherit the estate.
3. With regard to the contention that plaintiff No. 5 had become the absolute owner of the property, the trial Court held that he had not become such owner under the will nor had a valid trust been created because the object of the trust was entirely indefinite, the word dharmada being a vague and indefinite term, but it seems to have accepted the argument urged on behalf of the plaintiffs that the testator's intention was to give plaintiff No. 5 the right to the ultimate disposal of the property on the basis that he had been given the power of appointment to nominate the objects for dhmnkida, that he was entitled during his lifetime to nominate those objects, and that the defendants, therefore, had no right to the property. For this conclusion the trial Court relied upon the cases of Javerbai v. Kablibai I.L.R. (1891) 16 Bom. 492 and Bai Motivahu v. Bai Mamubai I.L.R. (1897) Bom. 709.
4. The defendants appealed against that decree and the learned appellate Judge agreed with the trial Court on the first point, viz. that plaintiff No. 5 was not made the absolute owner of the property under the will, but he differed from that Court on the second point and held that no valid and legal disposition of the property had been made by the testator in his will in favour of plaintiff No. 5, and the will being invalid, the property went to the defendants on intestacy, and the plaintiff, therefore, was not entitled to its possession.
5. Now, in this appeal two points have been urged on behalf of the appellant. The first is that under the will the appellant had been made the absolute owner of the property. I entirely agree with both the lower Courts that the appellant is not made the absolute owner. Mr. Desai, who appears on behalf of the appellant, urges that the words ' as owner' are to be read not only with reference to the nahivat of the testator but also as applying to the vahivat of the appellant, and that the testator intended, therefore, to give him all the rights of an owner, and having done that, the subsequent restrictions placed on his management and possession are void with the result that the property is taken by him absolutely. I think, however, that reading the material part of the will as a whole, the testator did not intend to make the appellant an absolute1 owner. The words 'as owner' qualify the vahivat made by the testator himself and not the vahivat of the appellant. If it had been his intention to make the appellant an absolute owner, he would not have used the words that the appellant was to have the management but he would have been made the owner or the malik of the property. No such words are used and the subsequent restrictions to the effect that he should manage the property in consultation with several persons and that management was to be for the purpose of devoting the property to religious objects tend to confirm the view that the intention was that the appellant was not meant to be the absolute owner. It is only when there is a clear intention on the part of the testator by use of the word ' malik' or the words ' with absolute rights', that one can infer an absolute devise, and it is only in such a case that subsequent restrictive words would not cut down the absolute nature of the bequest. But here no such words1 have been used, so that the question of restriction does not arise.
6. Mr. Desai has, however, urged an elaborate argument on the second point and that is that the testator has given a power of appointment in favour of the appellant and under that power, he is entitled, if he wishes, to nominate the objects of charity and such power is valid under the Hindu law. He principally relies upon the decision of their Lordships of the Privy Council in Bai Motivahu v. Bai Mamubai, but that decision does not apply to the facts of the present case. In that case a Hindu testator devised his immove-able property upon trust for the maintenance of his widow and his daughter and her children, and it was further provided that if there were no children; born to his daughter, the property should devolve upon those whom the daughter might nominate by making her will. In other words, a life estate was given to the daughter, and it was provided further that if she had no issue, she was entitled to make a will and nominate the persons to whom. the property was to go. It was contended in that case that such a power could not be exercised by a Hindu but their Lordships said that the power was not unknown to the Hindu law and did not conflict with any principles of that law. By way of analogy they referred to the English law of powers, and that analogy was mainly with reference to the argument urged before the Board. They, however, make it clear that whilst saying that a Hindu testator had such a power, in their opinion the English law of powers is. not fit to be applied generally to Hindu wills. Now, this decision is to be considered on the particular facts of that case. It is clear that the daughter was given a life estate and therefore the estate did not remain in abeyance. It is well known that under the Hindu law a Hindu cannot devise his property in such a manner that the estate might remain in abeyance for any time. But the facts of the present case are different. The appellant is not given any life estate in the property. He has no personal right to the property during his lifetime. That is a material difference between the present case and the Privy Council case. In all the cases cited before me by Mr. Desai where the question of power of appointment is concerned, there was an intermediate life estate, that is to say the property was in possession of some person who was given the right to hold it by the donor. But the appellant is not given a similar right with the result that if Mr. Desai's argument is to be accepted, the estate would remain in abeyance during his lifetime. But that is not the only ground, in my opinion, for holding that the appellant has no right to the property. I cannot read the will of this Hindu testator as creating any power of appointment as known to English law. I may say further that I do not know of any case, and Mr. Desai has not been able to cite any, in which in the case of Hindus a power of appointment has been given to a person under a will without any right to hold the property in possession during his lifetime, and I do not think that under the Hindu law there can be a power of appointment to nominate a person as his heir without the person to whom the power is given being made a life tenant. Under the principle laid down by the Privy Council in Bai Motivaku v. Bai Mamubai, the' person who is nominated as the owner of the property under the will by the appointee is to be regarded as the heir of the original testator and not of the person holding a life estate who has made the will. Therefore, it necessarily follows that the estate belongs to the testator during the intermediate period, and if the appellant is regarded as having been merely given the power of appointment without anything more, the result would be that he may or may not exercise his power of appointment in which case the destination of the property would be left in the air. Mr. Desai contends, however, that if he does not exercise the power during his lifetime the property will go to the testator's heirs. But that is not the real point. The question is what rights have been given to the appellant under the will. It is only if he is given the power of appointment, then that result might follow, but if no power as known in the English law is given to him, it is clear that he must hold the property as a trustee for the object in the will. The will read as a whole clearly points to the intention to create a trust and the appellant is appointed a trustee under the will to manage the property with the consent of other persons and devote the income for the purpose of dhmmada.
7. The question then arises whether such a bequest is valid under the Hindu law? The leading case on this point is Runchcrdas Vandrawandas v. Parvatibai , where it has been held that a bequest for dharam is vague and indefinite and is void under the Hindu law. Our Court has since then consistently held that such a bequest is invalid and the latest case on that point is Dahyabhai v. Chamanlal (1937) 40 Bom. L.R. 418. The learned Judge of the appellate Court has, relying on these decisions, held that the bequest for the purpose of dharmada is invalid, and I think he was clearly right on the authorities of our Court. If the object had been a definite one, the will would have been valid and the appellant would have to manage the property as trustee for that obje;t. But if it is invalid, as it is in the present case, the whole disposition is vitiated with the result that the property falls on those persons who would be the heirs of the testator if he had died intestate.
8. I think, therefore, the decree of the lower appellate Court should be confirmed and the appeal dismissed with costs.