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Bai Savita Vs. Girjashankar Mohanlal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 159 of 1944
Judge
Reported in(1947)49BOMLR847
AppellantBai Savita
RespondentGirjashankar Mohanlal
DispositionAppeal dismissed
Excerpt:
.....the wife that was to go to the daughter, showed that the testator had intended to confer upon his wife an absolute estate. - - 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. 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 wife had powers to do in the same way as he had absolute powers to do, and in case of his wife's death, his daughter mahalaxmi was the owner of the said property; and it was held that bai suraj took only a life estate under the will, and mahalaxmi got a vested remainder. another case on which mr. thakor relied was chunilal v. bai muli, where the testator said that after his death his wife was the rightful heir, and that after the death of his wife his daughter bai nath was the rightful heir. it was held that the wife took a life estate and bai nathi took an estate vested in interest from the testator's death, but both these two cases were decided prior to the decision of the privy council in surajmani v. rabi nath ojha and, as pointed out by mr. justice broomfield in govindbhai.....
Judgment:

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.

3. 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.

4. 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 [1901] 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.

5. In Shalig Ram v. Charanjit Lal 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.

6. 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.

7. It was contended by Mr. Thakor that in construing such wills one had to bear in mind the observations of the Privy Council in Mahomed Shumsool v. Shewukram where they observe as follows (p. 15):

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate. Having reference to these considerations, together with the whole of the will, all the expressions of which must be taken together without any one being insisted upon to the exclusion of others, their Lordships are of opinion that the two Courts India, who both substantially agree upon this point, are right in construing the intention of the testator to have been that the widow of his son should not take an absolute estate which she should have power to dispose of absolutely, but that she took an estate subject to her daughters succeeding her in that estate.

It is true that these observations of the Privy Council have again been referred to with approval in Radha Prosad Mullick v. Ranimoni Dassi 10 Bom. L.R. 604. But in a case which was decided a few months earlier in Surajmani v. Rabi Nath Ojha 10 Bom. L.R. 59 their Lordships gave effect to the full intentions of the testator, and although it was a will of a Hindu made in favour of his wife, they held that the widow got an absolute estate and not merely a life interest. In Kanhya Lal Missir v. Musammat Hira Bibi I.L.R.(1935) Pat. 151 the High Court took the view that it was not a rule of universal application that the Hindus are averse to giving absolute estates to females or that women do not take absolute estates of inheritance which they are enabled to alienate, and very recently Mr Justice Kania has made the following observations in Bai Bhuribai Sukhanand v. Advocate General, Bombay (1942) 45 Bom. L.R. 669:

Observations from several cases laying stress on the fact that in construing the will of a Hindu it should be remembered that he did not want, particularly in respect of any immoveable property, to give his widow an absolute estate and that he should be deemed conscious of that and that normally she would have no power of alienation, were read out. I must point out that those observations to say the least are entirely out of date. With the progress of time notions have changed and that is recognised by the Hindu Women's Right of Property Act (XVIII of 1937 as amended by Act XI of 1938). The Courts have now to recognise that in the absence of any testamentary disposition on the death of a man his widow acquires an equal right with the sons in her husband's estate. It should be recognised also that a Hindu testator has full knowledge of what the word 'owner' (malik) means and it need not necessarily be thought that when he consciously uses that word, unless otherwise indicated, he means anything less than full ownership as construed in the case of any other citizen of India. Whatever may have been the view in considering the wills of Hindus in 1874 (when the basis of this discussion appears to have started in reported cases), the trend of the later decisions clearly is that if words showing that full ownership is given to the widow are used, they are not to be lightly brushed aside on some supposed idea of a Hindu giving restricted estate only to his widow or female relations. It is true that a will as a whole must be construed and if there are words which clearly limit the words previously used giving an absolute estate the same should be given effect to. But in. my opinion it is improper in the year 1942 to approach a will of a Hindu with any preconceived notions which are not applicable to a testator of any other community.

With respect I am in entire agreement with the views expressed by Kania J.

8. It was then argued that in the present will the word 'malik' has not been used but that Bai Shiva had been made a waras of the estate. In Chunilal v. Bai Muli 2 Bom. L.R. 46 this Court held that there was no real difference in the meaning of the word 'waras,' i.e. heirs, and the word 'malik', i.e. the owner. Mr. Justice Broomfield adopted this view in Govindbhai v. Dahyabhai. (1935) 38 Bom. L.R. 175 In Shalig Ram v. Charanjit Lal 32 Bom. L.R. 1578 the word that was used was 'waras,' and it was held that this word gave an absolute estate to the widows of the testator. Similarly the word 'warisa' was held to confer an absolute estate on the widow in Kanhya Lal Missir v. Mussamat Hira Bibi If then the word 'waras' has the same connotation as the word 'malik' and the word 'malak' has been held in Lalit Mohan Singh Roy v. Chukkun Lal Roy, Bepinmohan Singh Roy v. Chukkun Lal Roy; Priambada Roy v. Chukkun Lal Roy as conferring a heritable and an alienable estate in the absence of context indicating a different meaning, it must follow that the word 'waras' must be given the same meaning as conferring upon Bai Shiva an absolute heritable and an alienable estate unless there was something in the context and in the words used in the subsequent part of the will which could be construed as cutting down an absolute estate as indicated by the word 'waras.'

9. It is true that in the present will there are no words conferring expressly on Bai Shiva the right to alienate the property. The case of Surajmani v. Rabi Nath Ojha was explained by their Lordships of the Privy Council in Bhaidas Shivdas v. Bai Gulab 24 Bom. L.R. 551 as laying down that the power of alienation need not be conferred upon the devisee by express terms, but that if words were used conferring absolute ownership upon the wife, the wife enjoyed all the rights of ownership without their being conferred by express and additional words, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended. The point to consider in each case was stated by the Privy Council in Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh 32 Bom. L.R. 129 as follows: 'the question for determination has always been whether there are dispositive words creating an estate of inheritance in the first instance; and, if so, whether the subsequent restrictive clauses are sufficient to displace the effect of such dispositive words or whether such subsequent clauses are merely repugnant to the absolute estate.' In the present instance, in my opinion, the word 'waras' confers an absolute estate of inheritance, and there are not only no restrictive clauses, but the words subsequently used, in my opinion, emphasise the absolute nature of the inheritance, because the will goes on to say that if any property remained on the death of Bai Shiva, it was only such property that was to be taken possession of by Bai Savita.

10. All the authorities which are referred to at the Bar were considered by this Court in Govindbhai v. Dahyabhai (1935) 38 Bom. L.R. 175 where Mr. Justice Broomfield made the following observations (p. 180):-

These authorities, in my opinion, do establish this, viz., that where it is clear on reading the instrument as a whole that the testator intended an absolute gift over after a life estate or series of life estates, then that intention will be given effect to in spite of the fact that the language used would ordinarily, that is apart from the contrary intention appearing from the context, have sufficed to confer an absolute estate on the person taking in the first instance. Those taking the estate ultimately will then get a vested interest at once. The cases cited by the learned Counsel for the respondents in this connection, Surajmani v. Rabi Nath Ojha, Bhaidas Shivdas v. Bai Gulab, Ramchandra Rao v. Ramchandra Rao 24 Bom. L.R. 963,Sasiman Chowdhurain v. Shib Narayan Chawdhury 24 Bom. L.R. 576 and Lalit Mohan Singh Roy v. Chukkun Lal Roy contain nothing inconsistent with this proposition, since what is laid down in those cases as to the nature of the estate taken by a Hindu widow, is all subject to the condition that a contrary intention does not appear from the context.

11. Mr. Thakor relied on the principles laid down in the above quotation and contended that although the word 'waras' might have sufficed to confer an absolute estate on Bai Shiva, the intention of the testator was to confer a life estate inasmuch as he also wanted Bai Savita to succeed to the property after the death of Bai Shiva. In this connection he referred to two or three cases of the Court where the word 'malak' or 'waras' has been used in connection with conferring an estate upon the wife and still this Court had come to the conclusion that only a life estate was given to the widow. The first case that he relied upon was Lallu v. Jagmohan I.L.R.(1896) 22 Bom. 409 where the testator made a will making his wife Bai Suraj the owner of the property. The wife had powers to do in the same way as he had absolute powers to do, and in case of his wife's death, his daughter Mahalaxmi was the owner of the said property; and it was held that Bai Suraj took only a life estate under the will, and Mahalaxmi got a vested remainder. Another case on which Mr. Thakor relied was Chunilal v. Bai Muli, where the testator said that after his death his wife was the rightful heir, and that after the death of his wife his daughter Bai Nath was the rightful heir. It was held that the wife took a life estate and Bai Nathi took an estate vested in interest from the testator's death, But both these two cases were decided prior to the decision of the Privy Council in Surajmani v. Rabi Nath Ojha and, as pointed out by Mr. Justice Broomfield in Govindbhai v. Dahyabhai, following the dictum of Macleod C.J. in Mulchand v. Bai Sukshmani (1922) 25 Bom. L.R. 189 'Surajmani's case had overruled the view previously current in Bombay that there was a presumption that a widow was not intended to have the power of alienation and that therefore in Lallu v. Jagmohan and Chunilal v. Bai Muli the Court might not have held that the widow had an absolute estate anyhow even apart from the gift over.' In both these cases, the terms of the will more or less assumed that after the death of the widow the whole of the estate would go to the daughter. There were no words in those wills, as we find in the present one, which would suggest that there may possibly be no estate left on the death of the wife, indicating thereby that the wife had an absolute power of alienation over the property. Mr. Thakor also referred to the case of Mulchand v. Bai Rukshmani. Undoubtedly in that case the widow was given power 'to consume, enjoy or do what she liked with respect to what remained out of the property of the testator,' and after the death of the wife the son Chimanlal was made the owner of the estate. But the special considerations of that case have been pointed out in Govindbhai v. Dahyabhai. At page 181 Mr. Justice Broomfield observes:

As for Mulchand Jekisondas v. Bai Rukshmani the gift over in that case was to the testator's son, and that was the circumstance on which the Court mainly relied in holding that the widow was intended to have a life interest only.

In my opinion, therefore, none of the cases relied upon by Mr. Thakor-two of which were decided prior to Surajmani's case-are of any assistance in the present case for the purpose of holding that the widow got only a life estate in the property.

12. The two cases which are more in point are Bhaidas Shivdas v. Bai Gulab and Thayalai Achi v. Kannammal A.I.R[1935] . Mad. 704 . In the first case, by Clause 8 of the will, the testator constituted his wife the owner of the property and provided that she should leave whatever property might remain after her death to the two named daughters as she liked. This is a clear indication that the testator intended his wife to do what she liked with the property and thus constituted her an absolute owner thereof, and the daughters were named as the persons who were to succeed to the property only if any such property remained at the death of the wife. Under these circumstances their Lordships held that the testator gave an absolute estate to the widow. Similarly, in the present case, the clause which makes the daughter Bai Savita the owner of whatever property remain on the death of Bai Shiva clearly indicates that Bai Shiva was to have an absolute estate in the property and Bai Savita was intended to succeed only to such property as remained at the death of Bai Shiva. Similarly, in Thayalai Achi v. Kannammal, the wife of the testator was given a full authority to enjoy the property, for effecting wills etc., and that if any property remained at the time of her death, the testator directed that it should be taken by Nataraja Pillai after her death. On a construction of the will, it was held that

the testator had the intention of giving to his wife a right to enjoy the property as absolutely as possible and that if she did not, during her lifetime, get rid of the property or that into which it had been turned and did not leave it by will, her enjoyment would come to an end with her death and what was left would pass to N.

Both these cases in my opinion are clearly applicable in construing the will in the present case. I am therefore of opinion that on the true construction of the will the testator gave an absolute estate to Bai Shiva and that therefore the deed of settlement made by her during her lifetime cannot be challenged on the ground that Bai Shiva had no authority to effect that settlement. In my opinion the veiw taken by the learned Assistant Judge is correct.

13. The appeal fails and is therefore dismissed with costs.


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