1. This is an originating summons taken out for the purpose of obtaining the Court's opinion upon the construction of the will of one Jethalal Nathalal, who died on the 9th October 1907, leaving a will dated the 15th of July 1907. The summons is taken out by the executors according to the tenor of the will, and the principal point that arises is the determination of the question : What, if any, interest is taken by the second defendant Bai Dhankore under the will of the testator. Bai Dhankore is the widow of the testator.
2. The will, which is in Gujarati, sets out that the testator had certain properties which he desired to dispose of and he commences his will by saying :
3. I in my full consciousness make this my will agreeably to what is written below. The particulars thereof are as follows : -
1. There are my three daughters by name Mani and Kasi and Somi born of the womb of my first married wife Jadav and no son whatever is alive. My said wife Jadav is dead.
2. I have got my oldest daughter Mani married to Shah Hargovandas Vachhraj in Bombay and my two other daughters Kasi and Somi have remained to be betrothed and married.
3. After the decease of my wife Jadav I have married again with Dhankore the daughter of Shah Chunilal Jethalal in (he city of Broach. No child whatever has yet been born of her womb.
4. He then recites that he had a piece-goods business caried on in two shops. He then proceeds : 'An agreement has been made with them (my partners) on stamped paper of the value of Rs. 10 (namely) ten. And both of these partners have not got any capital whatever credited in their names in the two shops carried on in my name. We three partners have equal shares.' Then he proceeds: 'And the whole capital in the shops belongs to me personally. The same amounts to about Rs. 15,000, namely, Rs. fifteen thousand. All those moneys belong to me personally. Therefore Shah Bhogilal Jugaldas of Cambay, who is my maternal uncle-in-law, and Shah Motilal Mithalal together shall on my behalf after my lifetime (decease) deal with these moneys after my lifetime (decease) agreeably to what is written below, because my wife has not as yet attained her full age. In like manner my daughters are young. Therefore they shall deal with (or dispose of the said moneys) agreeably to (what is written) below. The particulars thereof (are as follows).' Then he makes certain provisions with regard to his daughters setting aside the sum of Rs. 3000 for the benefit of the daughters, and finally he directs: 'My daughters shall not sell the same.' That refers to the Rs. 3,000 to be invested in Government Promissory Notes. Then he recites the existence of his charity account in his piece-goods shops, and gives certain legacies; and then he says: 'An arrangement agreeably to the above particulars, shall be made out of the moneys appertaining to my capital in my above shops. On the above moneys being deducted, as regards whatever may remain over, I appoint my wife Dhankore as the owner of the whole thereof.' I understand that the word used for owner is 'malik.' He then enumerates his immoveable properties and other properties such as goods and chattels, vessels and utensils, clothes and wearing apparel, etc., and all claims and outstanding appertaining to his piece-goods shops, and finally as to all these he says: 'I appoint my wife Dhankore as the owner of the whole of the said property.' Here again I understand the expression used is 'malik.' He then proceeds: 'She shall with the advice of the above written two persons carry on the 'vahivat' (management) thereof. And for doing that business a good (competent) Mehta or man shall be employed. Such person as these two persons (that refers to the two persons Bhogilal and Motilal) may desire to keep shall be employed and (the said management) shall be carried on. And on the death or decease of any of these two (persons) another good (and) proper person shall again be admitted who shall live (act) consistently with his respectability and reputation. And as regards the memorandum of ornaments (and) jewellery which I have made (written out) in my handwriting and kept in my box, when the above written two persons may desire to see the same; the same shall be shown to them.' It is a little difficult to understand exactly what the testator meant by this provision, but I have very little doubt that when he says that the list of the jewellery is in his box and that the list is to be shown whenever they wish it to the persons whom he practically appoints executors, he means it to be shown for the purpose of comparing the list with the ornaments to see that they are all there. Then the will proceeds: 'After my life-time (decease) a 'lahanu' (distribution) of vessels shall after me be made within (my) 'varsi' (first anniversary) amongst the (members of my) caste in Surat. My wife shall act according to the wishes of the two persons written above. Should she however act contrary to what they may say, (these) two persons shall make such arrangement as they may think proper. And on my wife's decease the caste 'mahatam' outlays having been made in a good manner, as regards what may remain over, moneys shall be given out of the same into the Nirashrit fund and to my three daughters and to my maternal uncle's son Lakhmidas Kanji on such arrangement having been made as the above written two persons may deem proper. According to the above particulars (my property) shall after me be administered.'
5. It is argued on the one hand that Bai Dhankore under these provisions merely took the income during her life. On the other, it was argued that she took either an absolute estate or at the very least a widow's estate.
6. If I was at liberty to speculate as to what the testator meant, I should have very little hesitation in coming to the conclusion that his intention was that his wife should have the full benefit of the estate during her life but that he intended that she should be guided throughout by the advice of his executors and that he intended to make a gift over after her death to his two daughters and his maternal uncle's son. But the authorities are perfectly clear that what the Court has to do is not to speculate upon what the testator intended to say but has to construe the intention as it is actually expressed in the will. It is, therefore, necessary to consider what the authorities say in regard to wills of this character made by Hindus. It is not necessary to refer to more than a few of the cases that have been cited before me; and I think it best to base my decision upon the authorities which are reported in the Bombay Law. Reports and on the Privy Council cases to which I will refer. In Harilal v. Bai Rewa ILR (1895)21 Bom. 376, a somewhat similar point came before Chief Justice Farran and Mr. Justice Strachey. The head-note says: 'A Hindu by his will directed that after his death his wife was to take possession of and enjoy his property, and in another passage declared that just as he was the owner so she was to be the owner; but there were no words of inheritance used, nor did he directly give his wife any power of disposition over the property: Held, that she took only a life-interest in the property.' And at page 380, Sir Charles Farran says: 'The Courts have always leaned against such a construction of the will of a Hindu testator as would give to his widow unqualified control over his property. By the use of such expression as ' my wife is the owner after me ' or ' my wife is the heir' it is usually understood that the testator is providing for the succession during the life-time of the widow and not altering the line of inheritance after her death.'
7. In Chunilal v. Bai Muli (1899) 2 Bom. L.R. 46, very much the same point came before a Court composed of Messrs. Justices Parsons and Ranade. There the words of the will were : 'After my death, my wife, if she be alive, is the rightful heir, and if she be not alive, and after the death of my wife, my daughter Bai Nathi is my rightful heir (hakdar waras)'....'As to my daughter Nathi, whom I have, after the life-time of myself and my wife, appointed heir to my property, and as to the surplus the heir to the same is my daughter Nathi.'...'the testator died in 1894; Nathi in 1895 ; and the wife in 1897. Thereupon the testator's step-mother claimed the property as his reversionary heir. It was held that under the will Nathi took an estate vested in interest from the testator's death, which would pass to her heirs on her death, and the step-mother would have no title. And in the judgment Mr. Justice Parsons says at page 49: 'The facts, therefore, are almost exactly the same as those in the case of Lallu v. Jugmohan ILR (1896) 22 Bom. 409, and, if that ruling is followed, the result would be that Nathi would take an estate vested in interest from the testator's death which would pass to her heirs on her death, and the plaintiff would have no title.' He then says : 'There is no real difference in the meaning of the words malak (assuming that that was the vernacular word translated owner) and waras when they are used in the wills. The intention of the testator in each case to give his whole property to his wife for life and on her death to his daughter absolutely is clear.'
8. I consider that those two cases show that so far as the Bombay decisions are concerned, there would be no doubt that on the true construction of this will the widow did not take an absolute estate. But there are two Privy Council decisions upon the point to which it is important to refer. The first is that of Moulvie Mahomed Shumsool Hooda v. Shewukram . There a Hindu inhabitant of Behar, by a document of a testamentary character, after reciting that the property of which he was about to dispose was ancestral property, and reciting the deaths of his only son, of his brother without leaving issue, his brother's wife, and his own wife, declared 'only D.K., widow of my son, who, too, excepting her two daughters, born of her womb, S. and D., has no other heirs is my heir. Except D.K., none other is nor shall be my heir and malik.' At page 14 of the judgment, which was delivered by Sir Robert P. Collier, it is said : 'He (that is the testator) then uses expressions which, if they stood alone would, in their Lordships' opinion, show that he intended to make an absolute gift to Ranee Dhun Kowur The expressions are these: (I have just read them.) 'It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole must be construed as intimating the intention of the testator that Mussumat Ranee Dhun Kowur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. 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 in 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; whether succeeding her as heirs of herself or succeeding her as heirs of the original testator is immaterial'
9. But it remains to be considered whether the case' of Musammat Surajmani v. Rabi Nath Ojha has so modified the force and effect to be given to the decisions I have just cited as to affect my judgment in this case. The headnote in that case says: 'Where a Hindu husband gave certain property by deed of gift or testamentary instrument to his first and second wives and daughter-in-law respectively, reserving to himself a life-interest, but directing that after his death they shall be malik wa Khud ikhtiyar, i.e., owners with proprietory powers': Held, in a suit by the husband's reversionary heirs for a declaration after the death of the said second wife that she was incompetent to alienate the property so given, that she took an absolute estate. The word 'malik' imports full proprietary rights, unless there is something in the context to qualify it. The fact that the donee is a Hindu widow is not sufficient for that purpose.' And at page 19 their Lordships say: 'The words translated, 'as owners with proprietary powers,' are in the original (I read them). The appellants contend that these words are amply sufficient to confer an alienable estate. The respondents, on the other hand, contended, and the Courts below have held, that under these words the lady took no more than the ordinary estate of a Hindu widow, which is inalienable except in I special conditions which are not alleged to exist in this case.' Then they proceed to set out the facts and to deal with various previous decisions, and they say at page 21: 'This case seems to adopt and apply the same view of the word ' malik,' as was taken in the Calcutta case above cited, with the result that in order to cut down the full proprietary rights that the word imports something must be found in the context to qualify it. Nothing has been found in the context here or the surrounding circumstances, or is relied upon by the respondents, but the fact that the donee is a woman and a widow, which was expressly decided in the last mentioned case (that is the case of Lalit Mohun Roy v. Chukkun Lal Roy (1897) L.R. 24 I.A, 76 not to suffice. But, while there is nothing in the context or surrounding facts to displace the presumption of absolute ownership implied in the word 'malik,' the context does seem to strengthen the presumption that the intention was that 'malik' should bear its proper technical meaning.'
10. It appears, therefore, from that decision that the use of the expression 'malik' by itself would be sufficient to give the widow an absolute estate. But it seems in no way to affect the remaining part of the decisions in Bombay and in Moulvi Mahomed Shumsool Hooda v. Shewukram (1874) L.R. 2 I. A. 7., that the knowledge of the testator as to the incidence of a widow's estate and the ordinary notions and customs of Hindus is to be considered in construing a will. Applying those decisions to the present case, it seems to me, though I come to the conclusion not without doubt, that it was the intention, and that such intention has been expressed by the testator, to restrict the estate to be taken by his widow, and that the effect of these decisions is that she took a widow's estate and not an absolute estate.
11. It follows, therefore, that the first question : 'What, if any, interest is taken by the second defendant Bai Dhancore under the will of the testator Jethalal Nathalal in the residue of his estate,' must be answered by saying that she took a widow's estate therein.
12. As to the second question: 'Whether the executors will be justified in handing over the said residue to the said second defendant or any and what part thereof,' it follows that as she is entitled to a widow's estate, she must be entitled to the possession of the estate. Therefore, they must be justified and indeed bound to hand over the possession of the estate to her.
13. As to the 3rd question : 'If not, what arrangements should be made for the custody, preservation and management of the said residue during the lifetime of the said second defendant,' it follows that no answer is necessary.
14. As to the 4th question : 'Whether the gift over in the said will contained on the death of the said second defendant is valid or invalid, and if valid, who are the persons entitled to the said residue on her death and in what proportions and for what interest ;' in my opinion, the time has not arrived for answering that question.
15. The plaintiff's and the Advocate General's costs to be paid out of the estate as between attorney and client. The second defendant to have her costs out of the estate. Defendants 4 and 5 to have their costs out of the estate as between party and party. Defendants 3 and 6 to have one set of costs between them as between party and party.