1. The only question which arises in this second appeal by the defendants is whether as a result of a will made by deceased Gangaram, husband of the defendant No.1 one rupchand who was his nephew had acquired a vested interest as contemplated by Section 119 of the Indian Succession Act Admittedly, Gangaram had a brother by name Balaram. Balaram had three sons - Rodmal, Rupchand and Lalehand, Rodmal died in 1941, and defendant No. 3. Godavaribai in his widow, Gangaram himself died on 10.2.1949, and Rupchand died on 14.8.1952. Defendants No.3 Godavaribai in his widow, Gangaram died on 10.2.1949, and Rupchand died on 14.8.1952. Defendant No.3 Godavaribai is said to be in possession of some of the suit property and defendant No.5 is the daughter of Godawari . Now, the will provided that after the death of testator provided that after the death of testator Gangaram Now, the will provided that after the death of testator Gangaram his widow Bhagirathibai should enjoy the income from the suit property and she was expressly prohibited from alienating the suit property in any way. The further recitals in the will were that after the death of Bhagirathibai, the movable and immovable property mentioned in the will should be taken possession of by Rupchand son of Balaram, who is also described as the eldest son of Balaram, his brother. Rupchand was then a minor and his age is shown as 17 years and his guardian is shown as the testator himself, under the will. The will thus provided that Rupchand alone should enjoy the property as absolute owner and that nobody else had any right whatsoever in respect of that property. Now, the present plaintiff Lalchand is Rupchand's brother, and the immediate occasion for the suit appeared to be an adoption of Ramesh as a son by Bhagirathibad. Since Rupchand died on 14-8-1952 and Bhagirathibai was alive and Lalchand apprehended that he would be deprived of the suit property as an heir of Rupchand, he brought a suit for a declaration that on the death of testator Gangaram on 10-2-1949, the legatee Rupchand acquired a vested right or interest in the suit property under the will dated 19-2-1948 and further that the plaintiff had now acquired that right as a legal representative of Rupchand. This suit was contested by the defendants Nos. 1 and 2 alone. The only defence was that the plaintiff had not stepped into the shoes of his elder brother Rupchand.
2. On a construction of the will an on the provisions of Section 119 of the Indian Succession Act, the trial Court held that Rupchand had acquired a vested interest and that the plaintiff would succeed to that interest after the death of Bhagirathibad. A declaration was accordingly made in favour of the plaintiff. An appeal filed by Bhagirathibai and Ramesh against the judgment of the trial Court was dismissed by the Extra Assistant Judge Akola, who also held that Rupchand got a vested interest in the property on the death of testator Gangaram and this vested interest passed to the heirs of Rupchand since he had died without having received the legacy.
3. In this second appeal filed by Bhagirathibai and her adopted son, it is contended by Mr. N. K. Kherdekar that the interest of Rupchand was to have vested in him only after Bhagirathibai's death, and since Rupchand predeceased Bhagirathibai, there was no cooasion for any interest to vest in Rupchand, with the result that there was nothing which could be transmitted to the legal representatives of Rupchand. It is also urged that on a proper construction of the will, it was clear that the testator intended that no person other than Rupchand was to enjoy the property of the testator and therefore, the present plaintiff could not claim any property contrary to the directions in the will. The decision of this appeal turns mainly on the question whether the recitals in the will created a vested interest in favour of Rupchand. There is no ambiguity about the recitals in the will which show that initially Bhagirathibai was to enjoy the property during her lifetime with no power to alienate the property and the property was to pass after her death to Rupchand for all time to come and he was alone to enjoy the property. Now, on these recitals which are unambiguous, it is apparent that the provisions of Section 119 of the Indian Succession Act will be attracted and the case squarely falls under illustration (iii) to Section 119. The material part of Section 119 of the Indian Succession Act provides:
'Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representative if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said k to be vested in interest'.
'A fund is bequeathed to A for life and after his death to B. On the testator's death the legacy to B becomes vested in interest in B'.
Now, here the right to receive the property was postponed to the death of Bhagirathibai. A limited interest was created in favour of Bhagirathibai. She was not given absolute rights of ownership. There was a prohibition against allegation, and though she continued to be in possession of the property, she had no ownership rights in the property. On the death of the testator, a vested interest was created in favour of Rupchand. The ownership vested in him though possession was deferred. It is significant to note that Section 119 refers to a person not being entitled to immediate possession. it speaks, therefore, of immediate possession and not of ownership. In the instant case, if the rights of ownership did not vest in Bhagirathibai and a residurary bequest was made infavour of the death of the testator, though he would get possession only after the death of Bhagirathibai (sic).
4. It is not doubt true that so far as the construction of the will is concerned, as pointed out by the Supreme Court in Gnambal Ammal v. Raju Ayyar, : 1SCR949 , 'the intention of the testator has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done it he had been better informed or better advised'. The following passage from the judgment of the Privy Council in Venkata Narasimha Appa Row v. Parthasarathy Appa Row, (1913) 41 Ind App 51 at p. 70 (PC) was then reproduced'
'The Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The Court is entitled to put itself into the testator's armchair'.
It is pointed out in that a case by the Privy Council that all this was solely as an aid to arrive at a right construction of the will and to ascertain the meaning of its language when used by a particular testator in that document. It was further pointed out that as so on a s the construction was settled, the duty of the Court was to carry out the intentions as expressed, and none other. Now, while referring to Rupchand, it was no doubt mentioned in the will by the testator that he alone was to enjoy the property and nobody else. It is on this recital that it is contended that though Lalchand was alive at the time when the will was made, every other person including lalchand was excluded from the bequest and, therefore, allowing the present plaintiff now to inherit the property as an heir of Rupchand after the death of Bhagirathibai would be frustrating the intention of the testator was to create an absolute ownership in favour of Rupchand to the exclusion of all others. The testator did not anticipate that Rupchand would predecease Bhagirathibai. The effect of the death of Rupchand during of lifetime of Bhagirathibai would, therefore, have to be decided with reference to the statutory provision in Section 119 of the Indian Succession Act. The vested interest would pass to the heirs of Rupchand by virtue of the statutory provisions and those provisions were not set at naught by the creation of an interest exclusively in favour of Rupchand. Nothing is provided in the will as to what would happen if Rupchand predeceased Bhagirathibai, and that was where Section 119 of the Indian Succession Act and the law of inheritance applicable to the testator would step in and the vested interest would become transmissible to the heirs.
5. The view which I have taken is supported by a Division bench decision of this Court in Lallu v. Jagmohan, ILR (1898) 22 Bom 409. In that case, one Janmadas who died in 1876 left a will stating that after has death his wife Suraj would be owner of the property and in case of wife's death, his daughter Mahalaxmi would be the owner after her death, and the question was what was the nature of the interest which Mahalaxmi took. It was held that Suraj, the widow took only a life estate in the property with remainder to Mahalaxmi after her death, and the bequest to Mahalaxmi was not contingent on her surviving Suraj but that she took a vested remainder which upon her death passed to her heirs.
6. In Mohan Lal v. Gopal Lal, : AIR1940All347 the facts were that the testator bequeathed his property to his daughter and her son with the condition that the daughter should have life interest and be the first owner throughout her lifetime and after her death her son should be the owner of the property. The legatees were not to have any powers of transfer. Both the legatees were alive at the time of the death of the testator, but the son predeceased his mother. It was held that the estate given to the daughter was a life estate and that vested interest in the son existed during her life estate and the son's ownership began with the death of the testator and consequently his heirs were entitled to inherit after his mother's death.
7. It would not be possible to accept the argument of Mr. Kherdekar that Rupchand's interest itself was to come into being for the first time after the death of Bhagirathibai. The point of time when the interest would come into being would depend on whether the interest created by the will would be a vested interest or not. If, as I have found, a vested interest was created, it would begin to operate from the time of the death of deceased Rupchand. There is, therefore, no substance in the contention that the plaintiff was not entitled to claim as an heir of Rupchand. There is, therefore, no substance in this appeal. The appeal, therefore, fails and is dismissed, but there will be no order as to costs.
8. Appeal dismissed.