1. This originating summons is taken out for the construction of the will of the deceased husband of the plaintiff, who died on February 2, 1931. The will is dated January 30, 1931. The deceased died childless leaving the plaintiff as his widow. He left assets worth about Rs. 8,77,000 but when considered with the schedule of debts annexed to the petition for probate, the total estate left was about two lacs of rupees. The will is in the Gujarati language, and although it appears to be attested by a solicitor and his clerk, there is nothing to show that any lawyer had a hand in its preparation. After stating that the properties left were his self-acquired properties, at the end of paragraph 3 the testator stated that he declared his wife Bhuribai to be the full owner of his said properties. Then he recited certain transactions which had taken place during his lifetime. Paragraph 7 of the will is material and runs as follows :-
As regards my moveable and immoveable properties which are in British India or outside I declare my wife Bhuribai as the absolute owner of my moveable and immoveable properties that there are and I give her authority to make use thereof in any way she likes; or she may sell the same if she so chooses or she can make a will. If she wants to give for any charitable purpose she can give away the same by a will or by making other documents during her lifetime. I am confident that my wife Bhuribai will give away my property or properties in charities in such manner as she likes. But if my wife Bhuribai dies without making a will or any other arrangement at the time of her death as to for what charitable purposes my properties are to be used then after her death (1) Bhai Shivnarayan Birdichand, and (2) Manordas Gorakhram shall take possession of whatever property belonging to me may have remained over and shall use the whole of my remaining property in charities such as education, sadavarat, dharmshala, temple, etc. or shall render help to any of my relatives who may be in poor condition.
The official translation of the paragraph as made in the probate and the plaint is somewhat different from what is quoted above. On the application of the plaintiff's counsel I referred the matter to the Chief Translator who checked the translation and has certified the passage as quoted above to be the correct translation.
2. The question for the Court is whether under this clause the plaintiff gets an absolute estate or a limited estate with restrictions on her power. The second question raised is whether charity takes any interest under this clause.
3. On behalf of the plaintiff it is urged that in addition to declaring that she was the full owner of the properties the testator had authorised her to make any use thereof in any way she liked. She was expressly given power to sell the properties or to make a will in respect thereof. They are absolute general words without any limitation at all on her authority or power as a full owner. She is also given power to give away the property by a will or deed inter vivos to any charity she liked. It is contended that the words 'I am confident...etc.' do not create a trust but are only words of recommendation. The later part of the clause which deals with such property as is left on the plaintiff's death without her disposing of the same is contended by the plaintiff not to be a bequest to charity or otherwise, but a declaration of a desire of what should be done if nothing had been done by the plaintiff during her lifetime. On behalf of the plaintiff my attention was drawn to The Mussoorie Bank v. Albert Charles Raynor I.L.R. (1882) All. 500 where the Privy Council had occasion to consider the following words : 'I give to my dearly beloved wife the whole of my property both real and personal, feeling confident that she will act justly to our children in dividing the same when no longer required by her.' Their Lordships of the Privy Council held that the widow took an absolute interest in the property and that no trust for the benefit of the children was created. In the course of the judgment it was emphasized that no case had been cited or could be cited in which the doctrine of precatory trust had been held to prevail when the property said to be given over had been given when no longer required by the first taker. It was pointed out that in order to constitute a trust imperative words connected with the first taker of the property must be found and the subject matter of the gift must be well-defined and certain. It was also pointed out that if there was uncertainty as to the amount or the nature of the property, there would be two difficulties : one in the execution of the trust, and the other, the uncertainty in the subject of the gift had a reflex action upon the previous words and threw doubt upon the intention of the testator and seemed to show that he could not possibly have intended his words of confidence, hope or whatever they may be, to be imperative words. It was pointed out that there were no words of gift over in the case relating to specific property and if the testator had given to his children such property as was not required by his wife the gift over would have been void because of uncertainty. It was stated that the gift over would have been void, not merely because the words of gift over were precatory, but notwithstanding the most direct and precise words of gift over used, it would be void. It was pointed out that the nature of the property, which included a number of articles as to some of which the use was equivalent to consumption and to some which were clearly absolute gift, showed that the words did not constitute a direct gift. The result was that the gift to the wife was considered absolute.
4. In Bhaidas Shivdas v. Bai Gulab I.L.R. (1921) 46 Bom. 153 the Privy Council had occasion to consider a will containing the following clause (p. 158) :-
(3) And I constitute her the owner. And as to whatever property there may remain after her death my wife shall leave the said property to my two daughters in such manner as she may like (either by making a 'will' or by making some (other) instrument. Of my two daughters one named Bai Jamnabai was married to Shah Haridas Hemchand, but as he subsequently died she has now become a widow. To her and to (my) other daughter Diwali who has been married to Shah Bhaidas Shivdas (i.e.,) to both of them my wife shall give (my) property in such manner as (she) may like.
The Privy Council held that the words did not constitute a limitation on the power of the widow. It was held that the second part of Clause 3 quoted above did not constitute a trust in favour of the daughters, as the subject matter, namely what may remain over, was uncertain.
5. The latest case of our Court to which my attention has been drawn is Govindbhai v. Dahyabhai (1935) 38 Born. L.R. 175 where the Court in considering the will of a Hindu held that where it was clear that the testator intended an absolute gift over after a life estate the intention should be given effect to in spite of the fact that the language used would ordinarily have sufficed to confer an absolute estate on the person taking in the first instance. It was held that the absolute estate may be made defeasible in certain circumstances, but it could not be cut down to a life estate merely by a gift over of the residue. These observations are material to be considered while reading the later part of the clause in question in this case to decide whether it constitutes the bequest in favour of the widow a life estate or a limited estate as contended by the Advocate General. The learned Judges examined numerous decisions of this Court and pointed out the difference in judicial opinion on the construction of wills till the decision in Surajmani v. Rabi Nath Ojha . It was pointed out that the difference in the point of approach was noticed in Mulchand v. Bai Rukshmani (1922) 25 Bom. L.R. 189. It appears that before the decision in Surajmani's case it was thought that however imperative the words may be unless there were express words authorising the widow to alienate the property the gift or bequest must amount to a limited estate. That view was negatived by the Privy Council in Surajmani's case and it was held that if the words constituted the widow an owner, there was no necessity of expressly giving her powers of alienation to constitute her the full owner.
6. On behalf of the defendant the learned Advocate General relied on Motilal v. Advocate General (1910) 13 Bom. L.R. 471. In that case the wife and daughters in whose favour the bequests were made were all minors. It was noticed that there was no power of alienation. It was pointed out that the widow was enjoined to keep and show a list of ornaments to the advisers named in the will and she was directed to act according to the wishes of those persons. The learned Judge, relying on the earlier decision in Chunilal v. Bai Muli (1899) 2 Bom. L.R. 46 and Lallu v. Jagmohan I.L.R. (1896) 22 Bom. 409, held that as there was no express power of alienation the widow took a limited estate. The learned Judge noticed the decision in Surajmani's case but considered that that decision did not outweigh the effect of the earlier decisions. In my opinion that reasoning is futile because of the decisions in Govindbhai v. Dahyabhai and Mulchand v. Rukshmani. From the judgment it appears clear that the learned Judge attached considerable importance to the fact that there was no power of alienation mentioned in the will. Having regard to the later decisions, the principle stated in that case is not now binding on ma.
7. In Mafatlal v. Kanialal : AIR1915Bom246 the will was in these terms :-
If I die then my son's wife Bai Ganga is the owner of the above-mentioned immoveable and moveable properties....The said Ganga shall during her life-time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease her two daughters are the owners thereof.
It is clear that in the first instance although Bai Ganga was stated to be the owner in a similar way, the two daughters were stated to be the owners of the property after the death of Ganga. While Bai Ganga was given power during her lifetime to spend, use and enjoy, there were no words indicating that as full owner she had power to alienate or make a will in respect of the property. The Court, relying on In re Seal; Seal v. Taylor  1 Ch. 316 considered that while the testator gave to the widow power for her absolute use, benefit and disposal, what remained undisposed of by her was given by the testator to the two daughters equally as tenants-in-common. It was held that the widow took a life estate with power of disposal during her lifetime by act inter vivos but not by will. Surajmani's case has not been noticed in that case.
8. In Lallu v. Jagmohan the relevant portion of the will was as follows :-
When I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that (death).
I have already noticed this case in considering Motilal v. Advocate General That decision was given before Surajmani's case and the learned Judges were impressed by the fact that no express power of alienation was given in the will. I have already noticed Mulchand v. Rukshmani. In that case the words were as follows :-
After my death my wife is to take my property into her possession with full authority...is to consume, enjoy or do what she likes in respect to what remains out of my property. After the death of my wife my son...is the owner of my estate, he may do what he likes with respect to my property.
There also as can be noticed while the wife was given power to consume, enjoy and do what she liked with the property, it was stated in terms that after the wife the son was the owner of the estate and he might do what he liked with respect to the same. It was, therefore, clear that the use of the word 'malik' or 'owner' as contained in that will was not intended to give full effect to the implication of that word. The Advocate General strongly relied on Comiskey v. Bourring-Hanbury  A.C. 84. In that case the testator devised and bequeathed to his wife
the whole of my real and personal estate and property absolutely in full confidence that she will make use of it as I should have made myself and that at her death she will devise it to such one or more of my nieces as she may think fit and in default of any disposition by her thereof by her will or testament I hereby direct that all my estate and property acquired by her under this my will shall at her death be equally divided among the surviving said nieces.
In giving judgment Halsbury L.C. emphasized that the testator had clearly intended that his estate should remain intact till his widow's death, and that was clear from the use of the words 'she will devise it.' The Lord Chancellor emphasized this point and stated that he therefore could not have contemplated that during the lifetime of the widow she could dispose it of in any way or place upon it such an irrevocable character that at the time she died herself it would pass away from her disposition. The next portion of the clause was considered as giving an alternative direction by the testator himself and the use of the words 'I hereby direct' was emphasized to show that the bequest to the legatees was by the testator himself. The point emphasized more in the judgment of Lord Davey was that the widow's power was to distribute it amongst the nieces. Lord James pointed out in his judgment that that was wholesome in view of the fact that the occasion to distribute the estate amongst the nieces would be after many years and the circumstances of each niece at that time would be very relevant to be considered. The will was construed to mean as giving the widow power to devise amongst the nieces in such proportions as she thought right and in default of any appointment equally amongst the nieces.
9. 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 recognized by the Hindu Women's Right to 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 dearly 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.
10. Considering the will before me, I think the words are clear and free from ambiguity. The first portion makes the widow the owner of the property and gives her full power to dispose of the same by will or inter vivos. Her right to give the property to charity is recognised and emphasised to be unfettered. That may have been expressly given, if one may say, to defeat the argument that she had a right to alienate only for necessity. The words disclosing the hope of the testator that the widow will give the estate in charity are not imperative and do not create a trust in favour of charity. The last words in my opinion do not amount to any direct bequest in favour of charity. It is an indication of what the testator thought might be done, if in spite of the widow having powers under the will omitted to exercise them. To put it in other words the testator thought that if any property was left as if res nullius he should provide against such a contingency. It should be noticed in that connection that the words are in respect of whatever property had remained unappropriated, i.e. in respect of which the plaintiff had not exercised her powers including her power to give the same in charity. I do not think these words in any way make the firstly given estate to the widow a life estate or are otherwise sufficient to make out a trust in favour of charity. Reading the will as a whole I have no doubt that the testator wanted and in fact by the words used by him made the widow full owner of the property. It is true that he has stated that he hoped that his wife would give the estate or what she would consider right to such charities as she may like. It is not contended by the plaintiff that she does not want at all to respect that wish of the deceased. Mr. Desai told the Court that having regard to the manner in which the estate is now found, particularly having regard to the litigation after the death of the deceased, the plaintiff is not in a position today to state what portion she may be able to give in charity. These are, however, outside considerations and do not affect the construction of the will. My answers to the questions are :
No. 1. The plaintiff gets an absolute interest in the estate left by the deceased.
No. 2. Charity gets no interest under the will.
Costs of both parties taxed as between attorney and client to come out of the estate.