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Atmaram Jamnadas Shah Vs. Nazir, District Court - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 54 of 1923
Judge
Reported in(1926)28BOMLR431; 94Ind.Cas.704
AppellantAtmaram Jamnadas Shah
RespondentNazir, District Court
DispositionAppeal allowed
Excerpt:
hindu disposition of property act (xv of 1916)-retrospective effect.;the hindu disposition of property act, 1916, has no retrospective effect. - - no son of babli was in existence at the time of the testator's death and the provisions in his favour therefore, entirely fail......a son of babli, if any, in equal shares; and as no such son was in existence at the time of the testator's death, the bequest to him is under the rule laid down since the tagore case void and atma ram becomes sole residuary legatee. the hindu disposition of property act xv of 1916 has no application to the will which came into effect on the testator's death in 1902,2. [his lordship after setting out the clauses of the will and the postscript concluded:] the will and the clauses quoted above with the postscript leave no doubt as to the testator's intentions. he wanted to leave the residue in equal shares to atmaram and to babli's son, if any. and whatever the confusion in clause 45, the postscript makes it quite clear that the residuary legatee if any, along with atmaram, was not.....
Judgment:

Madgavkar, J.

1. It is argued for the appellant that the residuary legatees are the appellant and not Babli but a son of Babli, if any, in equal shares; and as no such son was in existence at the time of the testator's death, the bequest to him is under the rule laid down since the Tagore case void and Atma ram becomes sole residuary legatee. The Hindu Disposition of Property Act XV of 1916 has no application to the will which came into effect on the testator's death in 1902,

2. [His lordship after setting out the clauses of the will and the postscript concluded:] The will and the clauses quoted above with the postscript leave no doubt as to the testator's intentions. He wanted to leave the residue in equal shares to Atmaram and to Babli's son, if any. And whatever the confusion in Clause 45, the postscript makes it quite clear that the residuary legatee if any, along with Atmaram, was not Babli, but Babli's son, even if he was born after Atmaram attained twenty-five years and had been placed in possession of the estate.

3. But the law applying to this will, which came into effect in 1902 on the testator's death, is the law in the Tagore case and not Act XV of 1916 which, unlike Madras Act I of 1914 by its Section 2, is not retrospective. No son of Babli was in existence at the time of the testator's death and the provisions in his favour therefore, entirely fail. Babli, respondent No. 5, is entitled to Rs. 2,500 in the postscript.

Fawcett, J.

4. I agree. I think the Hind a Disposition of Property Act, 3916, cannot apply to the present case. It contains no words making it in any way retrospective in its operation, unlike the provisions to that effect contained in Section 2(2) of Madras Act I of 1914 and Government of India Act VIII of 1921. On the contrary, the heading and preamble of the Act show that it is intended only to remove existing disabilities in respect of the power of disposition of property by Hindus & c., and it is not put in such declaratory language as the Acts operating in Madras. Consequently Section 2, in my opinion, only covers the case of a disposition made after the commencement of the Act.


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