1. The short question that arises for determination in this appeal relates to the construction of a will dated 30th September 1954 made by one Zaverbhaim, a resident of Surat. The question is what is the nature and quality of the interest granted under the will to Laxmi widow of Zaverbhai. Zaverbhai died on 18th October 1954 leaving him surviving his widow Laxmi and two sons and a daughter of his sister, namely Shantilal Govind and Chhani. Shantilal was living with Zaverbhai at the time of his death and was looking after him and attending to his needs. The properties left by Zaverbhai consisted of certain movable about which there is now no controversy between the parties and an immovable property situate in the City of Surat. The disposition of these properties after his death was made by Zaverbhai by his will dated 30th September 1954. The original will is in Gujarati language and we shall have occasion to refer to some of the Gujarati expressions used by Zaverbhai which have been the subject matter of controversy between the parties but without attempting to given a translation of those expressions at this stage. we may for the time being refer to them in Gujarati and reproduce below an agreed translation of the relevant clauses of the will with those expressions retained in Gujarat. The agreed translation is as follows:--
'I Zaverbhai Noarottamdas, Cast-Gola about 52 years. occupation grain business, residing at Begampura Golwad. Surt. hereby make my last will. In order to see that after my death there is no dispute with respect to my properties and that 'Vyavsatha' is done in respect thereof according to my wishes. I hereby make this. the last will, which will come into force after my death.
(1) There has been separation from my brothers since along time and I am separate from my brothers and nephews since long. I carry on my trade separately and I have no concern whatsoever with my brother's sons. All of them separately carry on their respective trades and they are separate in every respect.
(2) I have a wife by name Lakhami who is daughter of Ramu Megha. I have no issue, I have my sister's sons, viz., Shantilal Balubhai and Govind Balubhai and Sister's daughter viz., Chhani. My sister's sons Shantilal Balubhai is at present staying with me and is serving me. There is nobody else except the aforesaid persons in my near relations.
(3) xx xx xx
(4) I make my wife Lakhami to be full and sole 'Waras' of the immovable property stated in para 3 above and of the entire moveables including furniture, ornaments. goods of the trade etc., whatever may be situated therein and of the properties which I may acquire hereafter. After my death, my wife Lakhami will obtain possession of all the movable and immovable properties by virtue of 'Malki-Hak'. And she can by 'Malki-Hhk' do such 'Vyavsatha' in respect thereof according to her sweet will and desire. Nobody else can raise any dispute therein and even if any dispute is raised the same is void and of no effect by this (Will).
(5) I have closed my business because of my indifferent health. I have no doubt to be paid. I have some outstanding recoveries. After my death, my wife as 'Malki' should recover the balance of my outstanding. If there are any debts my wife should repay the same after verifying the same.
(6) After my death my sister's son Shantilal Balubhai will stay with my wife. If he improves his conduct and staying with my wife serves her and gives her satisfaction. then after my wife's death Shantilal will become 'Malik' of 'Bhaki-Raheti' immovable and movable properties. But he will not be entitled to do any 'Vyavsatha' in respect of immovable property. After Shantilal his sons will become 'Malik' thereof in equal shares. But Id do not keep any right or claim of Shantilal during the lifetime of my wife. If Shantilal does not carry on well with my wife, then after the death of my wife. the sons of Shantilal shall be Malik of all my movable and immovable properties in equal shares and I do not keep any claim of Shanitlal.
(7) If my sister's sons Govind Balubhai has got any difficulties and if he is in need of money then my wife should given him the amount of Rs. 100.00 to Rs. 150.00 from my properties. My wife should also incur expenses which are required to be incurred in connection with my sister's daughter Chhani's Visits. Shanitilal should incur such expenditure after the death of my wife. xx xx xx x'
Pursuant to the will Laxmi took possession of the movable and immovable properties left by Zaverbhai at the time of his death and enjoyed the same. Now it appears that Shantilal did not behave properly with Laxmi and made her extremely unhappy to such an extent that she was driven to file a suit against him for evicting him from the immovable property in which he was residing with her. We are not concerned with that litigation in the present appeal and we need not. therefore, say anything more about it. Suffice it to state that Laxmi was so dissatisfied with Shantilal that she made a will dated the 9th April 1955 giving away all the movable and immovable properties received by her from her deceased husband to Channi. Laxmi also executed a deed of gift dated 25th January 1958 giving in favour of Chhani the immovable property acquired by her from her deceased husband. On the death of Laxmi on 30th March 1960. a question arose a so who was entitled to the movable and immovable properties left by Zaverbhai. Chhani clamed these properties under the will dated 9th April 1955 made by Laxmi and also founded her claim to the immovable property on the gift deed dated 25th January 1958 executed by Laxmi. Shantilal and his sons on the other hand laid a claim to the properties under the will of Zaverbhai and contended that on a proper construction of the will Laxmi had merely a life interest in the properties left by Zaverbhai and she was not entitled to dispose them of either by gift or by will an d on her death, they came to Shantilal and his sons. Since Chhani took over possession of the properties on the death of Laxmi, Shanitlal and his sons filed a suit against Chhani and the executors of the will of Laxmi for recovering possession the properties and meson profits. The trial Court held that Laxmi had an absolute interest in the properties left by Zaverbhai and the gift-over of the residue of the properties on the death of Laxmi in favour of Shantilal and his sons was void as being repugnant to the absolute estate granted to her and being an absolute owner. she was entitled to dispose of the properties inter vivos or by will and the will dated 9 th April 1955 and the gift deed dated 25th January 1958 were therefore valid dispositions of property and by virtue of them. Chhani was entitled to the properties left by Zaverbhi and Shantilal and his sons could not make any claim to these properties. The trial Court on this construction of the will dismissed the suit of Shantilal and his sons. This led to the filing of the First Appeal in this Court. The Appeal was heard by a Division Bench consisting of J. M. Sheth and S. H. Sheth JJ. The learned Judges were divided in opinion on the construction of the will. J. M. Sheth J. was of the view that an absolute interest was granted to Laxmi in the movable and immovable properties left by Zaverbhai and the gift-over of what remained at the death of Laxmi in favour of Shantilal and his sons was therefore, void as being repugnant to the absolute estate granted to her and since she was entitle dot an absolute estate. she had full power of disposition inter vivos as well as by will and dated 9 th April 1955 and the gift deed dated 25th January 1958 were therefore, valid and effective to pass title to the properties in favour of Chhani. The view taken by Mr. Justice S. H. Sheth was quire the opposite. He held that, on a proper reading of Clauses (4) and (6) of the will the interest given to Laxmi was only a limited interest for the education of her life and she had no right to dispose of any the properties of Zaverbhai either inter vivos or by will and both the will dated 9th April 1955 and the gift deed dated 25th January 1958 were, therefore, invalid and ineffective and did not confer any title to the properties on Chhani. The conclusion reached by the learned Judge was that on the death of Laxmi, her life interest came to an end and the properties left by Zaverbhai came to Shantilal as a life-tenant. or in any event, to the sons of Shantilal as owners in equal shares. There was thus a difference of opinion between the two learned Judge on the construction of the will and the point on which they differed was formulated by them in the following terms:--
'There is difference of opinion between us on the question whether the Will Ex. 49 confers upon Bai Laxmi only a life estate in the property of her husband Zaverbhai and it vests absolute remainder in Shantilal's sons, plaintiffs Nos. 2 to 6 or whether the first bequest which was in favour of Bai Laxmi was a bequest of an absolute estate in favour of the wife with all power of disposition and eventually. any directions given to tie down the further devolution in favour of Shantilal's sons plaintiffs Nos. 2 to 6 , would be repugnate to it and cannot be given effect to it legally and eventually they have got to be ignored'.
The case was then heard on this point by Mr. Justice divan who was assigned this work by me as Chief Justice under Clause 36 of the Letters Patent, Divan J. found himself unable to agree with the view taken by either of the two learned Judges. He preferred to taken an intermediate view, namely that on a combined reading of Clauses (4) and (6) of the will. Laxmi took a life interest in the movable and immovable properties left by Zaverbhai with power of disposition enter vivos but not by will. This intermediate view, he thought, would given full effect to all the clauses of the will and effectuate the manifest intention of Zaverbhai. But taking this intermediate view rendered the decision of the appeal under Clause 36 of the Letter Patent impossible, since on this intermediate view there would be no majority opinion amongst the Judges in according with which the appeal could be decided. Divan J. therefore. referred the matter to me as Chief Justice for constituting a Full Bench and it is in these circumstances that the point on which J. M. Sheth and S. H. Sheth JJ. difference has now come up for decision before us sitting in Full Bench.
2. When the present reference reached hearing before us. Mr. Chhatrapati, learned advocate appearing on behalf of the appellants. raised a preliminary contention, namely, that the only point of difference between J. M. Sheth and S. H. Sheth JJ. was whether Laxmi had an absolute interest or a limited interest and the jurisdiction of Divan J. under Clause 36 of the Letters Patent was, therefore, confined only to deciding which of the two views on the point of difference was correct and he had no jurisdiction to entertain a new point as to whether Laxmi had power of disposition inter viovs. Now it is true that under Clause 36 of the Letters Patent a point which has not been urged before the Division Bench and on which the Judges composing the Division Bench have not differed cannot be urged before the Judge or Judges to whom the point to difference is referred but we do not see how such an objection can arise here in the present case. The point on which J. M. Sheth and S. H. Sheth JJ. differed was no doubt construction of the will but construction of the will became material for determination of the question whether Laxmi and power of disposition inter vivos and by will. The power of disposition of Laxmi was very much in issue before the learned Judges because. on the existence of the power of disposition. depended the validity of the will dated 9th April 1955 and the gift deed dated 25th January 1958. J. M. Sheth J., took the view that the interest conferred on Laxmi under the will was an absolute interest and she had, therefore, power of dispose of the properties left by Zaverbhai inter vivos as well as by will S. H. Sheth J., on the other hand was inclined to hold that the interest given to Laxmi to under the will was a life interest without any power of disposition inter vivos or by will. This was the point of difference between J. M. Sheth and S. H. Sheth JJ. and it was this point of difference which was referred under Clause 36 of the Letters Patent. The question whether Laxmi had power of disposition inter vivos or by will was, therefore. very much before Divan J. on the reference made by J. M. Sheth and S. H. Sheth, JJ. and it was open to Divan, J., to take the intermediate view that though Laxmi did not have an absolute interest in the properties left by Zaverbhai but had only a limited interest it was coupled with the power disposition inter vivos but no by will. But this intermediate view taken by Divan. J., would not have event it would not be possible to say that there was any majority opinion amongst the three Judges and therefore. Divan J., requested me. as the Chief Justice, to refer the point of difference to a Full Bench. That could be legitimately done because Clause 36 of the Letter Patent provides that 'the case shall then be head upon that point by one or more of the other Judges' and the point by of difference can. therefore, be heard by a Full Bench of three Judges. The preliminary contention urged by Mr. Chhatrapti must, therefore, be rejected.
3. That taken us to the merits of the question in controversy between the parties. The question is what on a true interpretation of the relevant clauses of the will, is the nature and quality of the interest granted to Laxmi under the will of Zaverbhai. Is it an absolute interest with full power of disposition as held by J. M. Sheth. J., or is it a limited interest without any power of disposition inter vivos or by will a sheld by S. H. Sheth, J., or is it a limited interest with power of disposition inter vivos but no by will as held by Divan J.? The determination of the question turns wholly on the true interpretation of the different clauses of the will. We shall presently turn to examine these clauses but before we do so. we may advert to one rather striking feature which always characterises arguments relating to construction of a will. The learned advocates on behalf of the parties in cases of this kind always refer to a large number of decision to support the construction respectively urged by them. sometimes we even find the rather unusual spectacle of the advocates of the parties relying upon the same decisions and seeking to derive support from the. But it is necessary in this connection to remember the warning uttered by as high an authority as the Judicial Committed of the Privy Council in Sasiman Chowdhurain v. Shib Narain 49 Ind App 25 = (AIR 1922 PC 63) where it has been said:--
'Their Lordship may observe that it is always dangerous to construe the words of one will by the construction of more or less similar words in the different will, which was adopted by a Court it another case'.
Lord Macmillan repeated this warning in Kamakhya Dat Ram v. Kushal Chand. where he said that in construing the language and arriving at the intention of a particular testator decisions on the construction of other wills are of little assistance. the only guidance to be obtained from them is that what must be sought in every instance is the dominate intention of the testator. The same warning was again reiterated by the Judicial Committee of Privy Council in Shalig Ram v. Charanjit Lal in the following words:--
'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 will under consideration difference from the terms of the will in the present appeal'.
The proper approach in cases of this kind must, therefore, be to form an opinion about the construction of the will apart from the decided cases and then to see whether these decisions require any modification of that opinion: not to being by considering how far the will in question resembles other wills upon which decisions have been given.
4. But even so, it would be instructive to refer to some of the decision cited before us for the purpose of ascertaining whether there is any principle of construction on which they are based. Now the decisions which were referred before us can be broadly divided into three categories. The first category comprises decisions whether the testator granted absolute interest to the first done expressly and in so many terms and then attempted to given the residue of the property which may remain at the death of the first donee to a subsequent donee absolutely. The Courts held in these cases that once absolute interest in property was granted by the testator to the first donee. no subsequent disposition could be made of the residue of the property which would be repugnant to the absolute interest granted to the first donee and the subsequent disposition would be void as being repugnate to the absolute estate first granted. This view proceeded on the principle which was stated in the following terms in Stringer's Estate' Shaw v. Jones Ford. (1877) 6 Ch. D. 1:--
'It is settled by authority that if you given a man some property, real or personal. to be his absolutely. then you cannot by your will dispose of that property which become his ............... You cannot do that if you once vest property absolutely in the first donee . That is because that which is once vested in a man and vested de facto in him, cannot be taken from him out of the due course, of devolution at his death by any expression of wish on the part of the original testator'.
The testator having granted an absolute estate to the first donee cannot prescribe a new line of succession for the estate on the death of the first donee. The line of devolution of the estate cannot be altered by the testator and any attempt by him to do so. would be legally impermissible. Sir Binod Mitter delivering the opinion of the Judical Committee of the Privy Council in Raghynath Prasad Singh v. Deputy commr., Partabgarh. 32 Bom LR 129. = (AIR 1929 PC 283) pointed out:--
'Attempts on the part of a testator in India to restrict devolution of properties which he bequeaths to a legatee absolutely and to prevent alienation of such properties are quire common and wills containing such provisions have often come up for decision before the Board. The question for determination has always been whether three 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 word or whether such subsequent clauses are merely repugnate to the absolute estate'.
Whether there are clear dispositive words creating an absolute estate in the first donee. any subsequent disposition of the property remaining at the death of the first donee would be repugnant to the absolute estate so created and would be void. The Courts adopting this principle held the gift-over of the remaining property at the death of the first donee to be void in the following cases whether the estate granted to the first donee was clearly and expressly and absolute estate. See 32 Bom LR 129 = (AIR 1929 PC 283) (supra) 36 Bom LR 399 (AIR 1934 PC 72) (supra). Govindbhai v. Dahyabhai. 38 Bom LR 175 = (AIR 1936 Bom 201) Bai Kevli v. Dalsukharam 46 Bom LR 908 = (AIR 1945 Bom 178). Baj Savita v. Girijashankar Mohanlal 49 Bom LR 847 = (AIR 1948 Bom 261) Jagat Singh v. Sangat Singh . In re Jones, (1898) 1 Ch 438 and Parry v. Merit (1874) 18 Eq 152. The words used by the testator clearly evinced an intention to grant an absolute estate to the first donee and the mere provision of a gift-over of the property remaining at the death of the first donee was held insufficient to cut down the absolute estate of the first donee into a limited estate. The principle deducible from these cases would therefore, seem to be that whether absolute estate is granted to the first donee in terms clear and explicit and where the intention o f the testator to grant absolute estate is plain and unequivocal gift-over of what remains at the death of the first donee cannot be construed as cutting down the absolute estate to a life interest. The gift over being repugnant to the absolute estate granted to the first donee would in such a case fail. It is true that the effect of the taking this view would be. in a sense to frustrate the intention of the testator but it must be remembered that this result follows not because of any iconoclastic approach of the Courts but because the testator cannot. after granting absolute estate to the first donee. attempt to prescribed a new line of devolution different from the provided by law. The intention of the testator is frustrated in these cases because it is not legally permissible to give effect to it. To quote the words of Lord Davey in Lalit Mohun Singh Roy v. Chukun Lal Roy, (1897) 24 Ind App 76 (PC):--
'It is possible that a testator may have misconceived the effect of conferring a heritable estate: but this would not justify the Court in giving an interpretation to the language other than the ordinary legal meaning'.
The absolute estate must in such cases be given effect and the gift-over must be held to be bad.
5. Then there is the second category of decisions which compresses cases whether it is not clear from the language used by the testator whether the interest granted to the first donee is an absolute interest or a limited interest. There are no specific words conferring an absolute estate nor are there any specific words. The words used by the testator are ambiguous so that it becomes amateur of construction whether the interest intended to be given to the first donee is an absolute interest or a limited interest. The Courts have in such cases taken the view that the addition of a gift-over indicates that the proper construction to be placed on the words of the grant is that the first donee should have no more than a limited interest. The principle which has been followed by the Courts in these cases had been that every clause in the will should, as far as possible, be given effect and a construction must be adopted which does not render and clause superfluous or meaningless. This was the approach adopted by the Courts in : In re Sanford. (1901) 1 Ch. 939 Munamallaswami v. Narayanaswami. AIR 1932 Mad 489 and Ramchandra v. Hilda Brite. : 5SCR1098 . The testator in Inre Sanford gave all his properties to his wife 'so that the sea may have full possession of it and entire power and control over it. to deal with it or act with regard to it as she may think proper' and in the event to her not surviving him. or dying 'without having devised or appointed' the whole or any part of his said property. it should go to his two sons. The question arose whether the wife took an absolute estate or merely an estate for life with a general power of appointment. Mr. Justice Joyce held that the wife took an estate for life only with a general power of appointment and in reaching this conclusion. the leaders Judge pointed out:--
'Now pausing there for a moment, it is to be observed that there are no words of limitations in this gift to the wife. It is wholly indefinite. There is no expression of any intention that she should taken absolutely or for her own use and benefit: not on the other hand, are there any words limiting the gift to a life interest or otherwise'.
The decision in In re Jone (1901) 1 Ch 939 (supra) was distinguished by the learned Judge by saying that in that case---
'............ the property was given the donee expressly for her absolute use and benefit, this gift being followed by an attempted disposition of what might be left not sold or disposition of what might be left no sold or disposed of'.
So also. it was emphasized by the Division Bench of the Madras High Court in AIR 1932 Mad 489 (supra):
'The rule in such cases is that if the intention of the testator as represented by his words. was to confer an absolute estate. that estate cannot b cut down by anything that follows. If however the intention is doubtful the addition of a gift over may be evidence that his intention was to confer no more than a limited interest. Hence the worst that can be said is that his intention, as conveyed by the language of the gift was not clear and the gift over showed that his intention was to confer no more that a limited estate'. (underlining is ours). The same principal was followed by the Supreme Court in : 2SCR722 (supra). There is was pointed out by Rajagopala Ayyangar J., speaking on behalf of the Supreme Court:-- 'In the present case if a has to be admitted the testatrix did intend to confer an absolute interest in the male children of Severina the question is the whether effect can or cannot be given to it. If the interest of Severina were held to be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction. for that would given effect to every testamentary disposition contain din the will'. (underlining is ours).
It is obvious that if the words used by the testator were such as not being reasonably capable of being construed as conferring life interest as contra-distinguished from absolute, this principle could not have been applied and the gift over to the male children of Severina would have held to be void.
6. The third category of decisions consists of those whether interest granted to the first donee is plainly and manifestly a life interest. That was the case in In re Thomson's Estate. Harring v. Barrow. (1880) 1 Ch 114, confirmed in appeal and reported in (1880) 14 Ch D 263. There the gift was made by the testator to his widow 'for the teems of her natural life to be disposed of a she may think proper for her own use and benefit according to the nature and quality thereof' and 'in the event of her decease should there be anything remain of the said property or any part thereof, said part of parts thereof' were given to certain persons. The interest given to the widow was clearly and indubitably a life interest with a gift over of the residue which may remain undisputed at the death of the widow and this provisions was construed by Hall. V. C., and his view was confirmed in appeal, as giving to the widow a life interest with an absolute power of disposition execrable by her during her lifetime, buy not by testamentary instrument. It will thus be seen that where interest is granted to the first donee whether in terms which clearly and explicitly connote a life interest . the question of considering whether it is an absolute interest or a life interest does not arise.
7. We must, of course, make in clear that these three categories into which we have divided the decision cited before us are merely broad categories and they must always and invariably yield to the dominate intention of the testator as gathered from the language used by him. They merely indicate rules of construction for ascertaining the intention of the testator and these rules of construction cannot be elevated to the position of rules of law. Having said so much in regard to the rules of construction, we may now proceed to examine the relevant clauses of the will and consider in which of these three categories the present case falls.
8. The preamble of the will starts with a declaration on the part of Zaverbhai that he is making the will in order that these may be 'Vyavstha' of his properties according to his wish. The word 'Vyavastha' as used in the preamble clearly connotes dissipation or destination of his properties. There are two primary meanings in which the word 'Vyavastha' may be sued in Gujarati language. One is management or administration and the other is disposition or destination of property. Any arrangement by which 'Sthiti' that is, destination of property may be settled would be 'Vyavasatha'. The will obviously being made by Zaverbhai for the purpose of setting the disposition or destination of his properties after the death.
9. Zaverbhai then proceeded to state in clause (1) of the will that the had separated from his brothers and their sons since a long time and he had no connection whatsoever with them.. This statement was obviously made by Zaverbhai with a view to emphasizing the separate character of this properties and asserting that his agnates and no right, title or interest in the same. It will be clear from the succeeding clauses of the will that Zaverbhai did not want that any part of his properties should go to his brothers and their children, Clauses (2) of the will enumerated the near relations of Zaverbhai, Zaverbhai pointed out in this clause that he had a wife named Bai Laxmi and two sons and a daughter of his sister, namely. Shantilala. Govind and Chhani. The properties belonging to Zaverbhai were described in clause (3) of the will. They included inter alia the immovable properties situate in the city of Surat. Nothing turns upon the clauses of the will so far as the question in controversy between the parties in concerned.
10. Then we come to Clause (4) which a material clause required to be construed by us. It bequeaths all the movable and immovable properties of Zaverbhai to Laxmi. The question is what is the nature and quality of the interest in the properties granted to Laxmi. Now before we may first clear the ground by referring to one contention urged by Mr. Chhatrapati on behalf of the appellants in regard to the construction of this clause. Mr. Chhatrapati contended that in determining the nature and quality of the interest granted to Laxmi under this clause we may not overlook that this was a will made by Hindu in 1934 (1954?) and it was a common accepted notion amongst Hindu at the time that the widow should not have an absolute estate which she can alienate to an outsider: Clause (4) must be construed in the light of this ordinary notions prevalent amounts Hindu. Now it is true that the Judicial Committee of the Privy Council has said in Mahomed Shumsool v. Shewukram, (1874) 2 Ind App 7 (PC).
'In construing the will of a Hindu it is not improper to taken into consideration what are known to be the ordinary notions an dished of Hindus with respect to the devolution of property. It may be assumed that Hindu knows that, as a general rule at the events women do not taken absolute estate of inheritance which they are enabled to alienate'.
But that statement is on authority for the proposition that if the terms of the will the women an absolute estate of inheritance, those terms should be ignored. It was at one time held by some of the courts in India that ,under the Hindu law, in case of immovable property given or devised by the husband to his wife, the wife had no power to alienate unless the power of allenation is conferred upon her in express terms. But this view was overruled by the judicial committee of Privy Council and it was held that 'if words were used conferring absolute ownership upon the wife. the wife enjoyed the right of ownership upon the wife, the wife , the wife enjoyed the right of ownership without their being conferred by express and additional terms. unless the circumstances or the context were sufficient to show that such absolute ownership was not intended'. See Mt. Surjamani v. Rabi Nath. (1908) 35 Ind App 17 (PC) and Bhaidas Shivdas v. Bai Gulab, 49, Ind App 1 = (AIR 1922 PC 193). If therefore, the words of the grant convey absolute estate to the wife, it would not be right to cut down the absolute nature of the estate merely on the ground that grant is made to a Hindu wife. We must. therefore, construe the words. used by Zeverbhai in Clause (4) and ascertain what is the nature of the interest conveyed to Laxmi by those words regardless of the fact that Zaverbhai was a Hidu making his will in 1934 (1954?).
11. Now when we turn to the words used in Clause (4) it is abundantly clear that what is intended to be granted to Laxmi is an absolute interest in the properties left by Zaverbhai. Clause (4) states by saying the Laxmi is constituted 'Ku Ane Akil' full and sole 'Waras' of the properties of Zaverbhai. The words 'Waras' has been the subject matter of Judical interpretation in several decision of the Bombay High Court. It has been held by the Bombay High Court in Chunilal v. Bai Muli, (1900) 2 Bom LR 46 and : AIR1963Bom201 (supra) that 'Waras' or 'heir' has the same connotation as 'Malik' and, 'Malik' according to the Judical Committee of the Privy Council in (1897) 24 Ind App 17 = (PC) (supra) and (1908) 35 Ind App 17 = 10 Bom LR 59 (PC). is a word ordinarily sufficient to connote an estate both heritable and alienable even in the case of a Hindu widow. The use of 'Waras' of the 'heir' widow therefore, convey as absolute estate, heritable and alienable. The same view has also been taken by the High Court of Bombay in 49 Bom LR 847 = (AIR 1948 Bom 261) (supra). We find that in (supra) also, the word 'Waras' was regarded as sufficient to confer full rights of ownership on the donee. The word 'Wards' used in Clause (4) would, therefore be sufficient by itself to constitute Laxmi absolute owner of the properties left by Zaverbhai unless of course. there is anything in the context which militates against such construction. But Zaverbhai has gone further and then made his intention amply clear by adding two adjectives to the word 'Waras' namely 'Kul' that is 'full' and again 'Akli' that is only. The word 'Kul' that is, 'full' denotes the nature of the estate and the word 'Akli' that is 'only' provides for exclusion of the other persons so far as the interest in the properties is concerned. Laxmi is constituted full heir that is heir to the whole of the properties and the only her, indicating clearly that she only and none else should have any interest in the properties of the deceased. These word emphasize the absolute nature of the estate granted to Laxmi. The use of the word 'Akli' that is 'only' shows beyond doubt that the dominate intention of Zaverbhai was to benefit Laxmi alone and no one else. Then again, as if what, he had said was not adequate, Zaverbhai proceeded to add that after his death, Laxmi shall taken possession of his entire movable and immovable properties in the right or an owner. The Gujarat expression used in this connection is 'Malik Hak'. Now the word 'Malik' has also receive judicial interpretation by the highest Court in the land and it means absolute owner of heritable and alienable estate. There are several decision construing the word 'Malik' as used in wills but is not necessary to refer to all of them. It would be sufficient if we refer to one decision of the Privy Council and two decision of the Supreme Court on the Point. The decision of the Privy Council is to be found in 49 Ind App 1 = (AIR 1922 PC 193) (Supra) where Lord Buckmaster pointed out 'that the word that was used in clause 3 as the original word of gift was the word 'Malik' which could be appropriately used to constitute the wife absolute owner'. The Supreme Court had also occasion to consider the proper meaning of the word 'Malik ' in Ram Gopal v. Nand Lal. : 1SCR766 and they pointed out in that case that the word 'Malik' is of very common use in many parts of India and it cannot certainly be regarded as a technical terms of convincing and the terms 'Malik' when used in a will or other document 'as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights including full right of alienation unless there is something in the context of in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred'. So also in Bajrang Bhadur v. Bakhtraj Kuer. : 4SCR232 , the Supreme Court pointed out that the words 'Malik Kamil' (absolute owner) are descriptive of a heritable and alienable estate in the donee and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights not intended to be conferred. The Supreme Court also observed in a later decision in Pearey Lal v. Rameshwar Das. : AIR1963SC1703 that the word 'Malik' has been consistently understood by the Courts as covering the idea of absolute ownership. It is, therefore, clear from the use of the expression 'Malik Hake' that is 'in the right of an owner' that full right of ownership were intended to be conferred on Laxmi.
12. But the matter does not rest here. Clause (4) further proceeds to state that Laxmi shall be entitled to make 'Vyavsatha' of the properties in the right of an absolute owner according as she wishes. Now the word 'Vyavsatha' as used in this clause was again a subject-matter of controversy between the parties. Mr. Chhatrapati on behalf of the appellants contended that here in the context in which it occurs. it can mean only management or administration and it does not connote disposition or destination of property. We cannot agree with this contention. It is now a well-settled rule of interpretation embodied in Section 86 of the Indian Succession Act, 1925. that where the same words occur in different parts of the same will, they shall be taken to have been used every whether in the same sense. unless a contrary intention appears. This is also a rule of interpretation recognised by the Supreme Court in : AIR1963SC1703 (supra). Moreover while interpreting a will it is always permissible to the Court to see what is the vocabulary adopted by the testator and how he expresses himself with regard to other matters. Let us, therefore, see what is the sense in which the word 'Vyavastha' has been used in the other clauses of the will. We have already referred to the preamble of the will and pointed out that the word 'Vyavastha' has been used there in the sense of disposition or destination of property. So also when we turn to Clause (6) of the will were find that the same word 'Vyavsatha' has been used in relation to Shantilal. It has been said there that if certain contingencies are fulfilled. Shantilal will become the Malik of the remaining movable and immovable properties of Zaverbhai on the death of Laxmi but he will not be entitled to make 'Vyavsatha' of the same. It is clear and indeed it must be said in fairness to Mr. Chhatrapati that he rightly did not dispute it. that the word 'Vyavsatha' in this clause meant destination or disposition of property and no management or administration. The object of Zaverbhai in making this provision was that though Shantilal may, in the contingencies specified in clause (6) become 'Malik' of the properties of Zaverbhai which might remain undisputed of at the death of Laxmi, he should not be entitled to make disposition of those properties. Now if the word 'Vyavsatha' has been used in the sense of destination or disposition of property in the preamble as also in clause (6), it must be presumed to have been used in the same sense in Clause (4) of the will. Moreover the words 'Malik Hake' that is 'in the right of an absolute owner' also support the view that what was intended to be conveyed by the word 'Vyavastha' was disposition or destination of property. Zaverbhai provided that Laxmi shall be entitled to dispose of the properties received by her in the right of an absolute owner according to her unfettered discretion. The power of disposal was conferred on her in terms of widest amplitude. She could do what she wished with the properties obtained by her from her husband and then Zaverbhai proceeded to add a crowing provision namely, that if she disposes of any of the properties no one shall be entitled to object to it. He was so keen and anxious to emphasize the absolute nature of the estate granted to Laxmi that he provided of course ex abundant cautela, that her right shall be absolute and no one shall be entitled to raise any objection against disposal of property by her. It is clear beyond no a reading of clause (4) that an absolute estate of inheritance was intended to be granted to Laxmi. That is the plain and undoubted effect of the words used by Zaverbhi Clause (5) also emphasizes the absolute character of the estate by repeating the word 'Malik' in relation to the recovery of outstanding of Zaverbhai.
13. Then comes Clause (6) and the question is whether there is anything in clause (6) which compels us to cut down the absolute character of the estate granted to Laxmi under clause (4) to a limited estate. We do not find there are any clear and congent words which require us to do so. On the contrary clause (6) emphasizes the fact that the dominant intention of Zaverbhai is to benefit Laxmi Zaverbhai is anxious that Laxmi should be property looked after during her lifetime and, therefore he lays down certain conditions to be fulfilled by Shantilal before he can be given the residue of the properties remaining at the death of Laxmi. The conditions laid down by Zaverbhai are that Shantilal should reissued with Laxmi improve his conduct look after Laxmi and given her full satisfaction . It is only if these conditions are fulfilled right upto the death of Laxmi that the properties remaining at the death of Laxmi should go to Shantilal. The words 'back rahli' that is remaining postulate that Laxmi may during her lifetime dispose of the properties received by the her from Zaverbhai wholly or in part., It may he be that no property may be left indisposed of by Laxmi at the time of her death in which event nothing would go to Shantilal even if he has behaved himself. If some property remains it would go to Shantilal but that would be only as a life-tenant so far as immovable property is concerned. Shantilal would not be entitled to dispose of the immovable property and on his death his sons would be entitled to receive the immovable property as also what is left of the movable properties as owners in equal shares. It is again important to note that Zaverbhai makes it clear in Clause (6) that during the lifetime of Laxmi, Shantilal shall have no right title or interest in the properties. This also shows the anxiety and so limited of Zaverbhai for Laxmi and makes it clear that the dominant object of his bounty was Laxmi and not Shantilala or his sons. Shantilal and his sons comma into the picture only in so far as some property may remain undisposed of by Laxmi and in relation to such property. Zaverbhai attempts to provide that it shall not go as on intestacy of Laxmi but it shall go to Shantilal and his sons. It seem the Zaverbhai was anxious that no part of his properties should go to his agnates and he, therefore provided that the remainder of this priorities remaining undisposed of at the death of Laxmi should go to Shantilal and his sons. This attempt to alter the line of devolution on the death of Laxmi cannot succeed since the law does not permit it. The gift- over of the residue of the properties which may remain undisposed of at the death of Laxmi cannot be construed as cutting down the absolute estate granted to Laxmi to a limited estate.
14. It is true that the effect of accepting this construction is that the gift-over of the residue of the properties in favour of Shantilal and his sons under Clause (6) would be void as being repugnant to the absolute estate granted to Laxmi under Clause (4) and to that extent the intention of Zaverbhai would be frustrated but that cannot b helped because the intention of a testator cannot be allowed to prevail where it is contrary to law. It is also true that on this construction Shantilal and his sons would not get anything under the will while Govind would be entitled to receive Rs. 100 to Rs. 150 in case of need but that too is a consequence of law and cannot justify us in placing on the language of the will a construction which it cannot bear. Then again clause (7) provides that after the death of Laxmi. Shantilal must bear the expenses of Chhani's visits but that provision can apply only where Shantilal is an possession of any property of Zaverbhai under the will. There is therefore nothing is any of the clause of the will which requires us to cut down the absolute estate granted to Laxmi to a limited estate.
15. We are therefore of the view that the present case of falls within the first category of decision to which we have referred. There is in fact one decision amongst those referred to by us as falling within the first category which comes very near the present case. That is the decision of the privy Council in (supra). The question which arose in that case related to the construction of a will made by one Ishar Singh. The will provided that after the death of the testator will made his widow would be exclusive owner or certain properties with all kinds of per to deal with those priorities and after her death, whatever property remained would be owned by the sons of Sunder Singh, the testator's nephew. Both the widow and the sons of Sinder Singh were prohibited from selling any immovable property. On the death of the widow competing claims were put forward by the his of the widow and the sons of Sunder Singh. The question arise as to what was the nature of the interest granted to the widow under the will of Isher Singh. The Judicial Committee of the Privy Council held that the true effect of the will was as to make the widow an absolute owner of the property. Sir George Rankin delivering the opinion of the Privy Council said:
'On the question as to the true construction of the will of Isher Singh the trial Court and the High Court were agreed in holding that its effect was to make Bishan Devi absolute owner of the Lyallpur property. Their Lordships are of the same opinion. the prohibition against selling the immovable in not addressed to the widow only but is extended to the sons of Sunder Singh under clause 7 and is not in their lordship view to we regarded as showing an intention to given to the widow an interest for life or the estate of a Hindu woman but as a condition which the testator was proposing to attach to an absolute interest. Clause 4 is in clear and emphatic language consistent only with the gift of an absolute interest and the phrase whatever property remains in the first part of clause 7 of the will is in keeping with this intention. The prohibition against to selling must be disregarded as repugnate to the absolute it to Bishan Deve'.
It was held that absolute estate was granted with widow because she we made the exclusive owner of the properties and the word 'whatever property remains' were construed as consistent only with the gift of an absolute interest. The same position obtains in the case before us and for the same reasons we would hold that the interest granted to Laxmi under Clause (4) was an absolute interest and the word 'baki reheli' that is 'remaining property' in clause (6) were consistent only with the gift of an absolute interest and the gift-over of the property remaining at the death of Laxmi in favour of Shantilal and his sons under Clause (6) was, therefore void as being repugnant to the absolute interest granted to Laxmi.
16. We are therefore, of the view that the construction of the will adopted by Mr. Justice J. M. Sheth was the right construction and the point of difference referred to us will be answered by saying that the interest granted to Laxmi under the will was an absolute interest with full power of disposition and the gift-over of the residue of the properties. if any. in favour of Shantilal and his sons was void as being repugnate to the absolute estate granted to Laxmi and no effect could, therefore, be given to the directions as regards future devolution properties on the death of Laxmi.
17. Reference answered.