SHANTILAL BABUBHAI Vs. BAI CHHANI

JUDGEMENT

(1.) The short question that arises for determination in this appeal relates to the construction of a will date 30th September 1934 made by one Zaverbhai 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 Deeds. The properties left by Zaverbhai consisted of certain movables 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 give 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 Gujarati. The agreed translation is as follows:-

(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 vivos. 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 in 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 had 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 to dispose of the proparties 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 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. .. 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 power of disposition inter vivos but not by will. But this intermediate view taken by Divan J. would not have helped to decide the appeal because in that 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 Letters Patent provides that the case shall then be heard upon that point by one or more of the other Judges and the point of difference can therefore be heard by a Full Bench of three Judges. The preliminary contention urged by Mr. Chhatrapati must therefore be rejected.

(3.) That takes 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 as held by S. H Sheth J. or is it a limited interest with power of disposition inter vivos but not 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 oDe 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 decisions to support the construction respectively urged by them. Sometimes we even find the rather unusual spectacle of the advocates of both parties relying upon the same decisions and seeking to derive support from them. But it is necessary in this connection to remember the warning uttered by as high an authority as the Judicial Committee of the Privy Council in Sasiman Chowdhurain v. Shib Narayan Chowdhury 49 I. A. 25 where it has been said :-