DAMODAR VISHNU JUVEKAR Vs. SHRIRAM LAKSHMAN JUVEKAR

JUDGEMENT

(1.) THE appellants in this case are the trustees under a deed of trust executed by Sagunabai widow of Laxman Damodar Juvekar. THE plaintiff was adopted by Sagunabai in 1937 as son to her deceased husband and he has sued to recover the property from the possession of the trustees. Laxman before he died in 1900 made a will the principal provisions of which were as follows. He gave all his moveable property to his wife and also the income of his immoveable properties. But she was restrained from alienating these properties by sale, mortgage or gift. Authority was given to her to adopt a son subject to certain restrictions. A sum of Rs. 100 a year was set apart for beating drums before the family God morning and evening and it was provided that if she did not adopt Sagunabai was to make some permanent arrangement for this and other charitable purposes mentioned by the testator. In case a son was either born to the testator or adopted, then the will provided that the son was to be full owner of the property.

(2.) FIFTEEN years after her husband's death Sagunabai executed a deed of trust. This deed, exhibit No.45, begins by reciting that Sagunabai had been given malki or ownership of the estate under the will, which was not a fact. The object of the trust deed was stated to be that "the estate may continue to be managed and used as I am doing up till now." As regards the powers of the trustees the deed says " in order to carry out the management mentioned hereafter I have from to-day entrusted to the trustees title to the estate and I have given them all sorts of rights except the right of making a mortgage, sale or gift." Then there are various directions to the trustees to spend the income on specified charitable objects allowing Rs. 100 a year for Sagunabai's maintenance.

(3.) IN order to consider the first argument it is necessary to refer in more detail to the provisions of the will. The important paragraph in this connection is paragraph 4 which contains these words: I authorise her (i.e. Sagunabai) to take a boy in adoption after my death. As to the boy to be adopted she may adopt any one of the sons of my nephews other than my two nephews Vishnu Vasudeo and Krishnaji Sitaram according to her choice. If they refuse to give their son in adoption, she may adopt a boy of any other person as she likes, but she shall not adopt a boy of either Vishnu or Krishnaji. Reference may also be made to paragraph 6 which says: IN case I happen to survive this illness and a son be born to me, then my wife should, after me, manage the properties and household affairs in the way I have been doing, until that son attains majority. If that does not happen, then, after me, a boy should be adopted by her as written in paragraph 4 at any time she likes.