BAI KEVLI Vs. DALSUKHRAM SAKARCHAND

JUDGEMENT

(1.) THE appellant in both these appeals is Bai Kevli, widow of Popatlal Sakhalchand,, the original defendant in a suit in which the principal question that arose for consideration was the construction of a will dated June 27, 1934, made by her husband Popatlal Sakhalchand who had died on September 16, 1934. THE plaintiffs were Sakarchand, the brother of Popatlal, and his three sons.

(2.) THE will first gives the description of the properties belonging to the testator which are stated to be of his own exclusive ownership. THE properties consist of one house in Ahmedabad, the outstandings recoverable from his debtors, ornaments, utensils and an insurance policy of Rs. 2,000. THEn occur these words in paragraph 5 of the will : I am the owner (malik) of the said properties so long as I live. Of these properties I may eat, spend or do whatever I like with them during my lifetime. But in case of my death, I appoint or nominate my wife Bai Kevli as full and absolute owner (Kul swatantra malik) of all my moveable and immoveable properties after my death. So that after my death my wife Bai Kevli should take possession of all moveable and immoveable properties under her full and absolute right therein and manage the same. This is followed by a direction that after the testator's death Bai Kevli should spend Rs. 3,000 out of the estate for such " good purposes " as are mentioned in a yadi made in the testator's book. This is followed by further directions as under : (2) My wife Bai Kevli should use and enjoy the above-mentioned house during her lifetime and after her death my wife Bai Kevli may give that house to any one of the three sons of my brother Sakarchand and if my wife has not given that house to any one of the sons of my brother then after my wife Bai Kevli'a death the three sons of my brother should be owners thereof in equal shares. (3) My wife Bai Kevli should realise or recover all my dues or outstandings as absolute owner and she may do whatever she pleases with all the moveable properties including dues, ornaments, etc. , i. e. , and should dispose of the same in any manner she likes. After some further statements and instructions we get the date of the will " Samwat 1990, Jeth Sud 15, Wednesday, date June 27, 1934," which is followed by the writer's name and address. THEn follows this sentence : And my wife Bai Kevli before her death should give Rs. 2,000 to the three sons of my brother Sakarchand in equal shares. Date as above.

(3.) THE more important question is as regards the interpretation of the will with reference to the question whether it created an absolute estate or merely a life estate in favour of the defendant. THE lower appellate Court has relied mainly on two facts in discussing this question. In the first place, it has held that in construing a will of a Hindu, it would be proper to assume that he desired that his estate should be retained in his family and that he knew that as a general rule women do not take an absolute estate by inheritance. Secondly, it has considered the fact that no power of alienation of the house has been given under the will to Bai Kevli as significant, i. e. as showing that the testator did not intend to vest an absolute interest in her. With regard to the last point, however, it conceded in one passage in the judgment that the words " kul swatantra malik" import "full proprietary rights including a full right of alienation". With regard to this point, it may be observed that, as remarked in Shadiq Ram v. Charanjit Lal (1930) L. R. 57 I. A. 282 : s. c. 32 Bom. L. R. 1578, at some time it was held by some Courts in India that, under Hindu law, in the case of immoveable property given or devised by a husband to his wife, the wife had no power to alienate unless the power of alienation was conferred upon her in express terms. THEir Lordships at page 289 pointed out that the Board had held that proposition as unsound. THE learned advocates for the respondents also do not now rely on the absence of any express power given to the wife in support of their case.