GOVINDBHAI LALLUBHAI PATEL Vs. DAHYABHAI NATHABHAI PATEL

JUDGEMENT

(1.) DESAIBHAI Jivabhai, the maternal uncle of the plaintiff, had a one-third share in a recognised sub-division (eleven annas eleven pies) in the Narwadari village of Ode in the Anand taluka. He made a will on September 5, 1891, leaving his property, which was partly narwa and partly non-narwa (sanadia), first to his senior wife Jhaver, then to his junior wife Saker, then to his daughter Divali, and finally to the plaintiff. Jhaver inherited and after her Divali, Saker having died before Jhaver. (Actually it seems there were two wives named Saker; the first one died before the testator ). Divali died on January 27, 1918, and on her death, according to the finding of the trial Judge, plaintiff was for a time in possession of the estate or part of it. The defendants, who were co-sharers with DESAIBHAI in the recognised subdivision of the narwa but are not his heirs nor the heirs of Divali, deny that plaintiff got possession and claim to have been in possession themselves. They have admittedly had possession at any rate from 1921 of all the property left undisposed of by Jhaver and Divali except one house, lot No.193 in suit, which is with the plaintiff. Plaintiff sues to recover possession from them relying firstly on his title under the will and alternatively on his possession after Diva-li's death. The suit was filed first in the Umreth Subordinate Judge's Court in 1925 but was returned for presentation to the Subordinate Judge's Court at Nadiad. The plaint was filed there on September 30, 1928.

(2.) THE trial Court has found on the construction of the will that Jhaver took an absolute estate, that Divali succeeded as her heir and that the plaintiff takes nothing, he not being Divali's heir; secondly, that in any case the will could not affect narwa property owing to the provisions of the Bhagdari and Narwa-dari Act V of 1862; and thirdly, that plaintiff's temporary possession under the circumstances in which it was obtained gives plaintiff no right to evict the defendants. THE suit was accordingly dismissed. We hold that the findings of the lower Court on all these points are substantially correct.

(3.) THE argument of the learned counsel for the plaintiff is as follows. He admits that the language used in respect of Jhaver, if it stood by itself, would confer absolute ownership upon her. But he says a contrary intention is expressed later when Sakerba, Divali and plaintiff are made heirs, in succession to her. THErefore the testator cannot have intended to give an absolute estate. THE only way in which these persons could inherit one after the other is if a succession of life estates was intended. It was not the dominant idea of the testator, Mr. Jayakar says, that each of the persons named should have an absolute estate in the strict legal sense which would import that the estate would pass to the heirs of Jhaver. Regard must be had to the notions of Hindus. THE plaintiff was the only male person in whom the testator was interested. THEre is evidence that he brought the boy to stay with him. He would not be likely to give an absolute estate to his widows, and as for Divali, she was a widow herself and had no children, so that on her death the estate would go to her husband's relations. Mr. Jayakar urges that his construction of the will as giving merely a life-interest in the property to the widows and daughter of the testator and ultimately giving the estate absolutely to the plaintiff gives effect to all the provisions of the will. If that is the correct view of the testator's intention, then it is argued that the law will give effect to it. THE cases cited in this connection were Mahomed Skumsool v. Shewukram (1874) L. R. 2 I. A. 7, Radha Prosad Mullick v. Ranimoni Dassi (1908) L. R. 35 I. A. 118 : S. C. 10 Bom. L. R. 604, Lallu v. Jagmohan (1896) I. L. R. 22 Bom. 409, Chunilal v. Bai Muli (1899) I. L. R. 24 Bom. 420 : S. C. 2 Bom. L. R. 46, Mulchand v. Bai Rukshman (1922) 25 Bom. L. R. 189, and an unreported case, Shukla Balashankar Premshankar v. Bai Punji (1927) S. A. No.557 of 1924, decided by Crump and Baker, JJ. , on March 17, 1927, (Unrep ).