TRIKAMBHAI JIBHAI Vs. FULABHAI KALIDAS

JUDGEMENT

(1.) THE point to be decided in this appeal turns upon the construction of a will made by a Hindu by which, after giving some legacies to his relations, he stated that one Trikambhai, who was plaintiff No.5 in in the trial Court and is the appellant in this Court, " should manage my property after my lifetime in the same manner in which I am at present managing my property as owner," and that in doing so he should proceed after taking the joint consent of certain persons named therein. THEn follows the material portion of the will that " after my death the said Trikambhai should make whatever arrangements-whatever dharmada-that are to be made of my properties with the advice of the said four persons. "

(2.) IT appears that the appellant got his name entered in the revenue records along with the others as trustees of the property. Subsequently, however, the defendants, who are the agnates of the testator and their purchasers, took possession of the property from the appellant. Thereafter the appellant purported to sell it to plaintiffs Nos. 1 to 4 but that seems to be a paper transaction in so far as the appellant had no physical possession with him. The suit was filed by the plaintiffs for possession of the property from the defendants on the ground that under the will plaintiff No.5, i. e. the present appellant, was made the absolute owner of the property and had power to dispose of it as he liked. The defendants contended that he was not the owner, that the will was invalid and the property came to them as if the testator had died intestate. The material issues framed in the suit were whether under the will the appellant was made the full owner of the estate or was merely a trusteei for applying the property to dharmada, whether the will was illegal and void, and if so, whether the defendants were entitled to inherit the estate.

(3.) NOW, in this appeal two points have been urged on behalf of the appellant. The first is that under the will the appellant had been made the absolute owner of the property. I entirely agree with both the lower Courts that the appellant is not made the absolute owner. Mr. Desai, who appears on behalf of the appellant, urges that the words " as owner" are to be read not only with reference to the nahivat of the testator but also as applying to the vahivat of the appellant, and that the testator intended, therefore, to give him all the rights of an owner, and having done that, the subsequent restrictions placed on his management and possession are void with the result that the property is taken by him absolutely. I think, however, that reading the material part of the will as a whole, the testator did not intend to make the appellant an absolute1 owner. The words "as owner" qualify the vahivat made by the testator himself and not the vahivat of the appellant. If it had been his intention to make the appellant an absolute owner, he would not have used the words that the appellant was to have the management but he would have been made the owner or the malik of the property. No such words are used and the subsequent restrictions to the effect that he should manage the property in consultation with several persons and that management was to be for the purpose of devoting the property to religious objects tend to confirm the view that the intention was that the appellant was not meant to be the absolute owner. It is only when there is a clear intention on the part of the testator by use of the word " malik" or the words " with absolute rights", that one can infer an absolute devise, and it is only in such a case that subsequent restrictive words would not cut down the absolute nature of the bequest. But here no such words1 have been used, so that the question of restriction does not arise.