BHAIDAS SHIVDAS Vs. BAI GULAB

JUDGEMENT

(1.) THE real question involved in the dispute giving rise to this appeal was a question as to the construction of the will of one Nathoo Moolji, who died on December 8, 1894, affecting the respective estates and interests that were taken by the testator's widow and his two daughters. One of the daughters died in the lifetime of the widow, and her heir, who is the present appellant, instituted, on the widow's death, in the High Court of Judicature in Bombay, ordinary original civil jurisdiction, the proceedings out of which this appeal has arisen, claiming that, according to the true construction of the will, he was entitled to a vested one-half share in the testator's property.

(2.) THE learned judge before whom the suit was first heard dismissed the application and held that there was an intestacy after the widow's death.

(3.) THE plaintiff has now brought an appeal before His Majesty in Council, and the first point that he has raised is this that the order made referring the case to the decision of Batchelor and Shah JJ. was ultra vires and void; that there was no jurisdiction in these two judges to entertain the dispute; and that he is entitled, as of right, to a decree in accordance with the opinion of Scott C.J., the senior of the two judges before whom the appeal was first heard.