KALIDAS DAMODAR Vs. RUKSHAMANI

JUDGEMENT

(1.) This is an appeal from the First Class Subordinate Judge at Broach. The relevant facts are that the testator, one Dulab, died on February 20, 1902, having made a will dated February 17, 1902, by which he appointed five persons as trustees. The last surviving trustee, one Gordhan, died on March 7, 1925. Gordhan by his will appointed defendant No. 2, in effect, as trustee of the will of the original testator. Defendant No. 1 is the daughter and heir of Gordhan. The plaintiffs are the heirs of the original testator, Dulab, and they commenced this suit in the year 1925 and claimed, in the first place, that the will of Dulab is invalid; secondly, and, in the alternative, that if the will is valid, then according to the true construction of Clause 6 thereof there is an intestacy as to residue and they are entitled under the Indian Succession Act.

(2.) The learned trial Judge held that the will of Dulab was well executed, relying on the facts, first, that it was registered, secondly, that a certificate of succession was obtained, thirdly, on the oral evidence as to attestation, and, fourthly, on the lapse of time which had expired between the date when the will was made and the date when it was challenged, and Mr., Thakor, in this Court, has agreed that it is not possible for him to challenge those findings.

(3.) The next point to determine is as to the construction of the will.By Clause 4 the testator states that he is the owner of certain properties, and that the same are his own property, and are to be gifted and managed in the manner he proposed thereunder. Then, by Clause 5 he appointed five persons, including Gordhan, to be trustees. Then Clause 6 is the material clause, and by that clause the testator provides that as soon as he dies his trustees should own and possess and manage the properties, and then be provides as follows: The funeral ceremony expenses of my brother Shivlal is left undone. If I am alive I shall do the same, else if I die, my trustees by a majority of votes as they think best according to the custom and my repute in the case should perform the funeral ceremony expenses both of my deceased brother's as well as of mine. Besides the said trustees should do by a majority of votes and as they think beat, the Gorani N at after the death of Bai Amba my aunt (father's sister) who is now living. None should object therein and all objections to the same shall be void.