RATANBAI RUSTAMJI DADACHANJI Vs. CAWASJI EDALJI DADACHANJI

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Kanga. The Originating Summons which has given rise to this appeal was taken out by Ratanbai, the widow of Rustomji Edaljee Dadachanjee, for the construction of a will dated February 10, 1913, made by her husband, who died on July 17, 1913. When he made his will in February his wife was pregnant and she gave birth to a son on May 27, 1913. The infant died on July 2, 1914. The defendant No. 1 is the brother of the deceased Rustomji and the sole executor under the will. Defendant No. 2, who was subsequently joined, is the daughter of Rustomji by another wife who had predeceased him. The defendant No. 1 took out probate of the will on October 3, 1913. The probate with a copy of the original will which is written in the Gujarati language and its translation is marked Ex. A. The questions that were raised in the summons were these:- (1) Whether under the will of Rustomji Edalji the bequest of the residue of his estate to his son was vested in interest at the date of the testator's death or was contingent on the said son attaining the age of majority ? (2) Whether if the bequest was vested it was divested by the death of the said son before attaining the age of majority ? (3) Whether the plaintiff as the heir of the said son is entitled to the said bequest ? and (4) Whether the estate of the said Rustomji Edalji Dadachanjee should be administered by and under the directions of this Hon ble Court?

(2.) The fifth question was subsequently added which is as follows: (5) In the event of the bequest of the residue to the son being held to be contingent, whether the 1 defendant in entitled to the residue under the said will or whether the testator died intestate as to his residuary estate.

(3.) The learned Judge was of opinion that the bequest of the residue of his estate in favour of his son was contingent on the said son attaining the age of majority.