DINBAI Vs. NUSSERVANJI RUSTOMJI

JUDGEMENT

(1.) The question for decision in the appeal is the construction of the will of N.N. Pochaji, a Parsi inhabitant of Karachi, who died there in August, 1908. The testator left a will dated June 21, 1907, of which probate has been granted to the respondents 1 and 2. The appellant is the widow of a son of Pochaji, named Jamshedji, and has obtained letters of administration to his estate. She asks for a declaration that as representative of Jamshedji she is entitled to a half of Jamshedji's four-sevenths share of the residuary estate of Pochaji under Sections 8 and 6 of the Parsi Intestate Succession Act, 1865.

(2.) The action was tried by Mr. C. Fawcett, Additional Judicial Commissioner, who held that Pcohaji, by the terms of his will, intended that the appellant should be entirely excluded from any share in the distribution, whether as heir of Jamshedji or otherwise. It is clear that the learned Judge appreciated the case put forward on behalf of the appellant before their Lordships. He states her claim to be that, though the will may exclude her from sharing as an heir of the testator, it does not exclude her as an heir of Jamshedji. This decision was confirmed in the Appellate Court, the Court holding that whatever might be the construction of the will in other respects, the appellant was excluded from claiming any share in the residuary estate of Pochaji by the clause "excluding the widow of Jamshedji from getting any share in such distribution." The general principle to be applied in the decision of the appeal is not in dispute. The rule of law is to ascertain the intention of the testator as declared by him, and apparent in the words of his will, and to give effect to this intention so far as, and, as nearly as may be, consistent with law. In the present instance no issue of inconsistency with law arises, so that; the only question is one of construction. Pochaji, a Parsi merchant at Karachi, made his will in the English language. It is not necessary to set out the whole will, but Clauses 7 and 8 are as follows: 1. From and after the death of my wife my executors shall stand possessed of the residuary trust estate upon trust to spend from and out of the same a sum of rupees two thousand for the funeral expenses of my wife and for other ceremonies for one year after her death, and shall hold the residue upon trust to pay the net income thereof to my son Jamshedji, for and during his lifetime and from and after his death upon trust for the widow and children of my son Jamshedji absolutely us tenants-in-common in such proportions that each male child shall get double the share of each female child, and the widow shall get the same share as a female child. Provided, however, that if any child of my son Jamshedji shall have died in his lifetime leaving a child or children him surviving, then such child or children shall take the share which his or her parent would have taken of the residuary trust estate, if such parent had survived my son Jamshedji, and if more than one the males always taking twice the share of the females. 2. In the event, however, of the said son Jamshedji dying without leaving any issue how low so ever, but only leaving a widow, then my executors shall pay out of such residuary trust funds a sum of rupees ten thousand absolutely to such widow, and in such case and also in the event of the said Jamshedji dying without leaving any widow or issue bow low so ever, my executors shall stand possessed of the balance of the said residuary thrust estate in trust to spend rupees two thousand for the funeral expenses of the said son Jamaedji and to appropriate a moiety of the balance to such charitable objects for the purpose of promoting liberal and religious education among the Parsi Zoroastrians of Karachi as my executors may in their discretion think fit, and divide the other moiety amongst my heirs according to the law of intestate among Parsis, but excluding the widow of Jamshedji from getting any share in such distribution.

(3.) In the event of her surviving him, Pochaji appointed his wife, Khurshedbai, sole executrix and trustee of his will; but she pre-deceased her husband. At the death of Pochaji in 1905 he left surviving him his son Jamshedji, Dinbai, Jamshedji's wife, (who is the appellant), two daughters, and four grandsons (who are respondents). Jamshedji died childless in May, 1913, leaving his widow Dinbai surviving him. It is contended on behalf of the appellant that Jamshedji is one of the heirs named in the will of the testator, being thereby entitled according to the law of intestate succession among Parsis to four-sevenths of the moiety of the estate, and that his rights are now vested in the appellant as his administratrix, and that her rights as administratrix of the estate of Jamshedji are not aflected by Clause 8 of the will.