JEEVAKORE BHAI Vs. KRISHNADOSS PARAMANANDADOSS

JUDGEMENT

(1.) The question which this case raises is as to the manner in which certain proceeds of land acquisition should be dealt with. The claimant is the widow of one Jamnadoss Govardhanadoss and the counter-claimants are his reversioners. The question turns upon whether the widow gets an absolute estate or only a life-estate under a will jamnadoss Govardhanadoss executed on the 10 December, 1899. This will begins by reciting that being ill in body and wishing to make a will while he is in the enjoyment of his understanding he has written the will, and proceeds as follows: It is a long time since a division was made between me and my pangalis. They have no right whatever to my properties, namely, the house, ground, jtwels, ready money and all immovable and movable properties and all the properties 1 have been enjoying. But they have only to observe pollution but have no other rights. Therefore my wife Jukore i5ai has the right to my properties and all the properties which I have been enjoying up to this time. No others have the least right thereto.

(2.) It then proceeds to authorise the widow to make an adoption if she wishes to do so. The District Judge before whom the reference came has come to the conclusion that this document is not a will at all. Pie considers that the instrument which was dealt with by their Lordships of the Privy Council in Jagannalha Bheema Deo V/s. Kunja Behari Deo (1921) L.R. 48 I.A. 482 : I.L.R. 44 M. 733 : 41 M.L.J. 648 (P.C.) affords a parallel. But that was plainly not so because that related to a bare power to adopt and did not make, or purport to make, any reference to the disposition of property whatsoever. He finds then that if it be a will, the widow takes only a limited estate for the reason that coupled with the disposition of property is an authority to adopt. I do not think that he is right upon the legal aspect of this question because it has been held in Err am Reddi Chenchu Krishnamma V/s. Maram Reddi Lakshmi-narayana (1927) 108 I.C. 202 that where there is an absolute disposition of property with an authority to adopt, the implied intention of the testator must be that on an adoption being made the widow is divested of the absolute estate, which passes to the adopted son. However, as we have only to discover what was in the testator's mind when he made the will, we need merely concern ourselves with what he might have thought would be the effect of an adoption, and that cannot be discovered by discussing case-law. The only question which caused me some doubt was whether he would not have thought that the power of adoption was ordinarily speaking incompatible with giving his wife an absolute estate and I think that such a combination of provisions would be a rather unusual one for a testator to make. But I am not prepared to say that this can afford us any clear indication as to the dispositive part of the will. On that point it appears to me that two constructions are possible. In the first place, as the portion of the will which I have quoted will show, the testator appears to have been somewhat apprehensive that his coparceners might lay claim to the property on the ground that no partition had taken place and that therefore his status was still one of jointness. That seems to me to be rather indicated by his reference to their having no rights whatever to his property since a division had taken place a long time ago. Then there is the objection that the actual grammatical form in which the reference to the properties descending upon his wife is couched is not dispositive but merely declaratory. He says : "My wife Jukore Bai has the right to my properties," which no doubt can be construed as " will have the right to my properties upon my death,"and" no others have the least right thereto". These two features of the will occasioned me a good deal of doubt as to whether he has not merely making a statement, in order to protect his wife's interests, as to what her legal position would be upon his death. But against that there has to be set the circumstances that he not only termed what he was executing a will but also recited, as is ordinarily done in wills, that he was ill in body but in the possession of his faculties, and I think therefore that a considerable presumption is raised that he intended to do something more than merely define what would be the existing rights of his wife if he died intestate. There is certainly no obligation upon an unskilled draftsman, as in this case the testator appears to have been, to select words which must be clearly dispositive in grammatical effect and although no actual cases have been put before us in which a phrase of this sort has been discussed and found to be sufficiently dispositive to make the document a will, yet in some cases such, for instance, as Parkash V/s. Chandar Parkash A.I.R. 1932 Lah. 215 and Chunilal V/s. Bai Muli (1899) I.L.R. 24 Bom. 420 the language is very similar in form of expression, though I cite these cases only to show that documents have been drafted in such terms and have been acted upon as wills. I think after a careful consideration of this point that it must be taken that the testator had something-more than the intention simply to safeguard the interests of his wife and that he did in fact intend the document to be of testamentary effect.

(3.) The second question which then arises is with regard to the estate which his wife would take under if. Judicial opinion has altered very much upon this question and a large number of cases have been rendered obsolete by recent deliverances by the Privy Council upon it. No useful purpose will therefore be served by referring to any case-law that originated before Shalig Ram V/s. Charanjit Lal (1930) L.R. 57 I.A. 282 : I.L.R. 11 Lah. 645 : 59 M.L.J. 437 (P.C.) and Jagmohan Singh V/s. Sri Nath (1930) L.R. 57 I.A. 291 : 59 M.L.J. 446 (P.C.). The latter of these two cases related to a gift and not a will and the document contained the phrase "from generation to generation"; moreover it was conceded that an absolute estate was given and the only question that arose was whether a power of alienation was included within it. I do not therefore rely upon that case so much as upon Shalig Ram V/s. Charanjit Lal (1930) L.R. 57 I.A. 282 : I.L.R. 11 Lah. 645 : 59 M.L.J. 437 (P.C.) where the trend of recent decisions upon the question of how far it is necessary for a testator in the case of females to express himself with regard to conferring an absolute estate is considered. In that case the phrase used was that the three widows who were eventually to get the property would be the "heirs" to whatever was left of the property after meeting the expenses. Their Lordships after adverting to the earlier view taken of this question cited a passage from Bhaidas Shivdas V/s. Bai Gulab (1921) L.R. 49 I.A. 1 : I.L.R. 46 Bom. 153 : 42 M.L.J. 385 (P.C.) to the effect that, if words were used conferring absolute ownership, a wife would enjoy such ownership unless circumstances or the context were sufficient to show that such an absolute ownership was not intended, and commenting upon this decision they add their view that there was nothing in the circumstances of the case which they had under consideration or in the context to indicate that it was the testator's intention to limit the estate bequeathed to any of the three persons to a life-estate or a limited estate similar to a widow's estate under the law of inheritance. So here, it appears to me that if the words which this will contains are dispositive at all, they are dispositive without restriction and that nothing in them can be pointed to which would go to show that the estate to be enjoyed by the widow was no more than an ordinary woman's estate with reversion. In fact, if the words are dispositive at all, such a construction of the will would mean that no occasion whatever existed for the will to have been made.