NATHALAL ICHHASHANKAR Vs. BAI MANEK

JUDGEMENT

(1.) This appeal raises a question of interpretation of a will executed by one Prabhashankar Lakshmiram on December 8, 1904. He died leaving his widow, Bai Jekor, two daughters Bai Saraswati, the plaintiff, and Parwati, and a nephew Nathalal, the defendant. The execution of the will is not disputed. In that will he stated that some property was his self acquisition and some was joint property of himself and his brother Ichhashankar, the defendant's father, but that they were separated and were living separate for many years. He then proceeded to dispose of his share in the joint property as follows :- After deducting three kumbhas which I have already given away, my half share is to be enjoyed by my wife during her lifetime and after her death it (that half share) should be given to my brother's son Natha Ichhashankar if he remains obedient to my wife and attends to her affairs and renders service to her. He should properly meet the expenses of her obsequies.

(2.) Bai Jekor, the widow of the testator Prabhashankar Lakshmiram, died in December, 1938, and her daughter Bai Saraswati filed this suit to recover her father's share in the joint property on the ground that as Nathalal, the defendant, had failed to remain obedient to her mother, had failed to attend to her affairs and had not rendered service to her, the bequest in his favour had failed and that she had become entitled to it by inheritance.

(3.) Both the Courts below have found that the defendant quarrelled with Bai Jekor, that there was a litigation between them, that he did not even go to see her during her last illness and that he was neither obedient to her nor was he of any service to her. This finding that the condition laid down in the will before the property could devolve upon him has not been fulfilled is a finding of fact which cannot be challenged in second appeal. Even on merits that finding is fully supported by the evidence. But it is urged that the condition is vague and, therefore, should be treated as a nullity. This contention was not accepted by the lower Courts and the plaintiff's claim was decreed.