GOVINDBHAI LALLUBHAI PATEL Vs. DAHYABHAI NATHABHAI PATEL

JUDGEMENT

(1.) Desaibhai Jivabhai, the maternal uncle of the plaintiff, had a one-third share in a recognised sub-division (eleven annas eleven pies) in the Narwadari village of Ode in the Anand taluka. He made a will on September 5, 1891, leaving his property, which was partly narwa and partly non-narwa (sanadia), first to his senior wife Jhaver, then to his junior wife Saker, then to his daughter Divali, and finally to the plaintiff. Jhaver inherited and after her Divali, Saker having died before Jhaver. (Actually it seems there were two wives named Saker; the first one died before the testator). Divali died on January 27, 1918, and on her death, according to the finding of the trial Judge, plaintiff was for a time in possession of the estate or part of it. The defendants, who were co-sharers with Desaibhai in the recognised subdivision of the narwa but are not his heirs nor the heirs of Divali, deny that plaintiff got possession and claim to have been in possession themselves. They have admittedly had possession at any rate from 1921 of all the property left undisposed of by Jhaver and Divali except one house, lot No. 193 in suit, which is with the plaintiff. Plaintiff sues to recover possession from them relying firstly on his title under the will and alternatively on his possession after Diva-li's death. The suit was filed first in the Umreth Subordinate Judge's Court in 1925 but was returned for presentation to the Subordinate Judge's Court at Nadiad. The plaint was filed there on September 30, 1928.

(2.) The trial Court has found on the construction of the will that Jhaver took an absolute estate, that Divali succeeded as her heir and that the plaintiff takes nothing, he not being Divali's heir; secondly, that in any case the will could not affect narwa property owing to the provisions of the Bhagdari and Narwa-dari Act V of 1862; and thirdly, that plaintiff's temporary possession under the circumstances in which it was obtained gives plaintiff no right to evict the defendants. The suit was accordingly dismissed. We hold that the findings of the lower Court on all these points are substantially correct.

(3.) The first point to be considered is that of the construction of the will. The provisions which are material for our purpose are the following:- After my death I make my first and senior wife Jhaver as kul malik of all my properties because she is advanced in age and has good understanding and so she is not such as to waste away or cause loss to my estate unnecessarily. Hence Jhaver should take all my properties into her possession and management after my death and should do its vahivat in right of khas ownership. Then follow a number of legacies mostly to charities but including a gift of land to the plaintiff. Provision is also made for the maintenance of the testator's step- mother and of Saker and Divali during the lifetime of Jhaver. The next material provision is Clause 12 :- My wife Jhaver is old. Hence after her death I make my second wife Saker the heir of the properties that remain and after her death I make my widowed daughter Divaliba the heir of all the properties that remain. These three are the heirs of my properties one after the other and they are entitled; in law to inherit my properties. Hence I of my free will make them my heirs one after the other. As they go on getting inheritance they should take my properties in their possession and manage the same as they please. That is I give all my rights to my heirs which I have in law namely of managing in any way I please. They when they get inheritance have therefore full right of management and none can raise objections.