BAI KESSERBAI Vs. HUNSRAJ MORARJI

JUDGEMENT

(1.) The question in this appeal relates to the succession to immoveable property in the Island of Bombay, of which a Hindoo lady named Kumari Bachubai died possessed. She was the widow of one Koreji Haridass, who died in February 1898. On the 24 November 1892 Koreji Haridass executed an ante-nuptial settlement of the property now in dispute, whereby he conveyed it to Kumari Bachubai, her heirs, executors, administrators, and assigns, for ever, subject to the following conditions :- 1. If the said Kumari Bachubai shall die before the said intended marriage has been celebrated and completed then the said house land and premises shall revert to and again become the absolute property of the said Koreji Haridass, his heirs, executors, administrators, and assigns.

(2.) If the said Kumari Bachubai shall die after the said intended marriage has been celebrated and completed without leaving issue of the said intended marriage who shall succeed to a vested interest in the said house, land and premises then the said house land and premises shall be dealt with as she may direct orde-clare by will or deed or failing any will or deed then the same shall vest in her legal heirs according to Hindu Law of the Bombay School. 2. The marriage was celebrated in February 1393. Kumari Bachubai died on the 9 May 1899 without leaving any issue and without having made any appointment by deed or will. I It is not disputed that the persons entitled to succeed to the property as heirs of Kumari Bachubai were the persons entitled to her ordinary stridhan. The rival claimants are the j appellant, Bai Kesserbai, who was the surviving co-widow of Koreji Haridass, the respondent Bai Monghibai, who is the widow of Ranchordas Haridass, a brother of Koreji Haridass who survived Kumari Bachubai and died on the 17 June 1902 (it is presumed childless) and the respondent Hunsraj Morarji, who was the son of another brother of Koreji Haridass, who predeceased Kumari Bachubai. The appellant was the plaintiff in the suit, which was commenced on the 4 August 1902, in the High Court of Bombay. Mr. Justice Batty decided that by the Hindoo law of the Bombay School the appellant was the next heir to Kumari Bachubai, and entitled to succeed. This decision was reversed on appeal by the Chief Justice and Mr. Justice Russell, and by their Decree dated the 11 December 1903 the suit was dismissed with costs.

(3.) It is stated in the Judgment on the appeal that both sides abandoned the view taken by Mr. Justice Batty, that Kumari Bachubai under the deed of gift took an absolute interest in the property, and that it was conceded that she took a limited interest only and her heirs took as purchasers. Both the learn-ed Judges were also of that opinion, and their Judgments are, to a certain extent, based on it. Their Lordships are at a loss to understand on what grounds this opinion was arrived at. They have no doubt whatever that whether the deed is to be construed according to English law, as Mr. Justice Rus-sell thought, or by Indian law, Kumari Bachubai took under it an absolute estate of inheritance.