BHIKHABHAI OGHADDAS SHAH Vs. PURSHOTTAM GIRDHARDAS SHAH

JUDGEMENT

(1.) One Chhotalal Girdhar had an only son named Motilal, Both father and son were possessed of joint ancestral properties, moveable and immovable. On September 4, 1913, Chhotalal made a Will, Exhibit 100, and died on March 7, 1915. Motilal died unmarried on October 17, 1918, leaving at the time of his death his mother, Ruxmani, and his sister, Sanku. Sanku was married to the plaintiff in this suit, and died on October 8, 1920. Before that on July 30, 1919, Ruxmani passed a gift deed to the plaintiff. By his "Will Chhotalal, after setting out particulars of his property, stated that he was the owner thereof as long as he was living and free from illness, so that he might enjoy the property as he pleased, fie appointed in case of his death, his wife Ruxmani to be the owner and heir to the property that should remain after his death. She was to take all the property in her possession and perform his after death ceremonies, and, in case Sanku was not married, Ruxmani was to defray the expenses of her marriage according to her discretion out of his property, and that done, she was at liberty to deal with the surplus according to her pleasure. In case Ruxmani died without making any disposition of the property, the testator appointed his son, Motilal, to be the owner and heir to the immovable and moveable property which Ruxmani would leave.

(2.) It is to be noted, therefore, that the testator first of all, stated in his Will that the property was his own, and not ancestral; that he purported to bequeath the whole of his property to Ruxmani with full power of disposition, and, in case she made no dssposition of the property, then over to Motilal. It was in pursuance of the powers given to her by Chhotalal's Will that Ruxmani gifted the property to Sanku's husband.

(3.) Defendant No. 1 is the brother of Chhotalal. The plaintiff brought this suit against him for possession of the property, alleging that Defendant No. 1 fraudulently took a sale deed of the property from Defendant No. 2. Defendant No. 1 pleaded that the property was ancestral, so that Motilal took the property by survivorship; that the Will of Chhotalal was void and inoperative as against Motilal; that, on Motilal's death, Defendant No. 2 bad only a limited interest in the property as the heir of Motilal; that Defendant No. 1 was the reversionary heir to the property after the death of Defendant No. 2; that Defendant No. 2 had surrendered the property, in favour of Defendant No. 1 after receiving Rs. 3,000 from him as consideration; and that he had also made arrangements for, the residence and maintenance of Defendand No. 2, The main contention was that Chhotalal's Will would operate on his own undivided share in the ancestral property, provided that Motilal consented to the Will being made.