BAI SAVITA Vs. GIRJASHANKAR MOHANLAL

JUDGEMENT

(1.) The point that arises for consideration in this second appeal is about the construction of a will of one Sadashiv Laxmiram Bhatt who died on May 13, 1939, leaving a will dated April 23, 1939. He left behind him his wife Bai Shiva and his daughter Bai Savita who was married to one Tripurashankar Shiva shankar. After referring to these relatives and giving the description of his moveable and immoveable properties, he proceeded to state as follows in exhibit 27: I appoint my wife Bai Shiva waras of all this because Bai Shiva stays with me and she serves me very well and I have full faith that in future also she will serve me very well and hence by this will I make my wife Bai Shiva waras of all the properties, moveable and immoveable, after my death.

(2.) The testator then stated that during his lifetime he was full owner of this property and thus entitled to add to or decrease it. But that after his death, all the properties, moveable and immoveable, and all the dues that were due and that might be due and what was omitted to be written in the will but may be found, Bai Shiva was to take in her own possession of her own free-will, that out of the same according to his reputation and custom, Bai Shiva and his daughter Bai Savita and his nephew Lalshankar and his son-in-law Tripurashankar were to perform the funeral obsequies and ceremonies. After the performance of these obsequies and ceremonies, "Bai Shiva was to enjoy independently all the remaining property, moveable and immoveable, in a way that was according to her liking and in such way as she liked." The testator then went on to say: After the death of my wife Bai Shiva whatever moveable and immoveable property may be left by her the said property both moveable and immoveable is to be taken possession of by my daughter and out of that property my daughter Savita, my nephew Lalshankar and my son-in-law Tripurashankar should perform the funeral rights of my wife Bai Shiva, and whatever moveable or immoveable property was then left should be taken possession of by Savita and, if Savita was not alive, by her waras sons and they should make dispositions of it in any manner they liked.

(3.) After the death of the testator, Bai Shiva who obtained possession of the properties made disposition of the moveables worth Rs. 4,345 by a deed described as Dharmadai Settlement on August 10, 1940, and certain persons were appointed as trustees to carry out the directions contained in the Settlement deed, Bai Shiva died on September 7, 1940, and thereupon Bai Savita instituted the present suit on April 20, 1941, to get back the sum of Rs. 4,345 on the allegation that under the will of the deceased Sadashiv, Bai Shiva did not get an absolute estate and was not therefore entitled to effect a settlement of the moveable properties in the manner she had done. The trial Court accepted this contention and decreed the suit. The trustees then appealed to the District Court of Ahmedabad, and the learned Assistant Judge who heard the appeal came to the conclusion that Bai Shiva got an absolute estate under the will of her deceased husband and that, therefore she was entitled to make a settlement in respect of the moveables. He therefore allowed the appeal, set aside the decree of the lower Court and dismissed the plaintiff's suit with costs. It is against that order that Bai Savita the original plaintiff has come in second appeal.