CHUNILAL LALLUBHAI Vs. BHOGILAL LAKHMICHAND

JUDGEMENT

(1.) This is one of those cases where the Court has to do the best it can with an obscure, home made, vernacular Will left by a testator who evidently was not familiar with the English notions of a Will. We must endeavour to ascertain the testator s wishes through the medium of the words which he has used. The important words are those occurring in paragraph 10 of the Will, where, after directing the division of his property into moieties, and the gift of one of them to his widow and the other to his daughter Mani, the testator goes on: And one part should be given to my daughter Mani, and the said Mani and her husband should live in my house and maintain themselves and use and enjoy it but her sasarias (i.e., the people on her husband s side) or her creditors or her co-sharers and Others have got no right of any kind to take it, and if any issue be born to her, it (i.e., the issue) is the owner thereof, but if perhaps there be no issue born to her or if she were to die without leaving any issue, that whole estate should be used for some good religions objects.

(2.) The learned Judge below has held that by these words the testator gave the moiety absolutely to his daughter Mani, whereas it, is contended for the appellant that upon a true construction of the Will there is a gift of the life estate only to Mani and a gift over to her issue. It appears to me, however, after careful consideration of the whole material passage that there can be no reasonable doubt of the testator s wishes and that those wishes were that the daughter Mani should take absolutely. There is no word or phrase restricting or controlling the words of gift, and they are followed by the words excluding Mani s sasarias from any participation in the property. Those words, however, appear to me in the context to constitute a mere parenthesis, and the testator returns to his original thought by declaring that if any issue should be born to Mani, the property will belong to that issue. Reading the whole passage, I take it that the provision that the issue of Mani should be the owner of the property was designed merely to emphasize the absolute gift already made to Mani and the total exclusion of Mani s sasarias from any right to enjoy it. That is consistent with what was said by the Privy Council in Bhoobun Mohini Debia v. Hurrish Chunder Ghowdhry 4 C. 23 : 3 C.L.R. 339 : 5 I.A. 138 : 3 Sar. P.C.J. 815 : 3 Suth. P.C.J. 537 : 2 Ind. Jur. 430 : Shome L.R. 241 : 2 Ind. Dec. (N.S) 16, where it was laid down that in Hindu deeds words giving lands to a donee "his children and grand-children" confer on him an absolute estate. I believe, as I have said, that the additional provision here in regard to Mani s offspring was designed only to show more clearly that Mani was to take absolutely, and that her sasarias were not to take in any event. It may be noticed that there is nothing in this construction which would be strange to the testator s notions, for it is a long recognized doctrine of law on this side of India that a daughter in such circumstances takes the absolute estate. This was the only point raised in the appeal, On these grounds I would affirm the lower Court s decree and dismiss the appeal with costs. Shah, J.

(3.) I am of the same opinion.