VISHNU RAMKRISHNA WANI Vs. NATHU VITHAL WANI

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiffs for possession of certain properties, and in order to appreciate the contentions of the parties it is necessary to set out a pedigree which will explain the relationship of the parties necessary to understand the material questions.

(2.) One Shivram had three sons : Narayan, Hari and Ramkrishna. Narayan had a son Madhav who died in 1936 and his sons are Murlidhar and Vasudev. Hari was married to Gangabai and Hari died on March 22, 1927. Gangabai died on July 22, 1941. Hari and Gangabai had one issue, a daughter Narmadabai who died in 1935. She was married to Natu, who is defendant No. 1 in the suit. Ramkrishna died in 1939 and his widow is Gitabai, and Ramkrishna had three sons : Vishnu, Laxman and Ramchandra, who are plaintiffs Nos. 1, 2 and 3. Narayan, Hari and Ramkrishna separated a long time ago. Gangabai made a will on July 14, 1941, and by that will she disposed of the property in suit by giving a part of it to defendant No. 1, another part of it to defendant No. 2, who was a distant relation of Hari, and the third part to charity, appointing defendants-Nos. 1 and 2 as trustees of that charity. Defendant No. 3 is a purchaser of defendant No. l's share in the property which he claims under the will of Gangabai. The defendants in answer to the plaintiffs claim for possession of the property in suit set up Gangabai's will, and the trial Court held that Gangabai's will was proved, that under the will defendants Nos. 1 and 2 and Charity were legatees and that the plaintiffs were not entitled to succeed in the suit which they had brought. From that decision the plaintiffs have come in appeal before us and various points have been raised by Mr. Dharap on behalf of the plaintiffs.

(3.) The first contention is that under the will of Hari dated May 5, 1926, Hari constituted Gangabai merely a limited owner of the property in suit and Gangabai had no right to dispose of this property. If that contention were sound, then on Gangabai's death the plaintiffs would succeed to the property as the next rever-sioners of Hari. In order to test this contention we must look at the provision of the will of Hari. In Clause 5 of that will Hari states that On his death his wife Gangabai was to be the owner of the property and excepting her no other person should have any right or interest over the said property. He then expressly excludes his brothers, nephews or other heirs from claiming any right, title or interest to the property. The testator then repeats and reiterates what he has already stated and he says that after his death his wife should enjoy the property as owner thereof and should be the absolute owner and she would be fully entitled to dispose of or transfer the same. Mr. Dharap has relied on one provision in this clause which conies subsequently, which according to him makes it clear that the intention of Hari was not to make his wife the absolute owner of the property and that provision is with regard to his daughter Narmadabai. The testator provides in the will that if there remained any property after the death of his wife, her daughter Narmadabai should be the owner thereof. But he goes on to say that if, per chance, the order of death of the three persons, namely himself, his wife and his daughter, should be changed, then the survivor of these three shall deal with this property as owner thereof and shall be owner thereof. Whatever might have been the position if Narmadabai had survived her mother, the position is clear when we look to the circumstances prevailing on the death of Gangabai. The will of Gangabai only begins to speak at her death and at her death her daughter was not alive, and it is clear from the provisions of her husband's will that she being the survivor of herself, her husband and her daughter, her husband intended that she should be the absolute owner of the property. Therefore, at her death she had full power to dispose of her property as she wished, and we do not agree with Mr. Dharap's contention that the will of Hari read as a whole constituted his wife merely a limited and not an absolute owner.