Mafatlal Motilal v. Kanialal Trikamlal

1. The only questions with which we have to deal in this judgment arise upon the construction of the Will of Mathuradas made in the year 1873, for the later Will upon which the respondent also relied as showing that Gangabai had an absolute interest in the property in suit, has been held in litigation between the plaintiff and Ganga not to be proved.

2. By the first clause of the Will of 1873 the testator stated that his son Girdhar's conduct not being good he gave him no authority in that Will and made no provision for him. We entertain no doubt that the testator excluded Girdharlal by these words from participation in the property dealt with by the Willi which, upon the contentions of the parties, must be taken to be the self-acquisition of Mathuradas.

3. The property is then described. It consisted of one house and the middle and third storey of another house in Ahmedabad sufficiently capable of identification by the-descriptions given. The other immovable-property was one field in Shahawadi, Taluka Daskroi, in Ahmedabad District bearing Survey No. 123. The movable property is not capable of, identification at the present time.

4. It is contended for the plaintiff that as the Will speaks, from the testator's death, it must be taken to dispose of all the property in his ownership at that date. We think we should apply the rule of construction approved by Lord Justice Davey in In re Seal, Seal v. Taylor (1), that “where there is property in respect of which all the facts of the description are found to be true, so that the property exactly fits the description, the whole of that property, and nothing more, passes.” Under that rule no immovable property would pass but such as answered to the description and was of the testator's ownership at his death. That this was the testator's intention is confirmed by the-passage referring to the “above-mentioned” movable and immovable properties.

5. The property is disposed of after the testator's death in the following words: “If I die, then my son's wife Bai Ganga is the owner of the above-mentioned immovable and movable properties. The said Ganga shall during her life-time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease her two daughters are the owners thereof.” At the date of the Will the testator had two grand-daughters by Ganga one of whom predeceased him but before his death another was born and, survived him. He, therefore, left two grand-daughters by Ganga.

6. The first question arising in this part of the Will is whether Ganga took an absolute or some less interest and the second if she did not take absolutely, whether other two surviving daughters one or both took vested remainders.

7. On the first point we think the widow, took for life with a power of disposal in her lifetime as in In re Pounder, Williams v. Pounder (2). In that case a testator by his Will gave his residue to his wife absolutely. By a codicil he revoked this gift and after making a specific gift gave his residue to his wife “for her own absolute use and benefit and disposal”, but without prejudice to the absolute power of disposal by his wife of all the said residue in case after her decease any part thereof should “remain undisposed of” by her, he gave the same to two other persons equally as tenants-in-common. It was held that the wife took a life-interest with a power of disposition by act inter vivos but not by Will.

8. The same conclusion follows where the gift over in remainder follows a gift for the widow's sole and separate use and benefit in the same testamentary document, as in Constable v. Bull (3).

9. The second question is whether Chanchal, the only one of the two daughters of Ganga living in 1873, the date of the Will, who survived the testator, took a vested remainder in the whole residue on the death of Ganga. Of the English authorities cited, viz., In re Emery, Jones v. Emery (4), Garvey v. Hibbert (5), Daniell v. Daniell (6), and Spencer v. Ward (7), In re Emery, Jones v. Emery alone is in point, for here there was no mistake as to the number of grandchildren at the date of the Will and the testator must be taken to have intended to benefit only those known to him: see also Sherer v. Bishop (8). Chanchal, therefore, the survivor of those named in the Will, took a vested interest in the whole residue which was both heritable and transferable. In this case the plaintiff as her transferee takes the whole.

10. The plaintiff, therefore, is entitled to the immovable property of the testator specified in the Will of 1873 which was of his ownership at the time of his death. This does not dispose of the whole property left by Mathuradas. There was other property which descended to Girdharlal by inheritance sufficient to feed the defendant's claim under the adoption by Ganga.

11. As the plaintiff succeeds upon the amended plaint and the new point set out therein, by virtue of an interest of Chanchal having, come to him by assignment subsequent to the plaint, it is clear that he could not have succeeded if he had not taken an assignment. We, therefore, think that he ought to bear all the costs of the respondents throughout.

12. Decree varied.