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Bhaidas Shivdas v. Bai Ghulab And Another

Privy Council

Oct 25, 1921

Judgment

Subsequent
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Factual and Procedural Background

This appeal challenges a decree dated 23 March 1917 of the High Court of Judicature at Bombay (Appellate Civil Jurisdiction), which affirmed a decree dated 8 September 1916 of that High Court in its Ordinary Original Civil Jurisdiction. The central dispute concerns the construction of the will dated 6 August 1894 of Natho Moolji, who died on 8 December 1894.

At the date of the will the testator's widow, two daughters (named Jamnabai and Diwali), and the widow of a predeceased son were living. Diwali died on 13 May 1906 and the testator's widow died on 15 August 1911. The appellant is the husband of Diwali (the daughter who predeceased the widow). The respondents claim under the other daughter (Jamnabai), who survived the widow. The appellant contends that the two daughters took a vested interest in the residuary estate under the will which was not divested by the death of Diwali before the death of the widow.

The will was made in Gujarati and translated into clauses for the record. Relevant clauses include:

Clause 2: appointment of the wife as sole executrix.
Clause 3: appoints the wife to be heir and uses the Gujarati word "malik" (translated/understood as constituting the wife the owner), then continues: as to whatever property may remain after her death my wife shall leave the said property to my two daughters in such manner as she may like (either by making a will or by making some other instrument).
Clause 6: gives authority to the wife concerning profits and ready moneys of a shop and to continue partnership if she desired.
Clause 18: provides that after certain religious expenses are defrayed out of rents, the wife should apply the surplus for her maintenance and use and for her daughters if living with her, and if insufficient she should deal with moveable and immoveable properties as she thought fit.
Clause 20: gives express power to the wife to mortgage, lease, sell and use the properties.
Clause 23: provides that after the death of the wife the daughters should be named executrixes and gives them authority to deal with or manage the whole of the property and effects.

Legal Issues Presented

Whether, on the true construction of the will dated 6 August 1894, the testator's two daughters took a vested interest in the residuary estate that was not divested by the death of one daughter (Diwali) before the death of the widow.
Whether Clause 3 and the subsequent clauses of the will create a trust in favour of the daughters (i.e., whether the wife's power or duty to "leave" remaining property to the daughters creates an obligation binding the property), or whether the clause merely expresses a wish and does not create a trust.
Whether, if a trust was intended, the subject-matter of such trust is sufficiently certain to be administered by the Court.

Arguments of the Parties

Appellant's Arguments

The appellant (husband of the predeceased daughter Diwali) contends that the two daughters acquired vested interests in the residuary estate under the will, and that such vested interests were not divested by the death of one daughter before the widow's death.
The appellant further argues that Clause 3 does not stand alone; subsequent clauses (notably Clauses 18 and 23) are, he submits, inconsistent with the view that the wife was intended to be absolute owner, and these clauses should be read to support the creation of obligations or a trust in favour of the daughters.

Position of the Court Below / Other Observations Recorded

One Judge of the Court of Appeal (familiar with the Gujarati language of the will) took the view that the words in Clause 3 suggesting how property should be left after the widow's death were inadequate to create anything more than an expression of wish and did not create a binding obligation.
The opinion does not contain a detailed account of any adversary respondent's submissions on record; the written reasons concentrate on construction, the language used, and the applicability of established legal principles and precedents.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mt Surajmani v. Rabi Nath Ojha (multiple citations including (1907) 30 All 84 : 35 IA 17 ... 12 CWN 231) (Privy Council)	That where words conferring absolute ownership are used in favour of a wife, the wife enjoys rights of ownership unless the circumstances or context show that absolute ownership was not intended; earlier High Court rulings that a Hindu widow could not alienate immoveable property unless expressly given power were no longer fully sound in light of this decision.	The court relied on the principle to conclude that the use of the word "malik" and the powers given (e.g., Clause 20) supported a view that the wife was constituted absolute owner unless other clauses clearly displaced that construction.
Horwood v. West (1823) 1 Sim & S 387; 1 LJ (OS) Ch 201; 24 WR 199	That it is essential to the execution of a trust that the subject matter be certain; if a testator only recommends that property be left at the pleasure of another or only indicates a wish as to what 'if anything' remains, there may be no trust because the subject is too uncertain to be administered by the Court.	The court applied this principle as decisive: even if the words were sufficient to create a trust, the subject-matter (i.e., "whatever property there may remain after her death") was too uncertain, so no administrable trust was created.

Court's Reasoning and Analysis

The court proceeded in a sequence of analytical steps anchored on textual construction and established principles:

Textual construction of Clause 3: The original Gujarati word used for gift was "malik," a term that could appropriately constitute the wife as absolute owner. The court observed that "malik" did not operate as a technical term fixing the quality of the estate but indicated ownership; in the context of the will the estate taken by the wife was viewed as absolute in quality when Clause 3 is read with powers granted elsewhere (notably Clause 20).
Consideration of prior authority: The court referred to Mt Surajmani v. Rabi Nath Ojha to show that where words confer absolute ownership upon a wife, she enjoys the rights of ownership unless surrounding circumstances indicate otherwise. This undercut an earlier narrower High Court proposition that a Hindu widow could not alienate immoveable property unless express power was conferred.
Examination of subsequent clauses (Clauses 6, 18, 20, 23): The court noted provisions that gave the wife authority over business profits, authority to deal with moveable and immoveable property, and the appointment of the daughters as executrixes after the wife's death. While accepting that Clauses 18 and 23 could be argued to point away from absolute ownership, the court found they were not sufficient to displace the clear language of Clause 3 when it was fortified by Clause 20's express powers.
Alternative and decisive ground — certainty of subject: The court then addressed the question whether, assuming the testator intended to create a trust (i.e., assuming Clause 3 did create an obligation on the wife), the subject-matter of any such trust was sufficiently certain. Applying Horwood v. West, the court concluded that the words which attach only to "whatever property there may remain after the death of the wife" were too uncertain to constitute a trust which the Court could administer. The Vice-chancellor's dictum quoted from Horwood v. West was treated as applicable: if the testator merely intended the wife's disposal at her pleasure, and only recommended what should be left undisposed at her death, there is no trust for the Court to enforce.
Disposition of alternative arguments: The court expressly noted the view of the Court of Appeal judge who considered Clause 3 to be an expression of wish rather than a binding obligation, but the Privy Council preferred to decide on the principle of certainty of subject-matter rather than rest solely on that constructional view.

Holding and Implications

APPEAL DISMISSED.

Holding:

The court held that there was no trust created in favour of the two daughters under the will.
The appeal fails and is dismissed with costs.

Consequences / Implications:

The appellant's contention that the daughters had vested interests in the residuary estate that survived the daughter's death before the widow was not accepted; no enforceable trust in favour of the daughters was found.
The direct effect is that the decree of the High Court (affirmed on 23 March 1917) stands and the appeal is dismissed; costs were ordered. Specifically, costs incurred in the Court below from 13 March 1917 and of the appeal on the preliminary point that was argued before the merits were reached (which were reserved) were to be treated as costs in the appeal.
The court decided the matter on established principles of construction and the essential requirement of certainty for trusts; the decision turned on those legal doctrines as applied to the text of the will.

Note: This summary is drawn exclusively from the text of the provided opinion and does not add facts or arguments beyond what the opinion records.

Show all summary ...

Lord Buckmaster :-

This is an appeal against a decree dated the 23rd March, 1917, of the High Court of Judicature at Bombay (Appellate Civil Jurisdiction), affirming a decree dated the 8th September, 1916, to the High Court in its Ordinary Original Civil Jurisdiction.

The question raised for determination arises on the construction of the Will dated the 6th August, 1894, of one Natho Moolji who died on the 8-12-1894.

The appellant is the husband of one of the two daughters of the testator, who predeceased her mother, the testator's widow. The respondents claim under the other daughter who survived her mother:

At the date of the Will there were living the testator's widow, his two daughters and the widow of a predeceased son. The two daughters were named Jamnabai and Diwali. Diwali died on the 13th May, 1906, and the testator's widow on the 15th August 1911.

In these circumstances the appellant claims as the husband of Diwali that according to the true construction of the Will the two daughters took a vested interest in the testator's residuary estate which was not divested by reason of the death of one of the daughters before the death of the widow. The history of the suit has been fully dealt with by their Lordships when this appeal was formerly before them, and need not be repeated.

The Will was made in the Gujarati language, and in the translation is divided into clauses. By Cl. 2 the testator appoints his wife as the sole executrix. In the next clause, after stating that as he has no son he appoints his wife to be his heir; and the clause continues in these words :-

" And I constitute her the owner. And as to whatever property there may remain after her death my wife shall leave the said property to my two daughters in such manner as she may like (either) by making a Will or by making (some) other instrument. Of my two daughters one named Bai Jamnabai was married to Shah Haridas Hemchand, but as he subsequently died she has now become a widow. To her and to (my) other daughter Bai Diwali who has been married to Shah Bhaidas Shivdas (i.e.) to both of them my wife shall give (my) property in such manner as (she) may like."

By later clauses of the Will the testator referred to powers that he desired his wife to enjoy ; for example, by Cl. 6 he expressly states that he gives his wife authority to do what she thinks right with the profits and the ready moneys of a shop where he carried on 'business, and further to continue in partnership with the partners if she so desired. By Cl. 18 he provides that after there have been defrayed out of the rents of certain specified immoveable property, the expenses in connection with a religious object, for which he had made provision, the wife should apply the surplus for her maintenance and use and for the maintenance and use of her daughters if they were living with her, and if the surplus were insufficient she should deal with the moveable and immoveable properties in such manner as she thought fit. By Cl. 20 again, he gave express power to his wife to mortgage, lease, sell and use the properties. Finally by Cl. 23 he provided that after the death of his wife his daughters should be named executrixes, and he gave them authority to deal with or manage the whole of his property and effects. There is no dispute that the word that was used in Cl. 3 as the original word of gift was the word " malik " which could be appropriately used to constitute the wife absolute owner. It is not that the word is a " term or art,'' it does not necessarily define the quality of the estate taken but the ownership of whatever that the estate may be; and in the context of the present Will their Lordships think the estate was absolute. At the time when the Will was executed it may well have been that whoever drew the Will was aware that at the time words of absolute gift in favour of a Hindu widow might not be supposed capable of conferring upon her a power of alienation, for in the case of Mt Surajmani v. Rabi Nath Ojha (1) which ultimately came before this Board we find that the High Court had ruled :-

"That under the Hindu Law, as interpreted up to the present in the case of immoveable property given or devise by a husband to his wife, the wife has no power to alienate, unless the power of alienation is conferred upon her in express terms."

The decision in Mt. Surajmani v. Rabi Nath Ojha, (1907) 30 All 84 : 35 IA 17 : 10 Bom LR 59 :18 MLJ 7 : 7 CLJ 131 : 5 ALJ 67 : 12 CWN 231 (PC) showed that provision was no longer sound and that if words were used conferring absolute ownership upon the wife, the wife enjoys the rights of ownership without their being conferred by express and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended. If Cl. 3 stood by itself it would, their Lordships think, be difficult to dispute that whatever the testator desired with regard to the disposition of his property after the death of his wife he had not expressed his wishes in such a manner that they bound the property. The words under which the appellant claims are words which only attach to whatever property there may remain after the death of the wife. Without for the moment considering whether the desire expressed by the testator is expressed in a form that makes her disposition of it mandatory or no, it is sufficient to say that if that clause stood alone the principle stated in the case of Horwood v. West, (1823) 1 Sim and S 387 : 1 LJ (OS) Ch 201 : 24 WR 199 would be applicable to this Will as it would to a Will in England. The Vice-chancellor says at page 389 :-

"It is essential to the execution of a trust that the subject should be certain, and if this testator intended that his wife should, at her pleasure, during her life, dispose of the property which he left to her and that his recommendation should extend only to what, if anything happened to remain of his property at her death undisposed of by her, then there is no trust to be administered by this Court."

But the appellant points out with considerable force, that Cl. 3 does not stand by itself; but the clauses referred to, and most notably Cls. 18 and 23 are in their terms inconsistent with the view that the provisions of Cl. 3 constituted the wife the absolute owner. Their Lordships are very far from saying that there is not force in this argument ; but so far as Cl. 18 is concerned it should be remembered that even there there is a provision that the surplus, after the property has been used for maintenance in the manner suggested, is to remain with the wife for her maintenance and use, and power is given to her to deal with the immoveable or moveable property as she may think fit. Again with regard to Cl. 23, the appointment of the daughters as executrixes of the property, if in fact there had been a gift to them after the widow's death would be quite unnecessary. The only purpose for creating them executrixes would on either hypothesis be to see that the religious purpose to which part of the property had been devoted and a certain beneficial trust given to the widow of the son should be carried out. If and so far as they were absolute owners it had little value.

Their Lordships therefore think that these subsequent clauses in the Will are not sufficient to displace the language of Cl. 3 fortified by the powers given in Cl. 20 and by that language there is no trust created in favour of the two daughters of the testator. In forming this conclusion their Lordships have not considered the serious difficulty that is placed in the way of the appellant by the judgments of the Court from which this appeal has proceeded. In the Court of Appeal one at least of the Judges was thoroughly acquainted with the language in which this Will is drawn, and he took the view that the actual words used in Cl. 3 suggesting how the property should be left after the death of the testator's widow were in themselves inadequate to do anything more than to express a wish and did not create an obligation. Their Lordships have not dealt with that part of the case, because in their opinion the matter is better decided upon the principle to which reference has already been made, viz., even assuming it was intended to create a trust and the words were sufficient for that purpose the subject-matter on which the trust is to operate is by the terms of this Will too uncertain to enable the Court to give it administration.

For these reasons their Lordships are of opinion that this appeal must fail and ought to be dismissed with costs ; the costs in curred in the Court below from the 13th March, 1917, and of the appeal on the preliminary point that was argued before this bearing on the merits, was reached, which were reserved, in their Lordships' opinion, should be costs in the appeal ; and they will humbly advise His Majesty accordingly.

Appeal dismissed.