Mithibai v. Meherbai

Kanga, J.:— On the evidence of the plaintiff I hold that she is the reversionary heir of Jasvir Bhudar.

The next question that arises is, what interest did Bai Divali take under the will of her husband? The clause in the will of Jasvir Bhudar whereby the residue is devised to Bai Diwali runs as follows:—

“As to whatever surplus of my property may remain over after my decease the (Malik) owner thereof is (shall he) my wife Diwali. She shall during her life-time apply and spend the same in a good way. As to the surplus that may remain over after the performance of her that is to say my wife's Karaj Avasar (funeral and subsequent ceremonies) all that shall be used for good purpose. Except my executrix no one else nor my heirs or representatives whatever shall have any right to or interest in my property.”

It was contended by Mr. Desai that Bai Diwali took an absolute estate under the said will, and reliance was placed by him on the Privy Council decisions in Lalit Mohun Singh Roy v. Chukkun Lal Roy and Surajmani v. Rabi Nath Ojha. The word “Malik” is used by Jasvir Bhudar in his will in connection with the devise to Diwali. The said word, according to the said Privy Council decisions, imports full proprietary rights unless there is something in the context to qualify it. The fact that the donee is a Hindu widow is not sufficient for that purpose. If, therefore, there had been no qualifying words in the will, as the word “Malik” in connection with the devise of the residue to Diwali has been used, there would have been no difficulty in holding that Bai Diwali took an absolute estate. Mr. Mehta cited Hirabai v. Lakshmibai, but the word used in connection with the devise to the widow in that case was “heir” and not “Malik” and that decision has, therefore, no application to this case. The decision in Harilal v. Bai Rewa, cited by Mr. Mehta, seems to be in point; for, there the Gujarati word in the will is translated “owner”. But Mr. Mehta has not informed me, and I have not been able to find out, what the Gujarati word used in the will in that case was. My impression is that the Gujarati word used there was “dhani”. I take it that the Gujarati word translated “owner” would import full proprietory rights and in the will before the Court in the case of Harilal v. Bai Rewa there was nothing to qualify the word translated “owner”. The Court of Appeal in that case thought that the fact that the legatee was a Hindu widow was sufficient to qualify the word translated “owner”, and accordingly held that the legatee in that case took a widow's estate. The authority of Harilal v. Bai Rewa is, in my opinion, considerably shaken by the above cited Privy Council decisions. However, the word used in this will, viz., “Malik”, is the same as that used in the Privy Council decisions, and, unless there are some words to qualify it, I must hold that Bai Diwali took an absolute estate.

The qualifying words in the will which are relied upon by the plaintiff's counsel are — “During her lifetime she shall apply and spend the same in a good way.” No doubt, the law requires that if there is an absolute gift in the first instance you must have very clear words to cut down the absolute estate; and it may be said that the words “during her life-time she shall apply and spend the same in a good way”, used by the testator, express the object of his having made an absolute gift: In re Jones; Richards v. Jones. But taking into consideration the fact that the aforesaid words are used in reference to a Hindu widow and the fact that the qualifying words used in the will are very similar to those used in the will in Mafatlal Motilal…Plaintiff v. Kanialal Trikamlal…Defendant ., where the learned Judges of the Court of Appeal held that a life-estate had been created, I come to the conclusion that the words “during her life-time she shall apply the name and spend in a good way” cut down the absolute estate created by the use of the word “Malik” and hold that Bai Diwali took a life-estate and not an absolute estate.

The next question for consideration is, what are the nature and incidents of such life-interest? Mr. Mehta has contended that whatever might be Bai Diwali's powers during her life-time over moveables, in immovables she had only a life-estate, and that she could only enjoy the income of the immoveable properties and nothing more. In the will itself there are no words to the effect that she was to use and spend the income only. The will says: “She shall during her life-time apply and spend the same”, that is to say all the residue of the testator's property. The clause in the will containing the disposition of the residue of the testator's property is very much like the clause in the will in Mafatlal's case, where, on the construction of the will, the Court of Appeal held that the testator's son's widow took a life-estate with full powers of disposition by acts inter vivos. Mr. Mehta contended that Mafatlal Motilal…Plaintiff v. Kanialal Trikamlal…Defendant . was the case of a daughter-in-law and was not the case of a widow of the testator. But, in my opinion, that does not make the slightest difference, because a daughter-in-law in the Bombay Presidency inherits only as a widow of a gotraja sapinda and is entitled, when she succeeds as an heir, to a widow's estate. She is in the same position as a Hindu widow. I, therefore, hold that Bai Diwali took a life-estate with uncontrolled powers of disposition by acts inter vivos: Mafatlal Motilal…Plaintiff v. Kanialal Trikamlal…Defendant . and In re Pounder.

Mr. Desai further argued that even if Bai Diwali took a life-estate with no powers of disposition during her life-time, she being an executrix the conveyance to Ratanbai should be deemed to have been a conveyance by her as executrix. Bai Diwali took out probate in 1893 and conveyed the property to Ratanbai in June 1894. The conveyance (Exhibit B) does not mention in what particular capacity Bai Diwali sold and conveyed. All the various capacities are mentioned and then the conveyance says, “She the said Bai Diwali doth by these presents grant, bargain, sell, assign, release, convey and assure unto the said Ratanbai” the said property “and all the estate, right, title, interest, use, trust, inheritance, property, possession, benefit, claim and demand whatsoever of the said Bai Diwali in and to the said premises and every part thereof.” Then, in the conveyance there is a covenant for title given by Bai Diwali. At the date of the conveyance (Exhibit B) the Falkland Road property, which is in dispute in this suit, was in the hands of Bai Diwali as executrix and she was competent as executrix to sell it to Ratanbai, who was a bona fide purchaser for valuable consideration. But it is argued that she did not sell or convey as executrix because the deed shows that she intended to convey as beneficial owner being under the impression that she took the property absolutely under the will of her husband. I am of opinion that the deed shows that Bai Diwali conveyed the whole property and all the title she possessed in the property, and that would include the right and title possessed by her as executrix: see Gaangabai v. Sonabai and Bijraj Nopani v. Pura Sundary Dasee.

Mr. Mehta argued that in the petition for probate the value of the property was given at Rs. 10,800 and that the sale by Bai Diwali to Ratanbai was for Rs. 4,000, and, therefore, Ratanbai must have thought that the title was doubtful and paid to Bai Diwali a very low price. But as pointed out by Mr. Desai the value in the petition for the purposes of probate was arrived at by taking into consideration the fifteen years' rent of the property. As the lease was thought to be determinable at will no purchaser would pay anything more than the value of the building to Bai Diwali.

Mr. Mehta has further argued that it would be dangerous to hold that if a Hindu widow, who is also an executrix, sold and conveyed, she should be deemed as conveying as an executrix. I do not see any danger in so holding. The Legislature has expressly applied section 90 of the Probate and Administration Act to all Hindus, including Hindu widows, and under section 90 of the Probate and Administration Act a Hindu widow, who is appointed an executrix, would be entitled to sell as executrix the property left by her husband, if no restriction was imposed on her powers of disposing of the property by the will which appointed her executrix. There are no words used in this will imposing any restriction on the powers of the executrix. Therefore, there was nothing to prevent Bai Diwali selling and conveying this property as executrix. If she could have sold as executrix under section 90 by so stating expressly in the conveyance, I do not see any difficulty in holding that she sold in all the capacities she possessed when the deed (Exhibit B) does not expressly say in what particular capacity she has sold but merely recites all the capacities. I, therefore, hold that the sale to Ratanbai should be deemed to be a sale by Bai Diwali as the executrix of the will of Jasvir Bhudar.

Suit dismissed with costs.

Solicitors for the plaintiff: Messrs. Mehta Dalpatram & Lalji.

Solicitors for defendants: Messrs. Merwanji Kola & Co.

Suit dismissed.

G.G.N