Judgement

Appeal (No. 123 of 1919) from a judgment and decree of the High Court in its appellate jurisdiction, affirming a decree of the High Court in its original civil jurisdiction.

The suit related to the will of Nathoo Moolji, a Gujarati Hindu who died on December 8, 1894, and to the respective estates and interests taken by the testators widow &nd his two daughters. The material terms of the will appear from the judgment of the Judicial Committee.

The suit was brought by the appellant, as heir of the testators daughter Diwali who died in 1906. The daughter Jamnabai took possession of the estate upon the death of the testators widow, and remained in possession until her death in 1911, whereupon the respondents came into possession and took out letters of administration to her estate.

The appeal came before the Board originally in February, 1921, and was then allowed upon a question of procedure (see L. R. 48 I. A. 181). Subsequently the appeal was restored to the list by consent for trial upon the merits.

The views of the learned judges before whom the suit and appeals were heard in India were shortly as follows. The trial judge (Macleod J.) held that the widow took only a Hindu widows estate, and that upon her death there was intestacy. He was of opinion that the English law as to powers of appointment should not be extended to Hindu wills further than was warranted by the decision of the Privy Council in Motivahoo v. Mamoobai (( 1897) L. R. 24 I. A. 93.), and that consequently there did not arise a trust in favour of the daughters equally in default of the exercise of a power to appoint between them. He dismissed the suit. Upon appeal Scott C.J. held that the widow took only a life estate, and that the will imposed an imperative direction upon her to appoint in favour of the daughters, with the result that there was in their favour a trust in remainder as tenants in common in equal shares. Heaton J. differed from the Chief Justice, holding that no obligation was imposed upon the widow to make any disposition in favour of the daughters. Upon the appeal being erroneously referred to another Bench (see L. B. 48 I. A. 181) Bachelor J. expressed no view as to the estate taken by the widow; he was of opinion that there was no precatory trust in favour of the daughters, and that upon the widows death the whole estate passed to the daughter Jamnabai. Shah J. held that there was an absolute gift to the widow and no trust. In the result the decree of Macleod J. dismissing the suit was affirmed.

1921. Oct. 24, 25. De Gruyther K.C. and Parikh for the appellant. On the true construction of the will the testators widow took a Hindu widows estate, with a special power to appoint between the two daughters. The use of the word "malik" in clause 3 is not conclusive that an absolute estate was intended. The terms of the will as a whole, especially clause 18 and clause 23, show a contrary intention. Had the testator, who was governed by the Mayuka, died intestate the family of either daughter who died before the widow would have got nothing Mayne, paras. 614, 615. The object of the testator was to provide for that eventuality to the exclusion of collaterals. That object could best be effected by giving his widow a life interest, with a gift over to the daughters. The validity of powers of appointment in Hindu wills is established by Motivahoo v. Mamoobai. (( 1897) I. L. R. 21 Bom. 709; L. R. 24 I. A. 93.) In default of appointment the daughters take equally. It is true that, as pointed out by Macleod J., s. 79 of the Indian Succession Act (X. of 1865) which so provides was not one of the sections applied to Hindu wills by Act XXI. of 1870.

s. 2. It was not so applied, because in 1870 it was not thought that a Hindu will could give a power to appoint. The rule embodied in s. 79 is, however, a rule of construction and should receive effect as a rule of justice, equity, and good conscience, since its application is not excluded by any legislat