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1921 Supreme(SC) 77
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD ATKINSON, LORD CARSON, AND SIR JOHN EDGE.
B HAIDAS SHIVDAS - Appellant
Versus
BAI GULAB - Respondents
On Appeal from the High Court at Bombay.
Decided On : October 25, 1921.
Solicitor for appellant:E. Dalgado. Solicitors for respondents: Hughes & Sons.
The term "malik" in a will confers absolute ownership unless the context indicates otherwise. Additionally, a trust cannot be established if the subject matter is too uncertain to be administered, such as property that "may remain" after a life tenant's death.
Headnote:(A) Construction of Wills - Hindu Law - Absolute ownership vs. Life estate - Use of the word "malik" - The use of the word "malik" (owner) in a will imports full proprietary rights and absolute ownership unless there is something in the context to qualify it. The fact that the donee is a widow is not sufficient to qualify the gift as a life estate.
(B) Trust - Certainty of Subject Matter - For a trust to be executable, the subject matter must be certain. A direction that a beneficiary should receive "whatever property may remain" after the death of a life tenant, where the life tenant has absolute power of disposition, is too uncertain to create an enforceable trust.
(C) Indian Succession Act, 1865 - Section 79 - While Section 79 regarding powers of appointment may be viewed as a rule of construction based on justice, equity, and good conscience, it cannot override a clear intention of absolute gift.
Facts of the case:
A testator executed a will appointing his widow as his heir and owner of the estate. The will contained a clause stating that any property remaining after the widow's death should be left to the testator's two daughters in a manner the widow liked. One daughter predeceased the widow. The appellant, as the successor of the deceased daughter, claimed that the daughters held a vested interest in the residuary estate, which was not divested by the death of one daughter before the widow.
Findings of Court:
The court found that the term used for "owner" conferred absolute ownership upon the widow. The subsequent directions regarding the daughters did not create a mandatory trust but were merely expressions of wish or recommendations regarding the disposal of any remaining property. The court held that the subsequent clauses in the will were not sufficient to displace the language conferring absolute ownership.
Issues: Whether the use of the word "malik" and the subsequent directions in the will created a life estate for the widow with a trust in favor of the daughters, or whether the widow took an absolute estate.
Ratio Decidendi: The word "malik" imports full proprietary rights unless the context qualifies it. Even if an intention to create a trust were found, the subject matter ("whatever property there may remain") is too uncertain to enable the court to administer it as a trust. Consequently, the widow took an absolute estate, and no vested interest was created in favor of the daughters.
Result: Appeal dismissed.
Legal Category Hierarchy
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succession
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wills
- construction of wills
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trusts
- certainty of subject matter
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wills
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family law
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hindu law
- widow's estate
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hindu law
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 legi
