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1921 Supreme(SC) 1
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, VISCOUNT CAVE, LORD SUMNER, LORD PARMOOR, AND SIR JOHN EDGE.
SHIRINBAI - Appellant
Versus
RATANBAI - Respondents
On Appeal from the High Court at Bombay.
Decided On : Jan. 18. 1921.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for respondents: Waltons & Co.
A direction in a will to make a testamentary disposition "as directed orally" does not necessarily create a restricted power of appointment; if the will also grants discretion "according to the times," it constitutes a general testamentary power.
Headnote:(A) Indian Succession Act, 1865 - Construction of will - Power of appointment - General vs. Special power - Interpretation of clause directing a beneficiary to make a will "as directed orally" - Whether such phrasing limits the power of appointment to specific oral instructions or merely directs the act of making a will - If the will provides for discretion "according to the times" and refers to the "Dispenser of Justice," it indicates a general power of appointment rather than a restricted one.
(B) Testamentary Power - Where a testator directs a spouse to make a will "as I have directed her orally," and the will further suggests the disposition should be "according to the times," the court must determine if the oral directions prescribed the manner of disposition or merely the obligation to make a will - If the latter, the power is general and not void for uncertainty.
Facts of the case:
A testator left his property to his wife for her lifetime, granting her the power to make a will. The will stated she should make her will "as I have directed her orally" and "according to the times." The wife subsequently executed a will disposing of the estate to one of her children. A dispute arose as to whether the power of appointment was general or limited by oral instructions, and whether the lack of evidence regarding such oral instructions rendered the power void for uncertainty, thereby triggering a gift-over clause to the testator's sons.
Findings of Court:
The widow took a life interest only. The power of testamentary disposition granted in the will was a general power. The phrase "as I have directed her orally" was interpreted as a direction to make a will, not a restriction on how the property was to be disposed of.
Issues: Whether the phrase "as I have directed her orally" in the will created a special power of appointment limited by oral instructions (which would be void for uncertainty if the instructions were unknown) or a general power of appointment.
Ratio Decidendi: The structure of the sentence, where the oral direction preceded the instruction to "make her will," combined with phrases like "according to the times" and references to the "Dispenser of Justice," indicates that the testator intended the wife to have discretion. The oral directions referred to the act of making the will, not the specific distribution of assets. Therefore, the widow possessed a general testamentary power, and her will was a valid exercise of that power.
Result: Appeal allowed and the decree of the High Court set aside; it was declared that the testator's widow had power by will to dispose of his estate.
Appeal from a judgment and decree of the High Court (September 3, 1918) affirming, subject to a modification, a decree of Beaman J. (November 17, 1917).
The suit was instituted in the High Court by the first respondent and related to the will of Bomanji Kaikhushro Modi, a Parsi, to whom the Indian Succession Act (X. of 1865) applied.
The material terms of the will and the questions raised by the suit appear from the judgment of their Lordships. The decision of the High Court on appeal, the effect of which is stated shortly in the judgment of their Lordships, is reported at I. L. R. 43 B. 845.
1920. Dec. 9. Upjohn K.C. and E. B. Raikes for the appellant. The effect of the will was to give to the testators wife a life interest with a power of disposal inter vivos, and a testamentary power of appointment. The power of appointment was either general or confined to the children and grandchildren of the testator ; it is not material which, as the power was exercised in favour of that class. The decision in In re Hetley ([ 1902] 2 Ch. 855.) is not applicable to this case. By clause 7, upon its true construction, the testator did not direct his wife to make a will the provisions of which should be in accordance with his instructions. The words " as I have directed her orally " refer merely to a direction to make a will; her discretion in the exercise of the power was not intended to be fettered by oral instructions. There is nothing in the will indicating a contrary conclusion.
If, however, it was rightly held that the wifes will was ineffectual to dispose of her husbands property, it was also rightly held that clause 8 did not come into operation. Clauses 8 and 10 were conditional upon the power given by clause 7 being effectually exercised. With regard to the power of disposal inter vivos the view of the trial judge was right and that of the appellate Court wrong. [Reference was made to In re Thomsons Estate (( 1880) 14 Ch. D. 263.) and In re Pounder (( 1886) 56 L. J. Ch. 113.), also as to the word " malik " to Lalit Mohun Singh Roy v. Chukkun Lal Roy . (( 1897) L. R. 24 I.
A. 76, 88.)]
[Their Lordships directed that the argument with regard to limitation should be postponed.]
Tomlin K.C. and Rawlence for the respondents. The testator did not, upon the true construction of his will, give his wife a valid power of appointment by will. There are no words expressly giving a testamentary power. It cannot be ascertained from clause 7 who are the persons in favour of whom the power can be exercised without inquiring into the oral wishes of the testator. In re Hetley ([ 1902] 2 Ch. 855.) therefore applies. The High Court rightly held that the wife had no power of disposition inter vivos. The use of the word " malik " is accounted for by the powers of management given to the wife. Clause 8 did not operate because the wife made a will; [it is not material for this purpose whether the wifes will was or was not a valid disposition of the property.
Upjohn K.C. replied.
1921. Jan. 18. The judgment of their Lordships was delivered by
VISCOUNT CAVE. This appeal from the High Court of Judicature at Bombay raises questions as to the construction of the will of one Bomanji Kaikhushro Modi, who died in or about the year 1875. The parties are Parsis to whom the Indian Succession Act (X. of 1865) applies.
The testator made his will, dated January 9, 1872. By clause 3, after reciting that he had two sons, named Nusserwanji and Sorabji, and a wife named Kuvarbai, he appointed his wife as his executrix with full powers of management. By clause 4, after referring to his immovable and movable property of all kinds, he proceeded " Of all that I duly make my wife, the said Kuvarbai, malik muktiyar (absolute owner) during her life, just as I am the owner, and during her life none of my other heirs, representatives or relatives or kinsmen can question her in regard to any matter whatever."
Clause 7 was as follows " 7. Agreeably to what is written
