P. N. BHAGWATI, D. P. DESAI, M. U. SHAH, J.

( 1 ) THE short question that arises for determination in this appeal relates to the construction of a will date 30th September 1934 made by one Zaverbhai a resident of Surat. The question is what is the nature and quality of the interest granted under the will to Laxmi widow of Zaverbhai. Zaverbhai died on 18th October 1954 leaving him surviving his widow Laxmi and two sons and a daughter of his sister namely Shantilal Govind and Chhani. Shantilal was living with Zaverbhai at the time of his death and was looking after him and attending to his Deeds. The properties left by Zaverbhai consisted of certain movables about which there is now no controversy between the parties and an immovable property situate in the City of Surat. The disposition of these properties after his death was made by Zaverbhai by his Will dated 30th September 1954. The original will is in Gujarati language and we shall have occasion to refer to some of the Gujarati expressions used by Zaverbhai which have been the subject matter of controversy between the parties but without attempting to give a translation of those expressions at this stage we may for the time being refer to them in Gujarati and reproduce below an agreed translation of the relevant clauses of the will with those expressions retained in Gujarati. The agreed translation is as follows:-I Zaverbhai Narottamdas Caste Gola about 52 years occupation grain business residing at Begampura Golwad Surat hereby make my last will. . . . . . . In order to see that after my death there is no dispute with respect to my properties and that Vyavastha is done in respect thereof according to my wishes I hereby make this the last will which will come into force after my death. . . . . . . . . . . . . . . . (1) There has been separation from my brothers since a long time and I am separate from my brothers and nephews since long. I carry on my trade separately and I have no concern whatsoever with my brothers sons All of them separately carry on their respective trades and they are separate in every respect. (2) I have a wife by name Lakhami who is daughter of Ramu Megha. I have no issue. I have my sisters sons viz. Shantilal Balubhai and Govan Balubhai and sisters daughter viz. Chhani. My sisters son Shantilal Balubhai is at present staying with me and is serving me. There is nobody else except the aforesaid persons in my near relations. (3) xxx xxx xxx xxx xxx (4) make my wife Lakhami to be full and sole Waras of the immovable property stated in para 3 above and of the entire movables including furniture ornaments goods of the trade etc. whatever may be situated therein and of the properties which I may acquire hereafter. After my death my wife Lakhami will obtain possession of all the movable and immovable properties by virtue of Malki Hak. And she can by Malki Hak do such Vyavastha in respect thereof according to her sweet will and desire. Nobody else can raise any dispute therein and even if any dispute is raised the same is void and of no effect by this (Will ). (5) I have closed my business because of my indifferent health. I have no debt to be paid. I have some outstanding recoveries. After my death my wife as Malik should recover the balance of my outstandings. If there are any debts my wife should repay the same after verifying the same. (6) After my death my sisters son Shantilal Balubhai will stay with my wife. If he improves his conduct and staying with my wife serves her and gives her satis faction then after my wifes death Shantilal will become Malik of Baki Reheti immovable and movable properties. But he will not be entitled to do any Vyavastha in respect of immovable property. After Shantilal his sons will become Malik thereof in equal shares. But I do not keep any right or claim of Shantilal during the lifetime of my wife. If Shantilal does not carry on well with my wife then after the death of my wife the sons of Shantilal shall be Malik of all my m

Click Here to Read the rest of this document