Norman Macleod, Kt., C.J.
1. By an agreement dated 14th February 1920 the plaintiff agreed to sell to the defendant in the name of his nominee Haji Sulleman Salley Mahomed, two properties belonging to the plaintiff described in the schedule to the agreement. One of these premises was situats at Chandanvadi. A dispute has arisen between the parties as to whether the plaintiff has made out a marketable title to the said property at Chandanvadi.
2. The property belonged to one Behramji Dadabhai Pochkhana-walla, who died in Bombay on or about the 28th of June 1895, having, prior to his death, duly made his last will and testament dated the 2nd April 1895. By Clause 12 of the said will the testator gave to his nephew Bapuji Rustamji Keravalla, the plaintiff in this case, for his life-time this Chandanvadi house. The testator directed that the said nephew should, out of the rents of the said house, defray all the expenses for doing repairs thereto and pay the bills for assessment thereof and should appropriate to his own use the nett amount of rent. The clause further provided that he could not either sell or mortgago the house, and after the decease of the said nephew Bapuji Rustamji, the house should be received by such persons and in such manner and in such proportions as the said nephew might by his will or by any deed or writing whatever appoint and if he should not have made his will or a deed or writing-as stated above the said house was given in gift after his decease to his children in equal shares.
3. The plaintiff was required by the defendant to explain under what power he proposed to convey absolutely to the purchaser the Chandanvadi property. He was also required to state whether the power of appointment given to him as aforesaid had been at any time exercised by him or not, and if so in whose favour and by what deed.
4. The vendor replied that he proposed to convey the property to the purchaser by way of appointment, or, in other words, he proposed to exercise the power of appointment by the said deed and that he had once exercised the power by an indenture of mortgage dated 19th September 1917 which was still subsisting. Afterwards the mortgagees reconveyed the said property and all interest therein to the plaintiff by a deed of reconveyance dated the 23rd December 1920. On the same day, by a deed of appointment, the plaintiff appointed to himself all the interest in the said property save and except his life interest therein with intent that the life interest should merge in the remaining interest in the said property and that the whole of the said property should belong to the plaintiff and his heirs absolutely.
5. The plaintiff when taking out the originating summons submitted the following questions for determination:(1) Whether a conveyance by the plaintiff to the defendant of the Chandan-vadi property mentioned in the plaint is not a, sufficient compliance with Clause 4 of the agreement for sale of the said property by the plaintiff to the defendant; and (2) whether, if not, what other acts and documents should the plaintiff execute to enable him to convey the said property absolutely to the defendant.
6. Under the construction of Clause 4 of the will a question arises whether there was a gift to the nephew for his life with a testamentary power of appointment or whether the nephew was also given a general power of appointment in which case he would have an absolute interest. No doubt the words in Clause 12 “after the decease of my said nephew’ tend to show that the testator intended that the nephew should only have a life interest with a power of appointment added to it. But I think it was not realised that a power defined by the words of Clause 12 or similar words would he sufficient to convey an absolute estate, since when there is a power to appoint by deed or writing, that necessarily implies that the power can be exercised during the life of the donee.
7. In Barford v. Street (1809) 16 Ves. 135 there was a devise and bequest of real and personal estate in trust to pay the routs etc. to the separate use of a married woman for life, and after her decease to convey according to her appointment either by deed or writing or by last will and testament. The Master of the Rolls said (p. 139):
What do you contend to be the nature and extent of her interest? An estate for life with an unqualified power of appointing the inheritance) comprehends every thing. What induced me at first to doubt was the indication of an intention in the codicil, that the estate should remain in the trustee for the life of the plaintiff, with powers to her, inconsistent in a great a degree with the supposition of her having, or being able to acquire, the absolute interest. But I do not think, I can by inference from thence control the clear and express words, by which the power is given to the devisee to dispose of this estate in her life-time by any deed or deeds, writing or writing or by her last will and testament. How can the Court say, that it is only by will that she can appoint?… By this unlimited power she can appoint the inheritance. The whole equitable fee is thus subject to her present disposition.
8. In Irwin v. Farrer (1812) 19 Ves. 86 there was a bequest to trustees of money in trust to lay out the money in stock, the dividends as they came due to be paid to A for life, and after her decease to pay the principal according to her appointment by will or otherwise. It wan held that bad as absolute power of disposition and her will was held a sufficient indication of her intention to take the whole by some document other than a will.
9. In Archibald v. Wright (1838) 9 Simons 161 the testator directed that after his wife’s death part of his stock should be transferred to Johanna for her sole and entire use during her life, that she should not alienate it but enjoy the interest during her life, and that at her decease she might dispose of it as she thought fit. A question then arose what were the rights of Johanna under the bequest? Whether Johanna took an absolute interest for life with power to dispose by will or whether the words ” she might dispose of as she thought not” also gave power to dispose of the stock. Did these words give Johanna an absolute interest or did the words imposing a restraint on alienation during her life show an intention that Johanna could only have power to dispose of the stock by her will? The Vice Chancellor, in answer to the argument of counsel as to restraint on alienation, said:
That may be so far as it is a limitation of the inisrest. but it appears to me available as indicative of an intention to prescribe the mode of executing . the power, viz, by will and not by writing? inter vivos. I think this lady was not to have a power to alienate during her life; and if not, then she took a life interest, coupled with a testamentary power of appointment, and, having died intestate, Henrietta Ann Wright Place is entitled to…annuities in the pleadings mentioned.
10. This particular case falls exactly between the two cases in Vesey on the one hand, and the case in 9 Simons on the other. There was a clear intention on the part of the testator that his nephew should not sell or alienate the proparty during his life time. On the other hand there was an equally clear intention that the nephew should have the power to appoint by deed or writing as well as by will, so that the donee took an absolute estate, and the restraint on alienation must be considered as having no effect so as to detract from the gift of the absolute estate. I think, therefore, in spite of these words of restraint in Clause 12, the nephew was empower-ed to appoint by deed or writing in his life-time to himself and therefore he has the power to convey the absolute estate.
11. The result must be that to the first question the answer is that the plaintiff can either convey direct to the defendant and so give him a good title or he can first appoint to himself and then convey. The second question is unnecessary in view of the answer to the first question.
12. Costs costs in the sale.