Lawrence Jenkins, K.C.I.E.,
1. This appeal arises out of a suit to recover possession of two shops.
2.The only question argued before us is as to the effect of a gift contained in the will of one Kikabhai.
3.In the 2nd clause of that will the testator says:-“As to the shop 1 (in number) which there is in Madhavpura, the same realizes a rental of Rs. 90 per year. My wife Devkor shall take the rent of the said shop. Should perchance anything have to be paid to my creditors, then my wife shall sell the said shop and pay (the defendant). She is the sole owner of the said (shop).”
4. The expression which, in the translation before us, is rendered ‘sole owner,’ should, according to the view of the Subordinate Judge, Mr. Vadilal T. Parikh, be rendered
‘full owner, and according to the view of the learned Assistant Judge, should be ‘ absolute owner:’ which practically accords with the rendering given by the Subordinate Judge : and we ourselves take the view that that is, in the circumstances of this case, the more correct rendering.
5. Now the intention of the testator is to be collected not merely from this clause but from the entire will; and we must apply the ordinary rules of construction which govern in cases of this kind.
6. Mr. Setalwad brings to our notice the decision in Harilal v. Bai Rewa (1895) I.L.R. 2 I Bom. 376, where the Court held (at page 381) that ” by the use of the expression ‘my wife is the owner after me’ or my wife is the heir ‘ it is usually understood that the testator is providing for the succession during the life-time of the widow and not altering the line of inheritance after her death.”
7. He further referred us to what was laid down by the Privy Council in Mahomed Shumsool v. Shewukram (1900) I.L.R. 27 Cal, 649, where it is said : ” In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family ; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.”
8. Resting upon these among other cases, Mr. Setalwad urges that notwithstanding the expression ‘full or absolute owner’ or kul malik’ the widow under the second clause in fact only took a limited interest.
The testator died leaving as his only near relatives or connections his widow Devkor and his brother’s widow Achrat. He left no issue, nor were there any children or descendants of his brother. That is a circumstance on which reliance. is placed in the case in Rajnarain Bhaduri v. Katyayani Dabee (1900) I.L.R. 27 Cal, 649, and we think it may perhaps be that it is not without its bearing on a case of this kind.
The provisions of the will lend no colour to the assumption that the testator desired that his estate should be retained in his family, and therefore gave his widow only a limited interest
9. There can be no question that he intended to vest his widow with full power of disposition over the house in Sethjini Pal, so again in respect of the ornaments and also the rent of the shop in Ratanpal.
10. Are we then to say that this assumption applies with regard to the property left in Clause 2? We think not. In the first place the testator makes a provision that this property, if J necessary, is to be sold for his debts, and then he goes to say not merely that his widow shall be the owner of that property, i.e., the malik (which was the expression with which the Court was concerned in I.L.R. 21 Bom. 376), but that she is to be the absolute owner’ or ‘full owner’ or ‘kul malik, and we cannot conceive what the testator can have intended, in the circumstances of this case, unless by those words he meant to pass to his widow an absolute estate in the house now in suit.
11. The testator moreover makes it evident, on the face of his will, that where he desires to give a limited interest, he knows how to do so.
12.For instance, we find that in the first clause he provides that in the events there indicated the brother’s widow is to live in the house for her life-time but she shall not give the same to any person by a writing, and after the death of the lady the trustees shall sell the house.
13. So again in the 4th clause of his will the testator provides that should the brother’s wife and his own widow live separate, then his widow shall give to the brother’s widow as many utensils as she might require, and on the death of the brother’s widow the utensils shall be made over to the testator’s wife; and again in regard to his own widow he makes the provision in the 7th clause that the ordi shall remain in her possession but that she shall not sell the same to any person, and in certain events he provides that on his widow’s death his paternal uncle’s son Lalbhai shall, after the death of his widow, become the owner of the ordi.
14. So that we have not only the words ‘kulmalik’ which point to an absolute ownership but also the clear demonstration, on the face of the will itself, that where the testator meant to give less than full ownership, he knew perfectly Well how to do it.
15. This is the view taken by both the lower Courts. The Judge of the first Court is an experienced Gujarati Judge thoroughly familiar with the language, in which the will is written and, under the circumstances of this case, we feel that, notwithstanding the argument that has been addressed to us, no sufficient ground has been shown why we should take a different view from both the lower Courts as to the effect of the disposition in Clause 2.
16. For these reasons the decree of the lower appellate Court must be confirmed with costs.