PRIVY COUNCIL

                    Bhaidas Shivdas

                    Vs.

                               Bai Ghulab
                    P.C. Appeal No. 123 of 1919.

(Lords Buckmaster, Atkinson, Carson and Sir John Edge.JJ.)

                    25.10.1921

                    JUDGMENT

Lord Buckmaster J.

1. This is an appeal against a decree dated the 23rd March, 1917, of the High Court of
Judicature at Bombay (Appellate Civil Jurisdiction), affirming a decree dated the 8th
September, 1916, to the High Court in its Ordinary Original Civil Jurisdiction.

2. The question raised for determination arises on the construction of the Will dated
the 6th August, 1894, of one NathoMoolji who died on the 8.12.1894.

3. The appellant is the husband of one of the two daughters of the testator, who
predeceased her mother, the testator's widow. The respondents claim under the other
daughter who survived her mother:

       At the date of the Will there were living the testator's widow, his two daughters
       and the widow of a predeceased son. The two daughters were named Jamnabai
       and Diwali. Diwali died on the 13th May, 1906, and the testator's widow on the
       15th August 1911.
4. In these circumstances the appellant claims as the husband of Diwali that according
to the true construction of the Will the two daughters took a vested interest in the
testator's residuary estate which was not divested by reason of the death of one of the
daughters before the death of the widow. The history of the suit has been fully dealt
with by their Lordships when this appeal was formerly before them, and need not be
repeated.

5. The Will was made in the Gujarati language, and in the translation is divided into
clauses. By Clause 2 the testator appoints his wife as the sole executrix. In the next
clause, after stating that as he has no son he appoints his wife to be his heir; and the
clause continues in these words:-

       "and I constitute her the owner. and as to whatever property there may remain
       after her death my wife shall leave the said property to my two daughters in
       such manner as she may like (either) by making a Will or by making (some)
       other instrument. of my two daughters one named BaiJamnabai was married to
       Shah HaridasHemchand, but as he subsequently died she has now become a
       widow. To her and to (my) other daughter Bai Diwali who has been married to
       Shah BhaidasShivdas (i.e.) to both of them my wife shall give (my) property in
       such manner as (she) may like."
6. By later clauses of the Will the testator referred to powers that he desired his wife to
enjoy; for example, by Clause 6 he expressly states that he gives his wife authority to
do what she thinks right with the profits and the ready moneys of a shop where he
carried on 'business, and further to continue in partnership with the partners if she so
desired. By Clause 18 he provides that after there have been defrayed out of the rents
of certain specified immoveable property, the expenses in connection with a religious
object, for which he had made provision, the wife should apply the surplus for her
maintenance and use and for the maintenance and use of her daughters if they were
living with her, and if the surplus were insufficient she should deal with the moveable
and immoveable properties in such manner as she thought fit. By Clause 20 again, he
gave express power to his wife to mortgage, lease, sell and use the properties. Finally
by Clause 23 he provided that after the death of his wife his daughters should be
named executrices, and he gave them authority to deal with or manage the whole of
his property and effects. There is no dispute that the word that was used in Clause 3 as
the original word of gift was the word " malik " which could be appropriately used to
constitute the wife absolute owner. It is not that the word is a " term or art," it does not
necessarily define the quality of the estate taken but the ownership of whatever that
the estate may be; and in the context of the present Will their Lordships think the
estate was absolute. At the time when the Will was executed it may well have been
that whoever drew the Will was aware that at the time words of absolute gift in favor
of a Hindu widow might not be supposed capable of conferring upon her a power of
alienation, for in the case of Mt Surajmani v. Rabi NathOjha 1which ultimately came
before this Board we find that the High Court hadruled:-

       "That under the Hindu Law, as interpreted up to the present in the case of
       immoveable property given or devise by a husband to his wife, the wife has no
       power to alienate, unless the power of alienation is conferred upon her in
       express terms."
7. The decision in Mt. Surajmani v. Rabi Nath2 showed that provision was no longer
sound and that if words were used conferring absolute ownership upon the wife, the
wife enjoys the rights of ownership without their being conferred by express and
additional terms, unless the circumstances or the context were sufficient to show that
such absolute ownership was not intended. If Clause 3 stood by itself it would, their
Lordships think, be difficult to dispute that whatever the testator desired with regard to
the disposition of his property after the death of his wife he had not expressed his
wishes in such a manner that they bound the property. The words under which the
appellant claims are words which only attach to whatever property there may remain
after the death of the wife. Without for the moment considering whether the desire
expressed by the testator is expressed in a form that makes her disposition of it
mandatory or no, it is sufficient to say that if that clause stood alone the principle
stated in the case of Horwood v. West would be applicable to this Will as it would to a
Will in England. The Vice-chancellor says at page 389:-

       " It is essential to the execution of a trust that the subject should be certain, and
       if this testator intended that his wife should, at her pleasure, during her life,
       dispose of the property which he left to her and that his recommendation should
       extend only to what, if anything happened to remain of his property at her death
       undisposed of by her, then there is no trust to be administered by this Court."
8. But the appellant points out with considerable force, that Clause 3 does not stand by
itself; but the clauses referred to, and most notably Clauses 18 and 23 are in their
terms inconsistent with the view that the provisions of Clause 3 constituted the wife
the absolute owner. Their Lordships are very far from saying that there is not force in
this argument; but so far as Clause 18 is concerned it should be remembered that even
there is a provision that the surplus, after the property has been used for maintenance
in the manner suggested, is to remain with the wife for her maintenance and use, and
power is given to her to deal with the immoveable or moveable property as she may
think fit. Again with regard to Clause 23, the appointment of the daughters as
executrices of the property, if in fact there had been a gift to them after the widow's
death would be quite unnecessary. The only purpose for creating them executrices
would on either hypothesis be to see that the religious purpose to which part of the
property had been devoted and a certain beneficial trust given to the widow of the son
should be carried out. If and so far as they were absolute owners it had little value.
9. Their Lordships therefore think that these subsequent clauses in the Will are not
sufficient to displace the language of Clause 3 fortified by the powers given in Clause
20 and by that language there is no trust created in favour of the two daughters of the
testator. In forming this conclusion their Lordships have not considered the serious
difficulty that is placed in the way of the appellant by the judgments of the Court from
which this appeal has proceeded. In the Court of Appeal one at least of the Judges was
thoroughly acquainted with the language in which this Will is drawn, and he took the
view that the actual words used in Clause 3 suggesting how the property should be left
after the death of the testator's widow were in themselves inadequate to do anything
more than to express a wish and did not create an obligation. Their Lordships have not
dealt with that part of the case, because in their opinion the matter is better decided
upon the principle to which reference has already been made, viz., even assuming it
was intended to create a trust and the words were sufficient for that purpose the
subject-matter on which the trust is to operate is by the terms of this Will too uncertain
to enable the Court to give it administration.

10. For these reasons their Lordships are of opinion that this appeal must fail and
ought to be dismissed with costs; the costs in curred in the Court below from the 13th
March, 1917, and of the appeal on the preliminary point that was argued before this
bearing on the merits, was reached, which were reserved, in their Lordships' opinion,
should be costs in the appeal ; and they will humbly advise His Majesty accordingly.

Appeal dismissed.

Cases Referred.

1. (1907) 30 All 84 : 35 IA 17 : 10 Bom LR 59 :18 MLJ 7 : 7 CLJ 131 : 5 ALJ 67 : 12
CWN 231 (PC)

2. (1823) 1 Sim and S 387 : 1 LJ (OS) Ch 201 : 24 WR 199