:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINATING SUMMONS NO.309 OF 2003 ORIGINATING SUMMONS NO.309 OF 2003 ORIGINATING SUMMONS NO.309 OF 2003 IN IN IN SUIT NO. 686 OF 2000 SUIT NO. 686 OF 2000 SUIT NO. 686 OF 2000 Ms. Lyla Jehangir (nee Ghaswala) .. Plaintiff v/s. R. Lentin & Ors. ..Defendants Mr. Shailesh Shah with Mr. Vastal Shah i/b. C.N. Mehta for the plaintiffs. Mr. Dinesh Pednekar for defendant nos.2 and 3 in Suit 686 of 2000. AND AND AND ORIGINATING SUMMONS NO.447 OF 2003 ORIGINATING SUMMONS NO.447 OF 2003 ORIGINATING SUMMONS NO.447 OF 2003 IN IN IN SUIT NO. 738 OF 2003 SUIT NO. 738 OF 2003 SUIT NO. 738 OF 2003 Ms. Lyla Ghaswala ..Plaintiff v/s. Zenia Jehangir ..Defendant Mr. Shailesh Shah with Mr. Vastal Shah i/b. C.N. Mehta for the plaintiffs. Mr. Shyam Diwan with Mr. C.N. Kapadia with Lata Bachani i/b. I.R. Joshi and Co. for the defendants. Mr. Sanjay Jain for the Applicants in Ch.S.1143/2003. CORAM: S.U. KAMDAR, J. CORAM: S.U. KAMDAR, J. CORAM: S.U. KAMDAR, J. DATE : 19TH JANUARY, 2005. DATE : 19TH JANUARY, 2005. DATE : 19TH JANUARY, 2005. JUDGEMENT : JUDGEMENT : JUDGEMENT : 1. These two originating summons are taken out by :2: :2: :2: the plaintiff under Rule 238 of the High Court Rules, (Original Side). This Rule 238 inter-alia contemplates taking out of an application by an executor or an administrators of a deceased person or any of other person claiming to be interested in the relief sought as creditor, devisee, legatee, heir or legal representative, or as beneficiary under the trusts of any deed. This category of persons can apply for determination of any of the questions or matters specified therein without an administration of the estate or trust. The matter specified under the High Court Rule 238 inter-alia provides for determination of a question affecting the rights and/ or interests of the person claiming to be creditor, devisee, legatee, heir or legal representative or beneficiary. The present two originating summons are taken out by the plaintiff who is the legal heir and representative of deceased Mrs. Pillo Ghaswala as also person claiming to be the beneficiary of the estate of the said deceased under the last will and testament of the said Mrs. Ghaswala. Some of the material facts are as under : :3: :3: :3: 2. One Mrs. Pillo M. Ghaswala executed her last will and testament dated 12.4.1989 giving various bequeaths to various persons. Mrs.Pillo Ghaswala expired on 7.10.1989 leaving behind her two daughters namely Mrs. Lyla Jahangir and Ms. Anita Ghaswala. The said Lyla Jahangir had a grand daughter named Zenia. On 28.10.1994 this court granted probate inrespect of the said will and testament of Pillo Ghaswala dated 12.4.1989. 3. On 25.7.1989 one of the properties in which Ghaswala had an undivided one third interest was sold for an approximate sum of Rs.15 crores and the share of the said deceased in the said property ‘Gajdar House’ was determined for a total sum of Rs.5 crores. Over and above the said interest, Ghaswala also had a flat on the second floor of the said building Gajdhar House in her capacity as a tenant. It is the case of the plaintiff that on 18.11.1994 from the sale proceeds received of the said property, Gajdhar House, the executors of the will bought a bungalow at Pune for a sum of Rs.75 lakhs and further expended a sum of Rs.9.44 crores as expenses towards its :4: :4: :4: renovation and furnishing. The balance amount of around Rs.4 crores an odd were invested by the executors in various investments according to the desire of Lyla Jahangir one of the daughters of the deceased. 4. Sometime on or about 8.7.1998 the original executor of the said will was discharged. It is the case of the plaintiff that thereafter the plaintiff has discovered that infact the property which was purchased at Pune was not for a sum of Rs. 75,00,000/-. On valuation done it was found to be only of a sum of Rs.30,00,000/-. Subsequent, to the discharge of the executor the administrative General of the court is incharge of the estate. Insofar as the said Pune property is concerned, that is, the bungalow has been leased out by the plaintiff in favour of a third party named Mr. Mukesh Dhingra. 5. A Miscellaneous Petition No.55 of 1999 was filed in this Court by the plaintiff and a notice of Motion No. 1566 of 1999 was taken out and by the order and judgment dated 22.12.1999 the matter was :5: :5: :5: decided against the plaintiff. Being aggrieved by the said decision of the learned single judge of this Court an appeal was preferred and the same is admitted by the division bench of this court and pending. 6. It seems that in the meantime, the differences and disputes commenced by and between the plaintiff and her daughter Zenia Jahangir and therefore in view of the differences and disputes between the plaintiff and her own daughter, the plaintiff filed a suit being Suit No.686 of 2000 and took out Originating Summons No. 309 of 2000 inter-alia for interpretation of some of the clauses of the said last will and testament of Mrs. Pillo Ghaswala. At that stage, the age of Zennia Jahangir was around 18 years. However, on 29.10.2003 the said daughter Zennia Jahangir has attained the age of majority of 21 years. On her attaining the age of majority further disputes arose by and between the plaintiff and her daughter who is the defendant herein and thus a second suit was filed being Suit No. 738 of 2003 and the second Originating Summons has been taken out :6: :6: :6: being Originating Summons No. 447 of 2003. 7. Both these Originating summons are before me for determination. Though various questions are framed, in my opinion, I am called upon to determine these following questions of law. The first is whether in view of the Clause-15 of the last will and testament of Mrs. Ghaswala executors were legally justified in buying the bungalow in Pune in place and instead of flat as contemplated under the said Clause. The second question of law which I am required to determine is whether on reading of various clauses of the said last will and testament of Mrs. Ghaswala, the bequeath in favour of the Plaintiff in respect of various properties was absolutely vested in her favour and consequently further bequeath in favour of her daughter Zenia Jahangir becomes void and/or infructious or a whether limited interest is vested in the Plaintiff to hold the assets till the daughter Zenia Jahangir attains the age of majority and thereafter the property must stand bequeath and/or vested in favour of the said daughter Zennia Jahangir. The third question which I :7: :7: :7: am required to determine is if the bequeath is vested in the defendant Zenia Jahangir on her attaining the age of majority then the interest accrued on the various investments and or benefits of the immovable properties during the period when she was a minor would accrue to her and vest in her along with all properties on her attaining majority or whether the plaintiff will be entitled to the said interest even if the properties and investments ultimately vest in daughter Zenia on her attaining the majority. 8. I am required to determine aforesaid three questions in rather unfortunate circumstances, where there is a dispute between the plaintiff on one hand who is the natural mother of the defendant and the daughter on the other hand who has just attained the age of majority. The relationship between the plaintiff and the defendant has become so bitter and strain that the present litigation has been vehemently contested in this court for a long period of time. Be that as it may be, insofar as I am concerned, I am required to determine the aforesaid question of law and accordingly I take up the said :8: :8: :8: issue for consideration. Before however, I deal with the rival submissions of the parties in respect of the said interpretation of the will it is necessary to reproduce certain clauses of the will which are relevant for the purpose of determination of question of law which are framed by me hereinabove : "6. I have two daughters, viz. MRS. LYLA DARIUS JEHANGIR and MISS ANITA GHASWALA. (I have called my daughter Anita Ghaswala by her maiden name as she has already filed a petition for divorce in respect of her marriage to Mr. Dallas Toddywala. My elder daughter Mr. Lyla Darius Jehangir is an extravagant and irresponsible girl and is subject to fits of depression and it is for this reason that I DIRECT my Trustees by this my will under the trust created hereunder to hold all properties bequeathed and devised by me to her for the benefit of her daughter Zenia and the said property bequeathed to Lyla shall be held upon trust for the benefit of her daughter Zennia and upon Zennia completing the age of 21 years, my Trustees shall hand over all such property to Zennia absolutely. 7. As stated above in view of my daughter Lyla being an extravagant an irresponsible girl and being subject to fits of depression, in the matter of sale and disposal of the flat on the 2nd floor of Gazdhar House at 45, Warden Road, Bombay 400 026 as mentioned in Clause 15 herein, the decision of my Trustees shall be binding on her and the bequest to her shall therefore be subject to the decision of my Trustees. :9: :9: :9: 11. I have a locker in the Union Bank of India, Forbes Building, Home Street, bearing no. 5063 in the joint names of myself and my daughter Lyla. I direct my Trustees that the contents of the said locker shall belong to Lyla but shall be held upon trust by my Trustees to be handed over to my grand-daughter Zennia on her attaining the age of 21 years. The password for the said locker is "Lulubello" and the keys of the said locker are kept in my Godrej safe. I direct that none of the contents of the said locker can be sold. 13. I have certain jewellery in two boxes at my house being indicated by the name of each of my two daughters Lyla and Anita. I give bequeath and devise the contents of the box bearing the name of my daughter Anita to my daughter Anita absolutely. I however direct that none of the articles in these boxes are to be sold and that if my daughter Anita so desires, the designs of the articles of jewellery may be changed to other desired designs. As far as the box bearing the name of my daughter Lyla is concerned, the contents thereof shall belong to her but shall be held upon trust by my Trustees for my grand-daughter Zenia and the contents thereof shall be handed over by my Trustees to my grand-daughter Zenia on her attaining the age of 21 years. I, however, direct that none of the contents of the said box are to be sold and if, however, any of the rings do not fit Lyla, then the designs can be changed but in no way will there be a sale of the said jewellery. 14. I have also jewellery kept in boxes that have been specified by the names of my two daughters, Lyla and Anita and my grand-daughter Zenia and one of the said boxes also has the name of my cousin Mrs. Temi Banderia. I direct that the contents of the box bearing the names of my daughter Anita and :10: :10: :10: my cousin Mrs. Temi Randeria shall belong to them absolutely. However, as far as the box bearing the name of my daughter Lyla and my grand-daughter Zenia are concerned, the contents thereof shall be held in trust by my Trustees to be handed over upon her attaining the age of 21 years. I direct however that none of the contents of the said boxes shall be sold but that the same should used by the ultimate beneficiaries. I own several watches which are in the house which are not named. I direct that the same shall be divided equally between my two daughters Lyla and Anita and my grand-daughter Zenia. However, such of the watches that would come to the share of my daughter Lyla and my grand-daughter Zenia shall be held in trust by my trustees for my grand-daughter Zenia to be handed over to my grand-daughter Zenia upon her attaining the age of 21 years. 15. I have a flat on the 2nd floor, of Gazdar House at 45, Warden Road, Bombay 400 026 belonging to me. I direct my Trustees to dispose of the said flat as they may in their sole discretion deem fit and out of the sale proceeds of the said flat, I direct my Trustees to purchase two flats, one to be bought in the joint names of my daughter Lyla and my grand-daughter Zenia and the other flat to be bought in the name of my daughter Anita to be held by them absolutely. I state that I am the absolute owner of this flat and neither Mrs. Temi Randeria nor Mr. Sola Guzdur have any claim in respect of the said flat. 16. I have a saving account in Union Bank of India, Bombay Samachar Marg Branch, bearing Account no. 27411 which is standing in the joint names of myself and my daughter Lyla. I direct that the amounts, if any, standing to the credit of that account shall be paid over to my daughter Lyla who shall then hold it absolutely. I give bequeath and devise all :11: :11: :11: amounts standing to the credit of that account to my daughter Lyla absolutely. 18. I have articles which are lying in the drawing room, a list whereof is mentioned hereinbelow :- 1 White chandelier near the window. 2 Wall bracket chandelier. 1 Red persian carpet (near my room). 1 Czech Crystal bowl with matching Tray kept on the table near my room. 1 Crystal bell and ash tray (kept near my room). 2 Japanese figurines on the Piano. 1 Marble statue of Florence Nightingale. 2 Wall tapestry mounted on wooden plaques. 1 T.V. and Video with rack. 2 Small blue Satsuma vases with white flowers. 1 Italian Murano Pink vase with two matching swans. 1 Large Italian Murano red wall plate with painted figures on its. 1 Italian vase with matcing stand in white and gold. Show case pieces-all right side pieces (facing the show case)except for wedgewood). All wedgewood pieces of blue colour. 2 Capi di Monti wall plates. 1 Centre large carved tables (kept in the centre of the drawing room) 1 Japanese vase kept on the side of the Piano on the higher shelf. 2 red murano fishes and one murano. white and grey whale. 1 White japanese vase with coloured flowers standing on the music cabinet. 1 Italian inlaid music table. 1 Onyx Table. 1 Bronze dancing girl statue. Furniture to be equally divided. Showcase can also be cut in half if desired. . GIVE BEQUEATH AND DEVISE the same to :12: :12: :12: my daughter Lyla. However, the same shall be held upon trust by my Trustees for the benefit of my grand-daughter Zenia and the said articles shall be handed over to my grand-daughter Zenia upon my grand-daughter Zenia attaining the age of 21 years. My daughter Lyla, however, shall be entitled to use the said articles till my grand-daugter Zenia attains the age of 21 years. 21. I GIVE BEQUEATH AND DEVISE the following two items to my grand-daughter Zenia to be held in trust by my Trustees and be handed over to her on her attaining the age of 21 years. My Trustees shall decide the place where the same shall be keep during such time as my grand-daughter Zenia attains the age of 21 years. The items are as under :- . 1 Marble statue of a girl to be kept in charge for her by Anita. . 1 Steinway Piano (upright) to be kept for her by Anita. 24. I HAVE certain articles in the drawing room which are s follows :- 1 Chandelier and 2 wall brackets. 1 Italian piece of swans in white kept on the dining table. 1 carved corner piece on the left hand side (facing the wall) and all articles on it. 1 Porcelaine statue of a crying girl. 1 Blue Indian Tea Set. 12 Indian Plates and 12 side plates of white with orchids. 1 English crockery dining set. 1 Japanese Tea set. 6 Cut glass Czech glasses and 1 jug kept in show case. 10 Dining room chairs. 1/2 Dining table can be cut up if desired. 1 Side table. 1 Large size print and 2 small size prints. :13: :13: :13: Glasses to be equally divided. 1 Tapestry wall hanging. 1 Allwyn Fridge. 2 Sideboards (1 show case and 1 cabinet.) I GIVE BEQUEATH AND DEVISE the same to my daughter Lyla. However, the same shall be held upon trust by my Trustees for the benefit of my grand-daughter Zenia and the said articles shall be handed over to my grand-daughter Zenia upon my grand-daughter Zenia attaining the age of 21 years. My daughter Lyla, however, shall be entitled to use the said articles till my grand-daughter Zenia attains the age of 21 years. 26. I DIRECT further that all other articles except for the ones stated above of coffee cups, extra serving dishes, plates and beer mugs shall be divided equally between my daughter Lyla and my grand-daughter Zenia on one part and my daughter Anita on the other part and shall be so handed over to them. 27. I have silverware which belongs to me and which is kept at the several places indicated hereunder:- 2 Large round trays with design borders. 2 Oval plain trays plus one round tray. 1 Round tray. 2 Cake trays (silver plated). 1 Ice-cream bowl with 6 matching bowls and spoons (kept in the showcase of dining room). 1 Small seis (prayer seis) and 1 long plated coffee tray (fuldani). 1 Large plain silver bowl with two sweet dishes kept in the showcase. One Dozen Ordinary forks ) One Dozen Ordinary Knives ) One Dozen Ordinary teaspoons ) One Dozen Ordinary spoons ) All kept in :14: :14: :14: 8 Large serving spoons ) the Dining 8 Large serving forks ) Room. . I GIVE BEQUEATH AND DEVISE the same to my daughters Lyla. However, the same shall be held upon trust by my Trustees for the benefit of my grand-daugther Zenia and the said articles shall be handed over to my grand-daughter Zenia upon my grand-daughter Zenia attaining the age of 21 years. My daughter Lyla, however, shall be entitled to use the said articles till my grand-daughter attains the age of 21 years. 33. I DIRECT my Trustees to sell all the kitchen furniture and utensils and to divide the sale proceeds of such sale between my daughter Lyla and my daughter equally. As far as the furniture in the passage is concerned which belongs to me, if my daughter Lyla and my daughter Anita agree to divide the same between themselves, the same should be so divided or I DIRECT my Trustees that in the event of my daughters Anita and Lyla not agreeing to the sale, to sell the same and to divide the sale proceeds between my daughters Lyla and Anita in equal proportions. 40. I HAVE a one third share in the Trust of Gazdhar House at 45, Warden Road, Bombay 400 026, the other shares belonging to my cousin Jehangir Gazdar staying at Paliscimo, Warden Road and Jimmy Gazdar staying at Fair-Lawns, Juhu. My said 1/3rd share shall be equally distributed between my daughter Lyla and my daughter Anita. The share of my daughter Lyla shall be kept in Trust by my Trustees to be handed over to my grand-daughter Zenia on her attaining the age of 21 years. I GIVE BEQUEATH AND DEVISE my daughter Anita’s share in the 1/3rd share in the Trust of Gazdar House to my daughter Anita absolutely. :15: :15: :15: 42. I am holding a Public Provident Fund Account with the State Bank of India, Main Branch No.18976 in which the nomination has been made in the name of my daughters Lyla and and Anita. The balance in that account as of that date should be around Rs.70,000/-. I GIVE BEQUEATH AND DEVISE the balance in that account to my daughters Lyla and Anita in equal proportions. I, however, direct that my Trustees should hold Lyla’s one-half share in the said account upon trust for the benefit of my grand-daughter Zenia and the said balance shall be handed over to my grand-daughter Zenia upon my grand-daughter Zenia attaining the age of 21 years. 46. I GIVE BEQUEATH AND DEVISE all the rest and residue of my estate and effects, movable and immovable whatsoever and wheresover situate to which I may be entitled at the time of my death as also the the Fixed Deposits, shares, bank deposits and other investments (hereinafter collectively referred to as "my residuary estate" to my daughters Lyla and Anita. As far as the share of my daughter Lyla in my residuary estate is concerned, the same shall be held upon Trust by my Trustees for the benefit of my grand-daughter Zenia and the said articles shall be handed over to my grand-daughter Zenia upon my grand-daughter Zenia attaining the age of 21 years. My daughter Lyla, however, shall be entitled to use the said articles till my grand-daughter Zenia attains the age of 21 years. 9. Before I deal with the rival submissions of the parties which are advanced before me, I would like to revisit the principle of the interpretation :16: :16: :16: of the will. The principle of the interpretation of the will has been well settled right from the judgement of the Privy council in the case of Rameshwar Baksh Singh vs. Balraj Kuar AIR 1938 PC 187 wherein it has been held that the principle of the interpretation of the will is to gather the intention of the testator on over all reading of the said will. In the case of DilHarshankar C. Bhachech DilHarshankar C. Bhachech DilHarshankar C. Bhachech v/s. Controller of Estate Duty, Ahmedabad reported v/s. Controller of Estate Duty, Ahmedabad reported v/s. Controller of Estate Duty, Ahmedabad reported in 1986(1) SCC 701 where in it has been held that : in 1986(1) SCC 701 where in it has been held that : in 1986(1) SCC 701 where in it has been held that : . These principles are also well-settled. But these principles will not strictly be applicable in the instant case because this appeal is concerned with the construction of the Will in question and the Will in question must be construed in such a manner as to find out the true intention of the executants or the testator and testatrix. For that it is well-settled that the Will must be read as a whole. Secondly the expression must be read consistently. . One has to bear in mind that we are concerned with the construction of the will and the true effect of the provisions thereof. Whether the deceased Kamlashankar Gopalshankar had the disposing power over the share of the property of Mahendrababa, his wife, acquired by him would depend not on how he has treated it but the true effect of the will. Furthermore, there is no question of contemporaneous conduct because the conduct of one of the parties subsequent to the death of one of the executants long after the execution :17: :17: :17: of the