: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2247 OF 2007 Mrs.Uma S. Fadia ....Plaintiff V/s. Ms.Khushaboo D. Shroff & Ors. ....Defendants Mr.Arif Bookwala i/b Haridas & Co.for the Plaintiff. Mr.Vincent Perira for Defendant Nos.1 to 4. Mr.Kunal Kothari for Defendant No.5. CORAM : S.J. VAZIFDAR, J. DATED : 8TH FEBRUARY, 2008. P.C. : 1. In this originating summons, the Plaintiff is the sister of Defendant Nos.3 and 5. Defendant No.4 is the wife of Defendant No.3. Defendant Nos.1 and 2 are two unmarried daughters of Defendant No.3 and 4 who have attain majority. 2. The decision of this Court is sought on the following questions :- "a). Whether the Plaintiff can handover the moveable estate under the said Will to the Defendant Nos.3 and 4 instead of gifting the same to Defendant Nos.1 and 2 at the time of their marriages ? b). Whether 50% of the said estate : 2 : can be utilized for the expenses to be incurred for the marriage of Defendant No.1 and balance 50% for higher education of Defendant No.2 ? c). Whether the Plaintiff shall stand discharge as an Executrix under the said Will on handing over the estate to defendant Nos.3 & 4 ? d). What further and other directions are necessary in connection with the rights and obligations of the parties under the said Will ? e). Whether directions should be given for payment of legal expenses and costs of this suit ? 3. The question arises in view of and under clause 11 of the Will of the father of the Plaintiff and Defendant Nos.3 and 5 one Bishwanath B. Shroff dated 9.7.1995. The Will was probated on 28.1.1999. Clause 11 of the Will reads as under :- "11. In the event of my wife pre-deceases me than all my moveable properties as described hereinabove and the moveable properties which I shall inherit pursuant to the Will made by my wife Mrs.Damayantidevi Shroff shall be equally divided into half i.e. jewellaries of my wife and our cash, I give bequeath half of the share of the said jewelleries and cash as a gift to my elder grand daughter Miss Khushboo Deepak Shroff on her wedding from me and the other half of the said remaining jewelleries and cash to my younger grand daughter Miss Ritu Deepak Shroff as a gift from me on her wedding. The decision of the division of the jewelleries and cash to be given to my grand daughters 1. Miss Khushboo Deepak : 3 : Shroff and 2. Ritu Deepak Shroff are to be taken jointly by my elder son Mr.Ramprakash Bishwanath Shroff and my daughter Mrs.Uma Shashank Fadia. In the event of my both grand daughters refusing to accept the said gifts as stated hereinabove, than the said jewelleries and cash, I give bequeath exclusively to my elder son Mr.Ramprakash Bishwanath Shroff and his wife Mrs.Kusum Ramprakash Shroff. Under this Will I do not intend to give any property whether moveable or immovable to my younger son Deepak Bishwanath Shroff and his wife Mrs.Shashi Deepak Shroff." 4. The originating summons has been taken out in view of the requirement of Defendant Nos.1 and 2 to meet their educational expenses. Defendant No.1 has completed her education. Defendant No.2 is presently studying Medicine in Manipal. Defendant Nos.1 and 2 are aged 23 years and 20 years respectively. Mr.Bookwala stated that Defendant Nos.1 and 2 urgently require money to meet the educational and other expenses. Defendant No.1 is already of marriageable age. 5. The aforesaid facts may not be of much relevance while deciding this originating summons. However, the questions can be answered on a different basis altogether. : 4 : 6. The learned counsel appearing on behalf of all the parties submitted that correctly construed Defendant Nos.1and 2 would be entitled to the bequests made under clause 11 of the Will even before their marriage. This submission is based on the ground that under clause 11 of the Will, bequests are to be gifted to Defendant Nos.1 and 2 " from me" i.e. the testator on their wedding. Under the law a gift could not possibly be made to Defendant Nos.1 and 2 on their wedding from the testator who is no longer alive. The gift would be intro-vivoce. 7. All the learned counsel however agree that on a fair and correct interpretation of the Will, it could never be stated that in view thereof Defendant Nos.1 and 2 would be disinherited. I entirely agree. There is nothing in Clause 11 or any other clause or in the surrounding circumstances which even remotely suggests the same. The intention of the testator beyond any doubt was to ensure that Defendant Nos.1 and 2 are given the assets bequeathed to them. 8. In the circumstances, it appears clear to me that Defendant Nos.1 and 2 are entitled to the assets bequeathed to them under Clause 11 of the said Will forthwith. This was agreed to in fact by all the : 5 : counsel. 9. In the circumstances, question (a) of the originating summons is answered in the affirmative in view of what I have stated earlier. Question (b) does not arise. The originating summons is also answered in the affirmative in respect of question (c). It was agreed that upon handing over of the assets under clause 11 to Defendant Nos.1 and 2, nothing remains to be done by the executrix. Thus upon her handing over the assets to Defendant Nos.1 and 2 she shall stand discharged as the executrix under the said Will. 10. The learned counsel appearing on behalf of Defendant No.3 states on instructions from Defendant No.3 who is present in Court that Defendant No.3 will withdraw the letter written to Punjab National Bank, Malad (West) Branch instructing the bank not to permit the Plaintiff to operate the locker where the assets referred to in clause 11 are kept. The statements and undertakings to this effect are accepted. No further directions are required. All parties except Defendant No.2 are present in Court.