MRS. SHIRINBAI MANECKSHA W & OTHERS versus NARGACEBAI J. MOTISHAW & OTHERS.

MRS. SHIRINBAI MANECKSHA W & OTHERS versus NARGACEBAI J. MOTISHAW & OTHERS.

On proper construction of the will as a whole, especially the words 'for her and their own use and benefit', the intention of the testator was to create a substitutional bequest. Although the bequest to Mrs. Shirinbai failed under section 67 due to attestation by her husband, the substitutional bequest to her heirs (specifically her presumptive heirs at the testator's death, i.e., her daughters) takes effect under section 129 of the Indian Succession Act, so there is no intestacy and the plaintiffs have no right to maintain the suit.

Parties
Appellants: Mrs. Shirinbai Maneckshaw & Others; Respondents: Nargacebai J. Motishaw & Others
Jurisdiction
India
Judgment Date
09 May 1956
Procedural Posture
Civil Appeal / Appeal From Judgment and Decree Dated 30th July 1951 of Allahabad High Court in First Appeal No. 258 of 1943, Arising Out of the Judgment and Decree Dated 8th March 1943 of the Additional Civil Judge at Allahabad in Original Suit No. 27 of 1940.
Outcome
Appeal allowed; suit dismissed.
Legal Topics
Will Construction, Validity of Substitutional Bequest, Intestate Succession, Parsi Succession Act
Succession Law Will Construction Validity of Substitutional Bequest Intestate Succession Parsi Succession Act

Case Brief

Summary, issues, holding and outcome

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Parties

Mrs. Shirinbai Maneckshaw & Others

Appellants

Nargacebai J. Motishaw & Others

Respondents

Procedural Posture

Civil Appeal / Appeal From Judgment and Decree Dated 30th July 1951 of Allahabad High Court in First Appeal No. 258 of 1943, Arising Out of the Judgment and Decree Dated 8th March 1943 of the Additional Civil Judge at Allahabad in Original Suit No. 27 of 1940.

Legal Issues

  1. 1 Whether there was a substitutional bequest in favour of Mrs. Shirinbai's heirs, executors, and administrators under the testator's will
  2. 2 Whether section 67 of the Indian Succession Act renders the bequest to Mrs. Shirinbai void
  3. 3 If the bequest to Mrs. Shirinbai is void, whether the plaintiffs are heirs entitled to the testator's estate

Ratio Decidendi

On proper construction of the will as a whole, especially the words 'for her and their own use and benefit', the intention of the testator was to create a substitutional bequest. Although the bequest to Mrs. Shirinbai failed under section 67 due to attestation by her husband, the substitutional bequest to her heirs (specifically her presumptive heirs at the testator's death, i.e., her daughters) takes effect under section 129 of the Indian Succession Act, so there is no intestacy and the plaintiffs have no right to maintain the suit.

Court Disposition

Appeal allowed; suit dismissed.

Orders

  • Appeal allowed; decrees of lower Courts set aside; suit dismissed.
  • Costs of all parties in this Court and Courts below paid out of the estate.