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Mancherji Kawasji Davur and anr. Vs. Mithibai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom506
AppellantMancherji Kawasji Davur and anr.
RespondentMithibai
Excerpt:
parsi succession act - xxi of 1865 childless widow of predeceased son of a parsi intestate. - .....is as follows: 'if any child of a parsi intestate shall have died in his or her life-time, the widow or widower and issue of such child shall take the share which such child would have taken if living at the intestate's death in such manner as if such deceased child had died immediately after the intestate's death.' now, it is not a condition precedent of the application of section 5 that the child of an intestate parsi shall have died leaving a widow and issue. the section merely provides that if such child shall have died in his parents' life-time, the widow or widower and issue of such child shall take, etc.,--i.e., the widow or widower (if any) and the issue (if any) shall take in such manner as if such deceased child had died immediately after its parent. this seems to me the.....
Judgment:

Green, J.

1. The question for decision here is as to the correctness of the report of the Assistant Commissioner of this Court, dated the 12th December 1876, that Awabai, the widow of one Naserwanji Kawasji Davur (one of the sons of Kawasji Nanabhai Davur, the intestate in the cause), is not entitled to any share in the property of the said intestate. The intestate died on the 22nd December 1873, leaving, as appears by the report, a widow Mithibai, two sons, Mancherji and Dorabji, the widow (Dinbai) and son (Rastamji) and daughter (Mithibai) of a son Kharsedji, who predeceased his father Nanabhai on the 8th June 1872, and three daughters, Serinbai, Dhunbai, and Jerbai. The said Mancherji, Dorabji, Kharsedji and Naserwanji were the sons, and the said Serinbai was the daughter of the intestate by his second wife, Motlibai; and the said Dhunbai and Jerbai were his daughters by his surviving wife and widow, the said Mithibai. The son Naserwanji died in the life-time of his father on the 28th May 1872, leaving a widow, the said Awabai, but no issue. The question depends on the construction to be put on Act XXI of 1865, 'an Act to define and amend the law relating to intestate succession amongst Parsis,' and in particular on Section 5, which is as follows: 'If any child of a Parsi intestate shall have died in his or her life-time, the widow or widower and issue of such child shall take the share which such child would have taken if living at the intestate's death in such manner as if such deceased child had died immediately after the intestate's death.' Now, it is not a condition precedent of the application of Section 5 that the child of an intestate Parsi shall have died leaving a widow and issue. The section merely provides that if such child shall have died in his parents' life-time, the widow or widower and issue of such child shall take, etc.,--i.e., the widow or widower (if any) and the issue (if any) shall take in such manner as if such deceased child had died immediately after its parent. This seems to me the natural grammatical sense of the words of the section. In my opinion, it is not necessary, so far as, the natural and grammatical sense of the words of the section are concerned, that in order for the widow or widower to take, and for the issue to take, there should be in existence at the time of the death of the intestate, both widow or widower and issue; otherwise we should have this consequence, which it is impossible to suppose could have been the intention of the Legislature--viz., that the issue of a predeceased son or daughter of an intestate Parsi would take nothing if the widow or widower of such predeceased son or daughter happened also to be dead at the time of the intestate's death; in other words, that such issue should take if they had one parent surviving, but should take nothing if wholly orphans. Whichever way Section 5 may be construed, the position of the widow or widower of a predeceased son or daughter has been changed by the Act as compared with the previous law. Under that law such widow or widower would have taken nothing, whether there were issue or not; but it is evident that under Section 5, if there he both widow or widower and issue, the widow takes something. So that there was in any event on the part of the Legislature an intention to change, in some respects at least, the position of the widow or widower of a predeceased son or daughter of an intestate Parsi. It is not necessary, in my opinion, to consider on the present occasion the position of the widow or widower of a predeceased son or daughter in the cases to which Sections 6 and 7 apply,--to cases, namely, of a Parsi dying, leaving a widow or widower, but without leaving any lineal descendants, and of a Parsi dying, leaving neither lineal descendants nor a widow or widower. The fact that in Schedule 2 to the Act the widows of sons and widowers of daughters have a place in the succession in the case to which Section 7 applies, inferior to those of father and mother, brothers, grandfather and grandmothers, cousins and nephews and nieces of the intestate, seems to throw great difficulty in reading Section 5 merely as a proviso to, and overruling Sections 6 and 7, which otherwise might be a reasonable way of construing the Act. A curious result, however, would appear to flow from these Sections 6 and 7 taken [512] together, with reference to the widow or widower of a predeceased son or daughter (unless it be held that she or he is provided for at all events under Section 5) which is that in the case to which Section 6 applies-viz., the intestate leaving a widow but no lineal descendants, a son or daughter's widow or widower would take nothing (as such widow or widower is not mentioned in Schedule 1 to the Act), but in the case to which Section 7 applies--viz., the intestate dying, leaving neither lineal descendants nor a widow or widower, a son or daughter's widow or widower will take a share in the order provided in the 2nd schedule. I am unable to see any relevance, where an intestate leaves no lineal descendants, of the circumstance that he or she left a widow or widower, to the question whether the widow or widower of a predeceased son or daughter is to take or not. To make the Act harmonious, amendments are, in my opinion, necessary in several respects; but I am of opinion that, in the present case, the difficulties in the way of the construction contended for on behalf of Awabai are much less than those in the way of the construction adverse to her claim. The report of the Commissioner must be amended by certifying that Awabai, widow of Naserwanji Kavasji, is entitled to a share in the estate of the intestate, such share being one moiety of the share which her deceased husband Naserwanji would have taken had he died immediately after the intestate, and that the other moiety of the share of the said Naserwanji has devolved, under Section 6, on his brothers and sisters viz., Mancherji, Dorabji and Serinbai, Dhunbai, Jerbai, and the posthumous daughter of the intestate by Mithibai, and on the children of his brother Kharsedji. I am of opinion that the costs of arguing the objection should come out of the estate.


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