Umiashankar Lakhmiram Vs. Chhotalal Vejeram - Court Judgment
|Judge||Michael Westropp, C.J. and ;Kemball, J.|
limitation act (ix of 1871), schedule ii, nos. 166, 167. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was surrounded by a large number of suspicious circumstances held, it is a fit case where..........court not provided for by article 169 which latter is applicable only to judgments, decrees, or orders at the original jurisdiction side of courts established by royal charters or any order of her majesty in council (see act vi of 1874, section 21). the third column to article 167 shows that decrees or orders made on appeal fall within that article. this court reverses the order of the district judge, and restores that of the subordinate judge, but directs that the parties respectively bear their own costs of this appeal, as this court is of opinion that the appellant has not shown any excuse for his laches in applying for the restoration of his property.
Michael Westropp, C.J.
1. The Court is of opinion that the District Judge was in error in holding the present application to fall within Article 166 of Schedule II of Act IX of 1871, from which a decree or order on appeal is expressly excepted. That exception is not limited to any particular species of appeal, and this being a Limitation Act, and, as such, restrictive of the ordinary right to take legal proceedings, it must, where its language is ambiguous, be construed strictly, i.e., in favour of the right to proceed 9 Bom. H.C. Rep. 111. This case falls rather within Article 167 of the same schedule, which allows a period of three years for the execution of a decree or order of any Civil Court not provided for by Article 169 which latter is applicable only to judgments, decrees, or orders at the Original Jurisdiction Side of Courts established by royal Charters or any order of Her Majesty in Council (see Act VI of 1874, Section 21). The third column to Article 167 shows that decrees or orders made on appeal fall within that Article. This Court reverses the order of the District Judge, and restores that of the Subordinate Judge, but directs that the parties respectively bear their own costs of this appeal, as this Court is of opinion that the appellant has not shown any excuse for his laches in applying for the restoration of his property.