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Hurmusji Cursetji Ashburner Vs. Bomonji Coursetji Ashburner and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom250
AppellantHurmusji Cursetji Ashburner
RespondentBomonji Coursetji Ashburner and ors.
Excerpt:
practice - final report of commssioner for taking accounts--motion to vary report--limitation--rules of court, chap. 6, rule 6 (ed. 1867). - 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..........this rule to give further time to the defendants, although they did not apply to discharge or vary the report within the twenty days. the circumstances must be, of course, strong to justify a departure from the rule, which is, that the report is binding on all the parties, unless an application is made to discharge or vary it within twenty days of its filing or within such further time as the judge shall allow. in the present case three causes are offered of the irregularity: one by mr. inverarity, that the parties were ignorant of the law, which would be no excuse: two by mr. macpherson, that the defend ants were led beyond the time by negotiations for a setlement, and that they could not bring the matter on without copies of the notes of evidence which even yet have not been.....
Judgment:

Scott, J.

1. I am of opinion, in the first place, that I have a discretion under this rule to give further time to the defendants, although they did not apply to discharge or vary the report within the twenty days. The circumstances must be, of course, strong to justify a departure from the rule, which is, that the report is binding on all the parties, unless an application is made to discharge or vary it within twenty days of its filing or within such further time as the Judge shall allow. In the present case three causes are offered of the irregularity: one by Mr. Inverarity, that the parties were ignorant of the law, which would be no excuse: two by Mr. Macpherson, that the defend ants were led beyond the time by negotiations for a setlement, and that they could not bring the matter on without copies of the notes of evidence which even yet have not been obtained-Now I have re-read the affidavits, and still think the chance of settlement was uppermost in the minds of the parties, and caused the delay, and not any mistake in the law. They did not, when the negotiations fell through, take the right course in filing exceptions. They ought to have applied to discharge or vary the report. But still they took an active course to protest their interests, and could not bring on the matter, as the notes of evidence had not been furnished. I am very loth to deprive parties of their appeal by reason of an irregularity which was caused by a desire on both sides to stop further litigation. These limitations to the time of such applications, like all such limitations of rights, must, where the language is ambiguous, be construed in favour of the right to proceed (I.L.R. 1 Bom. 19-22 per Westropp, C. J.) The language of the Act is doubtful as to whether the application to extend the time must be made within the twenty days. I, therefore, decide, in favour of the right to proceed. ,

2. The question remains, whether the facts justify me in sanctioning any extension. On the whole I think Mr. Macpherson has made out a case 'for the application of the discretion given me by the rule. I, therefore, postpone the matter till after the May vacation.


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