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Dayaram Premji Vs. Bechardas Doongersey - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 138 of 1921
Judge
Reported in(1922)24BOMLR351; 67Ind.Cas.936
AppellantDayaram Premji
RespondentBechardas Doongersey
DispositionAppeal dismissed
Excerpt:
.....of the transfer of property act and could not take effect as vesting in the widow the absolute estate in the property left by her husband. - 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..........estoppel. it is difficult to see how there could be any estoppel, as that estoppel could only take effect, if sunderabai in her life-time, relying upon the relinquishment deed, purported to deal with the property, which she could have done in any event, and therefore, the relinquishment deed could have had no effect with regard to any alienations she might have made in her life-time. but as she possessed the property in fact there is nothing on which the estoppel could act, and on her death it went in the ordinary course of law to the reversioner. the appeal, therefore, must be dismissed with costs.4. but the appellants object to the order made in the lower court directing the first defendant as executor of sunderabai to pay the plaintiff's costs of the suit. that could not form the.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff, who died pending the hearing of the suit, claimed to set aside a document executed by him on the 6th November 1917, by which he purported to release all his rights as a reversioner in the estate of his deceased brother Virji, in favour of his widow Sunderabai. Really the document of the 6th November 1917 transgressed against the provisions of Section 6(a) of the Transfer of Property Act, and, therefore, could not take effect as vesting in the widow the absolute estate in the property left by her husband. She might have disposed of the immoveable property in her life-time, but she had not done so, and, therefore, on her death, the property would go to her nearest reversioner. However Sunderabai made a will apparently thinking that she was absolutely entitled to her husband's estate, and her executor the first defendant resists the plaintiff's claim.

2. It was first suggested that the transaction evidenced by the relinquishment deed of 6th November 1917 was a family arrangement, and, therefore, should be given effect to. But on reading that document it will be clearly seen that it purports to be a transfer of Mulji's right as a reversionary heir in the estate of his deceased brother.

3. Then the first defendant objected to the plaintiff's suit on the ground of estoppel. It is difficult to see how there could be any estoppel, as that estoppel could only take effect, if Sunderabai in her life-time, relying upon the relinquishment deed, purported to deal with the property, which she could have done in any event, and therefore, the relinquishment deed could have had no effect with regard to any alienations she might have made in her life-time. But as she possessed the property in fact there is nothing on which the estoppel could act, and on her death it went in the ordinary course of law to the reversioner. The appeal, therefore, must be dismissed with costs.

4. But the appellants object to the order made in the lower Court directing the first defendant as executor of Sunderabai to pay the plaintiff's costs of the suit. That could not form the subject-matter of an appeal by itself, unless it could be said that some important principle was involved. But now as we are hearing the appeal on its merits, it is open to us to consider whether it is right in a suit of this character that the plaintiff should get his costs from the first defendant. He claimed far more than what he was entitled to, and also made allegations in the plaint that by some means or other he was wrongfully induced to relinquish his reversionary rights, and considering that he was responsible for all the troubles which have arisen, we certainly think it is not just to make the first defendant pay the plaintiff's costs of the suit. The order of the lower Court will be varied by directing that as between the plaintiff and the first defendant each party is to pay his own costs. The appellants will pay the costs of the appeal.


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