1. In this suit the plaintiff, Ladkabai, widow of the deceased, Lalji Valji, sues Navivahu, widow of the deceased Haridas Dharamsey, to recover from her (1) the entire estate of the said deceased Haridas Dharamsey; (2) specific sums of money; (3) ornaments.
2. The plaintiff's allegation put shortly is that her husband Lalji survived the deceased Haridas Dharamsey, and upon certain grounds, which I shall have to give more in detail was in law his sole heir; that she, therefore, the plaintiff Ladkabai, on the death of her husband, Lalji, is entitled to a widow's estate in the whole property. Further, she contends that by a writing of the 31st of October 1905. Haridas Dharamsey declared a trust of Rs. 20,000 in favour of herself and her husband, to which in any event she is now entitled. As to the specific sum of Rs. 5000 and the ornaments, the former is admitted; and about the latter I need say nothing in this judgment. Should it be necessary to go into that point, it would be more properly inquired into by the Commissioner than on the main part of this trial.
3. In order to understand the position occupied by the plaintiff and the defendant for the purposes of this litigation, it is necessary to say that there were five brothers Valji, Meghji Canji, Haridas and Narsey, sons of one Dharamsey Nandji' It is common ground that these brothers separated. All the brothers are now dead except Narsey. Lalji was at the time of his marriage the sole surviving son of Valji. He married the plaintiff, then a minor, in the year 1906. As the plaint is framed, it will be seen that the plaintiff has contended that her husband's father Valji reunited with Haridas and that Haridas had adopted her husband Lalji. Treating these as mere questions of fact, it is sufficient to say that no evidence worth considering has been laid before the Court to substantiate either of them and that the plaintiff, long before the trial had concluded, abandoned both the contentions.
4. Haridas died on the 23rd of March 1912 and Lalji, the husband of the plaintiff, on the nth of July 1913. Haridas had married four wives in all and had got into considerable trouble with his caste over his third marriage. There can be no doubt that he would have found much difficulty in procuring a bride for his nephew Lalji, the husband of the plaintiff; and I think it is proved, were it necessary to prove anything of the kind, that Haridas was on the best of terms with Valji, the father of Lalji, and had long regarded Lalji himself with great affection. It is not suggested that the sentiments entertained by Haridas towards Lalji had changed in any way before the death of Haridas. Such considerations only become material in dealing with the question of the probability or otherwise of the promises alleged to have been made by Haridas to the mother of the plaintiff in consideration of the marriage then in contemplation between the minor plaintiff and the minor Lalji.
5. The substantial point is whether any of these representations or promises, as alleged by the plaintiff, were in fact made, and, if so, whether they are now binding upon the maker or his heirs and representatives. The negotiations for the marriage of Ladkabai with Lalji took place early in the year 1905 and the betrothal was finally brought about, in connection with which Ex. B was admittedly passed by Haridas to Ratanbai, the mother of Ladkabai. Herein Haridas engages to give ornaments of unspecified value to the bride and in addition the sum of Rs. 5000, the interest upon which was apparently intended to be spent in procuring further ornaments for the bride should the marriage be postponed. On the 31st of October 1905, Ex. C was passed by Haridas to Ratanbai, and that is the document which has given rise to the greater part of the discussion in the present suit. There are rival theories laid before the Court concerning the document. It is alleged on behalf of the defendant Navivahu that it was no more than a penalty bond exacted by Ratanbai from Haridas because he had failed to act up to the promises contained in Ex. B. It is in a measure common ground that Haridas had taken a sum of some Rs. 2000 from Ratanbai and that this sum as well as certain ornaments, which he appears also to have removed, had to be made good to her. But there is nothing in Ex. C which gives the least colour to the suggestion that it is a penalty bond. It begins by declaring a trust of Rs. 20,000 in favour of the young married couple. They were not of course actually married at the time, but in this caste betrothal is regarded as virtually equivalent to marriage. The latter part of the document is, on the face of it, in the nature of a will. It appoints Lalji the sole heir of Haridas in the event of Haridas having no natural son of his own, and it states that in the event of Lalji so becoming the sole heir he is to take the entire estate of Haridas after the death of the dhani dhani. Whether this is an accidental repetition or whether the second dhani really stands for dhaniani and denotes the defendant Navivahu is a very debatable question. In the event of Haridas having a natural son born to him of his wife Navivahu, the defendant in this suit, then a like provision of Rs. 20,000 to be made for that son and the entire estate is thereafter to be divided equally between him and the plaintiff's husband, Lalji. The defendant's contention is that this document being merely a penalty bond was afterwards cancelled by a writing ( Ex. No. 9 in this case ) of the 17th of December 1905. The plaintiff, on the other hand, contends that Exh. No. 9 is a forgery and that Ex. C never was, and never was intended to be, cancelled. On the 18th of May 1906, shortly before the marriage, Ex. F. was passed by Haridas to Ratanbai. Herein Haridas declares that Lalji, the bridegroom elect, was his adopted son. Thereafter provides for the payment of Rs. 5,000 referred to in Ex. B. The latter part of the document appears to me comparatively unimportant. As to whether Ex. C was cancelled or not by the writing (Ex. No. 9), much might be said on either side. Exhibit C itself cancels Ex. B and makes much more liberal provision for the bride and bridegroom than is made in either Ex. B or Ex. F. I think it would be absurd to argue that Ex. C could possibly be, in any true sense, a penalty bond. It is, however, legitimately arguable, I think, that it was cancelled in view of the later document (Ex. F). For if the statement with which the document opens be true, then it will be tantamount to saying that the bridegroom Lalji was in law entitled to the entire estate of Haridas Dharamsey, subject only of course to the possibility of another son or sons being born to Haridas. Except then for the trust of Rs. 20,000 declared in Ex. B, all the remainder of Haridas' intention, therein more elaborately expressed, would be equally brought about by the mere statement that Lalji was his adopted, and at the time, his only, son. That, then, would leave in dispute no more than a sum of Rs. 5,000 as mentioned in Ex. B. So that it is not inconsistent with reason, in my opinion, to contend that having regard to Ex. F it is quite possible that Ratanbai might have consented to cancel Ex. C. It is, however, an extremely doubtful point whether in fact she did so or not. First it is to be borne in mind that this cancellation is supposed to have been made as early as the 17th of December, that is, nearly six months before the execution of Ex. F; and it certainly seems to me extremely unlikely that a mother, who was so keen and zealous for her minor daughter's interest as Ratanbai is proved to have been, would have given up so valuable a paper as Ex. C merely upon the chance of Haridas executing at a much later date such a paper as Ex. F. Now, when we turn to Ex. No. 9 itself, there are many circumstances of suspicion attending it. Ratanbai herself positively swears that she never signed it and that it is a forgery. It appears to have been preceded the day before by the draft Ex. 10 in this case. That draft is altogether of a different tenor and much less comprehensive than Exh. 9. Exhibits 9 and 10 are written on two different pages of a book, a large part of which is blank and between them comes Ex. M, a memorandum of receipts of betrothal presents by Haridas Dharamsey. Of the genuineness of that paper there can be no doubt and it must have been made some eight or nine months before the impugned Exs. 9 and 10. It is difficult to understand, therefore, how it comes to be sandwiched in between them if those documents are genuine. The only guarantee we have of their genuineness is the testimony of Chhotalal, who is engineering the whole case for the defendant. It will be a waste of time to particularise portions of his evidence which warrant the sweeping conclusion that he is utterly unworthy of credit. He is a man who, whether through self-interest or through any other motive, is evidently thoroughly untruthful and prepared to make any statements which occur to him as likely to support the case he is interested in making good. I certainly should not care to decide a single contentious point merely upon the evidence of such a man. Now, there is plenty of Haridas' own writing on the record, and though we have no expert testimony here it was stated by counsel and not contradicted that that handwriting is, to say no more, an averagely good vernacular script. Whereas the writing of Ex. 9 which is declared to be Haridas' writing is so bad that the highest skill of the Court interpreters had to be spent upon it. No less than three of them had to take it in hand not to mention the attempts made by my own interpreter Mr. Kanga, to settle the words in it. In these circumstances I think any Court would hesitate long before trusting to such a document as proof of a fact so favourable to the interests of the defendant and so damaging to the interests of the plaintiff in this case. According to Ex. No. 9 Haridas is made to appear to have satisfied Ratanbai in respect of the money and ornaments which she was demanding back from him Thereupon she is made to declare that the writing of the 31st of October is of no avail and torn up; but in point of fact the writing has never been torn up and has evidently been very carefully kept by Ratanbai and is now before the Court. In view of that fact it is a little difficult to understand the need of making Exh. No. 12. Possibly, however, the explanation offered by plaintiff's counsel is true that the operation of that paper was meant to be confined to the sum of Rs. 5,000 now represented by the shares of the Sirdar's Carbolic Acid Gas Co. Ld. There is no dispute about this. The defendant is ready and willing to hand them over to the plaintiff.
6. We have, then, three papers every one of which contains representations partly of fact and partly of intention clearly made in contemplation of marriage, and the principal question the Court has to anwer is: what is the effect of any or all of these papers upon the legal rights of the parties In describing Ex. B I said that the first part of it contained a declaration of trust It has, however, strenuously been contended, mainly on the authority of a judgment of my own in the case of the Narielwalla's trust (Manchershaw v. Ardeshir : (1908)10BOMLR1209 , that this is no declaration of trust, nor yet a gift, and is, in the eye of the law, a nullity. 1 think, however, that there are broad and patent distinctions between the facts disclosed in the case of Narielwalla's trust and the facts here. Reading Exh. C I cannot doubt that there is a sufficient declaration of trust within the meaning of Section 6 of the Trusts Act. It was very different in the Narielwalla's case. Here Haridas Dharamsey sets apart a sura of Rs. 20,000 for the benefit of the young married couple. But the language he uses precludes all idea of any intention to make a present gift, for, although he opens a khata in favour of these two young persons to the amount of Rs. 20,000, he immediately adds that they are only to enjoy the interest until his death, or until having attained years of discretion they elect to separate from him. In the meantime he retains possession and control of the fund, subject only to the interests of his cestui que trust in it. This is, in my opinion, a clear and sufficient declaration of trust: the property being specified, the intended beneficiaries being specified, the purposes of the trust being specified; and the author of the trust being himself the trustee, there is no need of transfering possession.
7. Reverting, for a moment, to the much contested point of the subsequent cancellation of Ex. C it is here apparent that, if I am right in holding that this is a valid declaration of trust of Rs. 20000, it was not open to the settlor, Haridas Dharamsey, to cancel it. Even then, should the story told by the defendant be true in every respect touching the making of Exs. 9 and 10 in this case, the legal position in regard to this trust would, in my opinion, remain entirely unaffected. So that in any event the plaintiff would be entitled to recover from the estate of the late Haridas Dharamsey the sum of Rs. 20000.
8. The remainder of the document would, no doubt, give rise to very considerable difficulty. Before I deal with that, I may pass on to what appears to me the simplest ground upon which the case, as a whole, might be decided. In Ex. F there is a very clear representation of fact, namely, that Lalji is the adopted son of Haridas Dharamsey; and there can be no doubt that that representation of fact was made in contemplation of the marriage of the plaintiff with the said Lalji. The marriage duly took place, and upon a principle common to every case I have yet found in the English law books, it would necessarily follow that if this were a misrepresentation of fact the relations of the parties in law would have to be determined by assuming that the fact was as it was represented to be. A great number of English cases have been relied upon in the course of the able and interesting arguments of learned counsel on both sides; and if I were dealing with Ex. C, and Ex. C alone, I should have to go very much more closely into an analysis of the reasoning of all the eminent English Judges responsible for those decisions than I need do upon the plain and relatively narrow ground of misrepresentation of fact contained in Ex. F. Where the law in England has, in appearance, given rise to most doubt and difficulty is on the point of difference between representations of fact and representations of intention. Thus, in the series of cases relied on by the plaintiff, we have expressions of intention or promises to perform certain acts in futuro in contemplation of marriage, such cases as Laver v. Fielder (1862) 32 Beav. 1, Synge v. Synge  1 Q.B. 466, Hammersley v. Baron de Biel (1845) 12 C.& F. 45 and Coverdale v. Eastwood (1872) L.R. 15 Eq. 121, to which many more might be added. In the case of Loffus v. Maw (1862) 3 Giff. 592, Stuart V.C. appeared to think that there was a direct conflict of authority between the decision of the House of Lords in Jorden v. Money (1854) 5 H.L.C. 185 and the decision in Hammersley v. Baron de Biel. In the case of Jorden v. Money, however, the question, with which Lord Cranworth was probably concerned, was the distinction to be drawn in law between representations of fact and representations of intention, and he insisted upon the well-known doctrine that there can be no fraud in futuro. In the case before him the defendant, Mrs. Jorden, before her marriage, had promised Mr. Money that she would never sue him on a bond which she held and on the faith of that promise Money married. Mrs. Jorden presently married herself and sued upon the bond. The question, which the House of Lords had to answer, was whether Money was entitled in equity or in law to any relief and the decision of the majority (Lord St. Leonards dissenting) was that he was not. Misrepresentation per se as a ground of relief was, in the opinion of Lord Cranworth and the majority of the Judges, confined to misrepresentation of fact. Misrepresentation as to future intention could, at best, be no more than an incohate contract, or perhaps even a contract of which there might be a breach, but it would only go the length of the legal doctrine laid down with customary terseness and lucidity by Lord Mansfield in the case of Montejiori v. Montefiori (1762) 1 Sir. W.Bl. 363. Lord Cranworth, in arguing the question in the House of Lords, said that the substantial point for consideration was the difference between representations of intention and representations of fact, and he added that a representation of fact is a contract, while a representation of intention is not. That is a very compendious form of expression, but what the very learned Lord meant doubtless was that he who misrepresents a fact in any transaction must be taken, for the purposes of adjusting the subsequent legal relations of the parties, to be bound in law to make the fact good as he misrepresented it to be. In other words, that in entering into a contract or inducing another person to act, if one should misrepresent a fact, then the contract between him and the person so deceived shall be based in law upon the ground that the fact so misrepresented must be made good by the party misrepresenting it. Whereas if it is merely a representation of future intention, then, at best, it is only a contract and can only be proved as a contract. The difficulty in this case doubtless was that the contract between Mrs. Jorden and Money did not satisfy the requirements of the fourth section of the Statute of Frauds and, therefore, could not be proved as a contract. In all the cases, I first enumerated, there was a good contract under the Statute of Frauds, and, therefore, the question the Courts had to answer was much simpler and a totally different question. In the case of Hammersley v. Baron de Biel (1845) 12 C. & F. 45, for instance, there was a writing which the Court held to satisfy the requirements of the Statute of Frauds, and in that writing there was a promise, which being made in contemplation of marriage and the marriage thereon taking place, the Court held must be duly performed. It is clear, then, that there was really no conflict of principle whatever between Hammersley v. Baron de Biel and Jorden v. Money. In the case of Maddison v. Alderson (1883) 8 App. Cas. 467, there were facts similar to the facts which might be thought to exist here if the latter part of Exh. C be regarded as a will. There the suit was by a house-keeper to recover on a writing which was in the form of a testamentary disposition of his property by her old master in her favour. Unfortunately, it was not duly attested and could not be proved as a will; and the greater part of the judgment of Lord Selbourne in the House of Lords is devoted to the examination of the doctrine of part performance. There was no doubt but that the deceased Alderson had promised to bequeath a certain part of his property to his housekeeper Maddison in return for her long and faithful services, but inasmuch as the writing could not be proved as a will and intrinsically bore no relation whatever to the services of Maddison already performed, the reason for the decision appears to have been that the part performance could not be connected with the imperfect promise. So that in that case the House of Lords rejected the plaintiffs' claim. Had, however, the writing been directly connected with the services rendered, it appears that the decision would have been different; and in any event the general line of reasoning would be different from that which is always followed in cases of alleged promises made in contemplation of marriage. Where such promises can be duly proved under the Statute of Frauds, the fact that the marriage takes place has, I think, invariably been held to complete the contract and the Court would then enforce performance. There may be special cases on the facts such as the very recent case of In re Fickus (Farina v. Fickus  1 Ch. 331) where the Court, notwithstanding there was a writing suggesting an intention on the part of some third person to give consideration for the contemplated marriage, yet holds that it is not sufficiently specific to be regarded as a contract.
9. No difficulty of the kind could arise in the present case. It will be observed, however, that where there is a misrepresentation of an existing fact in consequence of which a marriage is brought about, the person making that misrepresentation would, on the principle of any one of these cases, be equally liable in law or in equity to make good his false representation. That is to say, in the present case, if Haridas represented that Lalji was his adopted son, although, in fact, Lalji was not his adopted son, and thereby induced Ratanbai to give her daughter, the plaintiff, to Lalji in marriage, Haridas would be held bound to make good the representation on the faith of which the marriage had taken place. It is true that in this particular case it would have been impossible for Haridas to make good his representation since at that time Lalji was an orphan. He could not have adopted him even had he wished to do so. But I apprehend what the law means is that all the rights and privileges of the parties shall be adjusted in law as though what had been stated by Haridas had been true, and this adjustment will be as binding upon everyone seeking to take the estate after Haridas in the character of heir or legal representative as upon Haridas himself. If I am right so far, and I entertain no doubt whatever upon the point, then it is clear that on the death of Haridas in 1912 Lalji was entitled to succeed him as his sole heir and in law must be taken to have done so. On the death of Lalji in July 1913, his widow, the plaintiff, takes the whole life-estate. At present that life-estate is in the hand of the defendant, Navivahu; but had the fact represented by Haridas in Exh. F been true, it is clear that she would have been entitled to no more than maintenance and to that she appears to me to be still entitled.
10. If I am wrong on this point it will be still necessary to consider the latter part of the Exh. C. In this country we are not faced by the same difficulty as that which pressed upon the English Courts in such cases as that of Jorden v. Money (1854) 5 H.L.C. 185. The fourth section of the Statute of Frauds has been repealed so far as India is concerned and has no operation here. But it is contended that the latter part of Exh. C is really in the nature of a will and, therefore, cannot be proved since it is attested by one witness only. It is not, however, as a will that effect is sought to be given to it. There can be no doubt but that it was a declaration of intention or it might be called a representation by Haridas with the object of influencing Ratanbai to give her daughter in marriage to Lalji, Haridas' nephew. Even were the Statute of Frauds in force here, this writing would fulfil the requirements of the fourth section, and I cannot see why it should not be used for such a purpose, and such a purpose only, although, no doubt, effect could not be given to it as a will. It is not open to the objection which proved fatal to the case of Mrs. Maddison, because it is here expressly connected with the contemplated marriage and the contemplated marriage did in fact take place. Regarded, then, as no more than a contract to do certain acts, as for example, to make Lalji the sole heir of the promisor, Haridas, in the event of the marriage taking place, it would become a complete and valid contract upon the marriage being solemnized. And I see no difficulty in following the practice of the English Courts in such cases and directing any of the heirs, executors or legal representatives of the deceased, Haridas, thereon to convey the whole of his estate in their hands to the heir so designated, that is to say, Lalji; and Lalji being dead, his widow, the plaintiff, would take after him.
11. It has been objected further that Exh. C is inadmissible in evidence for non-registration. It is not, however, an instrument, which, as it stands, falls within the prohibition of Clause (b) of the seventeenth section of the Registration Act. Viewed, as I view it, it is simply a promise to do a certain act in the future, in other words, an offer which became a complete contract when the marriage between Lalji and the plaintifftook place. That being so, it would not require registration in its present form.
12. If we had neither Exh. C nor Exh. F in this case, it would still be open to the Court to consider upon the evidence of Ratanbai whether Haridas and the defendant, Navivahu, did not jointly represent to Ratanbai in Cutch that Lalji was their only son and heir and so induce her to consent to give her daughter in marriage to him. That would certainly be a misrepresentation of fact again and would, it appears to me, fall under the principle laid down by Lord Cranworth in the case Jorden v. Money (1854) 5 H.L.C. 185. But even if it be no more than a promise that Lalji should inherit to Haridas' wealth if Ratanbai gave her daughter in marriage to him, still I do not see that in this country there would be any objection to prove such an oral contract, and, if proved, give effect to it on the ground that it was made in contemplation of marriage, that the marriage took place in consequence of it and thereon it became a complete valid legal contract. I have not gone very deeply into the legal question here because I think that the ground, upon which I am putting my decision, namely, that there was a representation that Lalji was the adopted son of Haridas and that it was upon the faith of that representation that the plaintiff married him, whereupon the law requires that the representation should be made good, is a ground so simple and so firmly established by English authorities that it is unnecessary to elaborate it further.
13. But I cannot leave this part of the case without expressing my indebtedness to learned counsel on both sides, whose patience and industry has laid before me almost every important judgment upon the rather unusual but interesting branch of the law with which I had to deal, and my acknowledgments are particularly due to them for what, I am afraid, must have been a fatiguing labour of cheerfully reading to me the extremely long judgments in all these cases. I do not think either their time or labour has been wasted, although I have not gone as deeply and critically as I intended to do into all the interesting cases which have been under discussion here, because, I think, we shall be all much better informed upon the general principles which have underlain the judicial pronouncements of the highest authority in the Courts of England upon this topic.
14. I pass now to the consideration of another point, namely, whether or not the house in Mint Road formed part of the estate of the deceased Haridas at the time of his death, or whether it was the sole property of the defendant, Navivahu. In favour of Navivahu there is nothing really except the conveyance itself (Exh. No. 8) in the case. I entirely disregard Chhotalal's evidence; and while, no doubt, there is a statement in Exh. No. 8 that the earnest money was paid out of Navivahu's private purse, I think that the document on the whole is only one of a very common class, the husband desiring to make the purchase benami, or to some extent, benami, in the name of his wife in order to evade the possibility of attachment by creditors. Exhibit C in the case is a letter written by Haridas to Ratanbai shortly before the purchase, in which he announces that he has bought the house for Rs. 30,000 and requests her to send him Rs. 5000 and any more money that she can spare in order to make up the purchase-money. There is not a word in this letter to suggest that the house is being bought by Navivahu for herself out of her own money. Chhotalal has sworn that when Navivahu married some seven or eight years before the purchase of this house she received Rs. 8000 worth of ornaments and Rs. 12,000 in cash from Haridas. It appears that Navivahu's father was a poor man, and we have none of the books of accounts of those early days which should have been forthcoming to show even assuming that this Rs. 12,000 remained with her husband, Haridas, how that sum Increased by the year 1907 to Rs. 30,000. Certain Exhibits of later date have been put in to show that a khata was kept in Navivahu's name and the rents, etc., of this house were credited to her in it. These are Exhts. Nos. 13, 14, 15 and 16. I attach, however, little or no importance to such evidence. It is obvious, I think, that if Haridas cared to make the purchase benami in the first instance, that is to say, if he was under any apprehension that the property would be taken by any creditor, he would naturally have kept the books in such a way as to give colour to the genuineness of the transaction as it was made in the first instance to appear. I am satisfied, that the house was purchased out of Haridas' own money and that if we had all the books covering that period before us, this could very easily have been proved.
15. As a result, then, I find that the plaintiff is entitled to obtain the whole of the estate of the deceased Haridas from the defendant, Navivahu, and that the defendant, Navivahu, is entitled to simple maintenance thereout.
16. I do not think that it would be worth while, after this decision, to put the parties to the further expense and harassment of a reference to the Commissioner in respect of these ornaments. Neither do the parties desire such a reference to be made at present; but this is not to be understood as implying that the plaintiff gives up her claim to the ornaments.
17. On a statement of counsel I fix the defendant's maintenance at Rs. 150 a month. The amount is to be paid after the estate has been deliverd to the plaintiff, Ladkabai.
18. Let Navivahu be continued as Receiver and pay to the plaintiff Rs. 200 a month and pay herself Rs. 150 a month.
19. In view of the rather peculiar features of the case and that the decision had to turn upon the construction of documents and acts made and done by the husband of the defendant, I think that the costs of both the parties should come out of the estate.
20. Let the maintenance to Navivahu and interim payment to Ladkabai both run from the 16th of one month to the 16th of the next month. The first payment and appropriation to commence from the 16th of this month.
21. The ornaments mentioned in Exh. 3 to the written statement of Navivahu to be handed over to Ladkabai at once, subject to the prohibitory order of the Small Causes Court.