1. This is a suit of a very unusual character. The plaintiff, who is the mother and administratrix of the estate and effects of one Ardeahar Hormusji Wadia, who died on June 17, 1928, sues for a declaration that, in the events that have happened, defendant No. 3, who was formerly the wife of the said Ardeshar Hormusji Wadia, is not entitled to any benefit or payment under the settlement dated March 8, 1913, or in the alternative for rectification or variation of the said deed of settlement by inserting the words 'provided that the said intended marriage is not dissolved otherwise than by the death of the said Ardeshar Hormusji Wadia' and by inserting certain other words, and for a decree against defendants Nos. 1 and 2 to hand over and convey to the plaintiff all the property and securities held by them as the trustees under the said settlement, and for costs. Defendants Nos. 1 and 2 are trustees of the marriage settlement which was made on the occasion of the marriage of Ardeshar, the son of the plaintiff, and defendant No. 3, Hirabai Ardeshar Davar.
2. The issues which are framed are :-
1. Whether the defendant is barred from claiming an interest in the settled property by reason of the defendant giving up her claim for alimony in the matrimonial Court ?
2. Whether the interest in the settled property of defendant No. 3 ceased on her ceasing to be the wife of Ardeshir Wadia ?
3. Whether the plaintiff is entitled to have the deed of settlement varied as claimed by her in paragraph 14 of the plaint ?
4. Whether defendant No. 3 is entitled to the income of the settled property for her life?
3. This case may be disposed of shortly. The plaintiff's son Ardeshir Hormusji Wadia was married to defendant No. 3, Hirabai Ardeshar Davar, on March 9, 1913. On the day previous to the marriage, a marriage settlement was executed, by which certain property situated in Marine Lines was settled on Ardeshar and his wife, the trustees being the plaintiff's husband, and Sir Jamshedjee Jijeebhoy, and Mr. F. R. Wadia. The plaintiff's husband is now dead. The other trustees are defendants Nos. 1 and 2 in this case.
4. I need not give the terms of the settlement. It is sufficient to say that by the terms of the settlement on the death of her husband defendant No. 3 took a certain interest during her life. There are no children of the marriage, and that question need not be considered. Unfortunately, in 1926, defendant No. 3 had to apply for a divorce from her husband, and on April 7, 1926, a decree of divorce was passed by the Parsi Chief Matrimonial Court. On June 17, 1928, Ardeshar Wadia died, and on November 10, 1928, the settlor Sir Hormusji Ardeshar Wadia died. Under the deed of settlement defendant No. 3 takes a life interest in the property settled, and the plaintiff, who is the mother of the former husband of defendant No. 3, now seeks to have the deed of settlement altered so as to deprive defendant No. 3 of her interest under the settlement. The settlement does not contemplate a divorce between the parties, nor does it purport to deprive defendant No. 3 of any interest which she may take in it in the event of a divorce, and the plaintiff desires that clause to be inserted. It has been contended by the learned Counsel for the plaintiff that the deed of settlement is based upon the rights which defendant No. 3 acquires by reason of her marriage with Ardeshar, and that when she ceased to occupy the position of a wife or a widow, her rights go away. There is no Indian case directly on this point. The only case which he has been able to quote is that of Karamsi Madhowji v. Karsandas Natha ILR (1896) 20 Bom. 718, where a testator directed a boy to be adopted to whom his property should go, and the adoption not having taken place, it was held that the boy did not take under the will. That is not at all the same as in the present case, for the adoption was a condition precedent to the adopted son taking any benefit, and as that condition was not fulfilled, there can be no question of his taking under the will of the testator. But the present case is as a matter of fact governed by authority. It is conceded that Parsis in the town of Bombay are governed by the common law, and the learned Advocate General has pointed out several cases in which a similar question has arisen in England. The first case he has pointed out is that of Fitzgerald v. Chapman (1875) 1 Ch. D. 563, where, by a marriage settlement, property in which the wife and her father were jointly interested, was settled upon trust for the wife during the joint lives of herself and her husband, and after her decease, for him for his life, and then upon trusts for the children of the marriage (of whom there was none living), and in default of children, for the wife absolutely lie she would survive, but if she should die in the husband's life-time, then as she should by will appoint, and in default of appointment, for her father. The marriage was dissolved on the petition of the wife. In a suit by the wife claiming to be absolutely entitled to the trust funds, it was held that the husband's rights were not forfeited by the dissolution of the marriage, and that the bill must be dismissed with costs. To the same effect is Burton v. Sturgeon (1876) 2 Ch. D. 318 where the husband acquired an interest under the marriage settlement. The wife obtained a decree absolute for dissolution of the marriage and filed a bill to have the settled property transferred to her. It. was held by the Court of Appeal that the husband's rights under the settlement were not forfeited by the dissolution of the marriage, and the bill must be dismissed. It will thus appear that the dissolution of the marriage makes no difference to the settlement, and it cannot be varied on that account.
5. The result is that the suit must fail, and all the issues must be found against the plaintiff. The suit will be dismissed with costs including the costs of the trustees, defendants Nos. 1 and 2, as between attorney and client.