John Beaumont, Kt., C.J.
1. This is an appeal from a decision of Mr. Justice Kania which raises a question as to the title to the proceeds of a card held by a deceased member in the Bombay Native Share and Stock Brokers' Association. The member in question was one Dipchand, who died in the year 1918, and it is admitted for the purposes of this appeal that under his will his widow Parsanbai was entitled to the income of the estate for her life, and after her death it passed to the plaintiffs as the heirs of their brother Rasiklal, who was the beneficiary named in the testator's will. But the plaintiffs are not the heirs-at-law of the testator. After the death of the testator his widow applied to the Bombay Native Share and Stock Brokers' Association to allow the testator's card to be sold to one Nansi Monji. The Association in reply asked her certain questions, amongst others, what was her title to the card, and she replied that under the will of the testator she was his sole heir. That seems to have been a mistake, as she was in fact only a tenant for life, and the Association thereupon paid to her Rs. 36,000, which was the purchase money of the card, and recovered the amount from the purchaser, who elected a member of the Association.
2. The question which arises on this appeal is whether the widow is entitled in her own right to the proceeds of sale of the card, or whether those proceeds form part of the corpus of the estate, in which the plaintiffs are interested. The question, in my opinion, turns on the construction of the deed of settlement and rules of the Association. Those documents were construed by this Court, and afterwards in appeal by the Privy Council, in the case of Official Assignee, Bombay v. Shroff : (1932)34BOMLR1178 But that case dealt with the title to the card on the insolvency, and not on the death of a member.
3. It is quite clear, I think, from Clause 12 of the deed constituting the Association, that a card gives a merely personal right to the holder, and does not constitute in the ordinary sense property. The rules deal with the case of death of a holder of a card. The rules are very badly drafted, and obviously the framers of the rules had not considered the various cases which might arise. The difficulty of construing the rules is not diminished by the fact that members of this Association may include Hindus, Muhammadans, Parsis, Indian Christians, and Jews, and that the laws of inheritance affecting those various communities differ materially, and in the case of a member of the first two communities there may be more than one widow. Rule 13 provides that after the death of a certified broker his card shall be given to his son, and no fee shall be charged over again for the same. That seems to give an absolute right to the son to receive the card irrespective of any provisions the father may have made in his will, and irrespective also of whether the father was solvent or not at the time of his death. Rule 14 deals with the case of there being more than one son and the eldest son already being a member of the Association, and it provides in that event for one of the other sons receiving the card. Then Rule 15 provides that if the deceased broker has no 'child,' which I think must mean son, the card shall be sold to the person to whom the widow of the deceased or the executor wants to sell. But before the sale of the card a written application from that party shall be taken as per rules. If that application is sanctioned by the board, a receipt of the card moneys being received by the widow of the deceased or the executor shall be taken and kept. Then Rule 17 provides :-
If there is no relative of the deceased broker, who can continue the business of that broker, his card shall be sold as per rules of the Association and whatever sale proceeds may be realized in respect of the same, shall be handed over to his widow or other heir entitled according to law.
4. It is certainly difficult to construe those rules and to reconcile Rules 15 and 17. In the present case the sale was, in my opinion, made under Rule 15, and under that rule the proceeds of sale were paid to the widow, and I think it quite clear that they were paid to her as widow and not as executrix, though I am told she is in fact the executrix as well as the widow. However she made no claim to the moneys as executrix, and I think they were paid to her as widow. To my mind the answer to the plaintiffs' claim is that those moneys having been rightly paid to the widow, there is nothing in the rules which makes her accountable for them to the beneficiaries under her husband's will. No doubt some difficulty is introduced under Rule 15 by the reference to an executor. Mr. Taraporewala admits that if the executor receives the moneys, he cannot hold them for his own benefit, but he contends, reading Rules 15 and 17 together, that the executor would hold them in trust for the heir-at-law and not for the beneficiaries under the will; because he argues that the rules did not contemplate creditors of the deceased member getting hold of the proceeds of sale, and if the executor were to hold the proceeds as part of the testator's estate, creditors would be entitled to be paid before beneficiaries under the will. Mr. Taraporewala, therefore, contends that the executor would hold the moneys in trust for the persons who would be the heirs of the deceased member as upon an intestacy, but not as part of the estate. On the other hand Mr. Daphtary for the appellant contends that the executor would hold the moneys as part of the estate, and he argues that if the executor would so hold the moneys, the widow, if she receives them, must also hold them as part of the estate. I do not think it is necessary to express any opinion as to the character in which the executor would hold the moneys if paid them under Rule 15. When that case arises, the executor, if he is wise, will apply to a Court for directions as to how he ought to deal with the moneys paid to him. Dealing with this case simply as one under Rule 15, it seems to me that the moneys were properly paid to the widow, and there is nothing in the rest of the rules which expressly or by necessary implication requires her to account for them to the beneficiaries under the will. We are not considering the case of the heirs of the testator, and I am told in fact the widow is the heir-at-law of the testator. The appellants have got to base their case on being beneficiaries under the will. If the case falls under Rule 15, I do not think that Rule 17 applies, because the sale under Rule 17 is as per the rules of the Association, and if the sale has already been made under Rule 15, it seems to me that Rule 17 has no application. Nor do I think that Rule 19 really assists the appellants. Under that rule the Directors of the Association have to settle the debts of a deceased member to other members of the Association out of the proceeds of the sale of the card and hand over the balance, if any, to the legal heirs of the deceased member. No doubt it may be said to be rather strange if the widow takes the proceeds of sale of the card for her own benefit if there are no debts of the deceased within the Association, but if there is any such debt even for quite a small amount, then the persons to take are to be the legal heirs. I think a good many strange and anomalous results may follow from the indifferent and confused drafting of these rules, and in any case there is nothing in Rule 19 which gives the beneficiaries under the deceased's will a claim to the moneys. On the whole, without expressing either agreement or disagreement with some of the views expressed by the learned Judge in the Court below as to the general effect of these rules, in my opinion, on the facts of this case, the widow cannot be made accountable for the proceeds of sale of this card to the plaintiffs, and that being so, the appeal fails, and must be dismissed with costs.
5. [The rest of the judgment is not material for the purposes of the report.]
6. I agree, and have nothing to add.