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In Re Adarji Mancherji Dalal - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMumbai
Decided On
Judge
Reported in(1931)33BOMLR576
AppellantIn Re Adarji Mancherji Dalal
Excerpt:
.....sassoon (1897) i.l.r. 21 bom. 673 and lord sudeley v. attovney general [1807] a.c. 11, followed.;section 250 is silent about the subsequent or ultimate devolution of property of which the deceased was a trustee. it applies even if the estate of the deceased derives benefit from the trust property.;where a partnership estate stands in the name of a partner the latter is a trustee of that estate or property for the partnership. - - certainly in cases in which the deceased had no beneficial interest in the property on his own account, a limited grant may issue, if the other conditions in the section are satisfied. 9. the third argument of the advocate general was that this is a case in which, if probate was applied for by the executors, they would have bad to pay probate duty. 11. costs..........any partnership estate stands in the name of a partner, the latter is a trustee of that particular estate or property for the partnership. if any authority is necessary, reference may be made to section 88 of the indian trusts act. the position, therefore, is that the policies were partnership property. they stood in the name of the deceased and the deceased was a trustee thereof for the benefit of the partnership.7. a very elaborate argument has been addressed by the advocate general as to the consequences which may happen if i accepted the contention of the petitioner. i may point out that i am not concerned with the consequences of any order which i may make. the only question with which i am concerned is whether the facts of the case fall within the purview of section 250. his first.....
Judgment:

Rangnekar, J.

1. This is an application by one Adarji Mancherji Dalal for letters of administration limited to two policies standing in the name of the deceased Ratanji Mancherji Dalal. [After dealing with points not material to this report, his Lordship proceeded.]

2. The facts in this case are that the petitioner and his brother Ratanji were carrying on business in partnership at various places, and in the course of such business had acquired considerable property for and on behalf of the partnership. Ratanji died leaving a will by which he appointed three executors, one of them being the petitioner himself. All the executors have renounced, and therefore, it follows that there is no general representative of the estate left.

3. The evidence before me shows that in the course of the partnership business, the partners effected insurance on their own lives and obtained certain policies, some in the name of the deceased and others in the name of the petitioner. There is no doubt on the materials before me, which have not been challenged by the Advocate General, that the account in respect of these policies and the premia payable was a partnership account, and not the individual account of the partners. Then in the will itself the testator has described these policies as being partnership property. The entry showing that these are partnership properties is in the handwriting of the deceased. Therefore, I have no hesitation in coming to the conclusion that these policies were partnership assets, effected no doubt on the lives of individual partners, but for the benefit of the partnership. And this position is not challenged, and cannot be challenged.

4. That being the position, the only question is whether the present case comes within Section 250 of the Indian Succession Act. That section runs as follows:--

Where a person dies, leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to such property, may be granted to the beneficiary, or to some other person on his behalf.

5. Therefore, in cases in which the deceased was the sole or surviving trustee and left no general representative, or one who is unable or unwilling to act, letters of administration limited to such property may be granted. Certainly in cases in which the deceased had no beneficial interest in the property on his own account, a limited grant may issue, if the other conditions in the section are satisfied.

6. The only question, therefore, is whether the application falls within Section 250. Now, under the law it is clear that even if any partnership estate stands in the name of a partner, the latter is a trustee of that particular estate or property for the partnership. If any authority is necessary, reference may be made to Section 88 of the Indian Trusts Act. The position, therefore, is that the policies were partnership property. They stood in the name of the deceased and the deceased was a trustee thereof for the benefit of the partnership.

7. A very elaborate argument has been addressed by the Advocate General as to the consequences which may happen if I accepted the contention of the petitioner. I may point out that I am not concerned with the consequences of any order which I may make. The only question with which I am concerned is whether the facts of the case fall within the purview of Section 250. His first argument was that under the section it was necessary that the deceased must have no beneficial interest in the property of which he is also a trustee. But in the end he gave up that position, and rightly too, because that position cannot be maintained having regard to the authorities to which my attention has been drawn by the learned counsel on behalf of the petitioner, viz., In the goods of Sir A.A.D. Sassoon ilr (1897) 21 Bom. 673 and Lord Sudeley v. Attorney-General [1897] A.C. 11, Apart from these cases, the position in law is very clear. No partner can be said to have any beneficial interest in any particular estate or property until the partnership is wound up and accounts taken. And it is in evidence that this particular partnership was not wound up till the death of the deceased. Therefore, until the death of the deceased he was a trustee of the policies which stood in his name on behalf of the partnership, and it is clear that he would not have been able to make any beneficial use thereof for himself or to assign them to his heirs.

8. Then the next argument, as I understand, is that this section can only apply if the estate of the deceased does not derive any benefit from the particular property, and if the estate of the deceased derives such benefit from the property, then the section cannot apply. I am unable to accept this contention also, because it comes to this that if a person is a trustee within the meaning of the section up to the time of his death, he would cease to be a trustee if after his death his heirs are likely to derive benefit out of the property of which he was a trustee. Nothing is said in the section about the subsequent or ultimate devolution of property of which the deceased was a trustee.

9. The third argument of the Advocate General was that this is a case in which, if probate was applied for by the executors, they would have bad to pay probate duty. Apart from the fact that this question does not arise on the present application, Section 19D of the Court-fees Act is a complete answer to that argument.

10. I, therefore, hold that the deceased was a trustee within the meaning of Section 250 of the Indian Succession Act, and the petition must be granted, subject to this, that before any grant issues the petitioner will put in renunciation of Cursetji Dalal.

11. Costs of the Advocate General as well as of the petitioner to come out of the estate. Those of the petitioner as between attorney and client. No probate duty to be charged. Counsel certified.


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