Bombay High Court
Dhanjibhai Bomanji Gugrat vs Navazbai And Ors. on 1 March, 1877
Equivalent citations: (1878)ILR 2BOM75
JUDGMENT Green, J.
1. The 2nd, 3rd, and 5th issues may conveniently be considered together. The plaintiff did not, before the hearing, put in the form of any definite or tangible allegation what the debt of the defendant Mancherji Bomanji to the intestate was. In his plaint he merely says that the said defendant was largely indebted to the intestate. When called upon by summons in chambers to give some particulars of this alleged debt, he professed to be unable to do so. His case, as generally put forward in the first instance at the hearing, was that, at or about the time of the dissolution on the 11th November 1863, of the partnership of Govind Hari Walekar & Co. (in which the intestate, one Govind Hari, and others were partners) the defendant Mancherji Bomanji and Govind Hari (in the name of his infant son Hari Govind) had large transactions in purchasing and shipping cotton together on joint account, the share of Mancherji Bomanji in the capital embarked in such transactions being provided by crediting Hari Govind with certain sums and debiting the same against the large balance of some 80,000 or 1,00,000 rupees due to the father Bomanji Mancherji from the dissolved firm of Govind Hari Walekar & Co.; and that the amount of such sums was to some extent established by the balance of the accounts in the name of Mancherji Bomanji in the intestate's books, viz., Exhibits A, B, and C; that balance, as appearing on such accounts, being, on 20th October 1865, the sum of Rs. 84,540-0-89. The plaintiff, however, does not seek to charge the defendant Mancherji Bomanji with the whole of this sum. He contends that from the sum of Rs. 84,540-0-89 is to be deducted the sum of Rs. 23,505-8-8, appearing, as he contends, by one of the accounts marked D, to have been Mancherji's share of the loss in the transactions on joint account of Mancherji Bomanji and Govind Hari (as Hari Govind), that this share of loss ought to be borne by the defendant Mancherji, or, in other words, is the debt he owes to his father's estate, and that the balance of the Rs. 84,540-0-89 ought to be borne or accounted for by the three brothers, viz., the plaintiff, Framji, and Mancherji, in equal shares. I was unable to understand on what principle the plaintiff arrived at this result, but such as I have given it his contention was in giving his evidence. The plaintiff's counsel in reply, however, contended, and this contention is one that is in itself quite intelligible, that as it appeared from the evidence given on behalf of the defendants that Bomanji Mancherji, in his life-time, dealt for his own purposes with Rs. 75,000 of the balance due to him on account of his share in the partnership of Govind Hari Walekar & Co., viz., by taking shares to that extent in a certain trading company established in 1864 by Govind Hari and others under the name and style of the General Trading Company, and giving credit for that sum, as of 24th August 1864, to the firm of Hari Govind, the liability of the defendant Mancherji to his father was measured by the difference between Rs. 84,540-0-89 and Rs. 75,000, or Rs. 9,540-0-89. This, then, was the final form which the plaintiff's allegation of a debt due by the defendant Mancherji to his father assumed.
2. The defendant Mancherji Bomanji, however, contends that, even supposing (which he denies) that there was any debt at all due by him to his father, such debt was already barred at his father's death, on 15th February 1870, by the Limitation Act. The only dates of the alleged advances by the father, which we have in evidence, are those in Exhibits A, B, and C. Now the last item in date, except interest and balance, to the debit of the account of Mancherji Bomanji in any of those accounts, is under date 1st March 1865, and is described as a cheque for Rs. 5,000 drawn by Maneckji Limji & Co. upon the Chartered Bank and given to Mancherji Bomanji. This would be a claim for money lent, and would be barred by non-suit for three years.
3. All the other debit items (except for interest and balances) in the account, Exhibits A, B, and C, are of dates more than six years before the intestate's death. There is no statement of account and ascertainment of balance with the concurrence of the defendant Mancherji Bomanji alleged in evidence, which might, under the then Law of Limitation, have given a period of six years from the time of stating such account and admission of such balance, so that if we are to consider the balance appearing in the Exhibits A, B, and C, to the debit of the person named Bhai Mancherji Bomanji, to have been sums in truth then due by the defendant Mancherji Bomanji to his father, they had, at the death of the latter, become already barred by the Limitation Act then in force, to say nothing of the period which has elapsed between 15th February 1870 and 8th October 1875, when the plaint in this suit was filed.
4. It was contended, however, on the plaintiff's behalf that the sums standing to the father's credit with the firms of Govind Hari Walekar & Co., or Hari Govind, which the defendant Mancherji Bomanji was, by his father's consent, allowed to have the benefit of in cotton transactions on the joint account of himself and Govind Hari (as Hari Govind), whether they were also debts or not, and whether time-barred or not, ought to be treated as an advancement by Bomanji to his son Mancherji, and ought, under Section 5 of the Statute XXII and XXIII, Car. II, c. 10 (commonly called the Statute of Distribution), to be taken and accepted by Mancherji in lieu of, or, if less in amount than the share, on account of Mancherji's share in the estate of his father, the intestate. By Section 42 of the Indian Succession Act (X of 1865), which came into force on 16th March 1865, it is provided that advancements to a child are not to be taken into account in estimating the distributive share of such child, or the descendant of such child in the estate of a lineal ancestor, thus repealing in effect the provision as to advancement in Section 5 of the English Statute of Distribution. By Section 8, however, of the Parsi Succession Act (XXI of 1865), which came into force on 10th April 1865, it is enacted that certain portions of the Indian Succession Act, and in these is included Section 42, shall not apply to Parsis.
5. The effect of this was, it was contended, that though the whole general scheme of distribution among the widow, children, and representatives of predeceased children, and next of kin of intestates, provided by the English Statute of Distribution, is abrogated, though not expressly repealed, by Act XXI of 1865, in the case of Parsis, yet that the provisions of Section 5 of the Statute of Distributions as to advancement, not being expressly repealed, are still to attach on and limit the scheme of distribution provided for Parsis by Act XXI of 1865.
6. The express abrogation contained in Section 42 of the Indian Succession Act of the English rule as to advancement, founded as it was on Section 5 of the English Statute of Distribution, may have been considered necessary when the scheme of distribution as contained in the Indian Succession Act (and which, though intended to apply to Indian subjects of the British Crown generally, was so intended only after excluding the vast majority of such subjects, viz., Hindus, Muhammadans, and Buddhists) was in substance, though in a developed and expanded form, the same as that provided in the English Statute of Distribution. But it is very difficult to suppose, when a scheme of distribution such as that contained in the Parsi Succession Act, differing as it does in many very essential points from that of the English Statute of Distribution, was being introduced for the regulation of the intestate succession of a particular community, it should have been in contemplation to retain a special branch or limiting proviso of the enactment, the whole basis and substantive provisions of which were being repealed.
7. The only reason I can suppose for excluding, by Section 8 of Act XXI of 1865, Section 42 of Act X of 1865 (which repealed the English rule as to advancement) with other parts of the last-named Act from having application to Parsis, was, either that the rule itself was not considered as applicable to them, and so its repeal, so far as they were concerned, was superfluous; or that it was considered that, by the effect of the scheme of distribution provided for Parsis by Act XXI of 1865, the rule as to advancement would, of itself, fall. But for the express exclusion of Section 42 of the Indian Succession Act from application to Parsis, I should not have felt any doubt that the effect of the Parsi Succession Act of 1865 was to abrogate, so far as Parsis are concerned, the rule as to children's advancements being accounted for in distribution, if, in fact, applicable to them at all, together with the rest of the scheme of distribution established by the Statute XXII and XXIII, Car. II, c. 10; and, for the reasons above stated, I think that Section 8 of the Parsi Succession Act, so far as it excludes the repealing clause, Section 42 of the Indian Succession Act, from applying to Parsis, may be accounted for without supposing it to have been the intention of the Legislature to preserve this rule in force for the Parsi community alone of all the Indian subjects of the Crown. I do not, therefore, consider it necessary to discuss the cases cited by the learned Counsel for the plaintiff, in reference to the question of advancement, viz., Gilbert v. Wetherell (2 Sim. and St., 254), Auster v. Powell (1 De G.J. & Sm., 99) and Boyd v. Boyd (L.R., 4 Eq., 305); though, had I considered the rule as to advancement applicable to Parsis, the cases would have had a material bearing on the present suit.
8. In regard, however, to two other cases, viz., Courtenay v. Williams (3 Hare, 539), and In re Cordwell's Estate (L.R., 20 Eq. 644), cited by the same counsel, it is still necessary to consider the question whether the plaintiff has established that there was a debt, whether presently and without an account taken ascertained or not, due by the defendant Mancherji Bomanji to his father. The former case shows that in an administration suit an executor may retain so much of a legacy as is sufficient to satisfy a debt due from the legatee to the testator, though the remedy for such debt was, at the time of the testator's death, barred by the Statute of Limitation, XXI, Jac. I, c. 16; and the latter case shows that one of the next of kin of an intestate, and, as such, entitled to a distributive share in his estate, can, in an administration, require payment of such share from the administrator only after such next of kin has discharged any obligation he may be under to the estate, and that even though the remedy for recovering such obligation may have been barred to the estate. The question, then, requires a decision, whether or not the defendant Mancherji was, in fact, a debtor to his father.
9. The learned Judge having reviewed the evidence at considerable length as to the transaction with Govind Hari, in respect of which the plaintiff contended a debt by the defendant Mancherji Bomanji to the estate of his father, the intestate, had arisen, came to the conclusion that though in the said transactions the name of the defendant Mancherji Bomanji (the son of the intestate) was used, as also was that of Hari Govind (the infant son of Govind Hari), yet that the transactions, so far as the defendant Mancherji Bomanji was concerned, were not really his, but transactions of his father, the intestate, and that there was no debt in fact due by the defendant Mancherji Bomanji to the estate of the intestate. This being so, the Court proceeded to pass the ordinary administration decree, but directed that the plaintiff should bear his own costs and pay the defendant's costs of the hearing, except those of the first day, and also all other costs of the suit occasioned by the introduction into the plaint of the matters the subject of the five issues, and reserved the question of the costs of the suit not provided for as aforesaid, and further directions.