SIR JAMSHEDJI JEEJIBHOY BART Vs. SORABJI BYRAMJI WARDEN

JUDGEMENT

(1.) THIS is an appeal by the representatives of the original plaintiff in a suit to enforce a mortgage by deposit of title deeds. The suit was brought on the original side of the High Court of Bombay on January 7, 1936, by an old lady named Jaiji Hirjibhoy Parekh. Her daughter Meherbai had married one Byramji Hirjibhoy Warden, father of the defendants. Byramji had died on October 26, 1924, leaving a will whereby he had appointed the defendants, his four elder sons, to be his executors. Probate had been granted to them in 1925.

(2.) BY his will dated October 6, 1922 (codicil of August 19, 1924), BYramji declared (cl. 11) that his immoveable properties were generally mortgaged and that it would take a long time before they could be sold at the best price after paying the mortgage debts. He accordingly authorised his executors to postpone the sale for any period not exceeding five years from the date of his death. He referred (cl. 12) to the fact that Bai Jaiji (the plaintiff) and a number of other persons held his promissory notes, stating that he ordinarily renewed them yearly or at longer intervals and paid them interest monthly or at times at longer intervals. He directed that the amount due to these creditors should be paid with interest by his executors and he authorised his executors to renew these notes with interest. After making provision for his daughters, for a fifth son named Rustomji and for certain other persons, he directed that at the end of seven years after his death the residue of his property should be divided into four equal parts, each part to be held in trust for one of his four elder sons (the present defendants-respondents) for life and on such son's death for his children.

(3.) THE evidence called at the trial has little bearing upon the true construction) of the memorandum of August 10, 1928. THE second defendant, Hirjibhai, who appears to have been the most active of the executors, gave evidence that he had advanced some money for paying off debts of thee estate, that several creditors had been paid off chiefly out of monies of the estate, that some legacies had been paid cut of monies advanced by him including; a legacy left to one of his sisters which was paid on her marriage. He stated that the promissory notes held by Bai Jaiji carried interest at six per cent. with quarterly rests and that these had been handed over to him at the time of the mortgage transaction of August 10, 1928, and destroyed. He-admitted that the income of the property in suit was collected by him after the granting of the mortgage on August 1.0, 1928, just as before. His evidence is that whatever might have been thought possible at the date of his father's death in 1924, by 1928 he had no longer any hopes of taking anything by the residuary legacy, since the utmost that could then be expected was that the debts of the estate might be cleared if land values improved. THE only other witness called by the defendants was the solicitor who drew up the memorandum of August 10, 1928. He stated that he did so on the instructions of the second defendant who wanted to protect his grandmother, but that he did not himself see or consult the lady nor were any instructions taken by him from her though the second defendant was in communication with her throughout. Bai Jaiji herself gave evidence giving her age as ninety years: she said that Byramji had paid her the interest in his lifetime but that after his death the second defendant had not done so in spite of demands but had asked her to wait two years. She denied that she had handed over to him the promissory notes.