DINAR RASHID WADIA Vs. KERSY ERUCH LALKALA

JUDGEMENT

(1.) THIS order would dispose of the preliminary objection taken on behalf of the Defendants that the remedy of originating summons in the fact situation of the present case is not the appropriate remedy. The plaintiffs have filed the suit on the following premise.

(2.) THAT, Sir Rustom Jehangirjee Vakil was the adopted son of one Khan Bahadur jehangirjee Pestonjee Vakil and his wife Bai soonabai. The said Rustom Jehangirjee vakil died on or about 1st Nov. 1933, leaving behind him his widow, namely, tehmina, three daughters, namely, the original plaintiffs Nos. 1 and 2 and one Mrs. Gospi Homi Colah,and three sons, namely, jehangir, Percy and Toos. It is not necessary to advert to other factual narrations in the, plaint. Suffice it to mention that the plaint refers to trust deed executed by the jehangir, which makes provision of the beneficiaries. The. trust dated 14th January 1992, (sic) Trust, provides that Rustom jehangirjee Vakil may appoint the beneficiaries of me trust by deed or by will falling which the heirs of Rustom were to be the beneficiaries of the said trust. The plaint proceeds on the assertion that so far as the plaintiffs are aware, the said Rustom did not leave any will or deed making appointment of beneficiaries of the said trust property. Accordingly, it is claimed that the plaintiffs being heirs of the,said Rustom became beneficiaries in respect of the said trust property. It is then asserted that defendants Nos. 6 to 16 have disputed the rights of the plaintiffs and have claimed that the sons of the said Rustom afe the only beneficiaries in respect of the trust property, It is then stated that the claim of the Defendants Nos. 6 to 16 is based on an alleged writing dated 18th nov. , 1924 purporting to be a will of the said rustom. The plaintiffs claim that neither the original writing in Gujarati or a copy of the said writing in Gujarati has been shown to them; whereas the plaintiffs have been given only copy of alleged English translation thereof. The plaintiffs then state that they do not admit the said alleged writing and put the defendants to strict proof thereof. It is then stated that. In any event, the Will is admittedly not probated and hence, the same cannot be reckoned to deny the reliefs claimed by the plaintiffs. It is then stated by the plaintiffs that the alleged writing does not refer to and was never intended to refer to the said property or the trust property and on proper construction thereof, the same applies to some other properties. The plaintiffs, therefore, assert that there has been no appointment of beneficiaries by the rustom In respect of the trust property and that the plaintiffs were the beneficiaries thereof and were entitled to receive a share in the income as per the shares set out in paragraph 11. On the above basis, the present Originating Summons has been taken out for the following reliefs, which were subsequently amended. The amended reliefs of the Originating Summons would read thus :

(3.) THE Defendants Nos. 6 to 17 are objecting to grant of any relief in the Originating Summons. The first objection taken is that the same is barred by limitation. They next contend that several disputed questions have been raised by the parties and cannot be examined is an originating summons. This is the principal question that is required to be considered in the present order. In sofar as the factual matrix is concerned, according to the said defendants, Sir Rustom vakil had executed a Will on 18th Nov. , 1924 and which Will has been acted upon by the concerned and was subject matter in proceedings before this Court in Suit No. 635 of 1934, as well as Suit No. 153/1952 before the Joint Civil Judge, Senior Division at Ahmedabad. It is contended on behalf of the said Defendants that by the said Will, sir Rustom Vakil had bequeathed the salt works at Bassein for the benefits of His son and It also provides that neither his daughter nor any of the relatives would have any right to the said property. On the above assertion, it Is contended that the claim set up by the Plaintiffs that Sir Rustom Vakil has not appointed any beneficiary is the disputed fact. Besides, the existence, even the efficacy, of the said Will qua the suit trust property is also disputed by the Plaintiffs, for which reason, according to the Defendants, these issues cannot be resolved by way of originating summons. In support of this contention, reliance was placed on the decision of this Court reported in 1919 (21)Bom LR 972, in the case of Vithaldas cursondas v. Dulsukhbhai Vadilal. Reliance is placed on the dictum In this Judgment wherein it is observed that an originating summons is not the proper procedure to be adopted where the disputed facts are of such complexity as to involve a considerable amount of oral evidence. It is contended that even in the present case, considerable amount of oral evidence will have to be adduced, for which reason originating summons is not the appropriate remedy. Reliance is then placed on the decision reported in 1969 (71) Bom LR 764 in the case of bhagwandas Ichharam Panchal v. Royal western India Turf Club Limited. In the said decision, reference is made to several other decisions to examine the scope of proceedings in originating summons. More or less, same view is taken that where disputed facts of complexity are involved, the remedy of originating summons is unavailable. Reliance is also placed on the decision reported in 1996 (2) Bom CR 577 : (AIR 1996 Bom 141} in the case of Homi P. Ranina v. Eruch B. Desai; as well as in 1993 (1) Bom CR 267 In the case of Rama Aziz Parpla v. Balkrishna k. Mehta Emphasis Is placed on the dictum in the latter decision, wherein It is observed that originating summons cannot be pressed into service for resolution of conflict of interest or for adjudication of rights and liabilities.