MAHADEO RAMCHANDRA Vs. DAMODAR VISHWANATH

JUDGEMENT

(1.) THIS is an appeal by plaintiff No. 2 for himself and as an heir of plaintiff No. 1 and ft arises out of a judgment and decree passed by the learned Assistant Judge. North Satara, in Civil Appeal No. 368 of 1951 which in its turn arose out of civil suit No 228 of 1949 on the file of the Court of Third Joint Civil Judge, Satara.

(2.) THE abovementioned suit No. 228 of 1949 was filed by two plaintiffs Ramchandra and Mahadev who were father and son. It was filed for the recovery of certain documents or scripts which were specified in the schedule annexed to the plaint. Defendant No. 1 is Mr. Damodar Vishwanath Gokhale, who is a journalist of Poona, and defendant No. 2 is a limited company of the name of "western India Trustee and Executor Company Ltd. " with its head office at Satara. It may be noted that after the judgment in the suit was pronounced by the trial Court, plaintiff No. 1 Ramchandra died. Plaintiff No. 2 is his heir and legal representative and the present appeal is prosecuted by plaintiff No. 2 both for himself and as an heir and legal representative of plaintiff No. 1.

(3.) ONE Abajee Washikar had two sons Ram chandra and Gopal Ramchandra had two sons Ganesh and Mahadev. Mahadev is plaintiff No. 2. Gopal died several years ago. During his life-time Gopal had given away his share in the property to his nephew Ganesh. Ganesh was a medical man and he was a licentiate of the College of Physicians and Surgeons. Bombay. Ganesh put in several years service in Africa whereafter ho returned to India and took up residence in Poona. During the declining years of his life. Ganesh was in the service of the Poona Municipality. On the 6-8-1942 Ganesh made a will and appointed the first defendant Damodar Vishwanath Gokhale as the sole executor under the will. On the 10-84042, Ganesh executed a codicil making certain changes in the will. Ten days thereafter, on the 20-8-1942. Ganesh died at Poona. On the 4-7-1945, the first defendant obtained a probate of the will of Ganesh from the District Court at Poona. After obtaining the probate, the first defendant administered the properly of Ganesh and gave certain legacies to the legatees mentioned in the will. One of the legatees was the first plaintiff Ramchandra himself. Under the will a bequest of a house and certain cash was made in favour of the first plaintiff. That bequest was carried out by the first defendant after obtaining the probate of the will. The testator (Ganesh) by his will made a certain disposition of his residuary estate and it is that disposition which has become the subject-matter of the present litigation. Before the suit was filed by the plaintiffs, the first defendant executed a deed of trust in respect of the residuary estate of Ganesh, and the trust was made in favour of the second defendant. By this deed of trust, the first defendant handed over to the second defendant a Government promissory note of the value of Rs. 10,000 /- and cash amounting to Rs. 1000/ -. These were handed over to the second defendant for being passed on to the Poona University for establishing a scholarship to be given to a student who would head the list of successful candidates at the second M. B. B. S. examination of the University of Poona. The first defendant also handed over certain documents and scripts of the value of Rs. 1225/- to the second defendant, so that the interest on the abovementioned amount might be handed over every year to an institution of the name of Anath Vidyarthi Graha for being spent annually on the Shradh of the testator Ganesh. After the property of the testator was disposed of in the manner stated above by the first defendant, a notice was given by the second plaintiff on 16-5-1949 to the second defendant, calling upon the second defendant to refrain from dealing with the funds which were handed over to it by the first defendant, The second defendant was asked to hand over the abovementioned amounts to the second plaintiff, as the contention of the plaintiff was that the disposition of the residuary estate of the testator as made by the testator by his will, was void for uncertainty and it offended against the "principles of justice, equity and good conscience". After giving the notice, the present suit was filed by the plaintiffs on the 6th June 1949 asking for the return of the documents and scripts stated in the schedule to the plaint from the second defendant. It is to be noted that in the plaint the only relief which was sought by the plaintiffs was in respect of the documents and scripts mentioned in the schedule annexed to the plaint.