RAICHAND DHANJI Vs. JIVRAJ BHAVANJI

JUDGEMENT

(1.) One Ratansi Velji died in Bombay in or about the year 1910 leaving him surviving Champubai, the widow of his predeceased son Bhawanji, Jivraj, son of Bhawanji, being defendant No. 1 herein, and one Khetbai daughter of Bhawanji, who has been sometimes referred to as Benbai. Champubai died on or about July 17, 1912. Khetbai was married to the plaintiff in or about the year 1920 and she died childless in the year 1922. Defendant No. 3 is the wife of defendant No. 1 in suit. Ratansi left a will dated July 30, 1910, of which he appointed one Devraj Tokersey, defendant No. 2, and the said Champubai as the executor and executrix thereof. Devraj Tokersey died in or about the year 191-2. On the death of Ratansi his daughter-in-law Champubai entered into possession and management of Ratansi's estate without obtaining probate of the will or any representation to the said estate. On the death of Champubai in the year 1912 defendant No. 2 as the sole surviving executor of the will of Ratansi entered into possession and management of the estate, and on or about July 16, 1923, he handed over all the estate which had come into and remained in his possession to defendant No. 1, and obtained from him a release and indemnity

(2.) On July 28, 1924, the plaintiff as the heir of his deceased wife Khetbai filed this suit for the administration of the estate of Ratansi and to have the share and interest of Khetbai under the sail will in her own right and also as the heir of her mother Champubai ascertained and determined. He further prays for a declaration that he is entitled to certain ornaments which he says Khetbai was entitled to both in her own right and as the heir of Champubai. It is alleged by the plaintiff that some of the ornaments belonging to Champubai are at present deposited in a cubicle in the Bombay Safe Deposit Company Ltd. in the joint names of defendants Nos. 4 and 5, and these defendants have been impleaded in the suit as the key of the cubicle was lying with them, and they had at first declined to hand over the same to the receiver. Since then under a consent order dated March 30, 1925, the key of the cubicle was handed over to the attorneys for defendant No. 4 with liberty to the parties to have an inventory made of its contents.

(3.) Defendant No. 1 contends that the suit is not maintainable without representation to the estate of Ratansi Velji, and that Ratansi had in the first place no right to make the will as the property dealt with by him was ancestral. Defendant No. 1 further says that he was a minor at the date of the death of his grandfather, but had attained majority in the year 1920, and that in the year 1923 defendant No. 2 as executor handed over the whole of the estate consisting of a sum of Rs. 18,000 in cash, Government Promissory Notes of the face value of Rs. 9,000, and certain ornaments to him as the sole residuary legatee under the said will. Defendant No. 1 contends that whatever ornaments have been handed over to him belong to him absolutely. Defendant No. 2 has also put in a written statement in which, apart from his primary submission to the orders of the Court as executor, he says that he came into possession of the estate of Ratansi on the death of Champubai. As such he came into possession of certain ornaments which he believed belonged to the estate of Ratansi. Some of the ornaments were given to Bai Khetbai at the time of her marriage with the plaintiff, and the rest of the ornaments were handed over to defendant No. 1 at the date of the release, as admittedly no claim had been made either by Bai Khetbai or any one on her behalf to any of the remaining ornaments until about the time when this suit was filed. Defendant No. 2 has further stated in his written statement that he never came into possession of any ornaments presented or gifted either to Khetbai or Champubai in the lifetime of Ratansi or handed over to Champubai on any trust as alleged by the plaintiff. Defendant No. 8 is the wife of defendant No. 1 and she supports all the allegations and contentions of defendant No. 1 except in so far as they or any of them may be contrary to or inconsistent with her claim against her husband in suit No, 2437 of 1924. Defendant No. 4 submits to the orders of the Court, Defendant No. 5 is dead and her name has been struck off.