JAMASJI HORMASJI BAHADURPUR WALA Vs. JAMESTJI HORMASJI BAHADURPURWALA

JUDGEMENT

(1.) THIS is a first appeal arising in Original Suit No. 43 of 1913. It was a suit filed by the plaintiffs to whom Letters of Administration of the estate of one Hormasji Hiraji had been granted for the administration of the suit property by ascertaining the right, title and interest therein of the parties. The Judge has made a list of the properties distributable among the heirs of the deceased Hormasji. He has also declared the shares to which the different sharers are entitled, and has given various other directions. In this appeal we are only concerned with two contentions raised by the plaintiffs, first, with regard to the expenses of the, marriage of Alabai, the daughter of Jamsetji, and, secondly, with regard to the amount paid by the plaintiffs as Administrators to one Framji, alleged to be a creditor of the deceased. The earned Judge has only allowed Rs 4,000 out of Rs. 10,910, for the actual expenses of Alabai's marriage: and, although the testator directed that all the marriage expenses should be paid out of the estate, we do not think the Administrator was entitled without the authority of the Court to spend for Alabai's marriage practically 1/3 of the estate, and we are quite sure that that was never intended by the testator when he drew his Will. What he meant was that all reasonable expenses should be paid, and 1/3 of the estate was unreasonable. If the plaintiffs wished to pay so much then they ought to have sought the direction of the Court with the consent of the other party concerned.

(2.) WITH regard to Rs. 7,000 which the plaintiffs claimed to be allowed in their accounts as having been paid to Framji who filed a suit against Jamasji and Jamsetji as the heirs of Hormasji, the Judge has disallowed the amount of Rs. 7,000 which was paid by Jamasji in settlement of Frame's claim. It is true that the, testator said in bib Will that he had no debts. But Framji did produce accounts of dealings between himself and the deceased; and it is difficult to believe that those accounts were fictitious. We do not think it is suggested that there were no dealings whatever between Framji and the deceased, and as the suit was filed against both the sons as his heirs, Jamsetji was perfectly well aware that the suit had been settled by the payment of Rs. 7,000. It would have been better if Jamsetji had got entered in the terms of settlement that Rs. 7,000 were to be paid out of the estate of the deceased. But as he was sued as an heir and as he was an Administrator, it would equally follow that the money paid in settlement would be coming out of the estate of the deceased. Jamsetji took no exception to the settlement. He was only concerned to get his costs on the ground that he had unnecessarily been made a party. The other sharers in the estate had no disputed this payment; and although the question did not actually fall to be decided in certain proceedings which were taken by the 1 defendant for a revocation of the fetters of Administration, the lower Court did go into this question, and the Commissioner and the Judge found that the debt was due by the deceased. We are perfectly well aware that on appeal to the High Court the learned Judges then said that the question with regard to this Rs. 7,000 was perfectly open, and we have dealt with it as such, but it is certainly pertinent to remember that in 1913 when this question was before the Commissioner and the lower Court, they considered that the payment was justified. We think, therefore, that with regard to Rs. 7,000 the appeal must be allowed and the plaintiffs must be allowed credit for that amount in their accounts. The case must go back then to the lower Court for the order to be amended in accordance with our judgment. The parties to pay their own costs of this appeal.