CLEMENT SARGON Vs. MABEL SARGON

JUDGEMENT

(1.) 1. This appeal arises out of a suit for the administration of the estate of the late M.M. Sargon who died intestate at Jubbulpore on 15th August 1927. The suit was filed by Clement Sargon, a son by his first wife, who is the appellant in this Court. The defendants were Mabel Sargon, the third wife of the deceased; William' and Michael Skerrett Sargon, sons of the deceased by his second wife; Bertha Sargon, the wife of William and the daughter of Mabel Sargon by her first husband; Terence and Eric Sargon, the sons of his deceased son Percy Lionel by his first wife; and the Administrator-General and Official Trustee of the United Provinces to whom letters of administration of the estate have been granted.

(2.) THE estate consisted mainly of about Rs. 26,000 in Government bonds, post office cash certificates, savings bank deposit, and a fixed deposit in the Allahabad Bank, Jubbulpore; jewellery worth about Rs. 2,000; furniture worth about Rs. 1,000; and some shares in the British-Burma Petroleum Co. which have a face value of about Rs. 2.600 but have, I am informed, practically no market value. The disputes relates mainly to the item of Rs. 26,000 and the jewellery, which Mrs. Mabel Sargon claims is her own property and forms no part of the estate of the deceased. The money invested in Government bonds and post office cash certificates and deposited in the Allahabad Bank or in the savings bank was recorded in the joint names of Michael and Mabel Sargon payable to either or survivor." Mrs. Mabel Sargon claimed that this money and jewellery had been given to her by the deceased. As stated by their Lordships of the Privy Council in Guran Ditta v. Ram Ditta AIR 1928 PC 172 (at p. 950 of 55 Cal.): The general principle of equity, applicable both in this country and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. An exception has however been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in the name of a wife, or where a deposit is made, in the joint names of both husband and wife.

(3.) THE defendants denied that the grandfather of the plaintiff was a Jew and alleged that the deceased Michael Sargon was an Anglo-Indian and as such a statutory Indian. It was admitted before me in the course of argument that the parties are of mixed European and Indian descent, professing Christian faith and domiciled in India, and the concurrent finding of the lower Courts that the deceased, M.M. Sargon, was an Anglo-Indian is clearly correct. Under Sections 5 and 6, C. P. Laws Act, 1875, the Courts in deciding questions such as the one now before me, shall act according to justice, equity and good conscience, and it was held by their Lordships of the Privy Council in Waghela Rajsanji v. Masludin (1887) 11 Bom 551 (PC), that equity and good conscience are generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. In Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 MIA 53, their Lordships held that the presumption of advancement could not be applied when the parties were Hindus on the ground that benami purchases in the names of children, without any intention of advancement, are frequent in India. Again in Uzhur Ali v. Mt. Bebee Ultaf Fatima (1869) 13 MIA 232 they remarked: Of course we cannot apply to the decision of this case, which is one between Mahomedans, any of the reasons which in the judgment delivered at this Board in that case (Gopeekrist's case), are drawn exclusively from Hindu law. It is however perfectly clear that in so far as the practice of holding lands and buying lands in the name of another exists, that practice exists in India as much among Mahomedans as among Hindus. and they went on to hold that there was no presumption of advancement amongst Mahomedans. They gave decisions to the same effect in Lakshmiah Chetty v. Kothandarama Pillai and in Guran Ditta v. Ram Ditto, AIR 1928 PC 172, in both of which the parties were Hindus. In Kerwick v. Kerwick AIR 1921 PC 56, where the parties were husband and wife born in India of English parents who had resided in India all their lives except for a visit to England occasionally, their Lordships held that the principles and rules of law which would be applicable to the case if it were tried in a Chancery Court in England were applicable to it when tried in Rangoon and there would be a presumption of an intended advancement which might be rebutted.