NEMTULLA TYEBALLI Vs. SAFIABU ALLIBHAI

JUDGEMENT

(1.) This appeal arises out of regular civil suit No. 191 of 1915, which has had a somewhat chequered career. It was an administration suit, filed in 1915, for the administration of the estate of one Tyeballi, who died in 1912, and his father Alibhai, who died in October, 1909. The suit went on, and a preliminary decree was passed in March, 1924. There was an appeal against that decree which was heard by Marten C. J. and Crump J. The appeal was lodged by the present defendant No. 7, who is now one of the respondents before us, and it was dismissed. But cross-objections had been put in by defendant No, 3 and these were considered by the learned Chief Justice, who said :- As regards the cross-objections, they are based on the allegation that defendant No. 3, Namtulla, never assigned her interest to defendant No, 7, Safiabu. The objections bear date March 16, 1925, but do not seem to have been formally admitted till February 17, 1927. It is consequently rather startling to find this claim put forward, seeing that in the judgment of the learned Subordinate Judge, Mr. Kharkar, on September 15, 1923, it was stated as a matter of fact And Safiabu has already bought off, out of Court, the interest of defendant No. 2 Kurban Hussein and his sisters by paying him Rs. 24,000 . Similarly at the further hearing Mr. Desai on March 17, 1934, stated, Safiabu has since managed to buy off the interest of this defendant No. 2 (and his sisters) for Rs. 24,000 as stated in the judgment, exhibit 276, and she accordingly now represents the interest not only of the original defendant No. 1, her mother, but also of defendants Nos. 2 to 5. How the pleader representing the defendant No. 3 allowed those statements to remain unchallenged and the decree to be passed accordingly is not apparent to us. Mr. Thakor, however, has explained that the decree in the matter is not signed by defendant No. 2's pleader, who had admittedly died, and this is the answer to the learned Chief Justice's query. In consequence of these circumstances the learned Chief Justice thought that the best course would be to dismiss the main appeal, and to direct that as regards the share of Namtulla, defendant No. 3, there is to be an enquiry as to whether she has assigned it to defendant No. 7.

(2.) Matters accordingly went down to the lower Court and the learned Subordinate Judge, Mr. Desai, framed two issues. He found that the deed of assignment relied on by defendant No. 7 was not admissible in evidence for want of registration, and that it was not open to defendant No. 7 to adduce any secondary or extrinsic evidence of such assignment. He decided consequently that there had been no valid assignment of defendant No. 3's share of 17/144ths of (b) and (c) properties referred to in the decretal order, which she should recover from the administratrix on payment of the appropriate amount of Court-fees, and that defendant No. 7 should take the remainder after deducting the shares, not only of plaintiff and defendant No. 6, but also of defendant No. 3, as representing the interests of defendant No. 1 and of defendants Nos. 2, 4 and 5 only. This finding came up to this Court in appeal and was disposed of by a Bench of which I was a member. We observed that the learned Chief Justice's judgment, with the issues sent down to the learned Subordinate Judge for a finding, had been treated much too narrowly, and that what should have been done was to hold an enquiry as to whether there had been an assignment, that is, an assignment at law or in equity, by defendant No. 3 to defendant No. 7. The issue was accordingly remanded back to the lower Court. It has now been returned for the second time, the finding being that defendant No. 7 is entitled to receive the original share of defendant No. 3 in the estate of her father Tyeballi and her grandfather Allibhai, on payment of Rs. 12,000 within three months from the date of the finding.

(3.) The learned Subordinate Judge held that there was no assignment in law, but that on the strength of certain rulings, which he has quoted, defendant No. 7 can resist defendant No. 3's prayer for being put in possession of her share, and referred to Venkatesh Damodar V/s. Mallappa Bhimappa (1921) I.L.R. 46 Bom. 722, and the Privy Council case of Skinner V/s. Skinner (1929) 32 Bom. L.R. 1 P.C. was, he thought, inapplicable. In the end he said that on the equitable doctrine of part performance defendant No. 7 was not entitled to remain in possession and she cannot claim the equitable relief of being allowed to continue in possession of the share of defendant No. 3 without paying the sum agreed on, on the ground that he who seeks equity must do equity, . Holding, therefore, that there had been an assignment in equity, though not at law, by defendant No. 3, of her share to defendant No. 7, he found that defendant No. 7 was entitled to receive the original share of defendant No. 3 in the estate of her father Tyeballi and grandfather Allibhai, on payment of Rs. 12,000 within three months.