DWARKADAS DAMODAR Vs. DWARKADAS SHAMJI

JUDGEMENT

(1.) This appeal comes before us on a judgment of Mr. Justice Macleod upon an originating summons for the purpose of deciding certain questions with regard to a settlement executed by one Hakoobai on the nth of December 1873. The summons was taken out by one of the trustees of the settlement who also claimed to be a beneficiary entitled to the trust property in the events that had happened. The other parties to the summons were the other trustees and all persons who could conceivably be supposed to be interested as the heirs of the settlor or her daughter Gomtibai.

(2.) The question concerning the plaintiff s beneficial interest was raised in the plaint in these terms:- The plaintiff says that he was born at the date of the said indenture and is the nearest heir of the said Gomtibai according to Hindu law, capable of taking any benefit under the said indenture, and submits that under the terms of the said indenture and a true construction thereof the plaintiff has become absolutely entitled to the aforesaid trust property.

(3.) The plaintiff was represented in chambers upon the summons and had his case fully argued by Mr. Setalvad, but after argument it was decided against him by the learned Judge; and having regard to the fact that the matter has been fully considered and that no appeal has been preferred on behalf of the plaintiff, we must take it that the question of his interest is finally settled against him. That question having been settled by the learned Judge, there remained for decision Question 8 : "In the events that have happened, who is the person entitled to the property." It was conceded by all the parties to the summons except the unsuccessful plaintiff that in the events that had happened, there was an intestacy and a resulting trust in favour of the settlor. Then the question arose who were or was the heirs or heir of the settlor entitled to take the property. On the one hand it was contended that the heir of the settlor at the time of her death was Gomtibai, her surviving daughter, and that since Gomtibai was dead at the date of the summons, her children, the respondents, were entitled to the property. On the other hand, the tenth defendant claimed that the heir of the settlor could not be ascertained until the extinction of the beneficial interests which were validly created under the settlement, and that at the date of such extinction he was the nearest heir of the settlor.