MATHURADAS VASSANJI Vs. RAIMAL HIRJI

JUDGEMENT

(1.) One Khetsey Khiasey died at Limbdi in Kathiawar on March 6, 1922. He left a will appointing his widow Bai Vejbai as executrix. Probate was obtained by Bai Vejbai on a petition dated June 13, 1922. In the schedule to the petition the assets were shown as Rs. 55,82,521- 5-4 and the debts as Rs. 36,18,567-2-0, leaving a net estate of Rs. 19,63,954-3-4. The assets were not completely administered by Bai Vejbai, and on her death a petition for double probate was filed on January 6, 1926. The total assets as therein stated were Rs. 27,01,756- 10-3 and the debts Rs. 23,82,153-1-0 leaving the net assets of Rs. 3,19,603-9-3.

(2.) During the time that Bai Vejbai was administering the estate, defendant No. 1, Raimal Hirji, applied to her for payment of a sum due to himself as trustee of an institution (a Jain Boarding School at Palitana) established by the deceased on October 23, 1905. Under the trust deed the trustees were authorised to retain the sum dedicated by the deceased Khetsey Khiasey in the firm of Hirji Khetsey and Co., of which the deceased was the proprietor, and it was so retained up to the time of his death. It, therefore, became a debt due from the firm and consequently from the estate of Khetsey Khiasey on his death. When defendant No. 1 demanded payment of this sum from the executrix he was told that the sum would be paid within six months and requested to wait for that time. In the meantime she pledged the documents of three immoveable properties belonging to the estate by way of equitable mortgage for securing his claim. I believe the plaintiffs evidence as to the circumstances in which the demand for payment was made. I think defendant No. 1 had come to know at that time of the decree for four lakhs (exhibit G) against the estate, and was aware of its having become problematical whether the estate would be able to pay all its creditors in full.

(3.) Subsequently on June 21, 1926, defendant No. 1 brought a suit (No. 1417 of 1926) on this equitable mortgage. A preliminary decree was passed dated July 13, 1926. The decree was made absolute on March 31, 1927.