MANCHERSHAW S NARIELWALLA Vs. ARDESHIR SNARIELWALLA

JUDGEMENT

(1.) At the close of Mr. Raikes opening argument it appeared to me pretty plain that he would fail unless he could make out a valid gift. 1 therefore suggested one or two extreme hypothetical cases which might warrant some enlargement of the principle on which the English rule is founded. But Mr. Raikes candidly said that he doubted whether he could press that side of the case, and a cursory study of the authorities showed that he was right. The question thereiore which I am now to decide is in its final form a narrow question, but it presents more than one difficulty. To make it perfectly clear and intelligible, let me state the facts, out of which it arises.

(2.) On the 7 September 1892 one shapurji Sorabji Narielwalla purported to make a gift of Rs. 75,000 to his wile Virbaiji on her recovery from a dangerous illness. This gift, or intended gift, is manifested by two book entries of that date, a debit and a credit entry in the cash book. The material words of the debit entry are "given as a gift to Bai Virbaiji." The material words in the credit entry are "on account as follows; Sheth Shapurji Sorabji Narielwalla gave the amount as a gift to you, the same is credited." Both are initialled by Shapurji. There is no dispute about them. They are admitted. Then the Mehta appears to have transferred this item from the cash book to Bai Virbaiji's current account. There the money would have carried the usual rate of interest, ninepercent. That was in the ledger. Shapurji saw this and ordered it to be cancelled. An entirely new account of this Rs. 75.000 was accordingly opened, see Ex. 29. It bears no date, but it is of the same year 1892. Then there is Ex. 30 which completes or appears to complete the correction made in Ex. 29. This is not dated either but is of the year 1892, and starts a fresh account in the ledger referring to Exs. 1, 2 in the cash book. All these entries are undisputed. It is to the noted that not till after the death of Shapurji is any interest credited to Virbaiji on this large sum; after his death, she is allowed interest at the very unusually low rate of three quarters per cent.

(3.) Next there is a disputed fact, the oral announcement by Shapurji to the assembled family of the gift. Defendents allege that the day after the cash book entries, Shapurji, called all the adult members of the family together by his wife's bedside, and told them that he had given her Rs. 75,000 as a gift to celebrate her recovery. The defendants evidence on this point, has been severely criticised by Mr. Lowndes. But while making every allowance for the imperfections on which Mr. Lowndes dwelt I am satisfied, taking the evidence as a whole, that something of the kind did occur. I have no doubt that whether the announcement was made quite as solemnly and formally as Ardeshir and Shirin now swear that it was, some announcement of that kind was made. It is just what we should expect. The head of a family intending to make a commemorathe gift of this sort on an occasion of family rejoicing, would naturally wish to communicate it to all the members of the family. And while the only two direct witnesses are Ardeshir and Shirin, there is much in the rest of the evidence showing that all the family were perfectly aware that the gift had been made, to the extent at least of entries 1, 2. in the cash book. I do not believe, however, that even if Shapurji did call the family together and tell them that he had given Virbaiji Rs. 75.000, he added, as Shirin says that he did, any statement about the rate of interest the gift was to carry. That strikes me as evidently an afterthought. Nor do I attach very much importance to this alleged solemn oral ratification of the cash book entries, in the presence of all the adult members of the family. Whether it really did take place or not, it seems quite certain that in that or some other way, all the adult members of the family knew what was in Shapurji's mind, and knew that there were those entries in the cash book. These then are the material facts, undisputed, or if disputed found by the Court, upon which I have to find an answer to the question.