HARIRAM SEROWAGEE Vs. MADAN GOPAL BAGLA

JUDGEMENT

(1.) The appellant claimed certain sums held at her death by Brijcomari, the widow of a banker and moneylender in Calcutta, Rangoon and elsewhere, named Bhagwandas Bagla, who was an Agarwalla Jain. He is the only son and youngest child of Mahadevi, deceased, a grand- daughter of Bhagwandas and Brijcomari, and the respondents are the surviving executor and the residuary legatee under Brijcomari's will. It is undisputed that, under the Mitakshara law as modified by the customs and usages of the Agarwalla community relating to stridhan, the plaintiff is now entitled to whatever belonged to his mother Mahadevi during her lifetime. Originally the action was brought for an account, but at the trial this was abandoned and the plaintiff elected to rely only on his claim for sundry specific items, The defendants subsequently agreed to this course being taken, relinquishing also any claim to any set-off or account on their side. For several of the relevant, years Brijcomari's books of account were not forthcoming, having been, it was said, lost in a riot or consumed in a fire. This may have deprived the plaintiff of useful evidence and the defendants of circumstances proving a discharge. At any rate the matter rests there, as it was not held that the defendants had made away with the books. The entries relating to Mahadevi were such as might be inserted in a day book and cash book and then by transference in a ledger in the case of a customer, who had Viscount placed money to her credit with her agents, with instructions to invest it and collect the interest on the investments for her account and to make disbursements against it as she might from time to time direct. This picture, however, is far from the reality. When the account was opened Mahadevi was a child of eleven. When the gifts to her, on which the claims are founded, are supposed to have been made she was about fifteen. Neither she nor anyone on her behalf gave any instructions or operated on the account at all, and whatever was done was done under the direction of Brijcomari of these items only three survive on this appeal, Two relate to sums alleged to have been given by Brijcomari to Mahadevi and the third to a legacy left to Mahadevi by her grandfather, Bhagwandas, under a will of which his widow, Brijcomari, was executrix.

(2.) Evidence was given, which may be accepted, that in the Agarwalla Jain community there is a practice on the occasion of adoptions and marriages to make money presents to relatives on scale that may be called munificent. The first claim in this appeal is in respect of two lakhs of rupees, alleged to have been given to Mahadevi on the occasion when Brijcomari adopted Mahadeo, her grandson and Jfahadevi's brother, as her own son in 1901, and of Rs. 31,000 alleged to have been given to her when Mahadeo was married a short time afterwards. The remaining claim is for Rs. 90,000, part of the legacy above mentioned, the remainder of it not being now in dispute. There is also an issue as to the amount of interest to be allowed.

(3.) After the death of Bhagwandas his widow carried on his business on her own account, and as it was a business on a large scale it involved a full system of book-keeping. A ledger account in the name of Mabsdevi begins in 1896 with a credit of Rs. 24,968. This represents a principal sum carried forward from a previous ledger with periodic amounts for interest, some credited in the lifetime of Bhagwandas, some after his death. In respect of this claim the plaintiff succeeded in India, Brijconmri and another executor of the will of Bhagwandas having made affidavits in connection with it in proceedings in Rangoon that this sum represented a trust created in Mahadevi's favour by the testator. It was on this evidence and not on the mere method of entering these sums in the books that the Courts decided in plaintiff's favour Mahadevi's account is continued through the books down to her death in 1904. In 1901 there is an entry in the day book thus: "2,00,000 credited to Bai Mahadevi's account, dated 14th January, 1601, given credit to you on account of Chiranji Mahadeo Prasad, and in 1903 another entry : "Rs. 31,000 credited to Bai Mahadevi's account, presented on the occasion of Mahadeo Prasad's riding on horse at the time of his marriage ceremony". These are the two alleged gifts. The account of Mahadevi is carried on from year to year. Periodically it is credited with sums received from debtors as interest; occasionally it is debited with sums for legal expenses or payments to her father-in-law, Fulchand, as her guardian. There is no evidence that Mahadevi, who bore her husband Padamraj three children and then died at the age of ninteen, ever knew anything about any of these things, but Padamraj a witness of whose credibility the trial Judge had but a poor opinion-gave an account of this "riding on a horse," which shows it to have been part of the wedding ceremonial that is often an occasion for making presents. Further entries in the day book relating to Mahadeo show a curious state of things Two lakhs are debited to him as having been credited to Mahadevi's account on January 17, 1901, and transferred from his account. This is part of a gross sum of seven lakhs and three-quarters, debited to him, of which the residue, five lakhs and three-quarters, are entered as credited to the father of Mahadeo on the occasion of Mabadeo's adoption, which took place shortly before his marriage. The death of Mahadevi occurred on May 17 1904, and in 1913 there are entries in the day book showing that the balance of Mahadevi's account, four lakhs and Rs. 69,128 which then stood to her credit, was exhausted by (1) a transfer of one lakh and Rs. 39,126 to the firm of Fulchand Padamraj, that is, the firm of Mahadevi's father-in-law and husband being the amount standing against the name of Fulchand Padamraj in the account books of one Calcutta firm; (2) by purchases of jewellery for the plaintiff, which do not seem to have been in dispute, and, finally, (3) by transferring three lakhs Rs. 19,203 in equal thirds to Mahadevi's children, the plaintiff and his two sisters, "under orders of Bai Muni's mother," that is, of Brijcomari, whose death occurred in 1916.