PESTONJI MANEKJI MODY Vs. BAI MEHERBAI

JUDGEMENT

(1.) This is a somewhat unfortunate suit. It arises out of family dissensions which might have been better composed outside a Court of law. But unfortunately the parties have found themselves unable to come to any terms, and the differences between them must, therefore, be decided according to their strict legal rights.

(2.) The introductory facts necessary to understand the points that arise are as follows. One Dr. Edalji Mody was engaged in the business of preparing certain chemicals useful in the mills, and that business was at one time a very flourishing one. Defendant No. 1 is his widow, and the plaintiff is his brother. It appears that from a very early age the plaintiff lived with his deceased brother and defendant No. 3, and as it has been expressed by both sides, was regarded by them in the light of a son. He took an active part in the business from a very early age, and in the year 1913, he was admitted into partnership, his share being one anna. There is an agreement of partnership dated October 12, 1913, which defines the shares of the parties concerned. The share of defendant No. 1 is two annas, the plaintiff's share is one anna, the share of Dr. Edalji Mody was twelve annas, and the share of his son Keki Edalji Modi was one anna. There is not proved to be any other agreement of partnership, and in spite of certain statements that have been made by the plaintiff, that document appears to contain the only terms that were settled between the parties. As they were all members of one family, they appear to have lived together in the same house in complete amity down to the year 1924, when. Dr. Edalji died. It is abundantly established in the evidence that the whole of the partnership profits were expended by Dr. Edalji on what may be called briefly the board and lodging of the family, and that there was never any distribution of profits among the partners, and never any demand for such distribution. In fact it appears from the evidence in the case that the parties lived at a rate considerably beyond the profits which they derived from the partnership, and it was necessary from time to time to borrow money either for the expenses of the common house or for the expenses of the maintenance of the members of the family. Defendant No. 1 had money of her own, and from time to time she made advances to her husband. We find in the year 1912 as shown by Exhibit No. 10, a receipt of April 9 of that year, that at that date she had advanced Ru. 60,000 to her husband. On October 9, 1913, see Exhibit 7, Edalji made, a declaration that he had borrowed in all Rs. 1,00,000 from his wife from 1909 to date, and that the rent of the bungalow amounting to Rs. 650 was being paid to her as equitable mortgagee. It also appears in the case that at some date which is disputed the plaintiff advanced Rs. 11,000 for the purposes of the common dwelling house. Whether that advance wag made to Dr. Edalji or to defendant No. 1 is one of the questions which is in dispute in the case. It also appears from certain documents in the plaintiff's own hand (see Exhibits 1 and 2) that between July 81, 1919, a September, 6, 1921, he advanced two sums of Rs. 3,178-9-4 and Rs. 2,230-12-3. The former of these sums was for household expenses, and the latter for expenses incurred as regards the establishing of a dispensary for Keki, the son of Edalji, who had set up as a doctor. Keki, it might be remarked, was then a major, That was, generally speaking, the state of the affaire of this family up to the time of Edalji's death, After Edalji died the plaintiff and defendant No. 1 continued to live together for some time and to carry on the business. But unfortunately, as is only too apparent from the evidence in this case, the parties found it impossible to continue to Jive together harmoniously, and in the year 1925 (the exact date is not material) the plaintiff left the house in Bombay and went to live at Poona with his father-in-law. Some correspondence ensued which does not cast any very clear light upon the points for decision in the suit, but may be briefly alluded to as bringing matters up to the date when the facts took place which gave rise to the questions in this suit. On May 6, 1925, the plaintiff wrote to defendant No. 1 complaining of the position which he found himself in after twenty-live years of service. He says he has left the house penniless, and he desires to know his position as a partner in the business, and what arrangements defendant No. 1 proposed to make for repaying the sum of Rs. 11,000 and the miscellaneous sums large and small taken from time to time for household expenses, and for brother Keki's dispensary. The defendant No. l's reply to that letter, Exhibit B, is vague, and contains nothing hut protestations as to her unfortunate position in the world. Then on January 10, 1926, there was a further letter from defendant No. 1 to the plaintiff alluding to certain attempts at settlement of the matters in dispute, and asking the details of the plaintiff's claim and for any suggestion that he may have to make as regards the disposal of the questions arising between them. On March 2, 1925, defendant No. 1 wrote a further letter to the plaintiff in which she again asks for an account of his claims, and suggests that he should come down to Bombay along with his father-in-law in order that matters may be satisfactorily ended. I may add here that defendant No. 1 took out letters of administration to the estate of her deceased husband on March 6, 1925. Generally, therefore, the position was that the plaintiff believed himself to have some claim against defendant No. 1 on account of the advances which be had made, and possibly on account of profits which might be due to his share as a partner.

(3.) The events with which we are more closely concerned took place on March 6, 1926. It is admitted that there was a meeting between the parties concerned, whether it was on the fifth and the sixth, or whether it was on March 6 only, is a matter on which there is some discrepancy in the evidence, hut that is quite immaterial for the purposes of this case. Defendant No. 1 was assisted by a number of persons. She had the advice of Dr. Desai, who had been living in the house practically as a member of the family and who had been helping her in her worldly affairs. She had also the advice of a very respectable witness, Mr. Coyajee, who was also at one time living in the same house. She was also, as I see the matter, advised by defendant No. 2, who is the managing clerk in a firm of solicitors. Her son was also with her, and all these persons wore present at this interview. On the other side were the plaintiff and his father-in-law.