DAMODAR KHIMJI Vs. DAYAL MOWJI

JUDGEMENT

(1.) One Gokaldas Jetha died on 6 March 1904 leaving a Will. In that Will he sets out what property he is possessed of and particularly mentions a debt of about Rs. 2,000 due by Dayal Mowji. In effect he appoints his wife manager of his estate with full powers of management during her lifetime. He then goes on to say After the death of my wife my two executors Dayal Mowji Kalianji and Damodar Khimji, shall" do such and such things "with my estate" and directs how the residue shall be disposed of. He concludes "my executors shall act in accordance with the directions contained in this Will on their true religious faith and my wife shall act with the advice of my executors."

(2.) Two or three weeks after the death of the testator Dayal Mowji and Damodar Khimji took away the Will from the cupboard of the deceased's house and Dayal Mowji wound up the shop belonging to the deceased, handing over the proceeds to the widow. It appears, however, that nothing farther was done by either Dayal Mowji or Damodar Khimji except to deposit the Will with the solicitors, Messrs, Raghavaya and Bhimji. Sometime afterwards a proposal was made for filing a petition for probate, but Dayal Mowji declined to join. A suit was filed in the Small Cause Court in 1907 against the other debtor mentioned in the Will, Tribhowandas Lallubhoy, both Dayal Mowji and Damodar Khimji joining as plaintiffs. In 1908 probate was granted to Damodar Khimji alone as executor according the tenor of the Will and a decree was passed in his favour alone in the Small Cause suit. On the 29 of April 1908, Damodar Khimji sent a notice through his solicitors to Dayal Mowji calling upon him to pay the amount which was due by him to the testator and eventually Damodar Khimji filed this suit praying that the defendant may be ordered to pay the sum of Rs. 3,225-8-6 for principal and interest and for all necessary directions and accounts. The defendant mainly relies on the contention that the suit is barred by limitation, but if it is not barred he is willing that account should be taken of what is due by him to the testator. Now, On the question of limitation, the first question is what is the nature of the account between the testator and Dayal Mowji? It was alleged in the plaint that the account was mutual, open and current and, therefore, Art. 85 of the Limitation Act applied. That contention was not maintained during the argument and I must, therefore, hold that the account was an ordinary current account between the testator and Dayal Mowji.

(3.) The next question is what was the position of the defendant? Was he an executor appointed by the Will or was he an executor in accordance with the tenor of the Will or was he an executor de son tort? The Will does not appoint him executor in so many words. The persons named by the testator as executors have nothing to do with the estate until the death of the widow. During her life-time their functions are limited to giving her advice. If, therefore, they applied for probate as executors they would come in direct conflict with the powers which were granted to the widow, under the Will. Therefore, it seems to me that the defendant is not an executor. He may have rights on the death of the widow to apply that probate should be granted to him in accordance with the tenor of the Will but until he makes an application to the Court, not having been directly appointed, he is not an executor and can exercise no functions as such.