KERSHAJI DHANJIBHAI Vs. KAIKHUSHRU KOLHABHAI

JUDGEMENT

(1.) This is a most unhappy example of the possibilities of litigation in India. The suit began seventeen years ago in 1911, and we are yet at an appeal from a preliminary decree. The suit was one for the administration and division of the estate of one Dhanjibhai who died in 1901, The parties are all Parsis. The voluminous pedigree shown in paragraph 2 of the plaint exemplifies that the parties alleged to be interested are very numerous. Defendant No. 1 contends that even that list is not enough, and that there ought to be ten or eleven parties added, and he has accordingly set up a rival pedigree. Naturally with such a large number of parties the litigation is delayed, But apart from that the parties spent the first two years of litigation in raising technical points as to parties and so on, and in that way they succeeded in litigating for many years without the slightest practical result.

(2.) The real contest in the case is as to the position of defendant No. 1. If the plaintiff's pedigree be looked at he will be found as the son of Pestonji, a brother of the deoeased Dhanjibhiai. Accordingly as a co-heir he would in any event claim some share. But his real claim is in effect adverse to the estate, He claimed to bs the adopted eon of Dhanjibhai and to have acquired by adverse possession or otherwise the whole of the property either before the death of Dhanjibhai or at any rate by the date of the suit in 1911. Consequently, in this administration suit, there is, so to speak, a double action going on, viz., one, as between the beneficiaries of Dhanjibhai including defendant No. 1, and another between Dhanjibhai's estate and defendant No. 1, who is claiming adversely. If only Dhanjibhai had left a will, the difficulties would have been solved, and defendant No. 1 would at once have been put to his election either to claim under the will or against it But for the moment it seems to me that he cannot be put to his election. At any rate, that point has not so far been raised in the case.

(3.) Now I come to a most curious circumstance, and it is this that though defendant No. 1 put forward his plea of adverse possession under two branches, namely, (1) at Dhanjibhai's death, and (2) at the date of the suit, yet the lower Court only decided against him on the first branch, and did not hear the second branch notwithstanding that defendant No. 1 put in a formal purshis asking for that issue to be determined. As regards the first branch the issue was in a wide form. Defendant No. 1 does not now contend that at Dhanjibhai's death in 1901, he defendant No. 1 had acquired a prescriptive right. That claim is now specifically abandoned at the bar.