ATISUKHLAL BHAIDAS Vs. NATVARLAL ICHHARAM DESAI

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Bombay in its appellate jurisdiction dated 27 September 1935, reversing a decree of the Joint First Class Subordinate Judge of Surat dated 1 July 1929. The facts relating to the suit out of which this appeal arises are as follows : One Lalbhai Gulabdas, member of the Visa Modh Gaubuja Bania caste of Surat, resided in Bombay until his death on 25 March 1908. He left a widow Gangabai, a daughter Chandrabhaga, and a will dated 19 March 1908, whereof he appointed Gangabai and his two friends, Maganlal Modi and Ichharam Desai (the father of the defendant) as executrix and executors. After providing for a few legacies, the will contained the following provisions about the residue : As to the moneys that may remain over, my executors shall invest the same in substantial securities during the lifetime of my wife and as to the interest that may be received therefrom, and as to the pension for which I have made an arrangement for my wife, my wife shall maintain herself honourably thereout, living in Bombay.

(2.) Then followed certain provisions for expenditure during her life and in connexion with her death, after which, out of the balance, various bequests were made, including one of Rs. 1000 to his said caste of Surat, for the purpose of celebrating a festival in his name. The ultimate residue was also bequeathed to the said caste in trust for the encouragement of education among the boys of the caste at Surat Lalbhai left property including ornaments and shares, and certain amounts which were, at the time of his death, deposited with a printing press in Bombay, called the Guzerati Printing Press, of which Ichharam was the owner. After Lalbhai's death, these moneys remained deposited with the press. On 5 December 1912 Ichharam died, leaving four sons, one of whom is the defendant. They became owners of the press. In 1924 the eldest son retired from the business, which was thereafter continued by his three brothers. Gangabai died on 31 March 1921.

(3.) On 24 May 1923 the defendant commenced correspondence with the representatives of the caste, whereby he, at one time, expressed his willingness to pay to the caste the legacy of Rs. 1000, but ultimately failed to do so. The caste thereupon commenced proceedings against the defendant by filing a representative suit on 19 April 1926, at Surat, for the enforcement of its claim to the legacy. This correspondence and the proceedings in the said suit were relied upon by the appellant in the lower Courts as creating an estoppel, which prevented the defendant from denying that he was an executor of Lalbhai's will for the purposes of the present suit, by reason of the circumstance : (1) that in a letter forming a part of the said correspondence, he had described himself as such executor and signed a caste resolution under the same description, and (2) that, in his written statement in the said suit, he did not deny his character as such executor, though the plaint had alleged it. This point of estoppel, however, has not been pressed before their Lordships and it is not necessary to go into greater detail relating to the said correspondence and proceedings. The defendant's description of himself as an executor was obviously a misdescription arising, as explained in his deposition in the present suit, from a mistake about his legal position, which, at a later stage, he appears to have realized. Lalbbai had not appointed him an executor of the will, either expressly or by implication, and a misdescription of his position by the defendant would not make him so or raise an estoppel against him. The suit for the legacy of Rs. 1000 was ultimately decreed against the defendant with interest and costs.