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Case Summary — Manik-Jee v Khoorshed-Jee (Reported in Moore's Indian Appeals, 1837)

Factual and Procedural Background

The testator, Khoorshed-jee Koonwur-jee, a Parsee merchant residing at Surat (also possessed property at Bombay), died on 19 September 1815. His sons (the Respondents) immediately entered into possession of his shop and continued to carry on his business for nearly two years, paying and receiving money and instituting and pursuing suits in the testator's name.

About two years after the death, the testator's son-in-law, Pehtun-jee Veer-jee (the Appellant), produced a Will and Codicil which he alleged had been made by the testator three days before death. The Appellant claimed to be the acting executor under those documents and sought to recover the testator's property (valued at about two lacs of rupees) that the sons were in possession of.

The Zillah Court at Surat (10 September 1819) gave a decree that, in substance, required the Plaintiff to account, directed payment of legacies and left the balance in the possession of the defendants; each party was to pay initial costs, with costs adjustments on final settlement. The Provincial Court at Surat confirmed that decree (18 July 1820). The Sudder Adawlut at Bombay affirmed the Provincial Court's decision (13 August 1822). The Appellant appealed to His Majesty in Council (the Judicial Committee of the Privy Council).

Legal Issues Presented

Whether the Will and Codicil were valid and sufficiently proved (and, relatedly, whether the Court should examine the sufficiency of proof where probate had been obtained).
Whether, assuming the Will and Codicil to be valid, the Appellant (as executor) had a right to be admitted into possession of the unadministered effects against the Respondents who had been in possession.
Whether the Respondents' continued possession and management of the business, for the period in question, amounted to a consent or a virtual compliance with the terms of the Will that barred the executor's interference.
Whether the Appellant had omitted or neglected to execute the trusts reposed in him and whether any such omission precluded him from asserting the rights conferred by the Will.
Whether there were grounds to suspect fabrication or forgery of the Will and Codicil such as to justify treating the testator as having died intestate for practical purposes.

Arguments of the Parties

Appellant's Arguments

The Will and Codicil were such that a Court of equity should execute them and the courts below had misconstrued the testator's intention.
The Appellant did not omit or neglect to execute the trusts for nearly two years after the death; and even if delay had occurred it would not bar him from asserting rights for the benefit of legatees and other persons interested under the Will.
No law or regulation justified heirs taking possession of property in direct contradiction to the provisions of a Will executed by the deceased.
There was no sufficient ground for suspecting any fabrication of the Will and Codicil, which had been duly proved in the proper court of probate; no evidence had been adduced to impeach that probate.

Respondents' Arguments

The paper propounded by the Appellant was not a valid Will.
Provisions of the alleged Will which related to the shop and business were void for uncertainty.
The discretion conferred upon the executors was strictly personal and joint, and could not be exercised by the Appellant alone.
The Respondents, after full knowledge of the Will, were permitted to remain in possession and carry on the business after the death; there was no proof of improper conduct by them, and the executors must be taken to have authorized that possession.
The Respondents were beneficially entitled, as sons and heirs, to the residuary estate not disposed of by the Will.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[1 Moo. Ind. App. 443]	That abstaining from producing a Will for a period (and permitting possession) can be treated as consent by heirs to the respondents' possession and thus a virtual compliance with the terms of the Will.	The opinion records and applies the principle that the heirs' prolonged possession amounted to consent to the respondents' possession; this concept underlies the affirmance of the lower courts' decrees that left the estate in the respondents' possession.
[X Moo. Ind. App. 423]	That where an instrument has been admitted to probate and acted upon in the Courts below, this Court will not enter into the question whether the instrument is sufficiently proved or not.	The Judicial Committee expressly declined to pronounce a view on the sufficiency of proof of the Will and Codicil and proceeded on the alternative ground (possession/consent and related facts) relied upon by the courts below.

Court's Reasoning and Analysis

The Judicial Committee began from the well-established appellate practice of affirming lower courts' concurrent judgments unless they were clearly wrong. There were three congruent judgments below (Zillah Court, Provincial Court, Sudder Adawlut), and the Committee found no clear error after careful review of the evidence.

The Committee declined to pronounce on the sufficiency of proof of the Will and Codicil, invoking the principle that where a document has been admitted to probate and acted upon in lower courts, the Privy Council will not re-open the question of sufficiency of proof. Instead, the Judicial Committee accepted the Will for the sake of argument and addressed whether, on the facts, the plaintiff (the alleged executor) had a right to be let into possession of the unadministered effects against the sons who had been in possession.

The central factual and legal thread was that the Will's operative effect as to admission of the sons to the shop and management turned on whether the executors had allowed the sons to take possession and manage the business. The Committee reviewed the evidence: there was positive proof that the sons had acted in administration (managed the concern, sued and paid debts) and testimony indicating the executor had permitted access and management by the sons. The Zillah Court had found that the sons had been completely admitted to management; the Privy Council found no justification to overturn that finding of fact.

The Provincial Court and the Sudder Adawlut had also relied on statutory/regulatory considerations (references in the record to sections of Regulation V of 1802) and on the suspicious circumstances in which the Will and Codicil were produced; the courts below considered the documents open to suspicion of fabrication and treated the sons' practical possession as justifying their administration of the estate as if the deceased had died intestate. The Privy Council accepted the result reached by the courts below on the factual question of permission and continued possession, and therefore affirmed.

Finally, noting the obscurity and difficulty of the Will itself and the overall complexity and suspicious elements in the case, the Committee concluded that, while the decrees should be affirmed, they ought to be affirmed without costs.

Holding and Implications

Core Ruling: The Judicial Committee advised His Majesty to affirm the decrees of the Zillah Court, the Provincial Court, and the Sudder Adawlut (i.e., the lower courts' decrees were AFFIRMED).

Implications and direct effects:

The Respondents (the sons and heirs) remain in possession of the testator's shop and estate as determined by the courts below.
The Privy Council did not re-open or decide the sufficiency of proof of the Will and Codicil (it expressly pronounced no opinion on that issue), instead resolving the matter on the factual question of whether the executors had permitted the sons to take possession and manage the business.
The Court accepted the lower courts' finding that permission to the sons to manage the business (and their prolonged possession) effectively ended the executor's control, thereby terminating the executor's practical right to displace the sons.
Because of the difficulties and obscurity in the case (including suspicion surrounding the documents), the decree was affirmed without costs — the Court declined to impose costs against the respondents.
No new legal principle was announced beyond application of established appellate practice and the existing principles reflected in the precedents cited; the decision affirms prior approaches to questions of possession, consent, and the appropriate scope of appellate re-examination of probate matters.

This summary is prepared strictly from the content of the provided opinion. No facts or conclusions beyond those expressly appearing in the text have been added.

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Khoorshed-Jee Manik-Jee v. Mehrwan-Jee Khoorshed-Jee and Dada-Bhaee Khoorshed-Jee (India)

MANIK-JEE 1'. ~ € I ~ o ~ ~ ~ ~ D - ~ J ~ ~ : [I8371 I "EOORE IND. APP., 430

cut in the manner that this is, without more satisfactory evidence than has been

produced? If a ~ l a i n t ~ f f produces a Bond in this country, or any other ~ns t rL~i~~ent ,

which appears to have been altered, thc Court will not receive it, or act upon it, till

it is most satisfactorily proved by all the subscribing witnesses at the least and

other evidence, that that alteration was made antecedently to the signature : there

i s no such evidence here, and this is the whole of the case of the Plaintiff helow.

14301 There is a circumstance which ought to be noticed : Huree Nai-ain, Atneen

of Police, says the Defendant admitted he was a partner in the house: but v e

cannot admit that that is sufficient to buoy up ail instrument that is krrciten down

by all the facts that appear.

Under these circumstances, the Court, so fa r from thinking they have that

satisf~~ctory evidence that will enable them to reverse two jiidgments in India,

where the Judges had an opportunity not only of hearing the witnesses, .vYhic+ is it

great advantage they have over us in that respect, aed where they had an opportunity

of seeing this i n s t r u ~ ~ e n t ; for though an English Judge might not have ~nderstooa

the writing,. the manner in which these alterations were made, might have given us

strong reasons for forniing a conclusion with respect to this rnatter ; but, wider

these circumstances, the Court is of spinion &at the appeal must be dismissed ; a d

as this case, on the view w e have taken of it, is founded in forgery at the least, and

most likely forgery supported by perjury, we think it ought to be dismissed with

costs."

-_I-I ~.~

14311 ~ ~ O O R S I ~ E D - J E ~ MANIIi-JEE,-ArJ~~f2%irnl; M E H ~ W ~ N - J ~ E KEOOR-

S ~ ~ ~ - ~ ~ ~ and DAD^-^^^^^ ECEOORSHED-JEF,,-Be8l?oizJe12.Ls * [June

2 2 and 23, 18371.

On ~~p~~~ from the ~~1~~~~~ ~ e ~ ~ ~ a ~ ~ ~ ~ o , ~ r ~ of ~ o ~ t ~ ~ ~ .

The heirs of a Parsee Merchant having, upon his death, taken possession of his

shop and continued to carry on his business for nearly tv-o years, the Courts

below refused t o disturb their possession upon the production of a Will, by

which the busitless was directed to be carried on by the Executor for their

benefit, until he should think proper to admit them into possession: Held

by the Judicial Committee of Privy Council, affirming the judgments of the

Court below, that the abstaining from producing the Will for the above

period was a consent on the part of the Appellants to the Respondents' posses-

sion of their father's estate and business, and was, therefore, a virtual compli-

anee with the terms of the Will [1 Moo. Ind. App. 4431.

Semnbte-Where an instrument has beon admitted to probate, and acted upon in

the Courts below, this Court will no% enter into the question whether the

instrument i s sufficiently proved or not [ X Moo. Ind. App. 4.231.

The Appel~ant efainied to be the acting Executor of Klioorshed-jee Komwur-jee,

~1 Parsee Mercliant, who resided and carried 011 business at Surat, and 'ct'as possessed

of considerable property both there and at Bombay.

Tipon h i s

death, which happened on the 19th of September, 1815, they entered into possession

of the shop, and rontinued the business of their deceased father, and in that character

they paid and received money, engaged in various transactions, and sued and were

sued in the Adawlut.

[432j About $WO years after the death of Khoorshed-jee Koonwur-jee, his son-in-law,

PeBhtun-jee Veer-jee, produce^ a Will and Codicil, which he alleged to have been

* Present : Hembers of the Judicial Gommittee,-Lord Wynford, Lord Rrougham,

Mr. Justice Bosanquet, Mr. Baron Parke, and the Right Hon. Thomas Erskine, Chief

Judge of the Court of Bankruptcy,

Privy C~unci~lors,-Assessors. the Right Won. Sir Edward Hyde East, Bar1 ,, arn&

the Right Hon. Sir Alexander Johnston.

The Respondents were sons and heirs of Koorshed-jee Iioonwur-jee.

-- -___ -

173

I MOOT6E IND. UP., 45s

made by ~hoorshed-Jee Koonwur-jee, and given to him by the Testator three days

before his death. The Will, which was stated to be in the Testator's andwr writ in^,

wag no% signed, but purported to be witnessed by three witnesses, and was a8

follows :

" May the beneficent Hormuz (a, beneficent spirit according to the Parsee creed)

always grant me his assistance, and may everything be done according to this

writing which 1 make, and may no Saheb (Master or Lord ; a term of authority 01'

respect) people, nor my Executors, nor tlie heads or Priesb of my caste, nor ally

other great person, alter this my writing iiz any way. May whatever I write !>e u 'n-

firmed; for which purpose may Aormuz, out of his goodness, grant my repuilSt, tha:

all which I write may be establish^.

'* The writing of the most huiiible of the followers of the Prophet Kerdunht,

~hoorshed-~ee Koonwur-jee Achawarea. That the reason of this writing is, t k t I

have drawn out two papers of my circun~stances, the first of which i s this piper ;

and there i s an&er paper, stating the violence and tyranny, and oppressioii tliey

have exercised, and how they have ruined me as to t~iousands of rupees, and ill

character and reputation, and in every manner of way: from which paper ;uEt,rina-

tion will be obtained. C o ~ c e r n i n ~ that, agreeably to the c~rcuI~istaI~ces, the

oppressor should be made answerable, and whatever is due to me by these people

should all be made to be paid into my shop : my Executors shall receive it from them.

Arid on niy decease [4%] my Executors shaIl carry on the shop in niy name, and

whatever there may be of mine, a poor n iaq shall be kept by the Executors on account

of the shop, and whatever profit may be produced from the shop, out of that my

Executors, who are three persons, (viz. Modeejec Hormuz-jee Bheem-jee, and Koor-

died-jee ~a i i i k - j ee Shroff of Bombay, and ~es~i tun-Je0 Veer-jee,) shall carry 011 niy

shop. I have two children, but neither of the two have any kind of ci~ilization, and

in every respect they are foolish and i ~ n o r a n ~ , arid they throw away all tlie property

like dust, therefore, I am entirely helpless as to both of them. If ~ e ~ i r ~ ~ a n - j e e - ~ l i a e e

and D ~ d a - b ~ ~ a e e m nd their manners it i s well, and, i f you think proper, you may

place them in the shop to carry on the business, provided they do not do ally thing

improper to the value of one dokra; but if they do anything improper they are not

to be placed. And if these two brothers live separate, they are to live in my house;

for the expenses of these two brothers there shall be furnished in an equal manner

out of the produce of my shop. As to Mehrwan-jee Khoorshed-jee and Dada-bhaee

Khoorshed-jee, the first is this: there shall bs furnished them a yearly stock of

provision, grain, rice, batty of the soockwel and saree sort, and toor, dol, and wheat,

and joowar, and lamp-oil, and firewood, and cow-dung, and pickles, and oil, onioiis,

and saffron, and pepper for mussala. All these shall be supplied in such quantity

as the man and wife and one servant may require. Afterwards, if God givc them

children, then more shall be given when it i s required ; otherwise, according to what

I S nritten, shall be for one year. And the necessary clothes shall be furnished once

a year to ~ ~ e h r ~ v a n - j e e and his wife, and to Dada-bhaee and his wife; and if [4N]

they have any children, they shall also be supplied with clothes. And for the

marriage arid other ceremonies of the children which they may have, there shall be

furn~shed out of the shop according as niay be suitable to a poor man like me. Arid

there shall be given to them each day half a rupee in cash for the daily expenses of

fish and vegetables, and ghee, and they may do with it what they please. And of

two servants each brother shall keep one, and give such monthly wages as may be

proper ; and they are to keep good humble people, and their wages shall be paid out

of the shop. In this manner there shall be paid equally to my Mehrwan-jet. arrd

Dada-bhaee. And in my house there are kept up continually through the thirty

days of the month the chaloodian and patroo (or ceremonies for the dead), and they

shall be continued always, and wheat for dron ceremony throughout tlie ycar, and one

egg daily, and a durea of fruit, and the yearly allowance for nosegays, and the

yearly allowance for reading or praying of the Mobeds (the minister in^ Priests of

the Parsees), and what I allow alnrays for the yaes or prayers, etc., accordiIig as the

Mobed may say, and do and pray, he shall receive yearly. And in the manner I

used to perform the annual festivaIs for my father and niother and c h ~ ~ ~ r e n , and for

my deceased ancestors for seven generat~ons, so shaIl these be performed. And in

the manner I used to perform the festivals for the deceased of Dada Mtmee's house,

174

K ~ ~ 0 R S ~ ~ D - J ~ ~ M A " - J EE

2). ~ ~ ~ ~ ~ A ~ - J E ~ ~ ~ o o ~ s ~ ~ ~ - . ~ ~ ~ cl8371 I 0 0 ~ ~ IND. APP., w

and of my mother's father's house, so shall they be p e r f o r ~ e d ; the festival of no one

shall be allowed to sink into oblivion, The expenses of the fmtivals of all the

deceased may be laid out by ~ e ~ ~ ~ w a ~ i - ~ e e if he pleas s, and the ex-[435]-penscs of

these festivals, and of the new year, slialX be drawn by Mehrwan-jee out of the shop.

And if the two brothers and their t no wives will Iive together in fi.ie~~dship, then they

are to eat together, and their clothes and food shall all be furnished together yearly,

and they shall eat together ; and for the fish, and xvegetables, and ghee for the two,

they shall receive one rupee. And if they cannot live together and they do not

agree, as this is a bad world, then they ixiay live separately; and, according as it is

written, each shall receive for his own expenses, and they shall eat separately. If

they live together, they shall per for^^^ together the ceremonies for the dead and of

the new year ; and if they live s~parately and Mebrwan-jee perform these cerenion~es,

he sliall receive the expenses ; and if Dada-~~haee has to perform them, to lay out the

expenses for the ceremonies for the dead and the new year belongs to ~ ~ h r ~ a r ~ - ~ e e ,

the elder, and it is fitting for him to do i t ; the c ~ r e ~ o i i ~ e s for the dead shall thus be

perfornied. And the two brotltsrs and their wives shall eat together, and during

the eighteen days of the new year's cereinony they shall eat together. The two

brothers shall live in harmony and shall not quarrel or fight. The men do not fight,

they always live in good friendship; but the w o ~ ~ n , i these days, cannot live in

friendship ; therefore, if they live together ito is very well, otlierwise ~ e h r w a n - ~ e e

shall lay out the expenses on receiving from the shop. And if it cannot, be done in

t h i s n~anner, then Mehrwan-jee is to o'rtserve the new year c e r e ~ o n ~ e s one year, and

to perform the cerenionies for the dead ; and if Dada-bhaee pleases, lie rimy observe

the new year's ceremonies one year. They [436] are to divide each year between

them; one year ~ e h ~ ~ ~ r a n - j e ~ , the next year Dada-bhaee. I write this that no on0

may make any quarrel. I adjure you, Rlehrwan-jee and Dad&-bhaee, by the benefi-

cent ~ o r n ~ u z and the Prophet Zerdusht, that whether you live together or separate~y,

live in friendship, do not quarrel; and on the day of the ceremonies for the dead,

dine together, as also during the new year festival. Take care, if you alter what I

have done, there i s the oath of the beneficent Ilorinuz."

The Codicil, which was dated on the day of the decease of the Testator, was not

i n his h a ~ ~ d ~ ~ r ~ t i n g , It was witmimed by two witnesses, and was in the following

terms :

'* ~ u e s d a y 186 ~1iadi"a-vud 1873, (19th of September, 1815,) ~ a r w ~ r d i n , 19th

of the 12th nionth Amerdad of the Sursum. T o Hod- Hormux-jee Bheem-jee, and

~ a ~ ~ n i - j e ~ Kaoos-jee ~ o o s t u ~ ~ - j e e , arid M ~ 1 i ~ ~ h ~ r - j ~ Kha~ifa-jee, written by direction

of Khoorshed-jee Kunwur-jee.--That in the presence of you threc persons, I do

direct t u write my last Will, according to which you must stand forward and direct

to be given. The particulars are: I forinerly made a Vvill, in which I have

~ p ~ o ~ ~ ~ t e d as my ExecutorB two persons, Modee Horrnuz-jee Rheem-jee and Bhoor-

shed-jee itlsnik-jee, Surat, and they shall :tct according to the writing (or Will), and

cause others to iset.

~ n y t ~ ~ i ~ ~ ~ to any one, therefore, there slta'fl be given to every one according to this

niy writing ; also the ceremonies regarding ray daughters shall be defrayed out of my

shop

'* My wife's ornaments and clothes, whatever there 14371 are, shd1 he divided

and given to three persons : my daught~rs, Not ee-baee and ~ ~ o o ~ ~ ~ ~ r u ~ - ~ ~ a e e , itnd uiy

daugl~~er 's d a u g ~ t e r ~ Dossa-baee. On converting these things into inoney, make and

give separate property to the three persons.

" The notes and paper ~ l o ~ ~ i ~ ~ to my wife, and the debts due to her by people,

shall he delivered to my two daughters. They shall be divided and delivered to

Motee-baee and Koonwur-baee.

" TO my two d a u ~ l ~ t e r s there shall be given, on my part, property to the amount

of rupees 10,000. To the two, separately, as fol1orus:-

* ' To hlotee-baee, to the value of . . Rupees 5000

'' To ~ ~ o o n w ~ r - b a e e , to the value of * 5000

In that writing (or Will) I did not give directions about

In the manner I used to do, everything shull be done.

. There shall be given according to my writing :

'* Rupees 10,000

175

I MOORE IND. APR., 4% K ~ O O R S ~ ~ l ~ - J ~ E MBNIK-JEE

‘‘ ‘fbe expenses of my funeral ceremonies shall be paid out of my shop, to the

extent of 500 rupees more than were laid out in my wife’s funeral ceremonies.

‘’ The expenses for the marriage of rap daug~zter’s daughter shall be paid out of

the shop.

‘‘ At the death of aiy sister, ~reer -~aee , and of my nephew, Furjoon-jee, tliere

shall be paid out of my shop, for the funeral expenses of h t h , rupees 4001, and their

funeral ceren~on~es shall be perforn~ed.

“When my nephew’s son is married, then there shall be paid rupees 200 t o ~-

Furjoon-jee.”

The Codicil then gave several pecuniary legacies to various of the Testator’s

relat~ons, and then proceeded in th&e terms:

“To Rutton-Iiaee, the daughter of my wife’s sister [438] there shall bt. given

property to the amount of 200 rupees, and with the produce thereof she shall be

f u r ~ ~ i s l ~ e d with clothes, and she shall live and eat in my house as long as she Lives,

and when she dies, the 200 rupees shall be laid out in her funeral ceremonies.

“ Among my two servants, ~ o ~ s ~ ~ ~ r ~ ? a ~ i and Franz-jee, pay 100 rupees itt some

happy festival.“

On the 11th of August, 1517, the ~ 1 ) p ~ ~ ~ ~ a r ~ t proved this Will and Codicil in the

Recorder’s Court at ~ o ~ i i ~ ~ a y , and on the 30th of Deceniber, 1817, he filed a plaint

against the Respondent, in the Zillah Court of Surat, to recover the property of the

Testator, which they had succeeded to and possessed themselves of, the value of

which he estimated a t two Iacs of rupees.

The Respondents put in separate ~ T M W ~ W , and in these, and also in tho rejoinders

which they filed to the reply by the Appt4lant. insisted that the Will was invalid,

because it was not dated, wit~ies~ed, or signed. They also claimed a right to see

the original Will and Codicil, and insisted that they were entitled to the whole o f

their father’s property, as his heirs.

The Appell~nt ~ r o d ~ ~ c e d the

probate copies of the Will and CodiciI, mhicfi, by an Order of the Sudder Adawlut,

the Court at> S w a t was directed to receive as evidence, the Recorder’s Court having

refused to part with the original docui~ient~. Re also produced the corresporide~~i~e

of the Respondents with other menihers of the family, and the z&a ‘L’OCG testimony

of ~ o r ~ n u z - j e e and ~uncher-jee ~ ~ z a ~ i f a , the two w~tnesses to the alleged Codicil.

On the part of the Respondents, it was proved, that since their father’s death,

their names had bwrt used in the Court.: of justice as his heirs, and that they [&@I

had, since that time, paid and received nioney on account of his estate.

On the 10th of September, 1819, the Zillah Court gave judgment in the cause,

when the Judge stated, that, in the opinion of the Court, ‘( the Plaintiff had nothing

in his favour but the Will; and even by the Will itself, it did not to the Court appear

that h i s ease could be supported. It d ~ s t ~ I ~ c t l y said, that though the ~e fendan t s were

thou~ht~ess and extravagant, still they were, on altering their ewrse of life, to tie

a d n ~ ~ t t e d to the n~a r~a~ernen t of the estate. And who should say that they had not

effected this r e f o r ~ n a t ~ o n ~ The Plaintiff had not attempted it.” Tlie Court accord-

ingly decreed, ‘‘ That the Plaintiff do give in a Fair and just account of a11 property

and sunis of nioney which had conie into his hands; and when, after the several

legacies directed by the Will shall be paid, a general release shall be granted by

both parties to each other, and the wrhole balance of the estate remain in the posses-

sion of ~ e f e n d a n ~ s . Each party to pay his own costs in the first instance, and, on

the final s~tt,le~izer~t, the Plaintiff’s cods to be deducted and allowed to him.”

The Appellant appealed from this decision to the Provincial Court at Surat,

which, on the 18th of July, 1820, confirmed the decree of the Zillah Court. This

latter decree was in the foIlowing terms : ‘‘ In addition to the reasons stated by ttre

Zillah Judge, in which this Court g c n e r a l ~ ~ concurs, it appearing that the Appel-

lant, a s s ~ r t ~ r ~ ~ himself to be an Executor of the Will of the late ~l~oorshed-jee

Kooriwur-jee, has omitted or neglected to execute the trust reposed in him ftkr

nearly two years after the death of the said Khoorshed-jee, which, by section 2,

~ e g u l a t ~ o n V., of [440] 1802, he was ei~pomered to have undertaken i ~ ~ ~ e d i a t e ~ ~ ;

and this dehy occurred, notwitlistand~n~ his knowledge of the existence of the

second Will or Codicil, dated the 19th of S e p t ~ ~ b ~ r , 1815, by which his executor-

ship i s recognized. Admitting the first \Vi11 was not forthcoming for a time, the

176

Much evidence was entered into 0x1 both sides.

‘U, ~ X E 3 R ~ r ~ ~ - J ~ E ~ ~ ~ ~ ~ ~ ~ ~ D - J E ~ [I8371 I MOQRE IND. =E’., 44f.

Court considers that, under the suspicious circumstances in which the documents

are produced, the sons of the late ~hoorshed-~ee were ju s t i~ed by section 3, of the

same ~ e g u l a t ~ o n , in taking possession of the property they are the undoubted

heirs to, upon the ground that their father had died intestate, and m a n a ~ ~ n g the

estate, to all ~nten ts and p u r p ~ e s , in as full and complete a manner as they would

tte legally entitled to do were no %TCTiifl of their father in existence. And this appears

to have been the case, by their having continued in their own names a suit ~nstituted

by their father, and obtained decrees thereon in the different Courts up to the Sudder

Adawlut, without let or obstruction on the part of the alleged Executor. Neither

the Will or the Codicil are, in the opinion of the Court, free from suspicion of

having been fabricated; and this suspicion i s not r e ~ o v e d by the mere e s ~ ~ ~ b ~ t ~ o n

of the probate of the documents.”

The A ~ p e ~ ~ a ~ ~ t appealed from this decision to the Sudder A d a ~ l u t of Bombay,

which, on the 13th of August, 1822, made their decree in the f o l ~ o w i n ~ 0 terms:-

“Thc Sudder Adawlut, after a most attentive consideration of the whole of the

p leadi~gs and exhibits filed in the several stages of this case, c o ~ c u r ~ ~ n g in the views

taken of the same by the former Courts, have accordingly determ~ned, that the

decision of the late Court of appeal, passed on the 18th of July, 1820, confirming the

decree of the Zillah Court of r4413 Surat, dated the 10th of Septeniber, 1810, be

affirmed, the Appe~lant bearing the whole of the costs in the Sudder Adawlut.”

The Appe~~an t appealed from this last decree to His Majesty in C o u ~ ~ c ~ ~ , upon

the f o ~ ~ o w ~ n g reasons :-

I. Because the Will and Codicil in question were such as a Court of Equity

can and ought to cxecute, and the construction put upon them by the Zillah, and

s~ibsequently con~rmed by the Provincial and Sudder Dewanny Cour~s, mere a t

variance with the general intention and express words of the Testator.

11. Because the AppeIlant did not in fact omit or neglect to execute the trusts

reposed in him for nearly two years after the death of the Testator, as was stated

in the decree of the Provincial Court, nor would such oniission or neglect, had it

actually ~ c ~ ~ u r r e d , have precluded him from asserting hie rights, for the benefit of

the legatees and other persons interested under the Will.

111. Because no Regulation or Iaw justifies heirs in taking possewion of pro-

perty in direct ~ o n t r o v e ~ ~ i o n of the pro~r~sions of a Will and C o d ~ c ~ ~ , which their

father had an acknow~ed~ed right to make and execute.

XV. Because there was no good ~ r o u ~ d for suspecting any ~abr~ca t ion of the

Will and Codjcil in ~ u e s ~ ~ ~ n , which hnd b?en duly proved in the proper Court of

Probate, and which no evidence was ever adduced to impeach.

The Respondents, on the other hand, relied on the following reasons :---

I. Because t,he paper pr~pounded by the Appellant as the Will of the deceased

was not a valid Will.

IT. Because those provisions of the alleged WiIl [4422f which relate to the

dcce~sed’s shop and business are void for uncertain^^.

XXX, Because the discretion conferred upon the Executors is strictly personal and

joint, which was ineompetent to the Appe~lai~t alone to exercise.

IV. Because the ~espondents, after full k ~ o m ~ e d ~ e of the Will, were p e r ~ ~ t t e d

to remain in possession and carry on the business after the death of the deceased, and

there i s no proof of improper conduct on their part, the Executors must be taken

to have au tBor~~ed that possession^ as directed By the Will, and cannot, without cau8e

assigned, resume it.

V. Because the Respondents were b e n ( ? ~ c i a ~ ~ y entitled, as the sons and heirs of

the deceased, to his residuary estate which i~ undisposed of.

Mr. Miller, K.C., and Mr. Wigram, K.C., for the Appellant. Mr. Serjeant

Spankie, and Mr. E. J. Lloyd, for the Respondents.

Mr. Baron Parka-This case comes before their T,~rdships in nn appeal against

a decree of the Sudder ~ e w a n i ~ y Adawlut a ~ r m i n g a decree of the Provincial Court,

which decree affirmed a previous decree of the Zillah Court. We have, therefore,

three concurring j u d ~ e i i t s of the Courts below, upon which we are called upon to

advise Ris ~ a j e s i y .

The rule upon which this Court has universally acted, is to affirm t6e j u d ~ ~ e ~ t ,

177

I MOORE IND. APP., 44s MANIK-JEE w. KHOORSHED-JEE [1837]

unless they see that the judgment is clearly wrong. In this case their Lordships,

after looking a t the evidence and taking great pains upon the subject, cannot pro-

nounce an [443] opinion that these decrees are wrong, and the result will be, that

these decrees are to be affirmed.

One question made in the argument 10-day was, whether the Will and Codicil,

or either of them, were sufficiently proved. Upon that their Lordships pronounce no

opinion. The ground upon which the Courts have proceeded is, that taking the Will

and Codicil t o be proved, the Plaintiff has no right to institute a suit to be let into

possession of the unadministered effects of the Testator, and that when the sons were

let into possession, there was an end of the right of the Executors to interfere. That

appears to have been the ground upon which the Courts proceeded, that it was not

a power of control to be exercised by the Executors, from time to time, according to

the conduct of the children; but if they (the children) showed a disposition to

amend, it was for the Executors to consider whether they would let them into the

shop ; their admission to the management was to be dependent upon their own con-

duct; but if they were once let into the possession of the concern, the power of the

Executors was at an end, and the Sudder Court did not see any sufficient reason to

differ from the opinion of the Zillah Court, but followed the decree of the Provincial

Court in that appeal.

It that be the true construction of the Will, i t becomes a mere question of fact,

whether this Executor did let the sons into possession of the shop, and the nianage-

ment of the concern. There appears on the part of the Defendants a certain

quantity of proof given of their having continued to act in the administration of

the estate of the Testator; they continued to manage the concern, they sued for

and paid debts; that is the positive evidence given by the Defendants; [444] and

then Hormuz-jee is examined by the Plaintiff, and gives not very clear or satis-

factory evidence upon that subject: according to the account, he appears to have

said, that the Plaintiff so far continued in the management of the concern, that he

would not suffer access to a chest, except in his presence; and when he is examined

as to the part that the Defendants took, and whether the Plaintiff himself really

acted as Vakeel, or Executor, his evidence shows that the sons were permitted by

the Executor to take possession and act in the management of the Testator’s affairs.

In another part of the same examination, in answer to a question put by the Court,

“ Was the business which Mehrwan-jee and Dada-bhaee managed for a period of four

years, right and proper? ” he could not deny that they were in the actual manage-

ment of the business, but he gives an evasive answer, ‘‘ They do not at present manage

business properly.” The result that the Zillah Court came to was, that the sons had

been admitted completely to the management of the concern. That is one of the

grounds they allege for their judgment, and this Court cannot see that the Zillah

Court, who were the proper Judges of the matter of fact, upon the testimony pro-

duced, have come to a wrong conclusion in that respect. On that ground their

Jiordships are prepared to advise His Majesty, that the decree of the Zillah Court,

and the other decrees that follow it, should be affirmed. This becomes a mere

question of fact, whether the Executors named in the Will, admitting it t o have

been properly proved, admitted the sons t o take the actual management; and in

that we are of opinion that permission was given, and if they have once given that

permission, then control is at an end.

[445] Upon these grounds their Lordships think the judgment below should be

affirmed, but inConsequence of the difficulties in the case, and the great obscurity

of the Will itself, they think the decree should be affirmed without costs.

178

Khoorshed-Jee Manik-Jee v. Mehrwan-Jee Khoorshed-Jee and Dada-Bhaee Khoorshed-Jee (India)

Case Summary — Manik-Jee v Khoorshed-Jee (Reported in Moore's Indian Appeals, 1837)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Khoorshed-Jee Manik-Jee v. Mehrwan-Jee Khoorshed-Jee and Dada-Bhaee Khoorshed-Jee (India)

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