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