Decided on July 08,1935



Barlee, J. - (1.) THIS is a suit for the administration of the estate of Framji Pestonji Vakil, who died in April, 1897. As shown in the table, at page 229 of the Printed Book, he left surviving him two daughters by a first wife, and a son, Behramji, and five daughters by a second wife, and both his wives had predeceased him. By a will executed on February 18, 1897, just two months before he died, he appointed his brothers Navroji Pestonji Vakil, and Jehangirji Pestonji Vakil and his four sons-in-law, Paymaster, Dalai, Patel and Vakil as the executors and trustees, and he had created a trust of his salt works, named Pestonsagar, for the benefit of his son and five daughters by his second wife. The trustees were directed to carry on the management of the salt works properly and to divide and distribute the income thereof- whatever may remain over after deducting (thereout) the expenses relating to the Salt works, in the following proportion, viz. , three annas each to the ladies and a one-anna share to Behramji for life with a gift over to their children. He stated also that his Municipal debentures, promissory notes, cash, etc. , should be dealt With in accordance with the detailed directions, which make up the greater part of the document. Amongst the legacies were several for charity or religious purposes. Rs. 5,000 were to be given to the trustees of the Parsi Panchayat; Rs. 1,425 to be expended on the purchase of Government Promissory Notes, which were to be held by the trustees, who were to use the interest for " throwing bread to dogs at Sabarmati and for putting a ' Parab' on the Achar Road". A " Parab " is a platform for feeding birds. The income of his bungalow at Sabarmati, which he had let out to the Post Office, after deducting the necessary expenses, should be taken by any of his daughters, and " thereout expenses shall be made for 'baj Rojgar' (ceremonies) of my late respected father and mother, my wife Jaiji, deceased Kharsedji and myself. " There is a further paragraph about the Sagar in the Thana District (which he called the agar ). He wrote- I have spent in all about Rs. 80,000 eighty thousand on it. Therefore if it fetches that much amount or some reasonable amount, then, the said ' Agar' shall be sold and with the amount (realized) Government Promissory Notes shall be purchased and the same shall be held in trust; and the interest thereon shall be paid to my above-mentioned five daughters in proportion to their respective shares.
(2.) AFTER Framji's death the executors applied to the District Court of Ahmedabad that probate might be given to Bhai Navroji, afterwards Sir Navroji Pestonji Vakil. The probate was granted on November 11, 1897. On June 8, 1899, Navroji filed an account, exhibit 163, p. 291. He included in the schedule of the estate which he had recovered a bungalow at Rutlam valued at Rs. 2,500 ; and he stated that he had written off certain sums claimable under the account mentioned there which were such as could not be recovered. Amongst these irrecoverable amounts were sums debited in the accounts against E. N. Vakil his son-in-law, J. D. Mehta. The former was a trustee under the will. Navroji managed the property up to the date of suit in 1921. In 1916 Behramji died leaving two daughters, Goolbai and Shirinbai, appellants, who were the plaintiffs in the lower Court. They had in the interval been married to F. A. Vakharia and D. B. Choksi. Up to the date of Behramji's death nobody appears to have taken much interest in the administration of the trust. Sir Navroji was the senior member of the family, a gentleman of wealth and distinction, and apparently he was implicitly trusted. But in 1918 the beneficiaries began to discuss the management of the trust, and the correspondence which their learned counsel has read to us shows that some of them expressed dissatisfaction and that there was a general desire to sell the Sagar. The letter, exhibit 244, at p. 606 of the record, was sent to Sir Navroji by the seven beneficiaries, his five nieces and the appellants, who were daughters of his nephew. They wrote Our idea is that advantage should be taken of these good times and the salt-works at Ghatkopar known as ' Peston Sagar' which our deceased respected Father Sheth Framji has left by his ' will' should be sold off, so that a good price may be realised and we may be benefited. We do not think you Sir can have any difficulty or objection of any sort whatever to that being done, because in the ' will' of the deceased Sheth Frarnji there is a distinct clause for sale and power is given to you (in that behalf ). You will please therefore make the necessary ' Bandobast' (arrangement) in that matter, land you will please invite 'tenders' from the public without keeping anyone as intermediary, and you ' Meherban' (kind Sir) along with two other Trustees should open (the tenders) and after considering the same, you should act according to the opinion of the majority, and sell (the works) to a good (substantial) party at a good price. The Trustees are not bound to accept any highest or lowest ' tender. ' All those tenders should be sent in sealed packets to the residence in Bombay of your co-trustee Sheth Ardeshir Burjorji Paymaster, who will receive them and send them over to you Sir for their due disposal. Such sale should be properly advertised in well-known English and Gujarati newspapers. This is the only request. If you Sir will let (us) know your opinion in this matter, Bhai Ardeshir Burjorji Paymaster will make all the arrangements. This is dated May 27, 1920. On July 3, 1920, Sir Navroji replied and expressed the opinion that it would not be advantageous for the beneficiaries to sell the works, but agreed that if all the sisters came to the conclusion that the works should be sold, they might sell them ; and he gave advice as to the procedure. The sale, however, did not go through, for the present appellants were unwilling to sell except for a very high price. For though on January 15, 1921, E. N. Vakil wrote that he had taken the opinion of all the sisters, and that they were of opinion that he should sell if the salt-works fetched at least two lakhs ; Mrs. Goolbai Vakharia, plaintiff No.2, in a letter of January 29, 1921, warned the trustees that if they were to sell for less than four or five lakhs, she would take steps through the Courts for improper sale, and her sister sent a lawyer's notice to Sir Navroji to forbid the sale. In the meanwhile at the end of 1920 Mrs. Shirinbai Choksi, plaintiff No.1, put her case in the hands of Messrs. Crawford Bayley & Co. They called for the accounts of the Sagar for three years. These were furnished. They, then, asked for explanations, and in a letter of March 5, 1921, exhibit 355, p 557, they stated that their client was entitled to the residue of Framji's estate and asked for inspection of the whole account. Shortly after this letter, Messrs. Mansukhlal Mehta & Co. , acting for both the plaintiffs sent a notice, to Sir Navroji, and Messrs. Paymaster, Dalai and Vakil, the executors and trustees of the last will and testament of Framji Pestonji Vakil, in which they made definite charges of mal-administration of the estate of Framji.
(3.) THE suit was filed on June 8, 1921. THE plaintiffs were the daughters of Behramji. THEy joined as defendants Sir Navroji Pestonji Vakil, Messrs. Paymaster, Dalai and Vakil, three of the trustees, the six surviving daughters of the deceased Framji, i. e. Jerbai, Gulbai, Pirojbai, Dhanbai, Dinbai and Shirinbai, and Byramji's widow Meherbai, who was the executor of Byramji's will and had a life estate in the whole, of his estate. The plaintiffs pleaded the will of their grandfather Framji and alleged that Sir Navroji who had proved it had concealed some of the deceased's property from the Probate Court, e. g. , a valuable business, and had managed it for his own benefit; that the trustees had not accounted for two houses, or the out-standings and cash left by Framji; that they had wrongfully neglected to recover debts due to the estate ; and had wrongfully paid legacies for charity and religious purposes ; and, lastly, that they had mismanaged the deceased's salt pans in respect of which they were express trustees. It was claimed that the plaintiffs were entitled to a one-anna share in the salt pans, and they claimed an account on the footing of wilful default and their share of the salt pans and the residue of the deceased's estate.;

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