MAHOMED HUSSEIN HAJI GULAM MAHOMED AJAM Vs. AISHABAI

JUDGEMENT

(1.) This is a suit for the administration of the estate of one Haji Gulam Mahomed Ajam, who died in Bombay, on or about March 1, 1928, leaving him surviving as his only heirs, according to the Sunni Muhammadan law by which he was governed, a widow, two sons and three daughters. He left a will in the Gujarati writing dated January 9, 1928, of which he appointed his widow and one of his daughters, being defendants Nos. 1 and 2, executrices. Defendants Nos. 1 and 2, however, have not obtained probate of the will. The plaintiff and defendant No. 3 are the sons, and defendants Nos. 4 and 5 are the two other daughters, of the deceased. He died possessed of properties, moveable and immoveable, of large value in Bombay, Rangoon, and other places in India. Some of his properties were equitably mortgaged to Mr. F. E. Dinshaw during his lifetime, and other properties were mortgaged in favour of the Central Bank of India, Ltd.

(2.) The suit was filed on June 19, 1928. On November 26, 1928, plaintiff took out a notice of motion for appointment of a receiver of the estate, and lengthy affidavits were filed on either side. The notice of motion was dismissed, and defendants Nos. 1 and 2 were allowed to continue in management of the estate as the executrices of the will of the deceased. Thereafter, none of the defendants filed their written statements. Defendant No. 4 and her husband were residing at Mauritius. She came to Bombay with her husband some time about the end of 1929, and inspection of the books of account relating to the estate of the deceased was given to her. It is alleged that full inspection has not been given, whereas defendants Nos. 1 and 2 have stated that defendant No. 4's Mehta attended at their attorneys office from June 1, 1931, till February 27, 1932, for one hundred and ninety-eight days in all, and three to four hours per day, and full and free inspection was given of every book and paper that was asked for. The inspection was not completed, as the Mehta was dismissed. She filed her written statement in February, 1933, and has charged defendants Nos. 1 and 2 with diverse breaches of trust, alleging that they have misapplied and wasted the estate of the deceased and made unauthorized investments and payments. A schedule giving the particulars of the alleged maladministration is annexed to the written statement. She accordingly prays for an account against defendants Nos. 1 and 2 on the footing of wilful default, and for the appointment of a receiver of the estate of the deceased, except such portion thereof as is in the possession of the Central Bank of India, Ltd., with power to recover the income and profits thereof. Defendants Nos. 1 and 2 put in their written statement only recently, as it was alleged on their behalf that certain negotiations were going on for an amicable settlement between the parties. An objection was taken to their written statement being taken on the file at this stage, but I thought that the executrices should be heard in their defence, and I ordered the written statement to be taken on the file. They allege that on March 31, 1926, the deceased made a gift of certain sums of money in favour of defendant No. 1 together aggregating Rs. 1,20,618-11-3. They further allege that he also made a gift of a sum of Rs. 21,487 on- the same day in favour of two of his daughters, viz. defendants Nos. 2 and 5. They, therefore, contend that they and defendant No. 5 are creditors of the estate for the said sums. Defendants Nos. 1 and 2 admittedly took possession of the properties after the death of the deceased. They made no inventory of the properties, but are willing to render an account of their management of the estate since the death of the deceased. Some time after the death of the deceased suits were filed in this Court against defendants Nos. 1 and 2 as executrices and other heirs of the deceased both by Mr. F. E. Dinshaw and the Central Bank of India, Ltd., to realize their mortgage securities. Mr. Dinshaw's claim has since been entirely paid off, and by an order of the Court dated July 27, 1931, defendants Nos. 1 and 2 were allowed to enter into a fresh mortgage in favour of the Bank. Pursuant to the order they created an equitable mortgage giving a first charge to the Bank on the immoveable properties of the deceased in Bombay and two immoveable properties in Mahableshwar to secure the repayment of the sum of Rs. 42,00,000 with interest at six and a half per cent. The mortgage is dated February 1, 1932, but even before that date, i.e., in or about September, 1930, defendants Nos. 1 and 2 had handed over the management of all the Bombay properties to the Bank. It is alleged in their written statement that this was done with the consent of all the heirs. They continued to live in the family house known as Chateau Ajam at Narayan Dabholkar Road, Malabar Hill, but they offered to vacate after the Bank took over the management. Defendant No. 2, Havabai, left the house about two years ago and went to live with her husband at Chakla. Defendant No. 1 continued to reside in that house, but vacated in or about July-August, 1933. Thereafter, the Central Bank of India, Ltd., filed suit No. 1914 of 1932 on the equitable mortgage in their favour, and by a consent order dated December 20, 1932, Mr. H. C. Captain, the Secretary of the Bank, was appointed receiver of the shares belonging to the estate and lying with the Bank with the powers mentioned therein, and the Bank agreed to pay to defendants Nos. 1 and 2 the sum of Rs. 400 per month for a period of three years beginning from July 1, 1932, in consideration of their assisting the Bank in the realization of the mortgaged properties, and so long as they continued to act as executrices and observed the terms of the order. It is also provided in the will of the deceased that defendants Nos. 1 and 2 should get Rs. 400 per month each after the death of the deceased, the words being "in lieu of their services as long as my property is administered". The will has not been admitted to probate, but there is no statutory obligation on a Muhammadan executor to take out probate of the testator's will. A Muhammadan executor can establish his right in a Court without taking such probate : see Sir Mahomed Yusuf V/s. Hargovandas Jivan (1922) I.L.R. 47 Bom. 231, 228 following Shaik Moosa V/s. Shaik Essa (1884) I.L.R. 8 Bom. 241. The will was not admitted by the plaintiff. He refers to it in paragraph 3 of the plaint as an alleged writing purporting to be the will of the deceased, and evidence was led on behalf of the executrices to prove the will in Court, and the will has been proved. There is, however, no dispute about its contents or its validity, as the testator has directed that his estate should be distributed according to the principles of the Sunni Muhammadan Law.

(3.) The main issues for the Court in this suit are, whether defendants Nos. 1 and 2 should be ordered to account on the footing of wilful default, whether the deceased made the gifts as alleged by defendants Nos. 1 and 2, and, if so, whether the same are valid and binding. The onus of proving the gifts is on the alleged donees. The burden of proof of wilful default is, in the first place, always on the party who alleges the default. It is for defendant No. 4, not merely to give proof of such default, but to prove clearly and affirmatively at least one act of wilful default to the satisfaction of the Court before the Court can make a reference for taking accounts on that footing. It must also be shown that the estate has suffered loss or damage, and that such loss or damage is due to circumstances of wilful neglect or default on the part of the executrices. It has, however, been held that a debt is really the foundation of a decree on the footing of wilful default, and, if the debt is proved or admitted, the burden shifts to the executors to show why they have not got in it : see Stevens, In re: Cooke v. Stevens [1898] 1 Ch. 162, 171. Wilful default can, therefore, only be decreed against executors in respect of something which the executors could have received but for their wilful default or neglect, and such default or neglect must be proved by the party alleging it.