1856. DUTT v. UPPOORNAH of August, 1853,) she had invested Rs. 39,000, of the money so received in other Company's paper; HURRYDOSS and she says, at the time when she puts in her answer, in the month of October, 1853, that is three SREEMUTTY months after the date when she received the money, that the remainder of the money was still in her hands uninvested, waiting for an eligible investment. Then can it be said, that the Respondent, who, according to the ordinary Hindoo custom, keeps in her house a certain portion of the money, having, in the course of three months, invested Rs. 39,000, three-fourths, or at least two-thirds, of the money in other securities, was guilty of a devastavit, or showed the slightest intention of committing a devastavit in this respect? Their Lordships are of opinion that no such case is made out; and, as the ground upon which the Bill was filed, therefore, entirely fails, the appeal must be dismissed with costs. We must observe, that if there were any foundation for the law which has been now contended for at the Bar, the cases in which such applications would be made must have been, we should suppose, extremely frequent; yet no such instance has been produced, either from the Native or the Supreme Courts in which any order has been made for such interference, except in a case in which manifest danger, or risk of danger, has been proved to the satisfaction of the Court. Their Lordships will advise Her Majesty to affirms this decree with costs. 26th & 27th THE facts of this appeal are fully set forth in Nov., 1856. Will by a Parsee established. Semble. There is no restraint upon the tes tamentary power of dis position by a Parsee. An appeal lies to the Queen in Council from the decision of a single the judgment. The case was argued by Mr. Le Messurier, and Mr. Leith, for the Appellant; and Mr. Rolt, Q. C., and Mr. Ayrton, for the Respondents. The authorities referred to were: Upon the alleged refusal of the Court to examine witnesses upon the custom of the Parsees to make, Judge of the first, a testamentary disposition at all; and second, Sudder Court, upon the ad whether any restraint was imposed upon the Testator missibility of a special ap- disposing of his property, Bom. Reg. IV. of 1827, peal. The Bombay Act, No. III. of 1843, enacts that such refusal is final, yet not having received *Present: Members of the Judicial Committee,The Right the sanction of the Crown: Hold, that its finality was confined to the Sudder Court, and did not affect the prerogative of the Crown, or deprive the subject of his right of appeal to the Queen in Council. Rom. Reg. IV. of 1827, sec. 27, cl. 2, imposes no obligation on the Court, in the absence of any allegation in the pleadings of family usage or custom, to call for evidence of such fact. sec. 27, cl. 2. Jeswunt Sing-jee v. Jet Sing-jee (a), Macpherson "On civil procedure," p. 220. As to the power of a Parsee Testator, by the custom of the Parsees, to make a Will, without any restriction imposed upon him for disposing of his property, Nawee Buhoo v. Peshtunjee Loola Bhaee (b), Mihirwanjee Ruttunjee v. Poonjeea Bhaee (c), Khoorshed-jee Manick-jee v. Mehrwanjee Khoorshed-jee (d). Judgment was pronounced by The Right Hon. the Lord Justice TURNER: This appeal arises out of a suit instituted by the Appellant in the Court of Surat, against the Respondents, the widow and daughters, and also a granddaughter of the Appellant's late brother, Modee Rustomjee Hormusjee, for the purpose of recovering his late brother's estate. By the plaint in this suit, the Appellant alleged that his father, Modee Hormusjee Bhimjee, died in the year Sumvit, 1877; that he had three sons, the eldest of whom was Modee Muncherjee, the second, Modee Rustomjee, and the third, the present Appellant; that neither of the other two brothers, but only himself, the Plaintiff, had sons, and that according to the custom of the family, and the rules of their Parsee Punchayet of Surat, the brothers of deceased persons, and not their wife and daughters, are entitled to their inheritance; that his elder brother, Modee Muncherjee, died six years past, leaving his wife; and the certificate of heirship to him had been obtained from the Court by the Appel(b) 1 Borr. Bom. Rep. 1. (a) 2 Moore's Ind. App. Cases, 424. VOL VI. E 2 1856. MODEE KAIKHOOS CROW HOR MUSJEE บ. COOVER BHAEE. 1st Dec., 1856. 1856. MODEE KAIKHOOS MUSJEE 2. COOVER BHAEE. lant and his brother, Rustomjee, and the two brothers had received his property. That Appellant's brother, CROW HOR- Rustomjee, died on the 16th of August, 1849, and he having no son, the Appellant was the owner and heir to all the property of his deceased brother, Rustomjee, and all the property that had been taken possession of by his widow, Cooverbhace, his daughters, Dimbaee and Motteebace, and grand-daughter, Khursetbaee, which they did not make over to him, the Appellant; but alleging their false claim thereto, by the instigation. of some people they intended ruining the property, with the object of injuring the Appellant's just claim. He preferred his plaint, therefore, for Rs. 6,18,699, and to obtain possession, according to the following particulars, of the property, ready money, jewels, &c., deed and other documents, and Dufturs, and he requested that Cooverbhaee, widow of Modee Rustomjee, Dimbaee and Motteebaee, daughters of Rustomjee, and Khursetbaee Buchoobaee, grand-daughter of Rustomjee, might be summoned to appear, and after instituting an investigation by means of witnesses and pleadings, the property, ready money, deeds and other documents, and Dufturs, might be made over to him, out of their possession; and he further stated by his plaint, that his brother had lent money to some people, the documents for which he had caused to be written in the names of his widow and daughters, but that the amount belonged to his brother, who was the owner thereof, and the persons therein named had no claim thereto, but that he, the Appellant, had. Then followed the particulars of demand, which were estimated at Rs. 6,18,699. The Respondents, by their answer, stated that the Plaintiff had unjustly laid a false claim against them, who were females, and the rightful heiresses, seeking to intimidate them. That the Plaintiff and his brother, the deceased, Modee Muncherjee, and the deceased, Modee Rustomjee, all three brothers, in the year Sumvit, 1880 (A.D. 1823), divided the little property of their father between them, and having executed releases to each other respectively, they separated, and they took their meals separate, and traded separately. Therefore, according to the custom of the world, and the rules of their caste, they, the wife and daughters of the deceased, Modee Rustomjee, were his heiresses; and, in like manner, amongst them, the wives and daughters of deceased persons who had separated from their brothers had inherited their property. The Respondents further alleged that the deceased, Modee Rustomjee, made his Will in Sumvit, 1902 (1845 A.D.), appointing them his heiresses and administratrix, by which also, according to the regulations of their religion and usage, the suit laid by the Plaintiff was clearly false. Besides which, the Modeejee of their community, the Plaintiff, and others, gave a written. answer, dated the 5th of November, 1842, to a question put by the Judge respecting Parsees, wherein it was distinctly written, that if the deceased had not left a Will and there existed any paternal property, his brother was entitled to inherit the same; that by the admission of the Plaintiff it was publicly known amongst them, that a person might by Will bequeath his paternal property to whomsoever he pleased; and in this case the deceased, Modee Rustomjee, after the division of his paternal property, acquired property by his own labour, and also made a Will in favour of the Defendants, his wife and daughters; therefore, according to the contents of the answer given by the Plain- 1856. MODEE CROW HOR- υ. COOVER ВНАЕЕ. |