Imatges de pÓgina




this suit. The Regulation provides that where docuiBEBEK'Tokai ments are produced, and they are not disputed, they

shall be received without proof.

As to the pleadings on that subject, the case was this : The Appellant, when called on to answer as to the factum of this Will, said, “What does it signify if there is such a Will ? If such a Will be produced it cannot have any effect against my interest." The official copy of the Will was produced at the hearing, and there does not appear to have been any objection taken to the reception of that instrument, or any demand made on the part of the Appellant that the instrument should be regularly proved by witnesses. If, therefore, it were necessary to determine that point, their Lordships would be of opinion that the Will was, for the purposes of the suit, as against the Appellant, sufficiently established.

Then it is necessary to look to what the nature of the Will really is, in order to see whether it is of such a character as that it would pass to Gabriel the legal estate in this property, in a form in which it could be the subject of seizure under a writ of execution from the Supreme Court, as the law at that time stood.

The Will in substance is this: The Testator declares that his son, Gabriel, shall be his heir and executor for the purpose of executing the intentions of his Will, and thereby, no doubt, he became trustee for the purpose of executing the different dispositions contained in that instrument. Those dispositions were to this effect : there was first a charge by way of annuity of Rs. 1,200, in favour of the present Appellant, all the debts were to be paid, there were very large legacies to be discharged, and after all these





charges, debts, legacies, and annuities had been satisfied or provided for, as to the remainder of the estate, Bebee TOKAT Gabriel was to be tenant for life, with remainder to his sons. He, therefore, was entitled to nothing for his own benefit but a life-interest in the residue of the real and personal property of the Testator after all the charges upon it had been satisfied and provided for, and after a full administration had taken place of the assets for the purpose of discharging these several dispositions.

Now, was that an interest which could be sold under an execution issued in the Supreme Court against the property ef the Testator? We have the concurrent opinion of the two very highest authorities in this country, on the subject, Sir Edward Ryan and Sir Lawrence Peel, who are most clearly of opinion that no such interest could pass under such in execution, and that, therefore, the Bill of sale under it was absolutely null and void. Indeed, the grossest injustice would be done if the transaction, as it has taken place, could stand. For what is the effect of it? The effect of it is merely this; that there being somo uncertain rights in some uncertain property in the District or City of Ducca, at a distance from Culcutta, it being uncertain whether the property was worth Rs. 100,000, or whether the interest of the debtor is worth anything; that property is put up for sale (that is, the right and interest of the debtor in that property is put up for sale) in Calcutta, and I think it appears here to have been bought for mere nominal sums, it being utterly impossible that there could be any satisfactory means of determining the value, or procuring a fair price by the competition of purchasers acquainted with the value, or capable even of ascertaining the




value of the property. But beyond that, the effect of BEBEE TOKAI it is this: that for these nominal considerations the

purchaser is to obtain the whole of this property; although supposing all these deeds to be void against creditors of Avictie, the very utmost that ever could have been demanded against the Appellant out of this property by this suit, would have been the amount of the debt originally due from Avietie, and properly recoverable against his asssets.

Now, the fact that the Bill of sale was void and passed nothing to the purchaser would alone be sufficient to dispose of this case, but as it was not the ground on which the Court below proceeded, it will be more satisfactory to advert to the other grounds. The other grounds are these : Although these instruments are open to suspicion, they are open to suspicion at whose instance? They are open to suspicion as between the creditors of Avietie and the Appellant. They are open to no suspicion at all as against the creditors of Gabriel. Gabriel is a mere volunteer. Gabriel's creditors might well dispute any fraudulent assignment which Grbriel had made; but how can Gabriel's creditors, or a purchaser from Gabriel, dispute the validity of transactions which Gabriel, before the institution of this suit, and long before the institution of the suit on which the present claim was established (that is, before the institution of any suit in the Supreme Court), had recognised and abundantly confirmed ? And, therefore, even if these different objections to which we have adverted, in respect of the form of the suit, and the nature of the proceedings, were removed, the character of the Plaintiff-the character in which he sues, of a personal creditor, asserting i personal liability against Gabriel-would cf




fectually exclude those considerations upon which, and upon which alone, the transactions which are now dis- BEBEE TOKAI puted could be subject to question.

Their Lordships, therefore, are very clearly of opinion that the judgment which has been pronounced must be reversed.

It appears to their Lordships that this has been not only a most irregular proceeding, but that it is impossible to attribute to it any fair motive; we heard none at least assigned at the Bar for the course which had been taken. A most unfair advantage would have been gained if these decrees could have been maintained.

Their Lordships, therefore, are of opinion, that the Appellant is entitled not only to have the decree reversed, but to have the costs repaid to her, which, under the decrees of the Courts below, she has paid ; to have her costs of those proceedings, and, also, to have her costs of the present appeal. If there be any means by which Beglar can now revert to his original position as a creditor of Avietie, and in that character dispute these different gifts or sales, of course it will be competent to him to do so. If not, by attempting to obtain an unfair advantage in an irregular manner, he will have lost the opportunity of which at one time he, no doubt, might have availed himself.






On appeal from the Supreme Court at Calcuttu. 4th & 20th TIE question raised by this appeal was, whether July, 1837.

the accumulations made to and incorporated with Rulos for joint and undivided immovable and movable proconstruing Willsof Hin- perty by the manager of a joint and undivided Hindoos. Primarily

doo family, with the assent of his co-sharers, by the words of a Will are to

means of the surplus income, proceeds, and profits be considered. They convey * Present : Members of the Judicial Committee, — The Right the intention of the Testa- Hon, the Lord Justice Knight Bruce, the Right Hon. Sir Edward tor's wishes, Ryan, the Right Hon. the Lord Justice Turner, and the Right but the meani. ing to be at- Hon. Sir William H. Maule. tached to them may be affected by surrounding circumstances, among which is the law of the country in which thu Will is made, and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition a particular effect, it must be assumed that the Testator, in the dispositions he has made, had regard to that meaning or to that effect, unless the language of the Will, or the surrounding circumstances, displace that assumption.

A Testator by his Will mado an absolute gift of his real and personal ostate to his five sons(an undivided Hindoo family) in equalshares, and in a subsequent part of his Will, in the event of any of his five sons dying

without a son or son's son, there was a gift over to such of his sons or son's sons as should be alive. After the death of the Testator the sons lived together, and no partition of the estate was made, the surplus income and the increment being kept with the common stock. Upon the death of one of the sons without leaving a son or son's son, his widow, who was entitled to a life interest in her husband's estate, claimed her husband's share of the accumulation of income, and the increment thereon. Held, upon a construction of the Will, that in the absence of any direction of the Testator that his sons should continue a joint family, such an intention could not be imported into the Will, and that the Testator's intention was that his sons should enjoy during their lives the interest of their respective shares of the proporty; and, therefore, that, although the deceased co-sharer's share went over to the survivors, the widow of the deceased was entitled to one-fifth of the surplus income which had accumulated since the Testator's death, and during her husband's lifetiine, and the incrementarising out of such accumulations,

« AnteriorContinua »