1. ' The plaintiff Jiwanbai Nadir Shaw Golwalla (who will hereinafter be described as "the deceased plaintiff") brought this suit against defendants I to 6 for declaration, accounts and permanent injunction. The admitted position in the case is that Sohrabji Ruttonji (who will hereinafter be referred to "as the deceased") owned a business under the name and style of Sorabji & Co., Quetta, which had leases of two coal mines at Quetta and Mach, respectively. The deceased died at Quetta in the year 1934 and was survived by two sons Nariman and Burjorji and the deceased plaintiff. In addition to these three heirs there, were also three children namely two sons and one daughter K. P. Tengra, M. P. Tengra and Goolan Tengra, all children of a predeceased daughter of the deceased, late Hiranbai. The deceased did not leave behind any Will and as such according to the Parsi law of intestate succession, the properties left behind by the deceased were inherited by the three surviving sons and daughter of the deceased and the three living sons and daughter of the pre-deceased daughter Hiranbai in the following proportion :-
(a) Nariman 5 annas 4 pies,
(b) Burjorji 5 annas 6 pies, (c)Jiwanbai 2 annas 8 pies,
(d) K. P. Tengra, M. P. Tengra and Goolan Tengra jointly 2 annas 8 pies.
2. ' It is alleged in the plaint that after the death of the deceased the two." mines were managed and looked after by the two sons of the deceased Nariman and Burjorji in the name of Sohrabji Sons for themselves as well as for and on behalf of and in trust for the deceased plaintiff and the children of. Late Hiranbai. It is further alleged that on 23-7-1949 - on the demise of Burjorji his son Darab, widow Aimai and daughters Gool, Amy and Nergish, became partners in place of Burjorji but in view of the earlier arrangement, defendant 1 Darab alone was admitted as a partner in place of Burjorji in the firm Sorabji & Sons. It is alleged that although after the demise of the deceased in 1934 the partnership firm Sohrabji & Sons was continued by Nariman and Burjorji only and again on the death of Burjorji on 23-4-1949 the same partnership continued in the name of Darab and Nariman only but in effect the two mines at Quetta and Mach continue to belong to the whole family of GoIwalla. It is however an admitted position that the leases of the above two mines after the death of the deceased were continued in the name of his two sons Burjorji and Nariman but it is alleged in the plaint that this arrangement was only for the sake of convenience otherwise the two mines in fact belonged to all the heirs of the deceased and the leasehold rights were held by the two sons of the deceased as a trust for all of them. It is alleged in the plaint that the deceased plaintiff all along lived with her brother Nariman who used to manage everything for her including her income from the said mines. The said Nariman the brother of the deceased plaintiff died in the year 1952 and during his illness it is alleged defendant 2 with the help of her brother took control of all the affairs of late Nariman including the business of the mines. The deceased plaintiff it is alleged, while his brother Nariman was bedridden, had requested him to separate her 2 Annas 8 pies share in the two mines so that after his death she may not face any difficulty. It is also alleged that in a family meeting which took place during the lifetime of late Nariman, he expressed before all the family members that the deceased plaintiff was entitled to a share of 2 Annas 8 pies in the two mines which late Nariman had so long managed. It is also alleged that during the above family meeting late Nariman had also expressed his desire to keep the two mines in the Golwalla family and accordingly he had desired that after his death his wife defendant 2 will be entitled to only life interest in the coat mines and that after the death of defendant 2 the same will revert back to the family of Golwalla. A Will it is alleged, incorporating this disposition of property was executed by late Nariman and it was to be handed over at the earliest opportunity by him to a trusted friend for custody and execution at its due time. Late Nariman, it is alleged, however, died on 7-8-1952 and on his death when his Will was read it shocked the deceased plaintiff as according to it, out of his 8 Annas share in the two mines late Nariman bequeathed 6 Annas to defendant No, 2 and 2 Annas to the deceased plaintiff for her life time only and that this 2 Annas share given to > the deceased plaintiff under this Will was to revert back to defendant 2 on the demise of the deceased plaintiff. It is alleged that this Will was made/ obtained from late Nariman by defendant 2 in collusion with her brother Jal Sidhwa after doing away with the earlier: alleged Will made by late Nariman in which he gave only life interest in the two mines to defendant No, 2 and 2 .Afinas 8. Pies share to deceased plaintiff which she had originally inherited from her father the deceased. It is further alleged that after having come to know of the contents of the Will of late the plaintiff and other family members protested at this underhand method of depriving the family of Golwalla of the 2 coal mines. The Will was allegedly challenged by the deceased plaintiff but it is stated that the well-wishers of the family prevailed upon the deceased plaintiff not to take the matter to the Court of law for the sake of her late brother Nariman and family harmony. It is further alleged that the deceased plaintiff was assured by all the family members including defendants Nos..1 and 2 at that time that her right in the mines would not be denied and would be restored to her without going to the Court. It is also alleged that on these assurances a partnership deed dated 27-2-1952 was executed by the deceased plaintiff. It is asserted that with the lapse of time the deceased plaintiff's health deteriorated and the alleged understanding given to the plaintiff for separating her share was also not implemented by the defendants which led to the filing of this suit. In the cause of action clause the cause of action is alleged to have arisen to the deceased plaintiff on or about 16-9-1958 when defendant 2 refused to separate 2 annas 8 pies share of the deceased plaintiff in the two mines and render account for the share and profits of the deceased plaintiff. The suit was instituted on 25-2-1967. Separate written statements were filed in the suit by defendant 1, defendants 2 to 5 and defendants Nos. 6(a) to 6(b) and 6(c) (i) to (iii). In their written statements defendants No. 1 and defendants 6(a) to 6(c) (i) to (iv) almost admitted the claim of the deceased plaintiff in the suit. However, .Defendants Nos. 2 to 5 have denied and contested the claim of the deceased plaintiff. After, filing of the written statements the deceased plaintiff Jiwanbai died and the present plaintiffs were substituted in her place on the basis of an alleged will which gave the share of the deceased plaintiff to the present plaintiff. After substitution of the present plaintiffs in suit defendants 2 to 5 filed amended written statements challenging the maintainability of the suit by the present plaintiffs on the ground that deceased plaintiff had only a life interest in the suit property and with her death the interest in the property terminated and reverted back to defendant 2. Consent issues filed by the parties and adopted by the Court on 12-2-1968 were amended after filing of the amended written statement by defendants 2 to 5 by adding three additional issues on 13-9-1976. The issues finally adopted in the suit were as follows :- "(1) Whether the plaintiff has As. 2-Ps. 8 share in the leasehold right in Coal mines at Quetta and Mach ?
(2) Whether Nariman and Burjorji managed the said mines on behalf of Sorabji & Sons for themselves and for and on behalf of and in trust for the plaintiff and children of late Hiranbai ?
(3) Who are the heirs of Gollan Wania ? Was the business continued by Nariman and defendant No. 1 on their behalf ?
(4) Whether the lease of mines was continued in the name of Nariman and Burjorji for convenience only ?
(5) Whether Sorabjee & Sons conducted the business for the whole family and partners held the leasehold rights for themselves as well as in trust for all the legal heirs of late Sorabjee ?
(6) Whether the plaintiff had all her interests in the hands of her brother late Nariman who managed everything for her including her income from the said mines ?
(7) Whether Nariman confirmed As. 2-ps. 8 share of the plaintiff as alleged ?
(8) Whether there was a second family meeting as alleged ? If so what transpired and what is its effect ?
(9) Whether a Will was made as alleged in para. 16 of the plaint ?
(10) Whether the same Will of Nariman was done away with as alleged? If so what is its effect ?
(11) Whether the defendant No, 2 usurped As. 2 8 Ps. His alleged share of plaintiff ?
(12) What is the effect of the Will of Nariman ?
(13) Whether the plaintiff challenged the Will of Nariman ?
(14) Whether the plaintiff was assured that her rights in the mines would not be denied and would be restored ? What is its effect ?
(15) What is the effect of partnership deed dated 27-12-1952 ?
(16) Whether any cause of action arose on 16-9-1958 ?
(17) Whether the suit has been properly valued ? If so what is its effect ?
(18) Whether the plaintiff is entitled to decree as alleged' ?
(19) Whether the suit is liable to be dismissed having been filed without first obtaining letters of Administration as required by section 212 of Succession Act ?
(20) Whether the suit is liable to be dismissed as the plaintiff has failed to claim consequential relief of possession under section 45 Specific Relief Act?
(21) Is the suit time-barred ?
3. "Additional Issues :
(1) Whether legal representatives (1) and (2) of deceased Jeevanbai plaintiff are her legal representatives ?
(2) Whether deceased Jeevanbai made the alleged Will and Codicil ?
(3) Whether the alleged Will and Codicil are valid in law ?"
4. ' After evidence was recorded when this suit came up for arguments before me I reframed the issues as follows after hearing the learned counsel : - "(1) Whether the two sons of late Sorabji Rattanji Golwalla, namely, Nariman and Burjorji carried on the business of Sorabji & Co. And later named as Sorabji & Sons and managed and looked after the two mines at Quetta and Mach after the death of the deceased Sorabji as their own and exclusive business to the exclusion of the other heirs of the deceased Sorabji Rattanji Golwalla, or the business was run by them for the benefit and in trust for all the heirs of the deceased ?
(2) Whether, the suit is within time ?
(3) What is the effect of Will dated 12th April, 1952 made by Nariman ?
(4) Whether the Will and the Codicil made by plaintiff Jiwanbai on 22-11-19$9 and 5-7-1976 were legally competent ?
(5) Whether the Suit is hit by section 212 of the Succession Act ?
(6) Whether the court-fees paid is sufficient ?
(7) Relief."
5. ' The real controversy in the suit revolves round Issue No. 1. I therefore propose to deal with this issue :- "Issue No, I ' It is claimed by the plaintiff that on the demise of the deceased the deceased plaintiff became entitled to a share in the two mines at Quetta and Mach to the extent of 2 Annas 8 pies. It is not disputed by defendants 2 to 5 that deceased plaintiff was entitled to inherit a share of 2 Annas 8 pies in the estate left behind by the 'deceased. It is however denied by defendants 2 to 5 that on the death of the deceased the two mines were managed and run by his two sons Burjorji and Nariman, as a joint property of all the heirs and Burjorji and Nariman managed and looked after it for and on behalf of all the heirs, and in trust for them. It is also denied that the names of the two sons of the deceased in the firm Sorabji & Sons as equal partners was only for the namesake and the convenience. It is claimed by defendants 2 to 5 that the two mines as their own exclusive business and run the same to the exclusion of all other heirs as equal partners. In support of her claim in the suit that Burjorji and Nariman after the death of the deceased were holding the two mines for and on behalf of and in trust for all the heirs, the deceased plaintiff examined Savak Rustomjee and Jehangir Savak Rustomji (Exh. 8) is the main witness in the case. This witness as admitted by all parties, was associated with the management and administration of the business of the two mines right from the days of the deceased since 1930 till today. This witness clearly stated in his evidence that the two sons of the deceased Nariman and Burjorji had no interest in the two mines during the life time of the deceased. He further stated that after the death of the deceased Ardeshar told the three surviving children of the deceased, namely Burjorji, Nariman and the deceased plaintiff that the business was to be continued by the two sons and the deceased plaintiff was to be looked after as ladies were never used to come to the business and accordingly Nariman and Burjorji stepped in being the sons of the deceased but nothing happened to the rights of the deceased plaintiff and she got nothing. This witness further stated that while the above arrangement was spoken by Ardeshar and it was stated that the two sons will do the business and will also look after the deceased plaintiff it did not mean that the deceased plaintiff was to be disinherited. It was further sought to explain by the witness that when the above arrangement was arrived at that-the deceased plaintiff will be looked after it meant that she was to get her due share according to the Parsi Law. He also stated that after the death of the deceased the firm Sorabji & , Company was changed to Sorabji & Sons and the leases/licences of the two mines were renewed in the names of the two sons of the deceased namely Nariman and Burjorji from time to time. This witness also stated that after Burjorji died on 23-4-1949 his son Darab was taken as a partner of the firm Sorabji & Sons being the male member of the family of Burjorji with Nariman and the understanding was that he will continue to pay the due share of inheritance out of the income to his mother and three sisters according to Parsi Law. It is also 'stated that this arrangement between the family members of Burjorji was first of all a verbal arrangement but later on it was reduced into a writing. This arrangement according to the witness was only for the purposes of administering the share of Burjorji while in fact in the firm only Nariman and Darab were shown as partners of Sorabji & Sons. This witness further stated that the deceased plaintiff all along stayed with her brother Nariman who died in the year 1952. It is stated by this witness that while Nariman was not keeping good health and was sick during the year 1952, in his presence the deceased plaintiff asked late Nariman for separation of her 2 Annas 8 pies share because of the strained relations between the deceased plaintiff and defendant 2 whereupon late Nariman had drawn a Will which was properly typed and was signed by Nariman and witnessed by the witness and Mrs. Jal Sidhwa (defendant 2's brother's wife). This Will which was executed at Nariman's house according to this witness after execution, was kept by Nariman himself. The persons stated to be present at the time of execution of this alleged Will by late Nariman were, the deceased plaintiff, defendant 2, Mrs. Jal Sidhwa and the witness. This Will, according to the witness, was made and typed according to the wishes of late Nariman. In the Will, it is stated by the witness, late Nariman gave life interest to his wife (defendant 2) for his share of 5 Annas 4 pies in the two mines and 2 Annas 8 pies share of the deceased plaintiff as her original inherited share from the deceased in the mines was also confirmed. The witness further stated that after the death of defendant 2 the share of late Nariman was to revert back to the Golwalla family.
6. This witness also stated that after 2 or 3 days- of execution of this Will Mr. Kotwal Advocate of Karachi attended to late Nariman and another Will was made. The witness came to know about this second Will through the deceased plaintiff who informed the witness about the visit of Kotwal Advocate and that a Will was made. The deceased plaintiff told this witness that Kotwal Advocate had told her that her interest will be looked after and that she will get her due share. According to the witness after the death of Nariman as there was no one to look after the deceased plaintiff who was then aging, he took her to Quetta. The Will of Nariman it is stated by the witness was read on the 4th day of the death of Nariman by Professor Jal Sidhwa and a copy of this Will was sent to the deceased plaintiff. The witness stated that on reading the Will we were all shocked to read its contents. According to the Will the deceased plaintiff got only 2 Annas share in the mines during her life time. The witness further stated that the deceased plaintiff started protesting against this but was pacified and assured by the family members and specially defendant 1, that she would be given her legitimate share of 2 Annas 8 pies in the mines and that her account will also be settled.
7. It is stated by the witness that on these assurances partnership deed (Annexure 'A') to the plaint was signed by the plaintiff. Towards the end of his examination-in-chief this witness stated that till today the account of the deceased plaintiff has not been settled according to her share of 2 Annas 8 pies. It is also stated that on occasions when this subject was discussed with Professor Jai Sidhwa attorney of defendant 2, he refused to give the share to the deceased plaintiff and said that she should proceed according to law. In his cross-examination the witness admitted that all along after the death of the deceased the leases/ licences of the two mines were shown in the name of Burjorji and Nariman as equal partners of 8 annas share each. He also stated that in the partnership deed which was executed after the death of the deceased between the two sons only, each one Was shown as having a share of 8 annas. The witness also admitted that he acted as attorney of the two sons namely Burjorji and Nariman in discharge of his duty on behalf of the firm Sorabji & Sons. The witness when confronted with innumerable documents namely the accounts books, income-tax returns, assessm ent orders etc. Admitted that all these documents show that the only persons who were entitled to a share in the two mines until the death of Burjorji were the two sons of the deceased only. Specific questions were asked to this witness to show from the account of the firm that any amount was ever remitted to the deceased plaintiff cut of the income of the firm to which the witness replied that in the accounts of the firm no entry exists to show that any amount was ever remitted or paid to the deceased plaintiff. The witness was also shown several letters written by him remitting the income arising from the partnership and he admitted that in all these letters no reference of any payment to the deceased plaintiff was made and all the sums were remitted by him for the partners namely Burjorji and Nariman only. In reply to a question put by the learned counsel for defendants 2 to 5 the witness stated that from 1935 to 1952 I actually neither paid any money to the deceased plaintiff nor the deceased plaintiff ever claimed any money from me as the Manager of the firm. The witness also admitted that there was no document in existence executed either by Burjorji or Nariman in respect of the claim of the deceased plaintiff. Immediately after giving this answer in the cross-examination this witness stated as an explanation that the deceased plaintiff was quibbling but I could do nothing as her brother Nariman was there. The witness also admitted in cross-examination that in spite of all her protest, the deceased plaintiff after the death of Nariman in 1952, under the Will of late Nariman dated 12-4-1952, became' a shareholder of 2 annas share in the two mines as a life interest under the partnership deed dated 27-12-1952 which the deceased plaintiff had executed. The other witness (Exh. 9) examined by plaintiff in support of her case stated in examination-in-chief that the deceased plaintiff was given only 2 annas share of the income during her lifetime out of the share of Nariman in the partnership which was 8 annas. This witness also stated that plaintiff Jiwanbai had no share in 8 annas share of Burjorji which went to defendant 1. It is also stated by this witness in the examination-in-chief that from the partnership income during the life time of Nariman, the plaintiff was getting only her maintenance and not her actual share because the Manager (Exh. 8) of the firm was sending half income of the firm to Nariman and half to Burjorji without reserving any income for the deceased plaintiff. It is further stated by this witness that the deceased plaintiff used to raise claim in respect of her income to the extent of 2 annas 8 pies but she was not paid anything by defendant 1. He also stated that there was no private agreement for payment of the income of 2 Annas 8 pies to the deceased plaintiff. The partnership dated 27-12-1952 as stated by this witness was executed by the deceased plaintiff pursuant to the Will made by late Nariman.
8. ' In view of the above discussed evidence the point arising for consideration before me is whether after the death of the deceased his two sons carried on the business of the two mines as their sole and exclusive business to the exclusion of other heirs of the deceased or they continued the business for and on behalf of and in trust for all the heirs of the deceased. The documentary evidence on record is overwhelming to show that after the death of the deceased the two sons namely Burjorji and Nariman carried on the business of two mines and appropriated all the income arising therefrom to the exclusion of all the other heirs of the deceased. Not only this, the deceased plaintiff admittedly did not receive any share from the income from 1934 till 1952 from the partnership firm on account of her share of 2 Annas 8 pies as a heir of the deceased. The acceptance of two Annas share by the deceased plaintiff upon the death of late Nariman as a life interest only out of the share of late Nariman also goes to show that the deceased plaintiff never asserted her claim of 2 annas 8 pies, share in the two mines after the death of the deceased or at least never put forward her claim on that basis. The two witnesses produced by her in support of her claim have categorically stated that at no time the deceased plaintiff was paid by Burjorji or Nariman or by Darab her share of 2 annas 8 pies although she continued to make protest. The witness Jehangir Golwalla (Exh. 9) in his examination-in-chief had even gone to the extent of saying that out of the share of Burjorji of Annas 8 in the two mines the deceased plaintiff had no share. This statement of the deceased plaintiff's witness is quite inconsistent with the claim in the suit. According to the deceased plaintiff's claim in the suit Burjorji was entitled to only 5 annas and 4 pies share. The execution of the partnership dead dated 27-12-1952 by the deceased plaintiff after the death of late Nariman is also admitted by both the witnesses examined on behalf of the deceased plaintiff. Under this partnership deed the deceasad plaintiff got a share of annas two only in the income of the two mines as a life interest only and that too out of the 8 annas share of late Nariman. It is not disputed before me that the deceased until filing of the present suit continued to receive her share in the income of the two mines in accordance with the stipulation contained in the partnership deed dated 27-12-1952. 'The evidence on record clearly suggests that the partnership dated 27-12-1952 was fully acted up and until filing of the suit the deceased plaintiff never objected to it. In fact on 30-4-1966 soon before filing of the present suit the deceased plaintiff alongwith D. B. Golwalla (defendant 1) and M. N. S. Golwalla caused a notice (Exh. D/53) served on defendant 2, though Mr. Imtiaz H. B. Hanfi, Advocate of Quetta, on defendant 2, in which the deceased plaintiff asserted her rights in respect of the two mines on 'the basis of the partnership deed dated 27-12-1952.
9. ' In view of the above evidence on record, the right of the deceased plaintiff if any, on the basis of the inheritance, she allegedly acquired on the death of the deceased in the year 1934 in the two mines, was lost and defeated by lapse of time, acquiescence and continuous exercise of hostile and adverse title over these properties by the defendants and their predecessor in-title. On the evidence as it stands the only right which she claimed in the two mines was 2 Annas life interest which she got under the Will of late Nariman dated 27-12-1952. I accordingly hold that the plaintiff has failed to prove that after the death of the deceased his two sons Burjorji and Nariman held and continued to run the business of two mines at Quetta and Mach for the benefit of and in trust for all the heirs of the deceased. The evidence clearly show and suggest that the two sons carried on the business of the two mines after the death of the deceased as their own and exclusive business to the exclusion of all other heirs.
10. " Issue No, 2 : This issue relates to limitation. The present suit was filed on 25-2-1967. The cause of action is alleged in paragraph 36 of the plaint as having arisen to the deceased plaintiff on 16-9-1958. The suit is for declaration and permanent injunction and accounts. The right claimed by the deceased plaintiff is based upon the right as a heir of the deceased who admittedly died in the year 1934. The learned counsel for the deceased plaintiff was unable to show as to how the suit is within time. The deceased plaintiff according to her own showing became entitled to this share upon the demise of the deceased in the year 1934. The evidence on the record show that the deceased plaintiff never received any share out of the income of the two B mines after the death of the deceased; It is on the record that the decease plaintiff never participated in management, control or in the income of the two mines which were exclusively run, managed and controlled by the two sons of the deceased and their successor in title until filing of the suit. Even if I presume that the two mines were joint family properly and that the deceased plaintiff was entitled to a share in it as an heir, even then the period of limitation will be 12 years under Article 127 of the Limitation Act from the date when the exclusion became known to the plaintiff. The plaintiff has not been able to show that the deceased plaintiff became aware of her exclusion from the joint property only within 12 years 'of the filing of present suit. There is ample evidence on record to show that the plaintiff was aware that she was not given her due share in the two mines left by the deceased and in any case on the death of Nariman she was specifically made known about her exclusion from the joint family property when late Nariman's Will was communicated to her. I accordingly hold that the plaintiffs have failed to show that the suit is within time.
11. " Issue No, 3 : ' Linder the Will of late Nariman the deceased plaintiff got a share of only annas 2 in two mines at Quetta and Mach as a life interest and this life interest of the deceased in the two mines terminated upon her death and her 2 anna share reverted back to defendant 2.
12. " Issue No, 4 : ' In view of my finding on Issue No, 3 I hold that the Will and codicil made by the deceased plaintiff giving her share in the two mines to the present plaintiff was not legally competent as upon death of the deceased plaintiff her share of 2 annas in the two mines reverted back to defendant 2 in terms of the Will of late Nariman, " Issue No, 5 : The present suit by the plaintiff is in the nature of a suit for administration and as such I am of the view that the suit is not hit by section 212 of the Succession Act, The learned counsel for the defendants 2 to 5 was unable to show that the present suit was incompetent in the absence of letters of administration in favour of the deceased plaintiff.
13. ' In view of my decision on Issues 1 to 4 I dismiss the suit with costs but costs will be payable only to defendants 2 to 5 who contested the claim of the plaintiff.