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TMI Blog1928 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... g to stridhan, the plaintiff is now entitled to whatever belonged to his mother Mahadevi during her lifetime. Originally the action was brought for an account, but at the trial this was abandoned and the plaintiff elected to rely only on his claim for sundry specific items, The defendants subsequently agreed to this course being taken, relinquishing also any claim to any set-off or account on their side. For several of the relevant, years Brijcomari's books of account were not forthcoming, having been, it was said, lost in a riot or consumed in a fire. This may have deprived the plaintiff of useful evidence and the defendants of circumstances proving a discharge. At any rate the matter rests there, as it was not held that the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 31,000 alleged to have been given to her when Mahadeo was married a short time afterwards. The remaining claim is for ₹ 90,000, part of the legacy above mentioned, the remainder of it not being now in dispute. There is also an issue as to the amount of interest to be allowed. 3. After the death of Bhagwandas his widow carried on his business on her own account, and as it was a business on a large scale it involved a full system of book-keeping. A ledger account in the name of Mabsdevi begins in 1896 with a credit of ₹ 24,968. This represents a principal sum carried forward from a previous ledger with periodic amounts for interest, some credited in the lifetime of Bhagwandas, some after his death. In respect of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making presents. Further entries in the day book relating to Mahadeo show a curious state of things Two lakhs are debited to him as having been credited to Mahadevi's account on January 17, 1901, and transferred from his account. This is part of a gross sum of seven lakhs and three-quarters, debited to him, of which the residue, five lakhs and three-quarters, are entered as credited to the father of Mahadeo on the occasion of Mabadeo's adoption, which took place shortly before his marriage. The death of Mahadevi occurred on May 17 1904, and in 1913 there are entries in the day book showing that the balance of Mahadevi's account, four lakhs and ₹ 69,128 which then stood to her credit, was exhausted by (1) a transfer of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seized on the deceased Mahadevi's estate, applying a large part of it to satisfy her own claims on the embarrassed firm of Fulchand Padamraj, and dividing the residue between Mahadevi's children, with hias little regard for legal rights as she had shown in the adoption proceedings some years before. The recital in the deed of February 24, 1920, to which the respondents were parties, stating that certain sums of money given by Brijcomari to Mahadevi, out of which Gigi Bai, the plaintiff's sister, received a third share, does not in itself prove a completed gift by Brijcomari, since she was dead years before the payment, and it is not relied on as an estoppel. The accounts in themselves are mere book-entries and do not confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading ought not to disentitle the plaintiff to recover, it is clear that no such proof was possible. Every step taken towards proof of a gift was in itself pro tanto a negation of a trust, for a trust retains the actual ownership in the trustee, while an endeavour to make a gift is an endeavour to divest the property and pass it away to the donee. All that was proved was a series of acts, which might, if carried far enough, have amounted to completed gifts, but in fact stopped short of completion. Brijcomari always retained the power to cancel all that she had done, whenever she changed her mind, and that change did eventually take place in 1913. 5. The claim relating to the legacy stands thus. Brijcomari laid out ₹ 90,000 in bayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships do not accept this and the contention fails. 6. The remaining point is a challenge of the course taken by the trial Judge in applying the rule of damdupat to the interest allowed. This peculiar Hindu rule is applicable to matters of contract, and the contention was that the claim for the legacy was not a matter of contract. As, however, the plaintiff had claimed to have the benefit of a course of business, under which, so far as the accounts of Brijoomari'e business go, all the items were treated as invested in commercial speculations for Mahadevi, he cannot both approbate and reprobate, nor can he, on finding that the claim to the benefit of that course of business with its resulting contractual obligations, is not sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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