TaxTMI 
TaxTMI 
2014 (11) TMI 1284
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....d after her death. Her jewellery she left to her sister-in-law, i.e., Defendant No 2. She also allegedly made a bequest to Mirzban of the balances standing to the credit of all her bank accounts, the contents of her bank lockers, and all her investments including fixed deposits, shares, debentures, bonds, government securities and all immovable properties held singly by her or jointly with Mirzban. The remainder was also bequeathed to Mirzban and, failing him, to Mehermosh and Rumi equally. 3. The Defendants are Vivien's brother and sister-in-law, respectively. They entered a Caveat on 25th October 2000 and filed a joint Affidavit in Support on 31st October 2000. In that Affidavit, the Defendants disputed the execution of the Will. They alleged that Vivien had not executed the alleged Will voluntarily and that it was not prepared under her instructions. Vivien was, the Defendants alleged, in no physical and mental condition to make any such testamentary disposition. She was, they said, under Mirzban's control, and the Will was obtained by undue influence. According to the Defendants, Vivien died intestate. 4. On the Caveat and Affidavit in Support being filed, the petition was re....
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....on 14th March 1998, S. P. Mustafa visited Vivien's parents and read out the Will. A copy seems to have been given to them as well. 10. On 26th March 1998, Mirzban wrote to Vivien's father, A. T. Vaz, enclosing a notarized copy of Vivien's Will, and demanding that he hand over Vivien's assets. On 11th April 1998, A.T. Vaz's advocate replied, raising disputes. It seems however that on 8th April 1998 there was a meeting at which, among others, Mirzban, his son Mehernosh, Vivien's parents and the 1st Defendant, Cedric Vaz, Vivien's brother were all present; and an understanding was apparently reached at this meeting. On 18th April 1998, there was another meeting. Vivien's father is said to have reaffirmed the agreement reached ten days earlier. Stamp papers were called for and it was agreed that the next day Mirzban would break open Vivien's cupboard and hand the jewellery in that cupboard to the 2nd Defendant, Maria, Vivien's sister-in-law. Certain other matters were also agreed and these were drawn up on stamp paper. On 19th April 1998, Mirzban, in the presence of several persons, did break open the Vivien's cupboard. The jewellery in it was inventoried. That inventory is Ex.P-7 in e....
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....forced into accepting something, especially something munificent like jewellery or cash. This is not a submission that stands to reason. At no time have the Defendants brought back the amounts or items they received and took. 15. It is, I think, a well-settled principle that a person who accepts a benefit under an instrument must accept it in its entirety. He cannot accept the benefit and repudiate its other provisions. Thisis a very old principle, enunciated by Lord Cairns L.C., in Codrington v Codrington [1875] LR 7 HL 854 thus: "Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them." 16. His acceptance of the benefit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e., affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. In a very l....
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....nto the circumstances. Section 188: Circumstances in which knowledge or waiver is presumed or inferred (1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the Will without doing any act to express dissent. (2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done. 19. A Division Bench of this Court interpreted both sections in Lyla Darius Jehangir (nee Ghaswala) v Bakhtawar Lentin of Mumbai & Ors. 2007 (1) Bom C. R. 915 : 2007 (1) Mh. L. J. 545 In the case before it, the Division Bench held, citing the Supreme Court decision in Beepathumma: Paragraph numbers are from the Manupatra report 39. In C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolithaya and Ors. [1964] 5 SCR 836, the Supreme Court exposited the doctrine of election to the effect that one who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument,....