The main legal point established in the judgment is that once parties have settled legal proceedings and benefited from the same, it is impermissible to seek a determination through subsequent legal actions.

JUDGMENT

a. K. Menon, J. - By this Originating Summons, under Rule 238 of the Bombay High Court (Original Side) Rules, 1980, the plaintiff seeks determination of the following questions :-

(a) Whether the securities/monies held in Trust for Mary Wadia under Clause 16 of amba Wadia's Will devolved absolutely on to Rutty Wadia, upon Mary Wadia's demise ?

(b) Whether the securities/monies held in Trust for Mary Wadia under Clause 16 of amba Wadia's Will formed part of the estate of Rutty Wadia and on the demise of Rutty Wadia to be distributed as per her probated Will ?

2. The plaintiff is said to be surviving executor of the last Will and testament of one Rutty Cursetji Pestonji Wadia dated 25th June 2002. The plaintiff is also said to be a trustee of P.a. Hormarjee Charites along with defendant nos.6 and 7. Defendant nos.1 to 5 are the persons who may get a share in the estate of one amba Wadia mother of Rutty Wadia. Defendant no.6 is the wife of the plaintiff and also sued in her capacity as trustee of the P.a. Hormarjee Charites ('the Trust'). Defendant no.7 is also a trustee. Defendant no.8 is the Charity Commissioner impleaded as a formal party.

3. What the plaint essentially seeks is interpretation of Clause 16 of the Will dated 25th February 1943 made by amba Wadia. That Will was supplemented by Codicil dated 13th august 1944. amba's Will was probated on 22nd October 1946. Rutty's Will dated 25th June 2002 was probated on 4th July 2018. according to the plaintiff, clause 16 of amba's Will is required to be interpreted while dealing with the questions raised in this Originating Summons.

4. THE PaRTIES :

(a) Late amba Wadia had four children viz. (i) ardeshir Cursetji Wadia, (ii) Mary Wadia, (iii) Rutty Wadia and, (iv) Chandan Mistry. Of these children, Mary and Rutty were unmarried and died without leaving any issues.

(b) ardeshir Wadia had five children, namely, defendant nos.1 to 5 viz. (i) Jehangir, (ii) Pesi, (iii) Marina, (iv) Rhoda and, (v) Shirin.

(c) Chandan Mistry had two children viz. (i) Rusi Ratanji Mistry and (ii) Shirin Nani Javeri (Defendant No.6). It is not in dispute that Rusi Mistry was not a beneficiary under amba's Will. Russy is therefore not a party. Shirin Zaveri is a beneficiary under the Will.

(d) amba Wadia, upon her demise on 2nd February 1946, was survived by her husband Cursetji Pestonji Wadia and four children named above. all heirs of amba Wadia, namely, her husband - Cursetji and four children, have since expired.

SUBMISSIONS OF COUNSEL

5. Dr. Tulzapurkar, learned Senior advocate appearing on behalf of the plaintiff, has taken me through the provisions of the Will of amba Wadia; in particular clause 16. He submits that on a fair reading of clause 16, upon the demise of Mary, the correct interpretation of clause 16 will result in all monies and securities vesting absolutely in Rutty, which properties would have to be administered according to Rutty's Will. Mary, it was submitted, had executed a Will dated 25th June 2002. She expired on 11th November 2002 without having any children or 'remoter issue'.

6. My attention has been drawn to the relevant clauses of the Will of Mary being clauses 5 and 6, which provide that after payment of her funeral expenses and all debts, she had bequeathed rest of the property to her sister Rutty. Furthermore, the rest of the Will was intended to come into effect only in the event of Rutty predeceasing Mary. as a matter of fact, Mary died before Rutty. according to Dr. Tulzapurkar, since Mary had no children or remoter issue, Rutty was constituted as sole beneficiary for the entire estate of Mary by virtue of clause 5 of Mary's Will, which came to be probated on 27th June 2018. Rutty expired on 21st December 2002, unmarried; thus, without children and without any remoter issue.

7. My attention was invited to clauses 5, 6 and 7(e) of Rutty's Will, which provides that after paying of all debts, her property would be bequeathed to her sister Mary. Just as in Mary's Will, Rutty's