ESMAIL ALLARAKHIA Vs. DATTATRAYA RAMCHANDRA GANDHI

JUDGEMENT

(1.) The facts which led up to the order now under appeal are somewhat complicated. The suit property belonged to one Ballabhai who died leaving as his heirs his widow Banubai, three sons and three daughters. Thereafter two sons and one daughter died. Banubai for herself and as guardian of her surviving children who were minors sold the property to one Punamchand Deeva and he in his turn sold it to one Mahomed Rahimtulla Jusub.

(2.) Banemiya son and Putlabai daughter of Ballabhai filed Suit No. 57 of 1914 in the Thana Court to set aside the sale by their mother so far as their shares were concerned. An appeal decree in that suit was passed by the High Court on the 26th February 1918 whereby it was decreed that the plaintiffs should, on paying into Court a certain sum within six months, take into possession a 10/16th share of the property by partition. In default of payment the suit would be dismissed. On 31st July 1915, Banemiya had mortgaged his share to one Dattatraya R. Gandhi for Rs. 2000 and as Banemiya delayed paying into Court the decretal amount Gandhi paid in Rs. 4000 on the 22nd August 1918 to save the suit from being dismissed.

(3.) In the meantime Banemiya had been dealing with the share of himself and Putlabai.