ABDUL KARIM Vs. KARMALI RAHIMTULLA

JUDGEMENT

(1.) This is a suit for specific performance of an agreement to sell executed on August 19, 1919 by one Bai Mariambai deceased in favour of the plaintiffs. It is only necessary to consider one of the issues originally raised as the others have been abandoned. The only point on which the parties are now at variance is contained in issue No. 4, viz., whether defendant is bound to take out representation to the estate of Mariambai.

(2.) The deceased lady was a Khoja and defendant is her son. He is prima facie her heir as the property was admittedly her "Stridhan," if indeed that term is strictly applicable. , Further there is a document purporting to be the last will and testament of Mariambai whereby defendant is sole legatee. The question is whether plaintiffs can call upon him to take oat probate of this will.

(3.) Plaintiffs say that there is a grand-daughter who might in certain circumstances be entitled to succeed if there was an intestacy. Whether those circumstances exist or not they do not know, but upon the existence or non- existence of those circumstances depends the answer to the question whether the property is Yautaka or Ayautaka Stridhan. Therefore their title is not safe unless the will is admitted to probate.