COWASJI TEMULJI Vs. KISANDAS TRICAMDAS

JUDGEMENT

(1.) The plaintiffs, who are the appellants here, brought this suit as executors of the will of Hirjibhai Dhanjisha, and the prayer in the plaint was to recover by partition the plaintiffs one fourth share in the land described. The defendants denied that the plaintiffs had acquired any share or partible interest in the land. The first question which arises is, therefore, what interest the plaintiffs have in the land, and whether that interest entitles them to partition. The plaintiffs stand in the shoes of the original owners Shekh Sadudin and two other persons, who had mortgaged the land to one W. Spiers.

(2.) The nature of the plaintiffs interest has to be ascertained from certain prior decrees which have been passed on the subject of the property. These decrees are Exhibits 57 and 58, and were recorded by consent in 1866 in order to terminate a dispute which had arisen in 1864 between the original owners and the mortgagee, W. Spiers. In substance these decrees provide that both parties should jointly carry on the vahivat of the land each being entitled to one-half of the produce; that the rent received should be divided equally between them ; that the land itself should not be partitioned; that W. Spiers was to be competent to grant a mirasi lease provided the nazarana accepted was not less than Rs. 500; and the nazarana should be divided between Shekh Sadudin s party and W. Spiers in the proportion of one-fourth and three-fourths respectively.

(3.) Such, then, were the rights which Shekh Sadudin and his co-owners were awarded. These rights were, on 25th October 1890, by means of Exhibit 64 in suit, conveyed by Shekh Sadudin and the others to W. Spiers for a consideration of Rs. 4,000: the conveyance particularly recites the right to take half the produce of the land, and the right to one-quarter of the nazrana.