MAHOMEDBAHI HUSEINBHAI Vs. ADAMJI HALIMBHAI

JUDGEMENT

(1.) This was a suit originally instituted in the Bulsar Court by the plaintiffs who are the heirs of one Husainbhai Abderehman, deceased, for an account of the management which his co- sharer and trustee deceased Sulemanji and his successors the defendants, or any of them might have made of the share of the said Husainbhai in the plaint house, and of the amount which the deceased Sulemanji or the defendants or any of them might have received by mortgaging and selling that share, and for recovering the amount that might be found due with Costs. The Bulsar Court decided that it had no jurisdiction, and accordingly the plaint was presented thereafter in the Court of the First Class Subordinate Judge at Surat.

(2.) The facts are that Husainbhai and Sulemanji were paternal cousins, originally residents of Bulsar, who traded in partnership in Delagoa Bay in Portuguese South Africa; that from that partnership money they purchased a house called "a new house. Husainbhai withdrew from the partnership in or about 1890 and came back to Bulsar. As the original sale-deed of the house was in Husainbhai's name he, before returning to India, executed a deed of transfer in favour of Sulemanji, but by the mistake of the writer the whole house instead of half only was mentioned in the deed. Sulemanji, however, admitted Husainbhai's right to half the share and there was thus a resulting trust in his favour. Sulemanji realized the rent of the house and sent some amount to Husainbhai till his death in 1897 and then to plaintiff No. 1. Sulemanji. died in July 1902 after making a will. One Ismail Haji Halimbhai was appointed executor by that will, and in that capacity he took charge of the "new house" along with the other property of Sulemanji and continued to manage it until January or February 1903. Then Mahomed Sulemanji, Abderehman Sulemanji and Bai Hava, widow of Sulemanji, got the will of Suleiuanji eet aside by the Court of Delagoa Bay and obtained possession of the property of Sulemanji including the "new house". Mahomed Sulemanji thenceforward realized the rent, but did not give anything to the plaintiffs, nor did he render any account of their share. The plaintiffs alleged that they did not know that Sulemanji's will had been set aside and that possession of his property had been given to Mahomed Sulemanji. Suit No. 385 of 1907 was brought in the Bulsar Court against Ismail Haji Halimbhai for account, and having then been informed that the will had been set aside, they made Sulemanji's heirs parties to the suit and. a decree for account of the property up to the death of Sulemanji was eventually passed in their favour on the 23 July 1912.

(3.) They alleged in their plaint in this suit that during the pendency of that suit they come to know that Sulemanji had mortgaged the house to a Bank, that under the terms of the deed the Bank had taken possession of it in 1906 and had got it sold for its debt in 1907 or 1908. They claim, therefore, that the defendants are liable to account to the plaintiffs as trustees.