BAPUJI RUSTAMJI KARAWALLA Vs. HAJI ESMAIL HAJI AHMED

JUDGEMENT

(1.) By an agreement dated 14 February 1920 the plaintiff agreed to sell to the defendant in the name of his nominee Haji Sulleman Salley Mahomed, two properties belonging to the plaintiff described in the schedule to the agreement. One of these premises was situats at Chandanvadi. A dispute has arisen between the parties as to whether the plaintiff has made out a marketable title to the said property at Chandanvadi.

(2.) The property belonged to one Behramji Dadabhai Pochkhana-walla, who died in Bombay on or about the 28 of June 1895, having, prior to his death, duly made his last will and testament dated the 2 April, 1895. By Clause 12 of the said will the testator gave to his nephew Bapuji Rustamji Keravalla, the plaintiff in this case, for his life-time this Chandanvadi house. The testator directed that the said nephew should, out of the rents of the said house, defray all the expenses for doing repairs thereto and pay the bills for assessment thereof and should appropriate to his own use the nett amount of rent. The clause further provided that he could not either sell or mortgago the house, and after the decease of the said nephew Bapuji Rustamji, the house should be received by such persons and in such manner and in such proportions as the said nephew might by his will or by any deed or writing whatever appoint and if he should not have made his will or a deed or writing-as stated above the said house was given in gift after his decease to his children in equal shares.

(3.) The plaintiff was required by the defendant to explain under what power he proposed to convey absolutely to the purchaser the Chandanvadi property. He was also required to state whether the power of appointment given to him as aforesaid had been at any time exercised by him or not, and if so in whose favour and by what deed.