MAHOMED HUSSEIN Vs. BAI AISHABAI

JUDGEMENT

(1.) One Haji Gulam Mahomed Ajam died in Bombay on or about March 1, 1928, leaving him surviving as his only heirs, according to the Sunni Mahomedan law, a widow, two sons and three daughters. He left a will dated January 9, 1928, of which he appointed his widow and one of his daughters his executrices. The will, however, has not been proved. The deceased died possessed of moveable and immovable properties of large value in Bombay and in other places. The first suit is a suit for the administration of his estate. The second suit is a mortgage suit filed by the Central Bank of India, Ltd., for the realisation of their security. The deceased was indebted to various creditors at the date of his death, the largest of whom are the Central Bank, Mr. F.E. Dinshaw and Ratanji Virpal, all secured creditors. This summons has been taken out by the executriees of his will, firstly for an order that they may be authorised to obtain from the bank a sum sufficient to pay off the claim of Mr. F.E. Dinshaw against the estate of the deceased and thereafter to enter into an equitable mortgage in favour of the bank of all the properties remaining with Mr. Dinshaw, the mortgage to comprise "the entire claim" of the Bank against the estate of the deceased and against the executrices; and, secondly, for an order authorising the executrices to execute in favour of one Mr. Sulleman Haji Ahmed Umar jointly with the Bank a lease for ninety-nine years of the premises known as " The Davar Hall Premises" as per the draft of the lease annexed to the affidavit in support of the summons, such lease to contain a further term referred to in the affidavit.

(2.) There is no dispute about the first part of the summons except that the attorneys for the Bank suggested an amendment of the Words " the entire claim " into " all claims " of the Bank. No objection having been raised to the amendment, the summons will be made absolute in terms of prayer (1) thereof as amended by the Court,

(3.) Defendant No. 4 in the first suit and defendant No. 6 in the second suit is Bai Khatizabai, one of the daughters of the deceased. She is the only party who has argued against the order prayed for in prayer (2) of the summons. All the other parties who are interested to the extant of fourteen annas in the rupee in the estate of the deceased are agreed that the order should be made and the proposed lease with certain alterations sanctioned, Khatizabai is only entitled to a share of two annas in the rupee, but she contended through her counsel that the proposed lease was not for the benefit of the estate and should not be sanctioned. There is a long affidavit by the executrioea in support of their summons, but unfortunately there is no affidavit by Khatizabai stating the grounds of her opposition, Even in the correspondence before the summons the grounds have not been stated, but her counsel argued that her objection was threefold: (a) that the proposed lease for ninety-nine years would hang up the administration of the estate of the deceased for that period; (b) that the executrices had no power to enter into such a lease; and (c) that the proposed lease would amount to a breach of trust on their part. The lease is sought to be entered into in pursuance of an agreement arrived at between the exeeutrices and the Bank on the one hand and the said Sulleman Haji Ahmed Umar on the other, dated April II, 1930, In order to understand the position it is necessary to consider shortly what the terms of the proposed lease are.