MATILDA FERNANDEZ BAI Vs. ALEX PINTO

JUDGEMENT

(1.) Mr. Narain Row took the preliminary objection that the 1st appellant could not prosecute this appeal since she had parted with her interest in the subject-matter of the suit. The appellant is still on the record as defendant in the suit. In our opinion, the preliminary objection fails.

(2.) The decision of this appeal turns on the effect to be given to a clause in a sale-deed, Exhibit H, executed in 1874 by certain warghdars, Krishna Naick and his wife and mother. By this document, the vendor purported to sell to one Juan Fernandez, a portion of the lands comprised in the warg, while retaining for the benefit of Krishna Naick s son, Vankatesu Naick, their warg lands, and also certain Kumaki rights over a specified area which admittedly would ordinarily attach to the warg lands, which were sold to Juan Fernandez. It is these Kumaki rights which are now the subject of dispute. The plaintiff (respondent), who claims under Venkatesu Naick, sues to enforce them, which defendants (appellants) who now represent the vendee tinder Exhibit H, claim them as inseparably attached to the warg lands, title to which has passed to them.

(3.) The District Munsif dismissed the suit, holding that the plaintiff had no interest in the plaint land, and that the defendants were entitled to enjoy the Kumaki rights therein as being attached to their warg lands.