RAHIMTULLA Vs. HASANALI ALIMAHOMED

JUDGEMENT

(1.) His Lordship after summarising the facts of the case continued : The main question is, therefore, whether the defendant has properly complied with clause 6 of the agreement Exh. F and adduced satisfactory proof that the tenure of land agreed to be sold is perpetual Fazandari subject only to the small annual rent of Rs. 10. The land in question is admittedly situated in the quarter known as Matharpakhadi, which forms part of what is known as the Mazagaon Estate ; and it is fortunate that the history of this estate, in regard to the disposal of lands included in it, is known from about the middle of the sixteenth century A. D. The Court is much indebted to the care and ability with which the respective attorneys and counsel have prepared and argued this case and also to the compilation of Mr. Vaidya regarding the Bombay City Land Revenue Act, in the introduction to which (viz., in Chapter III) he has given the history of this Mazagaon Estate. It may be mentioned that this history is based on historical records, many of which appear in Vol. XXVI of the Bombay Gazetteer, being Part III of the Materials collected by the late Sir James Campbell for the Gazetteer of Bombay Town and Island, and a similar account of the Maxagaon Estate will be found in Vol. II of the Gazetteer of Bombay City and Island, compiled by Mr. Edwardes at pages 391 to 408. So that there can be no question of the authority of the facts stated in Chapter III of Mr. Vaidya's Compilation, and as this was referred to by counsel in the suit, I shall adopt it for reference whenever I find it necessary to do so.

(2.) It is unnecessary for the purposes of this judgment to go in detail into the history of this Mazagaon Estate from its commencement. It is enough to say that the estate became vested in the East India Co. and that most of it was farmed out by the Collector of Bombay from towards the end of the eighteenth century. The Matharpakhadi portion had been leased in 1781 to a Mr. A. Nesbit (Vaidya, Introduction, page lxx) and it again came to him in 1788 (Ibid, lxxi). Then from the recitals in a document dated April 9, 1868 (which there is no reason to question), it appears that the Company gave a lease of this portion of the Mazagaon Estate on January 31, 1831, for twenty-one years to the trustees of the late Mrs. Nesbit, who presumably had come in to possession of the estate from her husband. Then, on August 5, 1831, these trustees assigned the lease to Sir Jamsetjee Jeejeebhoy and on January 27, 1855, got a lease of this property for twenty-one years from 1852. Sir Jamsetjee Jeejeebhoy left three sons who partitioned the property among themselves, and this Matharpakhadi property came to his son Bustomjee, who took possession accordingly, but through some error the property appears to have been actually conveyed on September 22, 1865, to his brother Sorabjee. Both Rustomjee and Sorabjee became insolvents and eventually a document was executed under which Sorabjee and the trustees for the liquidation of Rustomjee's estate and other parties conveyed the residue of the lease for twenty-one years to one Narayan Vasudev in consideration of the sum of Rs. 12,000. This document is Exh. A, dated April 9, 1868.

(3.) Narayan Vasudev died on August 6, 1874, having executed a will dated June 3, 1874, of which probate was granted on November 21, 1874 Negotiations took place between the executors of Narayan Vasudev and Government for the renewal of the lease which had expired in 1873. They asked for a term of 99 years to which Government consented, and on February 16,1877, the Government granted a lease to these executors for 99 years from January 1, 1873, at the annual rent of Rs. 108-4-0. A certified copy of the document is Exh, B. The title of the executors of Narayan Vasudev appears to be now vested in Mr. Abaji Bhaskar, a sister's son of Narayan, Vasudev, who is a witness in this case.