GULBAJI AJISIGI AND CO Vs. RUSTOMJI KHABSEDJI BANATVALLA

JUDGEMENT

(1.) Kharsedji Jamasji Banatwalla died on July 10, 1870, leaving .1 will dated May 5, 1870, probate of which was granted to his son Edulji on June 14, 1871. Under clause 8 of the will, certain property was given to Rustomji, the second son of the testator. By clause 10 of the will, certain limitations were sought to be imposed on Rustomji's interests in the property. In 1908 he mortgaged the property to the plaintiff's in this suit and granted two further charges dated December 9,1909, a July, 10, 1911. In 1917 Rustomji took out an originating summons to determine the true construction of the will with regard to the interest he acquired thereunder in this property. The present plaintiff's were not parties to those proceedings which were evidently of a friendly nature between Rustomji and other members of his family.

(2.) By the order of the Court of July 30, ] 917J it was declared that Rustomji only took a life interest in the property. It was not until 1921 that the plaintiffs became aware of that order, which could not possibly operate as res judicata against them. Consequently they filed this suit asking for a declaration that Rustomji was absolutely entitled to the suit property.

(3.) The lower Court has given the plaintiffs a declaration that Rustomji only was given a life interest in the property and dismissed the suit against the other defendants. Defendants Nos. 2 to 5 were the sons, the 6 and 7 defendants were the daughters and the 8 defendant was the wife of the first defendant.