BAI DOSIBAI Vs. BAI DHANBAI

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Shah dismissing the plaintiffs suit for specific performance, and allowing the counter claim of the purchaser, defendant No. 1, for the return of her deposit of Rs. 5,000. The litigation turns on a restrictive covenant contained in the conveyance of September 24, 1918 (Ex. G), from the then owners of the Forjett Street estate, and on a similar covenant in the subsequent conveyance of June 14, 1920 (Ex. C), to the original plaintiffs Nos. 1 and 2 and Pestonji Edulji Mistry since deceased. The latter is now represented by his administratrix Bai Dosibai, who is the original plaintiff No. 3 and the present sole plaintiff. The original plaintiffs Nos. 1 and 2 have become insolvent, and are now represented by the Official Assignee, the present defendant No. 2.

(2.) I will refer to the above covenant as the 71/2 feet covenant, and it runs as follows:- That no building or other structures whatsoever whether temporary or permanent and no tree or shrub shall at any time be built, erected or placed or planted or suffered to be or to grow on any part of the land and premises hereby granted conveyed and transferred within a distance of 71/2 feet from the south-western boundary line of the plot hereby granted, conveyed and transferred and dividing the said plot No, 12 on the vendor's said Forjett Street estate except with the consent of the vendor or others the owners for the time being of the said plot No. 12.

(3.) The suit property thereby conveyed and subsequently sold to the first defendant was plot No. 11 on the Forjett Street estate.