HUSSEINSAHEB HAIDARSAHEB Vs. BABAJI DHONDDEV KULKARNI

JUDGEMENT

(1.) We think the Judge was right in following the decision in Chhotalal V/s. Nabibhai [1905] 29 Bom. 528 so that Babaji one of the decree-holders who had a decree againist Suleman Madarbhai only, could, as against Husseinsaheb Haidarsaheb, who had a decree against Suleman Madarbhai and the heirs of Madarbhai Tarubhai, claim rateable distribution in such of the assets held by the Court as could be found to belong to the share of Suleman Madarbhai. The present appellant says that the assets belonged entirely to the heirs of Madarbhai Tarubhai who were joined as Defendants Nos. 2 to 4 in this suit. That question must be decided by the Judge in execution before he can finally decide the claim of Babaji to rateable distribution.

(2.) We therefore, allow the appeal to that extent and direct the Judge to decide what is the share of Suleman Madarbhai in the assets held by the Court, If the Court finds that Suleman Madarbhai had no interest in the assets then Babaji will not be entitled to rateable distribution.

(3.) We say nothing about the costs of this appeal.