JAMNADAS DAMODARDAS Vs. GORDHANDAS HARILAL

JUDGEMENT

(1.) The plaintiff sued to recover possession of certain immoveable properties belonging to one Jivanlal, for an account of the management of Defendants Nos. 1 and 2 as executors and trustees of the will of Jivanlal, and for an injunction restraining Defendant No.4 from obtaining attachment or sale of the dehla (one of the immoveable properties claimed) belonging to Jivanlal in execution of a, decree obtained by defendant No. 4 in the Bombay Small Causes Court against the assets of Jivanlal in the hands of Defendants Nos. 1 and 2.

(2.) Harilal, Chunilal and Himatlal were three brothers. Harilal died leaving three sons, the plaintiff Gordhandas, his brother Vadilal, and their step-brother, the abovementioned Jivanlal. After Harilal's death, his brothers, Himatlal and Chunilal, divided the family property with Harilal's sons in 1901. Thereafter there was a partition between the plaintiff and Vadilal on the one hand and Jivanlal on the other, Vadilal died. The immoveable property in question in the present suit had come to the share of Jivanlal in that partition. Jivanlal died on January 2-4, 1921, having made a will, dated January 22, 1921 Clause 5 of that will is as follows: My wife should continue to receive whatever income that may be derived from my immoveabla property. But my wife Lalita shall not have the right to transfer my immoveable property either by sale, encumbrance or gift. As also she should receive whatever rent that may be derived from my Dehla every year. But my wife should not give the same on rent for a long period. She is only to maintain herself from income thereof. My wife is pregnant at present. God willing she would give birth either to a son or daughter, he or she will be the owner of my property. The household expenditure, till he or she attains the age of in majority, should be defrayed from the income as stated above. However, God willing, if the son or daughter happen to die and if my wife shall choose not to live as my wife, but shall resort to other's house (i.e. remarry) she shall have no right whatever to my property. And thereafter the following persons, whom I trust and in whom 1 confide, shall take over my property in their possession with all the rights and dispose of the same for charitable purposes specified thereunder.

(3.) On February 2, 1921, Lalita gave birth to a son Babla, who died on April 3,1921. On April 17, 1921, Lalita sold the ground-floor of one of the properties to Defendant No. 3. Lalita died on May 27, 1921. Defendants Nos. 1 and 2, as trustees and executors of Jivanlal's will, obtained probate of the will on February 10, 1922. Defendants No. 4 is the son of Defendant No. 1. He obtained the money decree already referred to.