FATMABAI Vs. SHERIFF DEWJI CANJEE

JUDGEMENT

(1.) This is a notice of motion taken out by defendants Nos. 1 and 2 for an order that the plaintiff may be ordered to vacate and deliver possession to them of the flats and garages in the Cuffe Parade property in her occupation on or before August 1, 1927, and for certain orders mentioned in the notice of motion.

(2.) The facts are that this was a suit for administration of the estate of the plaintiff's deceased husband and for the ascertainment and payment of her share and interest therein. By a decree on Commissioner's report, dated January 23, 1923, it was ordered that defendants Nos. 1 and 2 as executors of the plaintiff's husband's will should pay to the plaintiff the sum of Rs. 3,000 every month for her maintenance from June 18, 1919. The decree further provided "that the plaintiff is entitled to occupy as and for her residence the two flats on the first upper floor of the house at Cuffe Parade where the said deceased Dawoodbhoy Fazulbhoy resided during his lifetime and which flats are now in the occupation of the plaintiff." It was further provided as follows :- that the lat and the 2nd defendants do allow the plaintiff to occupy the game free of rent and all taxes and that in the event of the plaintiff being compelled to vacate the said two flats the 1 and 2nd defendants do pay to the plaintiff the sum of Rs. 500 every month in lieu of the residence from such day as the plaintiff vacates the said two flats.

(3.) The defendants have agreed to sell the Cuffe Parade property, and they called on the plaintiff to vacate the flats in her occupation and offered to pay Rs. 500 for her residence, and also to give a charge both in respect of the amount of maintenance as well as in respect of the right of residence on two other properties belonging to the estate. The plaintiff refused to vacate the said flats and the present application is made under the "liberty to apply" reserved by the decree.