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Haji Bibi Case part 4

I find on the issues as follows, and I direct that the issues and my findings thereon be mentioned in the decree, as I am assured that this is a convenient course to adopt:-

1. Whether the offerings and presents received by the first Aga Khan and each of his ancestors since A.D. 1770 and earlier from the Khojas in Bombay and elsewhere and also from Ismaili Shias or the investments now representing the same form part of the entire estate of the first Aga Khan's own family as alleged in para 2 of the plaint?

No.

2. Whether the offerings and presents made to the first and second Aga Khans respectively were not the absolute property of each of the said Aga Khans respectively and whether the plaintiff is entitled to any interest in such offerings and presents as alleged by her in the plaint?

Yes, (the first part) and No, (the latter part).

3. Whether there are any investments now representing the offerings and presents received by the first Aga Khan's predecessors who were spiritual heads of the Shia Imami Ismailis as stated in para 2 of the plaint?

No evidence - No.

4. Whether the first Aga Khan received an allowance of Rs. 3,000 per month from the Government of India as such spiritual head of the Shia Imami Ismailis as alleged in para 2 of the plaint?

No.

5. Whether the said allowance of Rs. 3,000 was not received by the first Aga Khan for his services to the British Government in or about the Christian years l843 - 44?

Yes.

6. Whether the said allowance to the first Aga Khan formed part of the entire estate of the first Aga Khan's own family as alleged in para 2 of the plaint?

No.

7. Whether the plaintiff has any rights in the presents and offerings or in the investments now representing the same as claimed in para 2 of the plaint?

No.

8. Whether the plaintiff has any rights in the said allowance from Government or in the investments now representing the same as claimed in para 2 of the plaint?

No.

9. Whether the first Aga Khan in the year 1845 possessed extensive estates in Persia as alleged in para 3 of the plaint?

No.

10. Whether the first Aga Khan after 1845 purchased any estate in British India with the aid of monies derived from the income of his extensive estates in Persia as alleged in para 3 of the plaint?

No.

11. Whether the lst defendant ever got possession or is now in possession of any estates in Persia which belonged to the first Aga Khan as aforesaid?

No.

12. Whether the second Aga Khan continued the same policy as alleged in para 4 of the plaint?

No.

13. Whether the second Aga Khan ever bought any properties in British India with the aid of the income of the first Aga Khan's extensive estates in Persia as alleged in para 4 of the plaint?

No.

14. Whether the lst defendant ever got possession of or is now in possession of any properties such as are mentioned in the 13th issue?

No.

15. Whether the lst defendant as titular head of the first Aga Khan's own family receives offerings and presents and an allowance from Government as alleged in para 4 of the plaint?

No.

16. Whether the offerings and presents that the lst defendant receives from his followers are not given to and received by him as the Hazar Imam and in consequence of the veneration and devotion of the Shia Imami Ismailis to his person?

Yes.

17. Whether the offerings and presents mentioned in the last issue are not given to and received by him as his own absolute private property?

Yes.

18. Whether the allowance of Rs. 1,000 per month received by him from the British Government is not given to him in recognition of the first Aga Khan's services to the British Government for his own use absolutely?

Yes.

19. Whether the allowance received by the second Aga Khan from the British Government was not his own absolute property and whether the same was not granted to the second Aga Khan in recognition of the services aforesaid of the first Aga Khan?

Yes.

20. Whether the lst defendant as titular head of the family holds and manages immoveable property and cash, securities, outstandings, and other moveable property of the estimate value of Rs. 2,00,00,000 (two crores) as alleged in para 4 of the plaint?

No.

21. Whether the lst defendant holds and manages property of the first Aga Khan's own family in the different places mentioned in para 4 of the plaint or any of them?

No.

22. Whether the lst defendant has from time to time sold off several properties belonging to the first Aga Khan's own family and invested the sale proceeds and other monies of the said family in the purchase of diverse properties now standing in the names of the lst defendant's nominees as alleged in para 4 of the plaint, and in particular whether the lst defendant has sold the property mentioned in answer to interrogatory No. 15 administered to the plaintiff in this suit?

No.

23. Whether the lst defendant has purchased the properties in the name of nominees as stated by the plaintiff in her answer to the 16th interrogatory administered to her in this suit?

No.

24. Whether lst defendant is in possession of the properties mentioned in the plaintiff's answer to the said interrogatory?

No.

25. Whether the properties mentioned in the plaintiff's answer to said 15th and 16th interrogatories form part of the estate of the lst Aga Khan's own family as alleged in para 4 of the plaint?

No.

26. Whether during the lifetime of the first Aga Khan every male member of the family on attaining majority and every female member thereof on attaining majority or marrying resided rent-free in some house or houses pertaining to the first Aga Khan's own family and through the titular head and manager for the time being of the said family and out of the funds of the said family estate received monthly allowances and the salaries of servants and wedding presents in the event of marriage and was provided with servants, carriages, horses, furniture and other requisites and comforts by virtue of the fact that they were heirs and heiresses jointly entitled as of indefeasible rights under the Mahomedan law of inheritance to definite parts or shares in the said family estate as alleged in paras 13 and 14 of the plaint?

No.

27. Whether the claim based on the said allegation set out in the last issue is not bad in law on the face of it?

Yes. Allegation as heirs and heiresses jointly absurd.

28. Whether since the death of the first Aga Khan every male member of the family on attaining majority and every female member thereof on attaining majority or marrying has resided rent-free in some house or houses pertaining to the said family estate and through the titular head or manager for the time being of the said family and out of the funds of the said family estate has received personal monthly allowances and the salaries of servants and wedding presents in the event of marriage and was provided with food, servants, carriages, horses, furniture and other requisites by virtue of the fact that they were heirs and heiresses jointly entitled as of indefeasible right under the Mahomedan law of inheritance to definite parts or shares of and in the family estate as alleged in paras 13 and 14 of the plaint?

No.

29. Whether the residence, allowances, requisites and comforts mentioned in paras 13, 14, and 15 of the plaint were given to and received by the recipients thereof as a portion or on account of what they were entitled to receive as heirs according to their respective parts or shares under the Mahomedan law of inheritance of and in the family estate as alleged in para 15 of the plaint?

No.

30. Whether it is not the fact that the first Aga Khan during his lifetime in Bombay provided residence for, gave allowances to, and made provision for the maintenance and comfort of his own descendants, the husbands of his descendants, relations near and remote, or some of them and also for the families of persons not related to him by blood under the circumstances set forth in paras 51 and 52 of the defendant's written statement as a matter of bounty only?

Yes.

31. Whether the second Aga Khan did not continue the practice of his father in providing for and maintaining a number of relatives near and remote and stranger in blood to him as a matter of bounty only as alleged in para 52 of the first defendant's written statement?

Yes.

32. Whether the first defendant and the 3rd defendant for him during his minority did not continue the said practice as a matter of bounty only as alleged in para 52 of the lst defendant's written statement?

Yes.

33. Whether the lst defendant is not entitled to vary, decrease, increase or altogether stop his bounty aforesaid to any person to whom the same has been accorded whenever he chooses?

Yes.

34. Whether the claim which is said never to have been questioned in para 16 of the plaint was ever made before the plaintiff made the same in the suit or shortly prior thereto?

No.

35. Whether there was any joint succession to the estate of the first Aga Khan as alleged in para 18 of the plaint?

No.

36. Whether the second Aga Khan managed the estate left by the said first Aga Khan till his death as alleged in part 18 of the plaint?

No. Part only, Jungi and Akbar took part.

37. Whether the facts in connection with what happened to the first Aga Khan's estate on his death are not correctly set forth in paras 24, 25, 26 and 27 of the lst defendant's written statement?

Yes.

38. Whether Aga Jungi Shah by virtue of his right as an heir since he came of age in the lifetime of the first Aga Khan occupied a house at Poona, Connaught Road, and a house at Love Lane, Bombay, and received from the family estate about Rs.800 a month as personal allowance together with salaries of servants, carriages, horses, food, furniture and other requisites and comforts and his funeral expenses as alleged in para 19 of the plaint?

No.

39. Whether it is not the fact that the said Jungi Shah occupied the said immoveable properties which belonged to the first Aga Khan in the first Aga Khan's lifetime by the permission of the first Aga Khan?

Yes.

40. Whether it is not the fact that the monthly allowance paid to and other benefits enjoyed by the said Jungi Shah during the first Aga Khan's lifetime were enjoyed by him from the bounty of the first Aga Khan and not otherwise?

Yes.

41. Whether the money payments, allowances and requisites and comforts which Jungi Shah enjoyed were not continued to him by the second Aga Khan and afterwards by the lst defendant's mother during the lst defendant's minority and by the defendant since he attained majority and were enjoyed by the said Jungi Shah as a matter of bounty only and not otherwise?

Yes.

42. Whether Zenalabadeen Shah received monthly personal allowance besides residence, servants, salaries, horses, carriages, food and wedding expenses and presents and his personal expenses by virtue of his right as an heir as alleged in para 20 of the plaint.

No.

43. Whether whatever Zenalabadeen Shah received as alleged in para 20 of the plaint was not received by him as a matter of bounty only and not otherwise?

Yes.

44. Whether on the death of the first Aga Khan his three widows, three sons, and three daughters and their issues continued to live together as an undivided joint family as alleged in para 23 of the plaint?

No.

45. Whether the said three widows, three sons, and three daughters and their issues were jointly in enjoyment of the entire family estate according to their respective undivided shares therein as alleged in para 23 of the plaint and whether after the death of any of the widows, sons and daughters, his or her heirs continued to live as an undivided joint family with the survivor and their issues and jointly to enjoy the family estate as alleged in para 23 of the plaint?

No.

46. Whether the allegations made in para 23 of plaint are not wholly inconsistent with the allegations in the plaint made in the previous paras thereof and in para 24 of the plaint?

Yes.

47. Whether the lst defendant's mother during the lst defendant's minority managed the joint family estate from 17th August 1885 till the year 1893 as alleged in para 28 of the plaint?

No.

48. Whether the lst defendant's mother did not manage the estate she managed as manager for the lst defendant and on his account exclusively?

Yes.

49. Whether the plaintiff is entitled to 7/144 share in the entire property in the possession of the lst defendant as alleged in para 34 of the plaint?

No.

50. Whether the transaction evidenced by the Indenture of the 11th day of September 1901 mentioned in para 36 of the plaint is not a bona fide valid transaction in the nature of a family arrangement and binding on the plaintiff?

Yes.

51. Whether the 5th defendant as administrator of the estate of Jungi Shah had legally no right to execute the said Indenture of the 11th day of September 1901 as alleged in para 39 of the plaint?

Section 90 of the Probate and Administration Act does not apply - not giving up anything.

52. Whether the transaction evidenced by the said Indenture of the 11th day of September 1901 was a sham transaction and never intended to be acted upon as alleged in para 39 of the plaint?

No.

53. Whether the lst defendant has not paid in cash to the 5th defendant Rs. 40,000 mentioned in the said release of the 11th day of September 1901, and executed a conveyance to the 5th defendant of properties worth one lakh of rupees mentioned in the said Indenture?

Yes.

54. Whether the plaintiff has received any portion of the said Rs. 40,000 from the 5th defendant?

Yes, Rs. 10,000.

55. Whether the transaction evidenced by the said Indenture of the 11th day of September 1901 and the said Indenture was collusive and fraudulent as alleged in para 39 of the plaint?

No.

56. Whether the application for Letters of Administration to the estate of Jungi Shah and the execution and registration of the said Indenture of the 11th day of September 1901 were constituent parts of a scheme conceived and carried out by the lst defendant in collusion with the 5th defendant with the object of fraudulently depriving the plaintiff and other members of the family of their rights as joint heirs and heiresses and co-sharers in the said family estate under Mahomedan law as alleged in para 44 of the plaint?

No.

57. Whether the recitals in the said Indenture of the 11th day of September 1901 challenged by para 43 of the plaint were not true in fact and in law and if not correct were not bona fide believed to be true and correct by the parties to the said Indenture or in the alternative were believed to be such as could not be proved to be not true and incorrect.

Yes.

58. Whether the recitals challenged in para 43 of the plaint and those mentioned in para 44 of the plaint are false and were concoctions of the lst defendant and the 5th defendant acting in collusion as alleged in para 44 of the plaint?

No.

59. Whether the property described in Schedule B to the said Indenture of the 11th day of September 1901 belonged to the separate estate of Aga Jungi Shah and never belonged to the estate of the first Aga Khan as alleged in para 45 of the plaint?

No.

60. Whether the said property described in Schedule B to the said Indenture did not belong to the first Aga Khan at the time of his death?

Yes.

61. Whether there were not two other properties, one at Mount Road and the other at Baboola Tank known as the Hamamkhana in the possession of Jungi Shah's heirs or some of them, portions of the first Aga Khan's estate which were not mentioned in the said Indenture for good reasons, but the existence of which was well known to the parties to the said Indenture?

Yes.

62. Whether the property at Mount Road was purchased by the said Jungi Shah out of his own savings and income as alleged by the plaintiff in this suit?

No.

63. Whether the Hamamkhana property was built by the said Jungi Shah with his own money as alleged by the plaintiff in this suit?

No.

64. Whether the share of Jungi Shah's estate in the estate which was surrendered by the said release was worth more than 40 lakhs of rupees as alleged in para 37 of the plaint?

No.

65. Whether the 5th defendant as administrator aforesaid did not get more by the arrangement evidenced by the said Indenture than he was at all likely to get by filing a suit against the lst defendant?

Yes.

66. Whether the arrangement evidenced by the said Indenture was not a very wise and beneficial arrangement in the interests of those entitled beneficially to the estate of Jungi Shah and whether the parties beneficially interested therein to the extent of 25/32nds thereof do not approve of and support the said arrangement?

Yes.

67. Whether the said Jungi Shah and his estate and the persons beneficially interested in the estate have not as a matter of fact received, if the allegations in the plaint are correct, much more than what Jungi Shah's estate entitled to as a sharer in the first Aga Khan's estate?

Yes.

68. Whether the claim of Jungi Shah's estate against the said estate of the first Aga Khan was not barred by limitation at the date of the said Indenture?

Yes.

69. Whether the plaintiff's suit to set aside the said Indenture of the 11th day of September 1901 and to have it declared not binding on her is not barred by limitation?

Yes, as far as Shamsudin is concerned; not as far as defendant 1 is concerned.

70. Whether in any event the plaintiff is entitled to maintain this suit so far as it is based on her being one of the heirs of Jungi Shah as long as the said release is not set aside?

No.

71. Whether even if the release is set aside the plaintiff can maintain this suit against the lst defendant to recover any property as one of the heirs of Jungi Shah?

No.

72. Whether when the arrangement evidenced by the Indenture of the 11th day of September 1901 was come to property was not included in the list of properties treated as the first Aga Khan's estate which in fact did not belong to the said estate and in which the said Jungi Shah's estate had no share?

Yes. Karachi property and Ali Shah's.

73. Whether on the occasion aforesaid property was not included in the list of properties treated as the first Aga Khan's estate which although belonging to that estate had had large sums expended in buildings upon them and otherwise by the second Aga Khan and the lst defendant without any allowance being made for such expenditure?

Yes.

74. Whether if the said Indenture is set aside and the estate of the first Aga Khan partitioned amongst his heirs such property which did not in fact belong to his estate should not be excluded and due allowance made for the expenditure upon such property by the second Aga Khan and the lst defendant as well as that made upon property mentioned in issue 37?

Yes, in that event.

75. Whether if the said Indenture is set aside and the estate of the first Aga Khan partitioned amongst his heirs the three properties appropriated by Jungi Shah after the death of the first Aga Khan should not be brought into hotchpotch on such partition as also the property conveyed by the lst defendant to the 5th defendant under the said Indenture, and whether in such event the estate of Jungi Shah is not bound to return to the lst defendant the sum of Rs. 40,000 paid under the release to the administrator of that estate, together with interest thereon at 9 per cent, per annum or such other rate of interest as may be just at annual rents from the date of the said Indenture?

Yes.

76. Whether the 5th defendant has continued since the 11th September 1901 to receive payment and benefits mentioned in para 38 of the plaint as one of the heirs entitled under the Mahomedan law entitled to share in the family estate as alleged in the said 38th para?

No.

77. Whether the payments and benefits received by the 5th defendant from the lst defendant as alleged in para 38 of the plaint have not been paid, conferred and received from the bounty of the lst defendant and not otherwise?

Yes.

78. Whether the contentions mentioned in para 42 of the plaint are sustainable?

No.

79. Whether the Indenture of the 26th day of September 1901 mentioned in para 46 of the plaint was not a bona fide valid transaction in the nature of a family arrangement and whether the recitals in the said Indenture alleged to be false are not true recitals?

Yes.

80. Whether the circumstances under which the said Indenture of the 26th day of September 1901 was entered into or the allegations made in para 50 of the plaint have any relevancy in this suit, and if they have any relevancy what is it and what are the circumstances under which the said Indenture was executed and is the plaintiff's information and belief mentioned in para 50 of the plaint correct?

No.

81. Whether the plaintiff from the year 1880 received Rs. 375 per month as personal allowance (1) from the lst Aga Khan, (2) from the 2nd Aga Khan, (3) from the lst defendant as alleged in para 51 of the plaint?

No. It was her husband who received it.

82. Whether the salaries of the plaintiff's syces and servants were paid and the other benefits mentioned in the said para. 51 conferred on her since 1880 as alleged in para 51 of the plaint?

No.

83. Whether it is not the fact that no personal allowance was ever made to the plaintiff at any time and that the residence and other benefits which she has enjoyed were conferred on her said husband out of the bounty of the first and second Aga Khans and that she jointly enjoyed them with him as his wife up to the time of the death of her husband?

Yes.

84. Whether it is not the fact that the food and other requisites supplied to the plaintiff after the death of her husband were given to her by the lst defendant out of bounty?

Yes.

85. Whether the matters alleged in paras 52 and 53 of the plaint if true give the plaintiff any cause of action against the lst defendant?

No.

86. Whether the first Aga Khan left a will which has been suppressed by the lst defendant as alleged in para 55 of the plaint to have been stated to the plaintiff by the defendants 9 to 4?

No.

87. Whether the lst defendant with a view to defraud other members of the family has placed large portions of the family estate in the names of strangers and concealed other portions of great value as alleged in para 56 of the plaint?

No.

88. Whether the lst defendant has drawn vast sums of money from the family estate quite out of proportion to his share in the family estate and far in excess of his requirements and has misappropriated and expended the same just as he liked and speculated with the same and applied the same in discharging his own personal debts and for special purposes for which he had no right to call on the family purse including betting heavily and recklessly on the turf as alleged in para 56 of the plaint?

No evidence. Stood over till the other issues had been decided.

89. Whether the lst defendant has alienated portions of the family estate for his own benefit and caused heavy loss to the estate by gross and reckless mismanagement, extravagance and waste and not recovering property he ought to have recovered as alleged in para 56 of the plaint?

No. Evidence stood over.

90. Whether the plaintiff ought to be allowed to give any evidence or cross-examine any witness on issues 88 and 89 until she has proved that the property the lst defendant has been dealing with is not his own and that the plaintiff has some interest therein?

Stood over.

91. Whether the trial of issues 88 and 89 should not be postponed until after the other issues in the case have been determined?

Yes.

92. Whether the plaintiff is entitled to the sum of Rs. 9,000 and interest claimed in para 8 of the plaint or any part thereof?

No.

93. Whether the plaintiff is entitled to what she claims in para 59 of the plaint?

No.

94. Whether the lst defendant is a "titular head" of a family in the sense it is believed it is alleged in the plaint, viz., that of a mere agent of the family to receive monies on their behalf?

No.

95. Whether the second Aga Khan did not leave property of his own acquisition to which his heirs are entitled?

Yes.

96. Whether the prayer C to the plaint is supported or justified by any allegations made in the plaint and if not whether the plaintiff can in any event obtain a decree in terms of the said prayer?

No.

97. Whether the prayer C to the plaint ought not to be struck out or altogether disregarded?

Not necessary.

98. Whether the expenditure for the benefit of relations near and remote and for strangers in blood has not as a matter of fact been paid out of the voluntary offerings made to the Aga Khan for the time being as alleged in para 53 of the lst defendant's written statements?

Yes.

99. Whether the allegations made in paras 53, 54, and 56 of the lst defendant's written statement are not true?

100. Whether the lineal and collateral relatives of the first Aga Khan are all shown in the Genealogical Table annexed to the plaint and marked A?

No.

101. Whether the persons named in list No. 1 to the lst defendant's written statement are not persons who by reason of relationship to the first Aga Khan by blood or marriages should have been interested in the said table Ex.A to the plaint?

Yes.

102. Whether the counter claims of the lst defendant set forth in para 56 of the lst defendant's written statement ought not to be decreed in favour of the lst defendant in the events contemplated in that para?

Not necessary.

103. Whether this Court has any jurisdiction to determine the title to or to partition or otherwise pass any decree affecting immoveable property outside the local limits of the jurisdiction of this Court, viz., the Town and Island Bombay?

Not necessary.

104. Whether the father of defendants 7 and 8, Akbar Shah, did not appropriate to his own exclusive use to the entire exclusion of the other heirs of the lst Aga Khan the immoveable properties in para 5 of the written statement of defendant 7?

Yes.

105. Whether Akbar Shah and his mother did not appropriate to their exclusive uses the moveable property mentioned in the said para of the 7th defendant's written statement?

Yes.

106. Whether Akbar Shah did not deal with the said immoveable properties as his own?

Yes.

107. Whether the claims of the heirs of the first Aga Khan and those claiming under them are not barred by limitation in respect of the said properties in para 5 of the defendant 7th's written statement?

Yes.

108. Whether the offerings received from time to time by the successive Aga Khans beginning from Shah Hassan Ali were not and are not received by them for and on behalf of and benefit of all the members of the family of Shah Hassan Ali and for their individual benefit?

No.

109. Whether the whole of the said family is not held sacred by the devotees as the family that supplies the Imam and whether the Aga Khan for the time being is not the "titular head" and representative of the family?

No.

110. Whether all the members of the family of Shah Hassan Ali including defendants 9 to 14 are not jointly entitled to the offerings received from time to time and the properties acquired by means of such offerings?

No.

111. Whether instead of dividing the offerings and the properties among the persons so entitled to them a custom to the effect mentioned in para 3 of 9-14 defendants' written statement has not grown up in the family?

No.

112. Whether the rights and interests of defendants 9-14 in the properties and offerings, subject of this suit, should not be ascertained and declared?

No. Their rights are none.

113. Whether the payment and provision to and for defendants 9-14 in future of the residence, allowances, etc. in accordance with the custom as aforesaid should not be secured and the arrears of such allowances be decreed?

No.

114. Whether in the alternative defendants 9-14 should not be given their shares on the basis of former allowances and provisions in the said properties and offerings?

No.

115. Whether this defendant (No. 2) is entitled to share in the properties and offerings, the subject-matter of this suit?

No.

116. Whether defendant 2 has always during the life of Hassan Ali as well as since his death been receiving as of right from the family estate and offerings, allowances aggregating in all to Rs. 200 per month besides salaries of servants, food, horses, carriages and other comforts?

No. Not as of right, whatever was received by her was received by way of grace and bounty.

117. Whether in any event she is not entitled to have the said allowances and other requisites secured to her for the future during her life?

No.

118. General issue.

119. Whether defendant 2 is not entitled to a share in the properties left by the first Aga Khan as one of his heirs?

Not necessary in this suit?

120. Whether in the event of plaintiff failing in this suit in her claim to share in the first Aga Khan's estate issue 119 can be determined in this suit?

Not necessary.

121. If it can, whether defendant 2's claim as one of the first Aga Khan's heirs is not barred by limitation.

Not necessary.

122. Whether as a matter of fact defendant 2 has not received since the death of the first Aga Khan far more than her share according to Mahomedan law in the said estate come to lst defendant's hands?

Not necessary.

123. Whether defendant 2 (in the event aforesaid) has any claim as against defendant 1 in respect of the property of the first Aga Khan which never came into his possession?

No.

124. Whether defendant 2 can claim against defendant 1 any interest she might have had in the properties moveable and immoveable of the first Aga Khan's estate taken possession of by Akbar Shah and Jungi Shah?

No.

125. Whether plaintiff is entitled to partition of the Khoja burial ground?

No.

126. Whether the Hasanabad Mausoleum and the vaults underneath and the precincts thereof are not the private property of the heirs of Ali Shah?

Yes. See H.33, and D.H. 224 and 225.

127. Whether any member of the family is entitled as of right to be buried in Hasanabad.

No. Not without the permission of defendant 1.

128. Whether the Hasanabad Mausoleum and premises ought to be partitioned among the heirs of Hasan Ali or among the family of Hassan Ali?

No.

The result is that the suit is dismissed. This being so, it is obviously impossible that any relief could be granted to any of the defendants who support the plaintiff's case even if they were entitled thereto.

I now deal with cost of this suit. I am of opinion that separate sets of costs should be allowed (a) to each of the defendants 1, 3, and 5 respectively, and (b) one separate set to defendants (4 and 6) and (7 and 8) jointly. The persons liable to pay these costs are plaintiff and defendants 2 and 9 and 10. I do not think I should make defendants 11 and 12 to 14 liable for them or any part of them. Costs are pressed for against defendant 2. The above costs, which of course will include costs reserved if any and the costs of the commissions including the costs of the attendance of Mr. Moos throughout, will be payable by the defendants' above mentioned jointly and severally. Whether in the event of defendant 5 not recovering his costs, he can recover them from Jungi Shah's estate is a question I cannot decide in this case.

I cannot conclude this judgment without expressing the admiration I felt during the course of it at the manner in which it was conducted by Mr. Inverarity who, in spite of pain and bad health during nearly the whole of it, did not miss a single point and displayed an astonishing grasp of the many details. In his conduct of the case he was most skilfully supported by Mr. Moos, whose cross-examination of the plaintiff's witnesses on commission and examination of the defendant's witnesses has been a striking feature of the case, and in my opinion he richly deserved the handsome compliment which Mr. Inverarity paid him during his address in reply.

In this judgment I have tried to avoid saying a word which may enhance feelings of religious animosity in the community or hatred among the members of the family, and I trust that the result of this case may be that gradually any feelings of such a character may disappear from the minds of the members of the family as well as from those of this large and important community.

Attorneys for the plaintiff and defendant 2 and defendants 9 to 14: Messrs. Edgelow Gulabchand & Wadia.

Attorneys for defendant 1 and others: Messrs. Payne & Co.

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