Judgement

Appeal (No.31 of 1939), from a judgment and decree of the High Court in its appellate jurisdiction (September 28, 1937), reversing a judgment and decree of the High Court on the original side (August 5, 1936).

The respondents to this appeal were the sons of one Byramji Hirjibhoy Warden, who died on October 26, 1924, having made a will on October 6, 1922, with a codicil dated August 19, 1924, whereby he appointed the respondents and one Dinshaw Sorabji Warden (since deceased), as his executors and trustees, with express power to postpone the sale and division of his estate for five years. One of the unsecured creditors of the testators estate was his mother-in-law, Jaiji Hirjibhoy Parekh, who had lent him about Rs.27,000 on promissory notes. On August 10, 1928, the respondents gave security to Bai Jaiji by depositing with her the title deeds of three properties included in the estate. The deposit was confirmed by a registered memorandum bearing the same date, executed between her and the respondents.

Bai Jaiji, having received no payment whether on account of principal or interest, brought the suit out of which this appeal arose on January 7, 1936, seeking a preliminary de