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 1st 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.
4. In my opinion this application cannot be made under 'the liberty to apply' clause. Applications under such a clause can only be made for the purpose of carrying out the terms of the decree and the working of it. Here the defendants by their present application want substantially to vary the decree, and the order they seek is that the plaintiff should be asked to give up the right secured to her by the decree.
5. Apart from this, on the true and proper construction of the decree I cannot make the order sought on the notice of motion. I have set out the clauses in the decree which in my opinion give to the plaintiff a right to occupy the flats until her death for her residence. What the executors now want to do is that they should be allowed to sell the property in which the plaintiff' has a right to reside, free of her right of residence, in other words, they ask the plaintiff' to go out of the property.
6. Can it be said that because the executors have agreed to sell the property, the plaintiff is bound to vacate or that she is compelled to vacate? I think not. What is really contemplated and provided for in the decree is that in cases where the plaintiff is compelled against her wish to vacate the said flats, then only the provision made in the decree enabling the defendants to pay to her Rs. 500 in lieu of her right to reside in the property in question would apply. If, for instance, the property is compulsorily acquired or destroyed; and in cases like this, the plaintiff' will have compulsorily to vacate the said flats, but not in any other case. If it was contemplated that the defendants should have the power to sell the said property whenever they like free of the plaintiff's right to reside therein, a provision to that effect would have been made in the decree, But that is not done.
7. By an order made on November 12, 1923, it was declared that the two immovable properties belonging to the estate, one of which is the property in question, be charged with the payment of a sum of Rs. 8,000 to be paid to the plaintiff' every month for her maintenance under the decree. And it was further ordered that in the event of the suit properties or either of them be sold defendants Nos. 1 and 2 should be at liberty to substitute other security to the satisfaction of this Court for the properties or property so gold. In my opinion this does not give the defendants the right to ask the plaintiff to give up possession of the Cuffe Parade property and to go and reside elsewhere. The second order of November 1923 must by read along with the decree and subject to it. No doubt it contemplates a sale of the Hunan? properties, but that can only be subject to the rights of the plaintiff, that is to say, the power to sell under this order is subject to the decretal rights of the plaintiff and can only be exercised with her consent. The plaintiff might agree to the property being sold. In that case the plaintiff will be entitled to receive Rs. 500 a month in lieu of her right of residence. Under the decree she is not bound to vacate unless and until she is compelled to do so. If she does so voluntarily, then she gets Kb, 500 per month, and then, if the property is sold thereafter, then, some other property is to be substituted for the maintenance provided bsy the decree.
8. On the construction, therefore, of the decree and the order, I am clearly of opinion, that merely because the defendants have agreed to sell the property the plaintiff is not bound to vacate or can be compelled to vacate the flats, the right to live in which has been expressly given to her by the decree. The notice of motion, therefore, fails and must be discharged with costs.