Allowed

Darayus R. Vazifdar v. Cyrus R. Vazifdar

Bombay HC6 Dec 2005APP/968/2005

Case brief

AI extract

What is this about?

The High Court granted a temporary permission to partition the shared flat of hostile brothers via a wooden partition by a court commissioner, assigning areas, restricting pets, and allocating costs, while dismissing claims for prior foreclosure.

What did the court decide?

Appointment of architects as court commissioner to erect wooden partition; Plaintiff to bear expenses; Pet owners restricted to allotted areas; Parties to keep items in respective notional areas pendi

Darayus R. Vazifdar Vs Cyrus R. Vazifdar — Property and Title | Bombay HC (2005)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE

¶3

APPEAL NO.967 OF 2005 IN

¶4

NOTICE OF MOTION NO.1729 OF 2003 IN SUIT NO.1668 OF 2003

¶5

Darayus R. Vazifdar Appellant vs. Cyrus R. Vazifdar Respondent

¶6

ALONG WITH APPEAL NO.968 OF 2005 IN NOTICE OF MOTION NO.2917 OF 2003 IN SUIT NO.1668 OF 2003

¶7

Darayus R. Vazifdar Appellant vs. Cyrus R. Vazifdar Respondent Mr.M.M.Tally with Mr.Sagar Kadam i/b.M/s.S.Mohadbhai & Co. for the appellant.

¶8

Mr.J.P.Cama, Senior Counsel i/b.Mr.S.S.Dube, Advocate for the respondent.

¶9

AND ALONG WITH APPEAL NO.1075 OF 2005 IN NOTICE OF MOTION NO.1729 OF 2003 IN SUIT NO.1668 OF 2003

¶10

Cyrus R. Vazifdar Appellant vs. Darayus R. Vazifdar Respondent Mr.J.P.Cama, Senior Counsel i/b.Mr.S.S.Dube, Advocate for the appellant.

¶11

Mr.M.M.Tally with Mr.Sagar Kadam i/b.M/s.S.Mohadbhai & Co. for the respondent.

¶12

¶13

CORAM : R.M. LODHA &

¶14

D.G. KARNIK, JJ .

¶15

DATED : 6th December 2005

¶16

P.C.

¶17

These three appeals were taken up together by us

¶18

being between the same parties arising out of Suit

¶19

No.1668 of 2003.

¶20

2.	The	parties	are real brothe	rs;	th	ey	admitte	dly	have
half	share	in f	lat No.3-A, Il-	Plazzo,	Li	ttle	Gibb	s	Road,
Mumbai.		The	relations between	the	broth	ers	is	not	only
bad	but	extremel	y bitter. Th	e	flat	is	not	p	artitioned.
The	common	area	shared by them	re	sults	in	fights		between
them	and	their	family. Cyrus	Vaz	ifdar,	one		of	the
brothers,		has fi	led Suit seeking		decree	of	par	titio	n in
the	manner	shown	in the plan,	Exhibit	P	and	by		putting
up	the	partition	wall at the	points	as	sug	gested,		or in
the	manner	thought	fit by	the	Court	a	nd	in	the
alternative	the	prayer	that suit f	lat	be	sold	by		private
treaty	or	by	public auction af	ter	proper	val	uation		and

¶21

net sale proceeds be distributed between him and his

¶22

brother Darayus in equal share.

¶23

3.	Pending	the	aforesaid	suit,	two	notices	of	motion
were	taken out	by	the	parties.		Notice	of	Motion
No.1729/	2003 was taken out by	Cyrus	(plaintiff) prayin	g

¶24

for the following reliefs:

¶25

(a) that pending the hearing and final

¶26

¶27

disposal of the suit this Hon’ble Court be pleased to direct that the internal wall be broken at Points VW, WX and YZ and thereafter a temporary partition wall be put up at Points AB, YC, WD, DE, EF, FG and GH as shown in the Plan Exhibit P to the plaint and for that purpose a commissioner or an officer attached to this Hon’ble Court be appointed to carry out the putting up of such partition so as each of the party i.e. Plaintiff and the defendant be allocated a place in the suit flat;

¶28

(b)

¶29

that	pending hearing and	final	disposal
of	the suit, the defendant	his	servants
and	agents be restrained by	order	and
injunction	of this Hon’ble	Court	from
using	the furniture, fi	xtures	and
household	items which are in	use	of the
plaintiff	and his family and	which	are
in his posse	ssion as set out in Exhibit
Q hereto;

¶30

(c) that pending the hearing and final disposal of the suit, the defendant be restrained by an order and injunction of this Hon’ble Court from keeping any dangerous weapon revolver in the suit flat.

¶31

(d) that pending the hearing and final disposal of the suit -

¶32

the	defendant	be restrained by	an
order	and	injunction of	this
Hon’ble	Court	from using	the
balcony	and co	mmon area of the	suit
flat a	s a	nursery and also	be
restrained	from	keeping in	the
common	area	of the house all	pets

¶33

like dog, parrots, cuckatoo, lovebirds or any other animals;

¶34

the Partition Act, 1893. The prayers made thereunder

¶35

¶36

read thus:

¶37

(a)	that the defendant be granted leave	by
	this Hon’ble Court under Section 3	of
	the Partition Act, 1893 to buy plaintiff’s half share in the suit viz. Flat No.3-A, Il-Palazzo,	the flat Little
	Gibbs Road, Mumbai-3400 006 at the determined by the Valuer (who	price was
	appointed by this Hon’ble Court by Order dated 29th July, 2003) in terms of his report dated 22nd August, 2003;	its
(b)	that the defendant be allowed to in this Hon’ble Court the amount plaintiff’s such half share in the flat within such time and on such as may be permitted by this Hon’ble Court;	deposit towards suit terms
(c)	that this Hon’ble Court be pleased make all necessary and proper orders	to in
	terms of Section 3 of the Partition including orders directing the	Act plaintiff
	to withdraw the amount deposited in Hon’ble Court by the Defendant only the plaintiff handing over vacant peaceful possession of the suit flat to the defendant."	this on and

¶38

5.	Both	the	notic	es of		moti	ons	were		heard	together	and
by the	com	mon	order	passed		on	23rd	Sept	e	mber	2005,	the
learned	motion		Judge	dism	i	ssed	the	notic	e		of	motion
No.2917/2003		taken	out	by		the	def	endant		and	allowed	the
notice of		motion	N	o.1729/2003			in	part		in	terms	of
prayers	(c)	and	(d)	taken		out	by	the		plaintif	f.	Appeal
Nos.	967/2	005	and	968/2005		are	at	the		instance	of	the

¶39

defendant and Appeal No.1075/2005 is at the instance of

¶40

the plaintiff. 6. As the dispute is between the real brothers, when the matter came up before us on 1st December 2005, we

¶41

¶42

granted	opportunity		to	the par	ties	to	c	ome	to	some
amicable	solution	.	The	learned		senior	co	unsel	and	the
learned	counsel		for the	parties		did	make		efforts	but
failed.	We	fo	und that	the	rel	ations	betw	een	the	two
were	so bitter	that	one	could	not	stan	d th	e	other.	We
could	see	from	their	behaviour		in	the	Cour	t that	they
were	unable	to	live	peacef	ully	tog	ether		in a	flat
sharing	common		facility	and ut	ility	are	a.		From	what
transpired	in	the	Cou	rt, we	f	ormed	the		opinion	that
until	the suit	was	decided	some		arran	gement		needed	to be
made	though as	a	temp	orary	me	asure	whe	reby	the	plaintiff

¶43

as well as the defendant and their family could have

¶44

some of peace.

¶45

7.	On	1st D	ecember	2005, the learne	d	senio	r	coun	sel for
the	plaintiff		handed	in the affidavit	alo	ng		with	the
annexures		indicating		therein that on		the			application
made	to	the	society	viz. Il-Plaz	zo	Coo	pera	tive	Housing
Society	Ltd.		by the	plaintiff for per	mis	sion	to	put	a
temporary		wooden	partit	ion in the		suit		flat	was
favourably	co	nsidered	and	the society		gran	ted		permission
to	the pr	oposed	putting	up of a wood	en	partit	ion.		The
learned	counsel	for	the	defendant sought		time		to	respond
to	the	said	affidavit	and, accordingly,	t	he	mat	ter	was

¶46

kept today. In response thereto reply affidavit has

¶47

been filed by the defendant.

¶48

It transpires from the affidavit of the defendant

¶49

¶50

that		without		prejudi	ce	to	his	rights	and	co	ntentions,
the		defendant	is	not	ave	rse	to	the	temporary		partition
of	the	flat	but	he	has	two	things	to	say;	(one)	that
the		plaintiff	sh	all	have	t	o	obtain	necessary	p	ermission
from	the	Bombay		Munic	ipal	Cor	poration	in	that	regard	and

¶51

(two) that the expenses for putting up the wooden

¶52

partition shall be borne by the plaintiff alone.

¶53

9.	Having	given	our	thoughtfu	l consi	deration	to	the
entire	conspectus of	the		matter,	the	strained	and	bitter
relations	between	the	two	brothe	rs and	the		stressful
atmosphere	prevailing	in	the	flat	between	them	and	their
families,	it is	just	and	proper	that	the suit	flat	is
temporarily	partitioned	by		wooden	partiti	on as		suggested
in	paragraph 4	of	the	affidavit	dated	1st De	cember	2005

¶54

filed by the plaintiff and as shown in Exhibit "G"

¶55

(enclosure III) annexed thereto.

¶56

We gave an option to the defendant as to which of the portion (yellow or pink) shown in the Plan Exhibit "G", he would like to retain. The learned counsel after seeking instructions from the defendant who is present in Court, submitted that by way of an interim arrangement, without prejudice to his rights and contentions, the defendant shall keep the portion shown in yellow colour. The learned senior counsel for the plaintiff submitted that the plaintiff was ready and

¶57

willing to occupy pink portion as shown in the Plan

¶58

¶59

Exhibit "G".

¶60

As noticed earlier, the society has already granted permission to the plaintiff to put up temporary wooden partition. 12. If the suit flat is divided by the wooden partition as indicated above by way of an interim arrangement, the prayers (c) and (d) of the notice of motion No.1729/2003 shall not survive. 13. As regards prayers made by the defendant in the notice of motion No.2917/2003, we are of the view, these prayers cannot be granted at this stage. 14. We, thus, dispose of these three appeals by the following order:

¶61

By cons	ent of the parties, M/s.D	ara B.
Mistry	and partners, the Architects	are
appointed	as Court Commissioner to	carry
out the	work of temporary partition	of the
suit flat	by wooden partition	in the
manner se	t out in paragraph 4	of the
plaintiff’s	affidavit dated 1st	December
2005 as	shown in the Plan Exh	ibit "G"
(enclosure	III). The wooden	partition
shall be put up	from floor upto the

¶62

¶63

ceiling.

¶64

(ii)	It	will be for	the said Arch	itects	i.e.
	M/s.Dara	B. Mistry	and partners	to	obtain
	approval Corporation partition, if	from the for putting up the said woode necessary.	Bombay n		Municipal
(iii)	All	expenses for	carrying	out	the
	temporary	partition of	the	suit	flat
	including	the Architec	ts fee and		society
	charges subject, ho Suit.	shall be wever, to the decision in the	borne by the		plaintiff
(iv)	Until	the wooden pa	rtition is	actually	put
	dividing	the two	portions physi	cally,	both
	the	parties shall	keep their		furniture,
	pots, respective n the plan Ex	plants and otionally allotted area as per hibit G (enclosure III).	other items	in	their

¶65

(v) The defendant shall henceforth keep his pets, birds, parrots, cockatoo, lovebirds and other animals in the area notionally allotted to him only.

¶66

(vi) We expect the Court Commissioner/

¶67

¶68

Architects	to	carry	ou	t	the	work	of
temporary	partiti	on	by		way	of	wooden
partition	in	the	suit	flat	as	early	as
possible and	preferably	within	three
months from	today.

¶69

We	record	the state	ment	of	the	learned
Senior	Cou	nsel and	the		learned	counsel
appearing		for the		plainti	ff and	the
defendant		respectively		that	the	parties
shall	fully	cooperate		with	the	Court

¶70

Commissioner (the Architects) in carrying out this order.

¶71

. No costs.

¶72

(R.M.LODHA, J.)

¶73

(D. G. KARNIK, J.)

Darayus R. Vazifdar v. Cyrus R. Vazifdar

Case brief

What is this about?

What did the court decide?

Darayus R. Vazifdar v. Cyrus R. Vazifdar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Dsq Holdings Ltd. and Ors. Vs Infrastructure Leasing and Financial Services Ltd.

Kanayalal M. Thakkar Vs Shree Padmanabh Builders

pec Ltd. Vs curzon maritime Ltd.

Binoy Janak Maniar Vs Smt. Beena Manek Mehta

Binoy Janak Maniar Vs Smt. Beena Manek Mehta

Cyrus R. Vazifdar Vs Darayus R. Vazifdar