The High Court rejected a motion seeking permission to sell flats. The judge held that testamentary jurisdiction is limited and cannot determine title, disputes, or distribution of sale proceeds.
Permission to sell the balance constructed area of the flats and parking spaces was denied.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
NOTICE OF MOTION NO. 805 OF 2004
IN
TESTAMENTARY PETITION NO. 848 OF 2001
IN
TESTAMENTARY SUIT NO. 44 OF 2002
Ramesh N. Siddhanti .....Plffs.
vs.
Smt. Praha Kabbur and ors. .....Defnds.
AND
Vinayak N. Siddhanti and ors. .....Respds.
V.A. Thorat with K.D. Shah for Resp no.2
in N/M. 2157 of 2002 to show cause and for
support in N/M No. 805 of 2004.
V.R. Dhondi/b. M.G. Gawde for resp no.3.
D.D Madon with B.B. saraf and S. Purohit i/b.
Y.N. Adiya for defendants to show cause in NM/
2157 of 2002 and 805 of 2004.
R. Tayde for respondent no.1.
CORAM: S.U. KAMDAR, J.
DATE : 11TH AUGUST, 2005.
P.C. :
1. By the present motion the second
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respondent is seeking a permission to sell the
the two flats being flat no.91 and 92 together
with two open car parking spaces from and out of
the allocable saleable areas of respondent no.3.
It is the case of the Respondent no.2 that these
flats are sold to him by respondent no.3. He
has further contended that the said flat should
be permitted to be sold at the price of
Rs.93,53,380/- and out of the said amount a sum
of Rs.90 lacs is paid by him as security deposit
to the respondent no.3. The only basis on which
the present application is made is the order
passed on earlier occasion dated 23.10.2002 in
Notice of Motion No. 2157 of 2002.
2. From the order dated 23.10.2002 it
seems that the order is passed by almost consent
of the parties as in para-1 and 2 it has been
recorded that the negotiations are at the advanced
stage but has been not completed. However
relying upon the aforesaid order in which the
respondent no.2 is permitted to carry out the
development of the property and allowed to sell
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60% constructed area. The present application
is made with a view to sell even the balance
constructed area of part of 40%.
3. In my opinion no such relief can be
granted in a testamentary jurisdiction. The
testamentary jurisdiction is a limited
jurisdiction which does not determine any
dispute or any rights inrespect of the
properties or a title or distribution of the
amount of sale proceeds or considerations
inrespect of the immovable properties. Motion
dismissed accordingly. No order as to costs.
sd/-
************
1 issue framed by the court
Whether the court can grant permission to sell flats and parking spaces in testamentary jurisdiction.
Ramesh N. Siddhanti
Vinayak N. Siddhanti
S.U. KAMNAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court