Single Judge's orders directing distribution of suit properties while disposing of an inheritance suit were set aside as the plaint lacked a prayer for such distribution. The suit was stopped with abatement.
Impugned orders set aside; Suit disposed of as abated; Costs of Court Receiver Rs.19,890/- directed.
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.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.443 OF 2009 IN
SUIT NO.1481 OF 1994
Vijay alias Victor Ram Mahadik....Appellant
(Ori.plaintiff no.2)
Vs.
Smt. Laxmi alias Saroj ....Respondents
w/o Subhash Dalvi & Ors.(Ori.plaintiffs 3 to 5)
Mr.Snehal Shah with F. Dubhash
i/by M/s Narayanan & Narayanan for appellant.
Ms.Preeti Menon i/by M/s Shreji & Lal for respondents.
Coram : J.N. PATEL &
SMT.R.P.SONDURBALDOTA, JJ.
Date : 6th October, 2009
ORAL ORDER (Per Smt.Justice R.P. SondurBaldota) :
1.Rule. Rule returnable forthwith. Heard learned counsel for
the parties.
2.This appeal challenges the order dated 17th July 2008 passed
by the learned Single Judge disposing of the suit and the order
dated 20th August 2008 on the application for speaking to the
minutes of the order dated 17th July 2008.
3.The parties to this appeal and their mother filed suit No.
1481 of 1994 against one Ratna for declarations that they alone
are the heirs of one Ram Mahadik and that Ratna was not entitled
to any share in the estate of Ram. The other reliefs sought by
2
them in the plaint related to the properties of the deceased in
the hands of Ratna including the suit flat i.e. Flat No.101 in
Shanti Kunj Estates Co-op. Housing Society Limited. Considering
the nature of the dispute, by the ad-interim order dated 21st April
1994, Court Receiver, High Court, Bombay was appointed only for
the purpose of making the inventory of the articles lying in the
suit flat. The Court Receiver took the inventory on 27th May 1994
and made his report dated 28th May 1994.
4.After Ratna filed her written statement, issues were framed
on 5th March 2002. The plaintiffs filed affidavit of examination-
in-chief dated 4th August 2003 of original plaintiff no.2.
Thereafter the suit remained pending for the cross-examination by
Ratna and further evidence.
5.It appears that Ratna, the sole defendant died on 15th
October 2006. Later original plaintiff No.1 Janet also expired on
24th February 2007. When these facts were brought to the notice of
the Court, the suit came to be disposed of by the impugned order
dated 17th July 2008. By the impugned order, the learned Single
Judge after taking note of the fact of death of Ratna and the
statement of original plaintiffs that Ratna has left no heirs,
deleted her name from the proceedings. Thereafter, instead of
disposing of the suit, as having been abated on the death of
Ratna, gave directions as regards distribution of the suit flat
3
and the movables therein by declaring that all the plaintiffs to
the suit are equally entitled to the properties. It appears that
thereafter plaintiff No.2, the present appellant moved an
application for speaking to the minutes of the order dated 17th
July 2008, in order to point out that since there was no prayer
for distribution of the properties, direction in terms of the same
could not have been given by the Court while disposing of the
suit. However, the application was rejected by the learned Single
Judge by the second impugned order dated 20th August 2008 stating
that the order needed no correction.
6.Original plaintiff no.2 challenges the two orders by filing
the instant appeal. Respondents to the appeal are the original
plaintiffs no. 3 to 5. Learned counsel for the appellant submits
that the directions given by the learned Single Judge while
disposing of the suit by the two impugned orders go way beyond the
ambit of the suit. He submits that there is no prayer sought in
the plaint that the suit flat and the movables found therein be
distributed amongst the plaintiffs. He points out that there is a
dispute interse the plaintiffs as regards the succession to the
property of Ram. It is the claim of the appellant that the
respondents i.e. original plaintiff nos. 3 to 5 have given up
their share in the properties in favour of the appellant. These
respondents on the other hand have filed a suit for partition,
which is pending in this Court. In these circumstances, there
4
could be no distribution of the properties. Learned counsel
appearing for the respondents admits that these respondents have
filed suit for partition against the appellant. The suit flat and
the movable properties therein are included in the schedule of the
properties to the suit for partition. In these circumstances, the
impugned order is clearly erroneous, as travelling beyond the
scope of the suit. On getting intimation of death of the sole
defendant, the only order that could have been passed in the suit
is of recording the abatement of the suit and disposing the same
of as such. Therefore, the appeal is allowed. The impugned
orders are set aside. Suit No.1481 of 1994 is disposed of as
having been abated. The appellants are directed to pay costs of
the Court Receiver quantified at Rs.19,890/- within a period of
four weeks from today.
(Smt.R.P.SondurBaldota,J) (J.N. Patel, J.)
3 issues framed by the court
Whether the Single Judge erred in directing distribution of suit properties when the plaint did not contain a prayer for such distribution.
Whether the appeal should be allowed and the suit disposed of as abated due to the death of the sole defendant.
Whether the order of the Single Judge required correction for travelling beyond the scope of the suit.
1 provisions across 1 enactments
Vijay alias Victor Ram Mahadik
Smt. Laxmi alias Saroj ...w/o Subhash Dalvi
And Ors.
J.N. PATEL
SMT.R.P.SONDURBALDOTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court