Dismissed

1.SHRI Jayaji M. Dhanwatey S/O. J.M.Dhanwatey,Mumbai. and Two Others. v. Smt. Sushilabai Wf./O.S.D.Dhanwatey,Mumbai and 4 Others.

Bombay HC6 Jan 2010APP/569/2009

Case brief

AI extract

What is this about?

The single judge allowed Chamber Summons No. 1219 of 2008 to implead transferees as additional plaintiffs in a partition suit but dismissed Chamber Summons No. 1269 of 2008 seeking transposition of defendants. The appellants appealed, citing Section 52 of the Transfer of Property Act. The High Court distinguished Section 52 relying on Order XXII Rule 10 CPC, found no error in the ad interim order,

What did the court decide?

No error found in the impugned interlocutory order passed on 1st October 2008. The appeal is failed at the threshold.

1.SHRI Jayaji M. Dhanwatey S/O. J.M.Dhanwatey,Mumbai. and Two… — Partition | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 569 OF 2009 IN CHAMBER SUMMONS NO. 1269 OF 2008 IN

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SUIT NO.3676 OF 1996

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Shri.Jayaji M.Dhanwatey s/o Jayant M.Dhanwatey and Ors.

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..Appellants

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Vs.

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Smt.Sushilabai wife of Shri.Shamrao D.Shanwatay and Ors.

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..Respondents

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Mr. S.M.Gorwadkar along with D.A.Joseph i/b David and Associates for Appellants.

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Mr. Ashwin Shete along with Priyanka Khaitan i/b Khaitan & Jayakar for Respondent No.17.

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CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ.

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DATE : 6^th JANUARY, 2010

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P.C. :

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We have heard Mr. Gorwadkar, the learned counsel for the Appellants

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who are some of the defendants in Suit No. 3676 of 1996 presently pending before this Court. The said suit is for partition of the

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undivided property belonging to the joint family. It appears that during the pendency of the said suit, some of the Plaintiffs transferred their undivided share by way of a registered Deed of Assignment in favour of M/s. Vedant Property Pvt. Ltd. Consequently, M/s. Vedant Property Pvt. Ltd. took out Chamber Summons No. 1219 of 2008 for being impleaded as additional Plaintiff in the suit (Plaintiff No.7). Some of the defendants i.e. defendant no.3 and 2 others took out Chamber Summons No. 1269 of 2008 praying for being impleaded as party Plaintiffs in the Suit. By the impugned interlocutory order passed on 1^st October, 2008, the learned Single Judge was pleased to allow Chamber Summons No. 1219 of 2008 in terms of prayer clauses (a) to (c) and dismiss Chamber Summons No. 1269 of 2008.

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Mr. Gorwadkar, the learned counsel for the Appellants relied upon the decision in the case of Sanjay Verma Vs. Manik Roy, 2006 (13) SCC 608 and submitted that in view of the scheme of Section 52 of the Transfer of Property Act, 1882, the purported successor of the original Plaintiffs could not be impleaded as additional Plaintiffs and therefore, the impugned order is required to be set aside.

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We are not impressed by this submission. Order XXII Rule 10 of Civil Procedure Code states that during the pendency of the suit, if the property is assigned, by the leave of the Court, the suit may be

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continued by the persons upon whom the property has come or devolved. In the instant case, as noted earlier, the suit is for partition of the joint family property and what has been transferred to the applicants in Chamber Summons No. 1219 of 2008 was the undivided share and therefore, the reliance on Section 52 of the Transfer of Property Act, would be misplaced. We are also satisfied that the appellants ’ plea for being transposed as Plaintiffs has been rightly rejected.

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Mr. Gorwadkar submitted that the transfer allegedly made by the Plaintiffs in favour of added Plaintiff is not bonafide and legal. These issues cannot be considered in the instant appeal and the appellants may have their own remedy in the pending suit.

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We do not find any error in the impugned order and therefore, this appeal must fail at the threshold. The same is hereby dismissed.

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[ SMT.V.K.TAHILRAMANI, J.] [ B.H.MARLAPALLE, J. ]

1.SHRI Jayaji M. Dhanwatey S/O. J.M.Dhanwatey,Mumbai. and Two Others. v. Smt. Sushilabai Wf./O.S.D.Dhanwatey,Mumbai and 4 Others.

Case brief

What is this about?

What did the court decide?

1.SHRI Jayaji M. Dhanwatey S/O. J.M.Dhanwatey,Mumbai. and Two Others. v. Smt. Sushilabai Wf./O.S.D.Dhanwatey,Mumbai and 4 Others.

Case brief

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What the court decided

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