Partly allowed

Khairunisa Haji Mohammed v. Hamida Haji Haroon and O Rs

Bombay HC12 Jul 2010RP/4/2010

Case brief

AI extract

What is this about?

The court took consent terms recording an amicable settlement between most parties on a partition suit on record and, despite a review petition being pending, decreed the suit in terms of those terms. Non-signatories were left free to approach the court independently.

What did the court decide?

Suit decreed in terms of the consent terms. Review petition disposed of as it no longer survives the decree. Non-signatories granted liberty to institute independent proceedings.

Khairunisa Haji Mohammed Vs Hamida Haji Haroon and O Rs — Partition | Bombay HC (2010)

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Review Petition No.4 of 2010

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

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REVIEW PETITION NO.4 OF 2010 IN

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APPEAL NO.59 OF 2009 FROM

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ORDER DATED 5TH DECEMBER 2008 IN NOTICE OF MOTION NO.3791 OF 2008 IN

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SUIT NO.2633 OF 2007

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Khairunisa Haji Mohammed, Indian inhabitant, residing at Kuky Villa, 1st Floor, 4th Road, Khar (W), Mumbai-400 052,

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... Petitioner

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(Resp.No.1 in Appeal) (Org. Plaintiff)

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Versus

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Hamida Haji Haroon, Adult Indian,

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residing at 9, Grocot Road, Leicester,

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LE 56, AB United Kingdom.

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Munaf Haji Haroon, Adult, Indian, residing at 9, Grocot Road, Leicester, LE 56, AB United Kingdom.

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Saira Akthar Aziz, Adult Indian, residing at 31, Parkland Road, Steatham, London, SW 166 TB.

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Farina Shakil Sacrani, Adult Indian, residing at 51, Kirikiri Lane, East Tamaki Heights, Botony 6 Maukau, Auckland, New Zealand, being heirs and legal representatives of Haroon Haji Kasam, Original Defendant No.8, in the suit.

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Review Petition No.4 of 2010

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Afzal Haji Mohammed Indian inhabitant residing at Kuky Villa, 1st floor, 4th Road, Khar (W), Mumbai 400 052.

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Imran Haji Mohammed Indian inhabitant residing at Kuky Villa, 1st floor, 4th Road, Khar (W), Mumbai 400 052.

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Parveen Asif Supariwala Indian inhabitant residing at Potia Apartments, Bellasis Road, `B' Wing, 13th floor, Mumbai Central, Mumbai 400 008.

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Shaheen Hamid Supariwala Indian inhabitant, residing at Dalal Estate, Lamington Road, `R' Block, 1st Floor, Mumbai Central, Mumbai 400 008.

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Reshma Siraj Macchiwala Indian inhabitant residing at 10th floor, Dudhwala Complex, Bellasis Road, Mumbai Central, Mumbai 400 008.

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Fahima Asif Haroon Indian inhabitant residing at Gordan Hall, Nagpada, Opp. Nagpada Police Station, Nagpada, Mumbai 400 008.

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Minaz Arif Supariwala Indian inhabitant, residingt at Dalal Estate, `O' Block, Lamington Road, Mumbai Central, Mumbai 400 008.

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.. Respondent Nos.5-11 (Resp. Nos.2-8 in Appeal) (Org. Def.Nos.1-7)

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Review Petition No.4 of 2010

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Abdul Majid Haji Kasam, Having his address at Flat No.7, 3rd floor, Virani Manzil, 4th Road, Khar (W) Mumbai 400 052.

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Zikar Haji Kasam, having his address at Flat No.8, 1st Floor, Virani Manzil, 4th Road, Khar (W) Mumbai 400 052.

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Iqbal Haji Kasam, having his address at Flat No.3, 1st Floor, Virani Manzil, 4th Road, Khar (W) Mumbai 400 052.

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.. Respondent Nos.12-13 (Resp.Nos.9-11) in appeal) Org.Def.Nos.9-11) (consenting Respondents)

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Sharifa Abdul Sattar Bankotwala, having her address at Dilshad Building, 1st Floor, Room No.3, Opp. Sai Sewa Hospital, Juma Masjid Road, Kalva (West), Thane.

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Tahera Yusuf Sopariwala, having her address at 11, 19 Karim Mansion, 4th floor, Kambekar Street, Mumbai 400 003,

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Gafar Virani,

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Shama Aziz,

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Shirin Gaffar

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Nos.6 to 8 having their address at Almas House, Opp. Suruchi Hotel, Vapi Daman Road, Nani Daman Road, Nani Daman 396 210.

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Farida Ebrahim Galariya, having her addresws at Mukan Post- Harnai,

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Review Petition No.4 of 2010

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Taluka- Dapoli, Zilla Ragnagiri 415713.

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.. Respondent Nos. 15-20 (Resp.os. 12-17 in appeal)

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Orig.Def.Nos.12-17)

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Advani Builders & Developers Pvt.Ltd. having its address at Flat No.4 and 5, Virani Manzil, 4th Road, Khar (W), Mumbai 400052.

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.. Respondent No.21 (Resp.Nos.18 in appeal) (Org.Def.Nos.18)

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Mata International Exports having its address at Garage, ground floor, Virani Manzil, 4th Road, Khar (W), Mumbai 400 052.

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.. Respondent No.22 (Org.Def.No.19)

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Mr. Sachin Chandarana with Mr. Durgesh Khanapurkar i/by M/s. M.K. Ambalal & Co. for the petitioner.

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Mr. V.V. Kanade i/by Mr. Pushkar Patankar for respondent Nos.5 to 11. Mr. R.D. Thorat for respondent Nos.1 to 4 and 12 to 14. Mr. Abhishek Khare i/by M/s. Khare Legal Chambers for respondent Nos. 15 to 20.

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CORAM : MOHIT S. SHAH, C.J. &

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S.C. DHARMADHIKARI, J.

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DATED : 12TH JULY, 2010

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P.C.

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During the pendency of the review petition, the petitioner to the

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review petition and some of the respondents have entered into consent terms and it is requested by the advocate appearing for the original

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Review Petition No.4 of 2010

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plaintiff-petitioner that the consent terms be taken on record and an order be made in terms thereof disposing of and decreeing the suit from which the subject appeal and the review petition has arisen.

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At the outset, it is stated by the petitioner's advocate on instructions that the petitioner is neither pressing the review petition nor the original suit as against original defendant Nos.12 to 19 who are respondent Nos.15 to 22 to the review petition. Suit and Review Petition are dismissed accordingly as against them.

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Further, it is stated that respondents have not been able to resolve their inter se disputes and their claim of some of the defendants against others who are claiming to be the heirs of Haji Kasam Haji Essa, should not be affected by the terms and it should be clarified that they can assert their rights by instituting appropriate proceedings.

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The suit is for partition and the consent terms record that the amicable settlement is arrived at between the original plaintiff and defendant Nos.1 to 11. These consent terms record that agreement and state that they have amicably settled the dispute as set out in the terms and the suit as against the remaining defendants is not pressed.

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The consent terms are signed by the petitioner-original plaintiff and her advocate. Although, it is stated that the petitioner-plaintiff has

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Review Petition No.4 of 2010

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signed the consent terms in a language other than English, the same have been interpreted and duly explained to her with all their implications and consequences. It is after this exercise that the signature has been appended thereto.

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It is stated that the consent terms are signed by one A.Gani Dawood who is the Constituted Attorney of original defendant Nos.8(a) to 8(d). The Constituted Attorney is present in court. He states that the consent terms have been duly explained to the original defendant Nos.

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8(a) to 8(d). Similarly, the original defendant Nos.1 to 7 and 9 to 11 have also signed the consent terms. Their signatures are in English language. It is stated that they are familiar with the said language and after fully perusing the terms and understanding the implications with regard to the division of the estate and consequences flowing therefrom, they have signed the same.

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The consent terms duly signed by the parties and their advocates are taken on record and marked `X' for identification. Having satisfied ourselves that the consent terms fully record the understanding between the parties and that they have been executed and tendered without any pressure, force or compulsion so also the estate being divided amicably, we see no impediment in passing an order in furtherance thereof.

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Review Petition No.4 of 2010

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Accordingly, though the review petition is on board, by consent of parties the suit itself is decreed in terms of these consent terms.

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In the light of the decree passed in the suit, the review petition does not survive and stands disposed of accordingly. It is clarified that all parties who are not signatories to the consent terms are free to adopt independent proceeding so as to prove their right, title and interest in the properties, which are subject matter of the suit.

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Suit decreed as above. Refund of court fees, if permissible under the Rules, be granted. No costs.

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CHIEF JUSTICE

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S.C. DHARMADHIKARI, J.

Khairunisa Haji Mohammed v. Hamida Haji Haroon and O Rs

Case brief

What is this about?

What did the court decide?

Khairunisa Haji Mohammed v. Hamida Haji Haroon and O Rs

Case brief

What is this about?

What did the court decide?

What the court decided

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