Allowed

Maheshchandra Trikamji Gajjar v. Jagdish Trikamji Gajjar and and 9 Ors.

Bombay HC18 Jul 2012APP/390/2012

Case brief

AI extract

What is this about?

Appeal against an order granting judgment on admission under Order 12 Rule 6 CPC. The appellant disputed the partition direction, but consensus on 50:50 share was established. The court clarified the partition directive extended possession to both parties equally and extended the execution deadline.

What did the court decide?

Clarification granted regarding partition directions and deadline extended to 31 July 2012.

Maheshchandra Trikamji Gajjar Vs Jagdish Trikamji Gajjar and and 9… — Partition | Bombay HC (2012)

kambli

Appl390.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.390 OF 2012

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NOTICE OF MOTION NO.3074 OF 2011 IN SUIT NO.4120 OF 1994

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Maheshchandra Trikamji Gajjar ...Appellant v/s. Jagdish Trikamji Gajjar & Ors. ...Respondents

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Mr.Naushad Engineer with Mr.Sumit Raghani i/b PDS & Associates for Appellant.

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Mr.V.R.Dhond, Sr.Advocate with Mr.Amit Jamsandekar and Mr.Akshay Ahuja i/b JBSS & Co. for Respondents.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 18 July 2012.

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P.C.

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This appeal is directed against the order dated 28 March 2012 of the learned trial Judge of this Court allowing the notice of motion No.3074 of 2011, which was taken out by respondent No.1(original plaintiff) for a judgment on admission under the provisions of Order 12 Rule 6 of the Civil Procedure Code.

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The suit is between two brothers and is for administration of estate of the deceased father. The father has left the Will dated 10 November 1962, which is probated under the probate granted by this Court on 5 July 1994.

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Appl390.12

The plaintiff had prayed for following reliefs in the notice

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of motion:

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(a) That this Hon'ble Court be pleased to declare that the plaintiff is entitled to one half share in the property known as Gajjar Niwas and described in the Scheduled annexed as Exhibit “A” to the plaint(the “said Gajjar Niwas”);

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(b) That this Hon'ble Court be pleased to partition the said Gajjar Niwas and order separate possession of the plaintiff and one half share therein and any additional FSI, if any, in the Gajjar Niwas;

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(c ) For appropriate directions and order for the foregoing purpose including directions to the authorities in the BMC and in the office of the Sub-Registrar, Old Customs House to complete all formalities for the transfer in the names of the plaintiff and defendant No.1 and Mutation of property/land records in the names of Shri Maheshchandra Trikamji Gajjar and Shri jagdish Trikamji Gajjar.;

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(d) For costs;

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(e) For such other and further reliefs as the nature and circumstances of the case may require.;

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The learned counsel for the appellant (defendant No.1) submits that there is no dispute as far as prayers (a) and (c ) are concerned, the only grievance is regarding grant of prayer (b). It is submitted that it is necessary to clarify that plaintiff and defendant No.1 have one half share each in the Gajjar Niwas building and also one half share each in the additional FSI of Gajjar Niwas.

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Appl390.12

The learned counsel for the respondent No.1(original plaintiff) agrees that both the plaintiff and defendant No.1 have one half share each in the Gajjar Niwas as well as one half share each in any additional FSI in the Gajjar Niwas.

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In view of the above consensus, we dispose of this appeal with a clarification that grant of prayer (b) means a direction to partition the Gajjar Niwas in such a manner that the plaintiff and defendant No.1 get one half share each in the Gajjar Niwas and also one half share each in any additional FSI in the Gajjar Niwas and the Commissioner will give possession of one half share to the plaintiff and one half share to defendant No.1.

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As regards directions given by the learned trial Judge in paragraph 21 of the order, the time limit to carry out the directions is extended up to 31 July 2012.

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8. In view of this, appeal is accordingly disposed of.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Maheshchandra Trikamji Gajjar v. Jagdish Trikamji Gajjar and and 9 Ors.

Case brief

What is this about?

What did the court decide?

Maheshchandra Trikamji Gajjar v. Jagdish Trikamji Gajjar and and 9 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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