Partly allowed

Gopal B. Ahuja v. Jagdish B. Ahuja and 18 Ors.

Bombay HC16 Apr 2013APP/148/2013

Case brief

AI extract

What is this about?

The High Court disposed of an appeal seeking modification of an ad-interim injunction in a partition suit. The court ordered protection against creation of third party rights in office and factory premises while refusing injunctions that would stall ongoing Slum Rehabilitation and development projects, allowing defendants to earmark specific property portions.

What did the court decide?

Granted ad-interim injunction regarding office/factory premises. Directed defendants to earmark 1/10th share in Slum Rehabilitation/development plots and inform transferees, pending trial.

Gopal B. Ahuja Vs Jagdish B. Ahuja and 18 Ors. — Partition | Bombay HC (2013)

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Appeal 148/2013

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

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APPEAL NO. 148 OF 2013 IN NOTICE OF MOTION NO. 166 OF 2013 IN

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SUIT NO. 75 OF 2013

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Gopal Bhagwandas Ahuja .. Appellant

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V/s

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Jagdish Bhagwandas Ahuja & Ors. .. Respondents

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Mr. Shailesh Shah, Senior Advocate with Mr. S.K. Srivastav, Ms. Manorama Mohanty, Ms. Gunjan Shah and Ms. Kavita Srivastav i/b S.K. Srivastav & Co. for the appellant.

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Mr. Ravi Kadam and Mr. Arif Bookwalla, Senior Advocates with Mr. Zal Andhyarujina and Mr. Hemang Raithatta i/b RMG Law for respondent nos.1 and 12 to 14.

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Mr. G.S. Godbole with Mr. Vishal Kanade i/b Jayesh R. Vyas for respondent nos.2, 4, 5 and 7.

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Mr. Cherag Balsara with Mr. Aftab Diamondwala and Ms. Fatima Diamondwala i/b Diamondwala & Co. for respondent nos.15 to 19.

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Mr. Vijay Nain for respondent no.3.

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CORAM : MOHIT S. SHAH, CJ. & M.S. SANKLECHA, J.

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DATE : 16 APRIL 2013

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Appeal 148/2013

P.C. :

This appeal is directed against the ad-interim order dated 25 February 2013 of the learned Trial Judge in notice of motion taken out by the appellant – plaintiff in a suit for partition of all assets of the joint family.

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The basic controversy raised before the learned Trial Judge at the ad-interim stage, as transpires from the impugned order, was as under:-

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(i) The parties to the suit are family members and their companies or partnerships. The plaintiff claims that their father started the family business of kirana shop and from the proceeds of that business various other businesses were undertaken by the family members which are businesses of the joint family. It is for the plaintiff to prove that the kirana shop business was a joint family business. There is nothing to show that fact except the oral statement of the plaintiff. The plaintiff claims that from that kirana business the other businesses were set up. There is nothing to show that also except the website profile of defendant no.1 which states that he started his career in his family business and later ventured into his own construction business in 1984.

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(ii) The plaintiff claims 1/10^th share in all the businesses and the revenue generated thereon.

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(iii) The plaintiff has shown the assets of the family at Exhibit B to the plaint. Item No.1 is his personal property which is two flats constituting one floor in Soona Villa, Perry Cross Road, Bandra. That flat is seem to have been used for granting a collateral security to bank in respect of one of the businesses of one of the family concerns of the plaintiff being defendant no.17. There may, therefore, be some link in the businesses. However, the plaintiff would have to show the joint family business initially from which other businesses started.

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(iv) Exhibit B to the plaint shows various other properties in which the plaintiff is or was a partner. Counsel on behalf of defendant no.1 states that those are properties under item nos.15 to 20. Those immovable properties in which the plaintiff was the partner may be used for the family business.”

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(emphasis supplied)

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Learned Trial Judge has passed the following ad-interim

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order:-

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“The defendants shall not deal with, dispose off, alienate, transfer or create any third party rights in respect of properties at item Nos.1 and 15 to 20 in the list Exh. B to the plaint pending the Notice of Motion.”

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Learned counsel for the appellant-plaintiff submits that the properties in respect of which injunction has been granted are all properties in use for the kirana business being run by the plaintiff and the flats of the plaintiff. The learned Trial Judge has erred in not granting any injunction in respect of the properties which are being

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used for the construction and marble businesses which were started by defendant no.1 and other family members with the funds generated from the kirana business which was set up by the father of the plaintiff and the defendants. When the father set up the kirana business in the year 1969, defendant no.1 was about 19 years old and the plaintiff was about 16 years old. From the funds generated from the kirana business, the family started the marble business and the construction business. Defendant no.1 and other family members did not have their separate income except income from the kirana business. The father expired in 1996. It is submitted that the defendants have not placed anything on record to show that the construction and the marble businesses were started on their own without using funds made available from the kirana business which was family business started by the father of the parties as stated above.

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Learned counsel for the appellant further points out from the statement at Exhibit C / page 121 that in several of these firms, the plaintiff and/or his wife Komal were given 50% share when the companies were incorporated or partnership firms were formed. It is submitted that 50% share was given to the plaintiff and his wife only because the concerned businesses were started with the funds generated from the kirana business which was the joint family business set up by the father of the parties.

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On the other hand, learned counsel for the respondents have opposed the appeal and submitted that the defendants have started construction / marble businesses on their own without availing of the funds generated from the kirana business. It is submitted that the

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properties at item nos.5 and 26 are the properties being developed as Slum Rehabilitation Project and, if any injunction is granted that will result into Slum Rehabilitation Project being stalled. Similarly, the property at item no.14 is being developed by respondent no.17 and any injunction in respect of the said property will also result into project being installed.

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Learned counsel for the respondents have also submitted that in the letters written by the plaintiff, the plaintiff has claimed 50% share and the claim made in the suit for 10% share is contradictory and, therefore, also the plaintiff should not be given any relief.

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We find from the statement of assets at page 120 of the paperbook that item nos.1 to 4, 6, 8, 9, 22, 24 and 27 are residential flats being occupied by one or the other of the five brothers and five sisters. As far as the properties at item nos.5 and 26 are concerned, they are properties which are being developed by respondent no.16 as Slum Rehabilitation Projects. Item no.14 is a plot of land which is being developed by respondent no.17. However, as far as the properties at item nos.7, 11, 21, 23 and 25 are concerned, they are office premises which are being used for the construction / marble businesses. Item no.10 is factory premises being used for the marble business. Learned counsel for the respondents state that properties at item nos.12 and 13 (unsold flats) are by now already sold.

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Having heard learned counsel for the parties, we are of the view that in the facts and circumstances of the case, nature of controversy and the observations made by the learned Trial Judge, some protection is required to be granted to the plaintiff till the learned

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Trial Judge decides the nature of matrix. We do not think it necessary to give reasons for the ad-interim directions that we propose to give as the notice of motion is going to be heard by the learned Trial Judge in the near future and we are not inclined to grant any ad-interim injunction against implementation of the Slum Rehabilitation Projects on the lands at item nos. 5 and 26 and of the development project on the land at item no.14.

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10 Accordingly we grant ad-interim injunction against creation of third party rights in respect of the office premises at item nos.7, 11, 21, 23 and 25 and also the factory premises at item no.10, over and above the ad-interim injunction granted by the learned Trial Judge.

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We are not granting any ad-interim injunction in respect of the residential flats being occupied by the other brothers and sisters.

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We are also not granting any ad-interim injunction in respect of properties at item nos.5, 14 and 26, but with a clarification that creation of any third party rights in respect of 1/10^th portion of free sale component of these properties shall abide by the outcome of the notice of motion and the suit. Defendant nos.16 and 17 shall earmark those portions in the concerned plans and place a copy of such plans on record of the notice of motion with an affidavit within one week from today. The transferees of those portions of the properties will be informed in writing about this order.

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It is clarified that this order is passed without prejudice to the rights and contentions of the parties. All contentions are kept open.

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Accordingly the appeal is disposed of in terms of the above directions.

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CHIEF JUSTICE

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(M.S. SANKLECHA, J.)

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Gopal B. Ahuja v. Jagdish B. Ahuja and 18 Ors.

Case brief

What is this about?

What did the court decide?

Gopal B. Ahuja v. Jagdish B. Ahuja and 18 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

Case details

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