Disposed

Dinesh T. Parikh v. Nirmala K. Parekh and 2 Ors.

Bombay HC13 Mar 2013NMS/194/2011

Case brief

AI extract

What is this about?

This single bench disposed of two Notices of Motion seeking an injunction to maintain the status quo regarding the suit property, a bungalow, pending the outcome of two separate partition suits involving three branches of a family.

What did the court decide?

Restraint of defendants from alienating, encumbering, transferring or creating third party rights in the suit property pending both suits.

Dinesh T. Parikh Vs Nirmala K. Parekh and 2 Ors. — Property and Title | Bombay HC (2013)

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NMS No.2865_194-10_11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2865 OF 2010

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SUIT NO.2548 OF 2010

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Nirmala Kantilal Parekh & Ors. –

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Plaintiffs

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V/s.

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Gautam D. Parekh & Ors. – Defendants

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ALONGWITH

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NOTICE OF MOTION NO.194 OF 2011

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SUIT NO.150 OF 2011

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Gautam D. Parekh & Ors.

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– Plaintiffs

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V/s.

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Nirmala Kantilal Parekh & Ors. – Defendants

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Mr. Satish Shah, Adv. a/w. Mr. Vishal Kanade, Adv. a/w. Ms. Gauri Gandhi, Adv. i/b. Tamhane & Co. for the Plaintiffs.

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Mr. D.D. Madon, Sr. Counsel, a/w. Mr. Birendra Saraf, Adv., Mr. Ranjit Shetty, Adv., Mr. Deepak Deshmukh, Adv. i/b. Juris Corp. for Defendant Nos.1A to 1C.

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DATE : 13th March, 2013.

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P.C. :-

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The parties in the suit represent three branches of Parvatiben Jivandas Parekh. She left behind three daughters-in-law to whom she bequeathed a 3^rd of her estate. The suit property is a part of her estate. In her will the suit property was directed to be sold after deducting certain expenses. The proceeds were directed to be distributed in three equal shares amongst three daughters-in-law who until then were to keep the suit property as tenants-in-common.

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The sale of the entire property has not been effected. 1/3^rd of the property has been initially sold. Another 1/3^rd of the property

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NMS No.2865_194-10_11

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has been later sold. The remainder 1/3^rd continues to be the residence of the defendant Nos.1a to 1c in Suit No.2548 of 2010 who claim through one branch.

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The two sales have been effected by two daughters-in-law representing two branches. The sales are prima facie not in accordance with the directions in the will. It is the case of the Plaintiffs in Suit No.2548 of 2010 that the entire property could not be sold because they were prevented by original defendant No.1 who represented the third branch. Consequently due to the act of one branch, the two other branches have ultimately sold off all their 1/3^rd share. This having been done, the remainder 1/3^rd share would belong exclusively to the branch of defendant Nos.1a to 1c in Suit No.2548 of 2010. 4. Defendant Nos.1a to 1c claiming through original defendant No.1 has filed Suit No. 150 of 2011 for partition of that share. The other two branches have resisted the partition. Until the partition is effected, the property continues as a single whole and the three branches headed by three daughters-in-law are to use the property as tenants-in-common. Consequently until the partition is effected the share of the third branch which is actually in possession of defendant Nos.1a to 1c as their dwelling house is required to be protected under Section 44 of the Transfer of Property Act, 1882 being their dwelling house. So soon as the partition is effected, the two branches who have sold their undivided share would be entitled to deal with such share.

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It is argued on behalf of the Plaintiffs in Suit No.2548 of 2010 who are representing one branch that the defendant Nos.1a to 1c in that suit are only entitled to 1/3^rd share of the sale proceeds of the entire property. Consequently until that aspect is decided status quo would have be maintained by all the parties. Hence the

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NMS No.2865_194-10_11

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defendants in both the suits shall not alienate, encumber, transfer or create any third party rights in the suit property being the Bungalow at Ghatkopar pending both the suits.

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Both Notices of Motion are disposed off accordingly.

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( ROSHAN DALVI, J. )

Dinesh T. Parikh v. Nirmala K. Parekh and 2 Ors.

Case brief

What is this about?

What did the court decide?

Dinesh T. Parikh v. Nirmala K. Parekh and 2 Ors.

Case brief

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What did the court decide?

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