Disposed

Rashid S. Oomerbhoy v. Nargis M. Oomerbhoy and 8 Ors.

Bombay HC8 Jul 2014NMS/2485/2012

Case brief

AI extract

What is this about?

This court disposed of a suit for partition and this notice of motion regarding division of trust properties. After rejecting the plaintiff's proposals, the judge formulated a specific scheme dividing properties into two lots. The Sattar group was directed to choose within 15 days, failing which the Majid group would select. Further directions on valuation adjustment were reserved pending election

What did the court decide?

The suit and notice of motion were disposed of by accepting a scheme of dividing properties into two lots. The Sattar group was directed to select a lot within 15 days; otherwise, the Majid group woul

Rashid S. Oomerbhoy Vs Nargis M. Oomerbhoy and 8 Ors. — Partition | Bombay HC (2014)

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agk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2485 OF 2012

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WITH

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SUIT NO. 671 OF 2002

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NADEEM MAJID OOMERBHOY

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…Applicant

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In the matter between

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RASHID ABDUL SATTAR OOMERBHOY
of Bombay, Indian Inhabitant, residing at 7,
Noor Mansions, Chowpatty Sea Face,
Bombay – 400 007

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...Plaintiff

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Versus

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1 NARGIS MAJID OOMERBHOY , an adult, Indian Inhabitant, residing at Sattar Sea View, 4th floor, Chowpatty, Mumbai – 400 007

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2 ANWAR SATTAR OOMERBHOY , of Mumbai, Indian Inhabitant, having his address at 2A, Andromeda Coop. Housing Society Ltd., Worli Sea Face,

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3 SALIM SATTAR OOMERBHOY , of Mumbai, an adult Indian Inhabitant, residing at Sattar Sea View, 4th Floor, Chowpatty, Mumbai – 400 007

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4 AFZAL SATTAR OOMERBHOY ,

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of Mumbai, an adult, Indian Inhabitant,
residing at Court View, Maharshi Karve
Road, Mumbai – 400 020

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5 IMTIAZ SATTAR OOMERBHOY

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6 SHAHIDA A. SATTAR , of Mumbai, adult Indian Inhabitants, residing at Sattar Sea View, 4th floor, Chowpatty, Mumbai – 400 007

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7 NADEEM MAJID OOMERBHOY ,

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8 HEENA MAJID OOMERBHOY , both of Mumbai, adult Indian Inhabitants, residing at Sattar Sea View, 4th Floor, Chowpatty, Mumbai 400 007

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9 ARIF MERCHANT , of Mumbai, Indian Inhabitant, having his address at Afzal Mansion, 1st Floor, D Block, 5, Motibai Street, Mumbai – 400 011 ...Defendants

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And

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KHATIJA SATTAR OOMERBHOY,
of Mumbai Indian Inhabitant, having address at 7,
Noor Mansions, Chowpatty Sea Face, Bombay –
400 007

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...Respondent

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APPEARANCES

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FORTHEPLAINTIFF Mr. Astad Randeria , with Ms. Aditi Prabhu, i/b M/s. Desai Desai Carrimjee & Mulla.

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FORTHEAPPLICANTIN
Mr. K.G. Munshi, with Mr. Z.A..
THENOTICEOFMOTIONJariwala, i/b M/s. Thakore Jariwala
& THE 7THDEFENDANT& Associates, for the Applicants in
INTHESUIT
N/M No. 2485 /12 and for Defendant

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No. 7 in Suit No. 671/2002.

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FORDEFENDANTSNOS. 4 Mr. Rahul Singh , for Defendants No. 4 to

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TO 6 6.

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FORDEFENDANTNO.1A Mr. Shailesh Thakkar , i/b M/s. Shailesh & 8 Thakkar & Co., for Defendant No. 1A and 8.

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COURTRECEIVER Mr. N.R. Bandodkar , IInd Assistant to Court Receiver, present

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CORAM :G.S. PATEL, J
JUDGMENT RESERVED ON :3RD JULY 2014
PRONOUNCED ON :8TH JULY 2014
JUDGMENT (PER G.S. PATEL, J.)

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1.Subject only to further directions indicated below, this order
will dispose of both this notice of motion and this suit.

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2.The suit, filed in 2002, seeks a dissolution and distribution of
the properties of the Ahmed Oomerbhoy Wakf Trust (“the
Trust”;“the Wakf”). Admittedly, this is a private trust. The
Plaintiff and Defendants No. 2 to 6 form one group, “the Sattar
Group”; Defendants No. 7 and 8 together constitute the second
group, “the Majid Group”. The two groups are, and this is also
admitted, jointly entitled to 50% share each in the properties of the
Trust.

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3.The Trust owned four immovable properties. In addition,
there were two properties that belonged to Ahmed Oomerbhoy
(since deceased) personally. These are admittedly divisible equally

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between the two groups. A mere particularized description of these
properties is tabulated in Annexure “1” to this order. These are
briefly described as follows:

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a) The Dadar building, which has two wings and is fully tenanted;

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b) The Usmania Building at Byculla, also fully tenanted;

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c) The Mohammadi Manzil building also at Byculla, and also fully tenanted;

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d) The factory / mill premises of the Trust at Two Tanks, Byculla (“ the Factory Premises ”).

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4.The entirety of the Factory Premises at Two Tanks, Byculla
actually consists of six separate plots. Of this, C.S. Nos. 1009 and
1010 are the properties that did not belong to the Trust, but to
Ahmed Oomerbhoy personally. These are the two plots that are
admittedly equally divisible between the two groups. The Trust
owned four plots that were part of the Factory Premises: C.S. Nos.
1011, 1012, 1014 and 1015. At some point, there were several tenants
spread across the Factory Premises, including some partnership
firms of the Oomerbhoy family. There were also several structures
on the Factory Premises. Those have since, under orders of this
Court, been demolished under orders of this Court.

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5.On 6th May 2004, the Court Receiver of this Court was
appointed Receiver on all the Trust properties. On 10th July 2007, a

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preliminary decree was passed in the suit. That decree was made on
Notice of Motion No. 2004 of 2007 by Khanwilkar, J. (as he then
was). The preliminary decree was passed by consent and was in
terms of prayer clauses (a), (b) and (c) of the present suit, which
reads thus:

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“(a) that this Hon’ble Court be pleased to Order and Decree that Ahmed Oomerbhoy Trust Trust be dissolved and its affairs be wound up by and under the Directions of this Hon’ble Court;

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(b) that this Hon’ble Court be pleased to ascertain and declare the shares of each of the beneficiaries in the assets of the Ahmed Oomerbhoy Trust Trust;

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(c) that the Hon’ble Court be pleased to partition the assets of the Ahmed Oomerbhoy Trust amongst the beneficiaries entitled thereto in accordance with their respective interests as per the Trust Deed dated 24th February 1938 and the share be allotted and awarded to such beneficiaries.”

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6.A Commissioner for Taking Accounts was appointed. He
was directed to submit a report about the manner in which the
Trust properties and assets could be partitioned amongst the
respective shareholders in the two groups. The report was to be
submitted within three months.

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7.For the next five years or more, from July 2007 till November
2012, several meetings and hearings were held by the
Commissioner for Taking Accounts for the purpose of this report to
effect the division. All this work proved fruitless.

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8.Before the Commissioner for taking accounts, the Plaintiff
filed an affidavit on behalf of the Sattar Group saying that the
combined value of the Usmania building and Mohammadi Manzil
building taken together and the value of the two buildings at Dadar
were almost the same with only a minor price difference. I will turn
to this affidavit presently.

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9.This Notice of Motion was filed on 6th November 2012 by
the 7th Defendant of the Majid Group. It sought a direction to the
Sattar Group to submit to this Court two lots of the properties, i.e.,
the Usmania building and Mohammadi Manzil building in one lot
and the Dadar building in the other lot, with an option to the Majid
Group to select one of the two lots on “as is where is” basis. It also
sought a relief that the Trust properties along with Ahmed
Oomerbhoy properties comprised in the mill / factory premises at
Byculla be divided into two equal plots and that the Majid Group be
then permitted to select one of the two lots so divided. There were
also prayers for consequential reliefs.

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10.On 11th December 2012, the Plaintiff filed an affidavit saying
that the Usmania and Mohammadi Manzil buildings could be
conveniently constituted into one lot, and two Dadar buildings into
a second lot with the value difference between the two being
quantified by Court. On 27th December 2012, the Commissioner
for Taking Accounts submitted a report stating that the division of
the properties was not possible. He sought directions of this Court.

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11.On 31st January 2013, this Notice of Motion was taken up for
hearing. At that time, i.e., during the hearing before Smt. R.S.

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Dalvi, J., the Majid Group made a proposal that is duly noted in the
order made on that date. This proposal envisaged that one lot
would consist of the two buildings at Dadar along with the two
Ahmed Oomerbhoy plots from the Factory Premises at Byculla
(C.S. Nos. 1009 and 1010) and two of the Trust plots in the Factory
Premises, i.e., C.S. Nos. 1011 and 1012. The Usmania building, the
Mohammadi Manzil building and the two remaining Trust plots in
the Factory Premises, i.e. C.S. Nos. 1014 and 1015 were to
constitute the second lot. Since this proposal was made by the
Majid Group, the Sattar Group was given option first to choose
either of these plots. The Notice of Motion was then adjourned.

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12.On 15th February 2013, the Plaintiff filed an additional
affidavit contending that it was impossible to implement the Majid
Group’s proposal since the Factory Premises were incapable of sub-
division as there were several structures standing on this plot.

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13.On 20th February 2013, this Court noted some of these facts
and held that the Majid Group’s proposal was “the most equitable
mode of distribution of properties amongst the Groups once the
choice is made”. The Court also noted that the Sattar Group, i.e.,
the Group that includes Plaintiff, had applied for time to consider
the lots proposed and to exercise its choice. The Court specifically
noted that 15th February 2013 affidavit filed by the Plaintiff
accepting the making of lots, stated that it was workable but
suggesting certain modifications. The Court also noted that some
parts of the “suit properties”, meaning the structures on the
Factory Premises would required to be demolished and that the
Majid Group (Defendants No. 7 and 8) were prepared to do this.

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The Sattar Group wanted a valuation made. The Court gave both
Groups liberty to make their own valuations, and then proceeded to
direct that since the lots were agreed upon, the actual division of
the properties would be on the terms set out by the Court.
Paragraphs 8 and 9 of 20th February 2013 order read thus:

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“8.The Sattar group desires valuation to be made so
as to make their choice. It is for them to make their
valuation. The Majid group may also make their
valuation. Since the lots are agreed to be made,
the actual division of properties would be on
the following terms.

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(a)If the Majid Group has to show their
valuation, the Sattar group would have the first
choice. If the Sattar group insists upon their
valuation, the Majid group would have the first
choice.

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(b)There are tenants in both the lots. The
tenancy rights cannot be extinguished except by
consent of the tenants by the group that takes
over the tenants of that lot. Hence whatever
valuation is made, the property would go along
with those tenants since the choice is available to
the other side.

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(c)Each of the groups is the tenant of another
group. Consequently such tenancies would either
continue or terminate by consent of such tenants.
Such termination would then be at a valuation.

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(d)The rights of the landlord as also tenants
shall not be affected by the aforesaid settlements.

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9.Since lots are now agreed to be made as
per affidavit of the Sattar group, that group may
obtain the valuation of the suit properties for their own

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satisfaction for exercising their choice or to give the
valuation to the Majid group to offer them to exercise
their choice to choose one of the two lots. If the choice
is not made, the Commissioner for Taking Accounts who
has submitted his report shall proceed upon the said
report taking into consideration the two lots prepared by
Defendant Nos.7 and 8. The Commissioner Report is
disposed off accordingly.”

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(emphasis supplied)

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14.On 9th April 2013, the Plaintiff filed yet another affidavit
now objecting to the proposal on the ground that no sub-division of
the Factory Premises was possible since there were still structures
standing. The next day, 10th April 2013, Defendant No. 7 formally
put on record the Majid Group’s scheme, as originally placed
before the Court on 31st January 2013 and again on 20th February
2013. A draft amendment was also submitted. I have allowed that
amendment by a separate order dated 2nd July 2014. That
amendment seeks to add a prayer asking this Court to allot one of
the two lots to each group in accordance with the propounded
proposal.

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15.On 12th August 2013, consent minutes were filed in the suit.
These allowed the 7th Defendant of the Majid Group to demolish
all the structures standing on the Factory Premises. Upon that
being done, the entire Factory Premises were to be handed over to
the Court Receiver. Provisions were also made for payments of an
amount of Rs. 50 lakhs to the Sattar Group in so far as they related
to the structures standing on the Factory Premises, as also the plant
and machinery, oils, salvage materials and movables in those

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Premises. It is not in dispute that that process of demolition is now
complete.

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16.Mr. Munshi, learned advocate for Defendant No. 7, has
tendered a rough sketch showing the proposed division and the
marking of the two lots. For convenience, a copy of this sketch is
annexed as Annexure “2” to this order. Briefly: Lot No. 1 consists
of the Dadar building (both wings), the two Factory Premises plots
owned by Ahmed Oomerbhoy (C.S. Nos. 1009 and 1010), the
entirety of C.S. Nos. 1011 and 1012 that are the properties of the
Trust and parts of C.S. No. 1015 and 1014, also once belonging to
the Trust. Lot No. 2 consists of the Usmania and Mohammadi
Manzil buildings and the balance portions of C.S. No. 1015 and
1014, properties of the Trust. According to Majid Group, on its
independent assessment, the valuation differential between these
two lots is about Rs. 3 crores.

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17.Mr. Munshi submits that a preliminary decree having already
been passed, and since this Court had already by the orders of 31st
January 2013 and 20th February 2013 accepted the fairness of the
Majid Group’s proposal, an order must now be passed in terms of
this Notice of Motion. There is, he submits, no valid objection from
the Sattar Group. Indeed, the affidavits that have been filed on
behalf of the Sattar Group accept the proposal and the making of
lots. There is no counter-proposal forthcoming. The only objection
earlier raised was that an in specie division by metes and bounds was
impossible on account of the structures on the Factory Premises.
Now that these structures are demolished, there is no surviving
objection.

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18.Before I consider Mr. Munshi’s submission, I must note the
various statements made by the Plaintiff in his affidavits in the suit
and in this Notice of Motion. In an affidavit dated 10th February
2012 filed in this suit, the Plaintiff, in paragraphs 3 to 5 said this:

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“3.It is submitted that the combined values of
Usmania Building and Mohammedi Building and the
values of the two buildings at Dadar known as Ahmed
Oomerbhoy Building are substantially the same with a
minor difference. I along with the said Sattar Group am
willing to take either of the properties as one part of our
50% share and entire pay over or receive or adjust the
difference in value based on these building given to us.

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4.And I further submit that with reference to the Mill
premises at two Tanks Grant Road, Mumbai, only an one
Cadastral Survey (CS) number being No. 1010 (Byculla
Division) stands in the name of Mr. Ahmed Oomerbhoy.
It is submitted that the whole premises is tenanted to
Ahmed Mills which is in possession of Court Receiver in
Suit No. 4913/2000 which is indivisible and
indispensable to said property. The share of the parties
in the property of said Ahmed Oomerbhoy and Ahmed
Oomerbhoy Waqaf trust are almost same. Majid Group
to agree for such division and also to implement the
decree.

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5.I say that I shall deal with the tenants and
occupants of the portion of the properties coming to my
share and similarly, the Defendant No. 7 and 8 should
deal with the portion of the said properties coming to
their share jointly. However, prior to Division the factual
position in the Suit Properties need to be placed on
record. Parties shall not raise any grievance in future as
to correctness of the details etc. and shall accept the
same division on a as what is, where is and whatever

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basis and shall defend any third party claims and
liabilities at their own cost. Any and all claims arising
after the date of such division shall be borne entirely by
the party in possession of such property only.”

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19.In an affidavit filed on 11th December 2012 in reply to this
Notice of Motion this is what the Plaintiff said:

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“Hence, it is suggested that the assets be divided into two primary lots: Lot 1 comprising of Buildings namely Osmania, Mohamedi and Lot 2 comprising of the two Dadar Buildings.

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 This Hon’ble Court may be pleased to appoint a Valuer from the panel of Valuers and as per direction of this Hon’ble Court, either the Majid Group or the Sattar group will have the right to select the properties listed in lot 1 and lot 2 and the minor differential value of the two lots may be added to the lot with the lesser value. The property mentioned in 1(d) being the mill premises may be valued and either Sattar group or Majid group may be given the first right to buy the Mill Premises as per the valuation. In case neither of the groups chooses to purchase the said Mill Premises, the may be auctioned on the basis directed by this Hon’ble Court in its Order dated 8.03.2010.

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However, the said Mill Premises are tenanted by various family partnership firms, all of which are in the process of dissolution. Consequently, any sale of the said Mill Premises (whether to the Majid Group or Sattar Group or to a third party by auction) will have to be subject to the tenancy rights of the various firms in the said Mill Premises. In the alternative, with the consent of all parties (which include all partners in the various family partnership firms which have

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tenancy rights), this Hon’ble Court may be pleased to
direct that the said tenancy rights of the said family
partnership firms also be valued.”

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20.Finally, there is Plaintiff’s affidavit dated 15th February 2013,
to which I have earlier referred. In paragraph 7 of this affidavit, the
Plaintiff said:

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“7.In the event that the Majid Group is
agreeable to demolishing the mill premises, I
respectfully submit that the proposal of the
Majid Group with regard to said Lots can be
workable and feasible with modifications in the
following manner.

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a)The valuation of Mill Land and Premises
(Cadastral Survey Nos. 1009, 1010, 1011, 1012,
1014 and 1015) in the said Lots, which is
proposed to be carried out by the Majid Group
ought to take into account the value of the
subsisting tenancy rights of M/s. Ahmed
Oomerbhoy and the other concerns and
partnership firms which are tenants of the Mill
Premises which is not disputed by the parties.
Consequently, the Majid Group ought to, in the valuation
proposed by them, take into account and credit the
shares of the Parties in ratio of their share/ interest in the
said partnership firms and value be apportioned to the
said Lots.

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b)The Mill structure on Cadastral Survey Nos. 1009,
1010, 1011, 1012, 1014 and 1015 ought to be
demolished after the Valuation is accepted by both the
parties and the Lots chosen by the said groups namely
the Majid group and the Sattar group. This, in turn, will
enable each party to fully utilize their respective plots
without any interference from other party and will lead to

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an effective division of the property between the two
groups.

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8.In the event that, the above proposal is
not accepted by the Majid Group, I wish to
submit that the said Mill Land and Premises
ought to be valued as a whole including the
value of the individual tenancy rights of the
various firms and the group valuing such
property shall offer the other group a right to
purchase the entire property of the Mill Land
and Premises at such value.

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9.If the party to whom the Mill Land and Premises is
offered for purchase is not ready and willing to buy the
entire property, the party valuing the said property shall
be given the right to purchase the entire property for a
price not less than the valuation price. If neither group
wants to purchase the Mill Land and Premises,
the same may be sold by an auction conducted
by the Hon’ble Court.The amounts appropriated to
each group including the amount apportioned to
individual tenants shall be paid from such sale price,
after first deducting all outgoings, taxes and expenses in
relation to the Mill Land and Premises which have thus
far been paid by any of the Parties to the Suit.

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10.The two buildings at Dadar (bearing
Survey No. 6/201), at one hand, and
Mohammedi building (C.S.No. 1016), Usmania
building (C.S.No. 1013) together can be valued
and divided between the two groups in the
same manner by one party offering to the other
the difference in value between the two lots so
decided.

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11.I say that in the event the division of properties as
set out in prayers in the above motion or as suggested

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by the Majid Group on 31st January 2013 after
incorporating the modifications suggested by me herein
above is not acceptable to Majid Group, then the
alternate proposal set out by me in the aforesaid
paragraphs 8 to 10 and /or in paragraph 9 of my Affidavit
dated 11th December 2012 may be considered by this
Hon’ble Court.”

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(emphasis supplied)

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21.There is one other aspect to note. The plaint itself does not
contain a prayer for sale of all or any of these properties. The only
prayers are for a division and distribution. None of these affidavits
indicate why, today, such a division as is offered by the Majid Group
should not be effected. It is not insignificant that the Sattar Group
has not filed any appeal from the orders of 31st January 2013 or
20th February 2013, in which this Court inter alia accepted the
Majid Group’s proposal and proceeded to pass directions on that
basis. Indeed, a reading of these orders and Plaintiff’s affidavits
indicates that the Sattar Group has accepted, albeit in qualified
terms, the Majid Group’s proposal. On affidavit, the sale by auction
to outsiders is only an option of last resort; the Sattar Group does
not anywhere dispute that a division is in fact possible. It does not
even indicate in terms why the present division suggested by the
Majid Group is unworkable. It only demands an inter-se adjustment
of accounts. Indeed, the statement is that “the proposal of the
Majid Group with regard to said Lots can be workable and feasible
with modifications”.

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22.At the hearing of this notice of motion, the submission of Mr.
Randheria, learned advocate for Sattar Group and the Plaintiff was
that:

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a) the valuation differential proposed by the Majid Group is not accepted.

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b)Several portions of the built up structures that once
stood on the Factory Premises were at one time
tenanted by some partnership firms. There are suits
pending for dissolution and accounts of these firms. In
those suits, the question of valuation of these
tenancies will undoubtedly arise. Therefore, till these
suits are decided, this division should not be made as
the inter-se accounting in the partnership dissolution
actions will necessarily have a bearing on the amount
that is payable from one Group to the other on account
of the valuation differential between the two lots;

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c)In any case, there is a compelling reason why the
Factory Premises and their contiguous properties, i.e.
Mohammadi Manzil and Usmania buildings should be
offered for sale as one single lot. As a single lot, Mr.
Randeria submits, the property is bound to fetch a
much higher price because it will have a significantly
enhanced development potential. The Sattar Group is
agreeable to a sale of the entirety of the property in
question.

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23.I do not believe that any of these submissions are tenable.
One cannot lose sight of the nature of the suit and the reliefs
sought: that it was the Plaintiff himself who sought an in specie
division and not a sale, and that the Plaintiff and the Sattar Group
have, after first saying that a division was not possible because of
the standing structures on the Factory Premises, later not opposed
in principle the proposal from the Majid Group. The question of
valuation of tenancies is not one that should, to my mind, be
allowed to come in the way of the distribution or division that the
Majid Group now seeks in this Notice of Motion. These concerns
can be adequately taken care of, e.g., by providing that instead of
making a payment of half the valuation differential, the amount be
deposited in this Court subject to an adjustment, if any, on the
taking of accounts in the pending partnership dissolution actions.

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24.Mr. Randeria’s submission that the property be sold in its
entirety raises the question of whether or not a Court has the power
in law to order such a sale especially when one side of this litigation
desires to have its share of that property in specie on “as is where is”
basis. On first principles, I would venture to suggest that no Court
should force a sale of a property merely because one party is being
obstructive about a division that is otherwise possible, or, at any
rate, not shown to be impossible. Assuming that the Court has the
power to order a sale, this can and should only be done where such
a division in specie is impossible or not feasible. Mr. Randeria is
unable to show me today why the properties are incapable of
division as proposed by the Majid Group. He only says that it is not
optimal or, in his client’s view, desirable. That is a very different
thing.

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25.I am mindful of the fact that the order that Mr. Munshi seeks
is on a Notice of Motion and would have the effect of decreeing the
suit although no written statements have yet been filed, issues
drawn or evidence taken. Mr. Munshi agrees that this would indeed
be the effect of such an order. However, that is not, he submits, an
impediment in and of itself. Suits are of varying descriptions and
types. Not all need the same treatment. Our procedural rules, i.e.,
the Code of Civil Procedure, 1908 (“CPC”) and the Bombay High
Court (Original Side) Rules (“OS Rules”) should not be treated as
a trammelling or strait-jacketing restriction on the powers of a
Court to do that which is equitable and just, having regard to the
facts of each case. These are, after all, procedures, and they are
meant to sub-serve the ends of justice. Broadly speaking, Mr.
Munshi’s submission are well-founded. Our rules and procedures
are a means to an end, not an end in themselves. Given that there is
no valid or tenable opposition to the division proposed and, perhaps
most importantly, that a division is precisely reason why the
Plaintiff brought suit, it would, in my view, be far too pedantic and
doctrinaire an approach to say that an order of the kind Mr. Munshi
seeks can only be passed in the suit and never, under any
circumstances, on this application.

¶134

26.Mr. Munshi relies on the provisions of Section 92(1) of the
CPC, and in particular Clauses (f), (g) and (h) read with Section
151, Order XX Rule 18 and Order XXVI Rule 14 (3), as also Rules
238 (f) and (g) and 239 of the OS Rules to submit that there is an
inherent power in the court to make such an order. Even though
Section 92(1)(f), (g) and (h) of the CPC and the other provisions
that he cites may not directly apply to the case at hand, the

¶135

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principles outlined in these procedural provisions should guide the
Court’s hand. The Plaintiff has in his various affidavits pinned
himself to a certain position regarding the division. It is too late in
the day for him to resile from that. What is proposed, Mr. Munshi
submits, is a a scheme for the mode or manner to effect the
dissolution of the Trust. It is only the consequential
implementation of the preliminary decree that has already been
passed on 10th July 2007.

¶138

27.In the context of a private Trust, which the Trust admittedly
is, Mr. Munshi relies on the decision of the Supreme Court in
Ramchand (Dead) By Legal Representatives vs. Thakur Janki
Ballabhji Maharaj & Anr.1 There, considering the issue of a private
Trust and a temple, the Supreme Court held that Civil Courts
always has jurisdiction to frame a scheme for management of the
temple and its properties. The Supreme Court directed the Court
of first instance to frame such a scheme in order to make an
effective decree. Mr. Munshi also relies on a decision in KT. N. RM.
Thenappa Chettiar & Ors. vs. N. S. KR. Karuppan Chettiar & Ors.2
Here too, the Supreme Court held that a Civil Court always has a
power to frame a scheme for the administration of a private
endowment at the instance of one of the parties interested.

¶139

28.As regards the tenancy rights and values claimed by Mr.
Randeria to affect or make impossible the distribution, Mr. Munshi
relies on the decision of a Division Bench of the Calcutta High
Court in Prasanna Kumar Sarma & Ors. vs. Satish Chandra Sarma &

¶140

1 1969 (2) SCC 313

¶141

2 (1968) 2 SCR 897

¶142

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¶144

Ors.3 There, the court held that the rights of the parties have to be
determined in their capacity as co-sharers. The rights of third
parties are not be considered in such an action. Now, even if in the
distribution or the dissolution the contesting groups are strictly
speaking not co-sharers it should make no difference given that
both parties have admittedly 50% share in the distribution.

¶145

29.Moreover, on this question of tenancies, I believe Mr.
Randeria’s concerns are fully addressed by an order dated 19th
December 2012 passed in Notice of Motion (L) No. 3476 of 2012 in
Suit No. 4913 of 2000, where it was specifically held that the rights
of the tenants in the structures on the Factory Premises would be as
per law and that these tenants would be entitled to enforce their
rights in the Court of competent jurisdiction. This order was
passed in the context of the demolition of the structures on the
Factory Premises.

¶146

30.Mr. Randeria’s submits that the authorities and the statutory
provisions cited by Mr. Munshi have no application whatsoever to
an extinguished Trust. They apply only to the case of settlement of
a scheme or management of an existing Trust. The properties here,
he submits, are not jointly owned. The suit is, in actuality, for a
declaration under the Indian Trusts Act, a statute that is silent
about the mode of distribution. There is also no sufficiently
comprehensive provision in the CPC dealing with such a situation.
Therefore, the Court must proceed on the principles of equity and
make an order ex debito justitiae. This requires the monetary value

¶147

3 AIR 1929 Calcutta 666

¶148

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¶150

of each groups’ share to be safeguarded. There is no restraint, he
submits, on a Court-ordered sale, unlike under the Partition Act.

¶151

31.Mr. Randeria’s next two submissions are, in my view,
incapable of acceptance. He says that the commitments made by
the Plaintiff on affidavit were on a without prejudice basis. That
submission needs only to be stated to be rejected. He also submits
that there is no expert opinion of whether a division is feasible
although in all probability it is feasible but may require regulatory
approvals from the local authorities. This is not so much a
submission as a speculation, no different from the speculation that
the property would undoubtedly fetch the a higher value if sold as
one lot.

¶152

32.On the question of power of sale the decision of a learned
Single Judge of this Court in Janardan Mahadev Dhuru & Ors. vs.
Vijaynath Moreshwar Dhuru & Ors4 is on point. Bharucha, J., as he
then was, held that following the decision of the Supreme Court in
R. Ramamurthi vs. V. Rajeswararao,5the Court has no power other
than the power conferred under the Partition Act to order sale of
property in a partition suit. The suit property in that case could not,
he held, be ordered to be sold. Paragraph 8 of that decision makes it
clear that the suit with which the Court was concerned was also not
a suit brought under the Partition Act.

¶153

33.All of this leads me to believe that there is no procedural or
statutory impediment in passing an order of the kind that Mr.

¶154

4 AIR 1982 Bombay 274

¶155

5 AIR 1973 SC 643

¶156

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¶158

Munshi seeks in this Notice of Motion. Testing this from another
perspective: suppose the parties were to be driven to addressing the
suit as any other regular suit, i.e., by framing issues, filing affidavits
of evidence, and taking evidence. What might the Defendants say
differently from what they have said in this Notice of Motion? What
might the Plaintiff urge in opposition? What question could
possibly be put to a witness on either side? The valuation
differential would not affect or stall the division; it would only
require a further order to be made. That, too, can be done, or at
least provision made. As far as I can tell, nothing remains to be
done in the suit except to divide and distribute the properties. The
only question is how is that best done. Mr. Munshi suggests one
possible method. It seems to me an eminently fair and reasonable
method or mode of distribution. There is nothing on record to
indicate to the contrary. In fact, this is not even an opinion that I
should, rightly, express since it has already been concluded by the
two previous orders of this Court, neither of which has been set
aside or modified. At the same time, I see no real difficulty in
addressing Mr. Randeria’s concerns about the monetary differential
and the question of accounts being taken in the pending partnership
dissolution actions.

¶159

34. With that in mind, the following order is passed:

¶160

a) The Sattar group shall, on or before 28th July 2014, indicate to this Court which of the two Lots shown in Annexure “2” to this order (it being clarified that Lot 1 includes also the two Dadar buildings) it accepts or agrees to take. Upon the Sattar group making that

¶161

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election, it will be exclusively entitled to the properties
comprised in the lot of its choice. The Majid group
will be exclusively entitled to the properties comprised
in the other lot.

¶164

b)Should the Sattar group not, on that date, indicate its
choice, it will be deemed to have forfeited its right of
first option/first refusal. The Majid group will then
have the first option to select any of the two Lots, with
the same consequences as to passing of title and
property.

¶165

c) In order not to influence the decision of either group, no directions regarding payment or deposit of the differential in valuation are being issued at this stage. These directions will be passed once the election has been made as indicated above.

¶166

35.List the Notice of Motion and the suit for further orders,
first on board at 11.00 a.m. on 28th July 2014.

¶167

(G. S. PATEL, J.)

¶168

Note : This order is modified as per order dated 16th July
2014 passed on speaking to the minutes of original order.

¶169

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¶171

ANNEXURE “1”

¶172

`Sr.` `No`	`.`	`Premises`	`C.S. No.`
`1`		`Dadar Building` `Consisting of two` `wings (Tenanted)`	`1470.8 Sq. yards, C.S.` `No.6/201, Mahim Division.` `Fully tenanted)`
`2`		`Usmania Building` `(Tenanted)`	`C. S. No. 1013, Byculla` `Division, ad-measuring 284` `Sq.` `yards.(Fully tenanted)`
`3`		`Mohammadi` `(Tenanted)`	`C. S. No. 1016, 410 Sq. Yards.` `(Fully tenanted)`
`4`	`(i)`	`Factory Premises at` `Two Tanks(Tenanted)`	`C. S. No. 1011, 377.64` `Sq.` `yards.`
	`(ii)`		`C. S. No. 1012, Byculla` `Division, ad-measuring 251 Sq.` `yards.`
	`(iii)`		`C. S. No.1014, Byculla` `Division, ad-measuring 1870` `sq. yards.`
	`(iv)`		`C. S. No.1015, Byculla` `Division, ad-measuring 545 sq.` `yards.`
	`(v)`		`C. S. No.1009, 134.41 sq.` `y`
	`(vi)`		`C. S. No.1010, 431 sq.` `yards` `belong to Ahmed Oomerbhoy.` `Divisible between Sattar and` `Majid Group in ratio 50:50.`

¶173

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¶175

ANNEXURE “2”

¶176

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Rashid S. Oomerbhoy v. Nargis M. Oomerbhoy and 8 Ors.

Case brief

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Rashid S. Oomerbhoy v. Nargis M. Oomerbhoy and 8 Ors.

Case brief

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