This judgment dismisses a Notice of Motion seeking directions for partition and interim relief regarding land purchased as joint tenants with survivorship. The court held the suit was misconceived as the property vested entirely in the surviving brother, not the grandfather whose estate was claimed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
926-NMSL476-12.DOC
SHEPHALI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 476 OF 2012
IN
SUIT NO. 422 OF 2012
WITH
NOTICE OF MOTION NO. 499 OF 2014
Smt. Renu Balwant Maru…Plaintiff
Versus
Bhupendra Damjibhai Tank & Ors.…Defendants
WITH
TESTAMENTARY SUIT NO. 81 OF 2013
IN
TESTAMENTARY PETITION NO. 971 OF 2012
Jitendra Bhogilal Kkothari…Plaintiff
Versus
Renu Balwant Maru…Defendant
Mr. Atul G. Damle, Senior Advocate, i/b Rupesh R. Lanjekar, for
the Plaintiff.
Mr. M. G. Gawde, for the Plaintiff in TS/81/13.
Mr. Anil Anturkar, Senior Advocate, with Ms. Minoo Siodia, i/b D.
Dalal & J. Carsol, for Defendants Nos. 1 to 4.
Mr. Fredun DeVitre, Senior Advocate, a/w Mr. Vishwajeet
Sawant, Mr. Raju Yamgar, Mr. Manish Gitay, i/b Raju Yamgar,
for Defendant No. 7.
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926-NMSL476-12.DOC
Mr. Rohaan Cama, i/b Mohanty & Associates, for Defendants Nos. 5
and 6 in NMS/499/14.
CORAM:G.S. PATEL, J
DATED:7th December 2016
PC:-
NOTICE OF MOTION NO. 476 OF 2012
1.Although this matter is on board today for directions, by
consent, it is taken up for hearing and final disposal. Heard.
2.The Suit purports to be for partition in respect of a large tract
of land of 5 acres and 20 Gunthas at Dindoshi. This is Survey No.
29, Hissa No. 2 and Survey No. 39, Hissa No. 7. The Plaintiff,
Renuka, is the daughter of one Damodar Tank, whose father was
one Raghavji Tank. Defendant No. 7 is a developer in possession of
the property.
3.There are at least two immediate problems facing Mr. Damle
for the Plaintiffs. The first of these is that this property is the
subject matter of more than one prior disposition dating back to the
time of Damodar, if not earlier. Third party rights have been
created. There is no prayer to set aside those documents of transfer.
4.What the Plaintiff claims is a share in that property derived
from the ancestor on account of her being one of Damodar’s
daughters and one of Raghavji’s grand-daughters. There is a dispute
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as to the Plaintiff’s precise share. The controversy turns on an
interpretation of the relevant statutory provisions.
5.I find, however, that it is unnecessary to travel that distance
for the purposes of this Notice of Motion. Paragraph 1 of the Plaint
makes it abundantly clear that the Plaintiff seeks partition of the
estate left behind by Raghavji, the grandfather. Raghavji is described
in the Plaint “the deceased father”. There is a family tree annexed at
Exhibit “A” showing the relationship and kinship of the parties. Mr.
Anturkar for Defendants Nos. 1 to 4 and Mr. DeVitre for Defendant
No. 7 point out that the Dindoshi property was purchased by
Raghavji and Damodar from one Habiba Begum under an Indenture
dated 9th May 1967, a copy of which is at Exhibit “B” to the Plaint.
This Indenture make it clear (at page 20) that Damodar and his
father, Raghavji took that property “as joint tenants with the right of
survivorship”. The document says so in terms; and that is not all.
The very same clause further clarifies that Damodar and Raghavji
did not take the property as tenants in common. There is, therefore,
no ambiguity at all about the nature of ownership. Raghavji died on
12th July 1975. In view of this provision in the Indenture, Damodar
would succeed to the entirety of the property by survivorship, there
being a right of survivorship in his favour, and since Damodar and
his father did not hold that property as tenants in common.
6.The direct consequence of this is that prima facie the entire
Suit is at the very list misdirected if not actually misconceived.
Prayer (a) of the Suit seeks a declaration that the property described
in Exhibit “C” is the property left behind “by the deceased father”
– i.e., Raghavji – and a Plaintiff has a 1/7th share in it. On the
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documents annexed to the Plaint itself this cannot be correct,
because the property in question vested on the death of Raghavji
(“the deceased father”) entirely in Damodar. Prayer (a) of the Plaint
in its present form cannot possibly be granted.
7.Mr. Damle urges me to read paragraph 1 of the Plaint “as a
whole”. These are pleadings on the Original Side. They must be
construed strictly. At any rate, even a ‘holistic’ reading will not
assist Mr. Damle, and I must therefore decline his invitation. For,
paragraph 1 of the Plaint itself makes it clear that the partition
sought is of Raghavji’s estate and not Damodar’s estate. If there was
any doubt about this, it is put to rest by the fact that throughout the
Plaint, Damodar is referred to as “the deceased Damodar” and the
expression “deceased father” is clearly a specific reference to
Raghavji.
8.I also have a great difficulty having regards to paragraphs 4
and 5 of the Plaint. These paragraphs 4 and 5 seem to be at odds
with prayer (a). They speak of Damodar having made several
promises to the Plaintiff and Damodar’s other children including
about their shares in the Dindoshi property. Whether or not these
promises were ever made, and to whom and when, are, of course,
matters that must await trial. But even if these promises were made,
they would obviously then indicate that the property vested in “the
deceased Damodar” and not in “the deceased father”. That is not the
frame of the Suit. That is not what is claimed in paragraph 1. That is
not what is sought in prayer (a). I do not how in these circumstance
it is possible to grant the Plaintiff interim reliefs of the nature sought
which include restraining Defendants Nos. 1 to 4 from carrying out
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further work and restraining Defendants Nos. 1 to 4 and 7 from
creating any third party rights in respect of the property in question.
9.Mr. DeVitre is also correct in pointing out that Damodar
himself created development rights in respect of the property in his
lifetime, and that the promises of which the Plaintiff speaks in
paragraph 4 are promises of a share in the value of the property; that
is, a promise of payment of money. This means that, even on the
Plaintiff’s showing, the suit is at best a money claim and nothing
higher.
10.The Notice of Motion is dismissed. There will be no order as
to costs.
11.In the view that I have taken, at present there exists no
question of compelling any disclosure from any of the Defendants.
NOTICE OF MOTION NO. 499 OF 2014:
1.Heard Mr. Cama for Defendants Nos. 5 and 6 in support.
Since I have not granted the Plaintiff an order of disclosure, I do not
see how I can grant that order of disclosure to Defendants Nos. 5
and 6. The Notice of Motion is dismissed.
2.Liberty to Defendants Nos. 5 and 6 to file a separate Suit, if so
advised.
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2 issues framed by the court
Whether a suit for partition of property described as belonging to the deceased father is maintainable when the property vested in the deceased son by right of survivorship.
Whether interim relief restraining defendants from working on the property can be granted in the absence of a maintainable cause of action.
G.S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court