Bombay High Court
Man Chandak Developers Pvt. Ltd vs Dilip Mangilal Jain on 11 November, 2013
Bench: S.J. Kathawalla
kpp 1 nms 1213/2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1213 OF 2013
IN
SUIT NO. 629 OF 2013
Man Chandak Developers Pvt. Ltd. ...Applicants
In the matter between:
Man Chandak Developers Pvt. Ltd. ... Plaintiffs
Vs.
Dilip Mangilal Jain ...Defendant
Mr. Virag Tulzapurkar, Senior Advocate, along with Mr. S.U. Kamdar, Senior
Advocate, and Mr. R.I. Chagla, instructed by M/s. Negandhi, Shah &
Himayatullah, for the Plaintiffs.
Mr. Vineet Naik, Senior Advocate, along with Mr. Sandesh Patil, instructed by
Mr. Pavan Patil, for the Defendant.
CORAM: S.J. KATHAWALLA, J.
Order reserved on : 27
August, 2013
th
Order pronounced on : 11 November,2013
th
ORDER:
1. The present Suit is filed by the Plaintiffs against the Defendant for
specific performance of an oral agreement entered into between the Plaintiffs
and late Shri Mangilal Gulabchand Narsingji, father of the Defendant, in
respect of the share inherited by the Defendant from the estate of late Shri
Mangilal Gulabchand Narsingji, who was holding 1/3 rd share out of 5 Annas
share in the immovable property-II, more particularly described in Exhibit-B
kpp 2 nms 1213/2013
(page 36 of the Plaint), at the time of his death. The oral agreement was also
with the two brothers of Mangilal Gulabchand Narsingji viz. Madanlal
Gulabchand Narsingji and Ranjeetmal Gulabchand Narsingji. These two
brothers have already performed their part of the oral agreement and
conveyed their right, title and interest in the property to the Plaintiffs as set
out hereinafter.
2. The Plaintiffs have in Suit No. 629 of 2013 also taken out the above
Notice of Motion seeking the following interim reliefs:
"(a) this Hon'ble Court may be pleased to permit the
Plaintiffs to carry on development work in respect of the
immovable property I and II excluding an area of 581.38
square metres as earmarked by the Plaintiffs on the Plan
annexed as a part of Exhibit "J" hereto on such terms and
conditions as this Hon'ble Court may deem fit and proper.
(b) That this Hon'ble Court be pleased to pass an order of
permanent injunction restraining:
(i) the Defendant from creating any third party rights in
respect of his undivided share in the immovable property II
inherited by him from the estate of his deceased Madanlal
Gulabchand Narsingji;
(ii) the Defendant, his agents, servants, heirs, executors,
administrators or any other person claiming through or
under the Defendant from interfering with the development of
the immovable property-I and II."
kpp 3 nms 1213/2013
3. Briefly set out hereinafter, are the facts and the submissions made on
behalf of the Plaintiffs:
3.1 In or around May/June, 2011, Mangilal Gulabchand Narsingji
(father of the Defendant), Madanlal Gulabchand Narsingji and Ranjeetmal
Gulabchand Narsingji agreed to sell and transfer all their 1/3 rd share each out
of 5 Annas share in the immovable property-II to the Plaintiffs for a
consideration of Rs. 11,50,00,000/- each (the "Suit Agreement"), subject to
the rights of the Indira Rashtriya Kamgar Sahakari Society Limited ( the
"Society").
3.2 In terms of the Suit Agreement arrived at between the Plaintiffs and
the said Mangilal Gulabchand Narsingji, Madanlal Gulabchand Narsingji and
Ranjeetmal Gulabchand Narsingji, the said Madanlal Gulabchand Narsingji
and Ranjeetmal Gulabchand Narsingji, under separate Indentures of
Conveyance both dated 2nd July, 2011, sold, transferred and conveyed all their
undivided share, right, title and interest to the extent of 1/3 rd share each out
of 5 Annas share in the said immovable property-II to the Plaintiffs for the
consideration and on the covenants as recorded therein, subject to the rights of
the Society. The said Indenture of Conveyance both dated 2 nd July,2011, are
duly registered with the Sub-Registrar of Assurances at Mulund, under Sr. Nos.
BDR/13-5501/2011 and BDR/13-549/2011.
3.3 According to the Plaintiffs, when the Conveyances were executed,
kpp 4 nms 1213/2013
Mangilal Gulabchand Narsingji (father of Defendant) was ill, and therefore
the conveyance of his share was not executed at that time but kept pending.
Mangilal Gulabchand Narsingji died in or around 20 th July, 2011 and could
not execute the conveyance in terms of the Suit Agreement as executed by the
said Madanlal Gulabchand Narsingji and Ranjeetmal Gulabchand Narsingji
in favour of the Plaintiffs.
3.4 According to the Plaintiffs, after the demise of late Shri Mangilal
Gulabchand Narsingji, the Plaintiffs called upon the heirs and legal
representatives of the said deceased namely Mrs. Badami Mangilal Jain
(widow of Shri Mangilal), Mr. Abhay Mangilal Jain, Mr. Bharat Mangilal Jain
and Mr. Jitendra Mangilal Jain and the Defendant (the sons of Shri Mangilal)
to convey their respective undivided right, title and interest in respect of the
1/3rd share of their deceased father (i.e. 2906.92 sq.mtrs.) out of 5 Annas
share (i.e. 8720.76 sq.mtrs.) in the said immovable property -II, more
particularly described in Exhibit "B" to the Plaint.
3.5 According to the Plaintiffs, under the prior registered Deed of
Partition dated 23rd March, 1973 (Exhibit-E to the Plaint at page 56), the
father Gulabchand Narsingji and his three sons viz. Mangilal, Madanlal and
Ranjeetmal had accepted and admitted the position that shares coming to
them on partition were held by them separately in their own individual right
and in severalty and that the joint status had been severed. Thus the share of
Mangilal was in his own individual and separate right and capacity. It was not
kpp 5 nms 1213/2013
at all held by him as HUF property.
3.6 The legal heirs and representatives of the Deceased Mangilal viz.
Mrs. Badami Mangilal Jain, Mr. Abhay Mangilal Jain, Mr. Bharat Mangilal Jain
and Mr. Jitendra Mangilal Jain, represented to the Plaintiffs that one Shobha
Mangilal Jain, daughter of the Deceased Mangilal, has renounced the world
and has taken "DIKSHA" and therefore does not have any right, title and/or
interest in the assets of her father. This declaration was also recorded in the
Conveyance dated 14th June, 2012.
3.7 According to the Plaintiffs, after various meetings and discussions,
on 14th June, 2012, the said Mrs. Badami Mangilal Jain, Mr. Abhay Mangilal
Jain, Mr. Bharat Mangilal Jain and Mr. Jitendra Mangilal Jain, being the heirs
and legal representatives of the Deceased Mangilal sold, transferred and
conveyed all their undivided right, title and interest in the said immovable
property-II to the Plaintiffs for the consideration and on the terms and
conditions as set out therein which was duly registered with the Sub-Registrar
of Assurances at Nahur, Mumbai. The said Indenture of Conveyance (without
Annexure) is at page 88 of the Plaint and the same is marked as Exhibit-I.
3.8 According to the Plaintiffs, as the Deceased Mangilal had expressly
agreed to convey and transfer all his undivided right, title and interest in
respect of his 1/3rd share (i.e. 2906.92 sq.mtrs.) out of 5 Annas share (i.e.
8720.76 sq.mtrs.) in the said immovable property-II, the Defendant being one
of the legal heirs of Mangilal Gulabchand Narsingji is bound and liable to
kpp 6 nms 1213/2013
perform all the obligations of his Deceased father under the said Agreement
(by which the Defendant is bound) in respect of the share inherited by him
from his Deceased father, by executing an Indenture of Conveyance in
accordance with the Suit Agreement as executed by the other heirs of the
Deceased Mangilal Gulabchand Narsingji i.e. Mrs. Badami Mangilal Jain, Mr.
Abha Mangilal Jain, Mr. Bharat Mangilal Jain and Mr. Jitendra Mangilal Jain.
The fact that the oral agreement was arrived at is supported by the conduct of
Mangilal Gulabchand Narsingji's brothers viz. Madanlal and Ranjeetmal and
of Mangilal's widow and three sons, who have conveyed their share and
interest to the Plaintiffs in accordance with the Suit Agreement.
3.9 The Plaintiffs by their Advocate's letter dated 7 th June,2012,
recorded some of the aforesaid facts and called upon the Defendant to
execute the Indenture of Conveyance as executed by the other legal heirs and
legal representatives of his Deceased father in favour of the Plaintiffs in respect
of the share inherited by him from the estate of the Deceased in respect of the
said immovable property-II. By the said letter, without prejudice to the
Plaintiffs' right to seek specific performance of the Suit Agreement, the
Plaintiffs informed the Defendant that the Deceased Mangilal Gulabchand
Narsingji was entitled to 1/3rd share (i.e. 2906.92 sq.mtrs. ) out of 5 Annas
share (i.e. 8720.76 sq/mtrs.) in the said immovable property-II and the
Defendant being one of the heirs and legal representatives had inherited
581.38 sq.mtrs. which is approximately 2.01 per cent in the said immovable
kpp 7 nms 1213/2013
property-II. The Plaintiffs also informed the Defendant that the area of 581.38
sq.mtrs. being the share inherited by the Defendant is earmarked on the Plan
attached to the letter on the best location and called upon the Defendant to
accept the earmarked area as shown on the plan attached to the said letter as
his share. By the said letter, in the alternative, the Plaintiffs called upon the
Defendant to choose a location on any one side of the said immovable
property-I and II which will be carved out by the Plaintiffs being its share,
within a period of 7 days from the date of the said letter, failing which the
Plaintiffs informed the Defendant that the Plaintiffs shall be left with no other
alternative but to take steps to secure and safeguard their rights and interest.
3.10 Since the Defendant failed to favourably respond to the offer made
by the Plaintiffs, the Plaintiffs filed the above Suit on 2 nd July, 2013 and moved
for ad-interim reliefs on 5 th July, 2013. Since none appeared for the Defendant
on that day, ad-interim relief was granted in terms of prayer clause b-i
(wrongly recorded as prayer clause (b) in the said order dated 5 th July, 2013).
The said ad-interim relief granted on 5 th July, 2013, continues to be in force till
date. The Notice of Motion is now taken up for hearing and final disposal.
3.11 It is submitted on behalf of the Plaintiffs that the Defendant being
the legal heir and representative of the Deceased Mangilal Gulabchand
Narsingji is bound and liable to perform the obligation undertaken by the
Deceased Mangilal Gulabchand Narsingji under the said oral agreement
entered in the month of May/June, 2011 with the Plaintiffs. The Defendant
kpp 8 nms 1213/2013
inherited his share from Mangilal Gulabchand Narsingji in the said
immovable property-II but the Defendant's right is subject to the obligation
incurred by Mangilal Gulabchand Narsingji under the Suit Agreement. This
obligation being annexed to the ownership of the immovable property-II, binds
the Defendant who is bound to perform the Suit Agreement in favour of the
Plaintiffs.
3.12 It is further submitted by the Plaintiffs that the Defendant is acting
contrary to the interest of the Plaintiffs with the result that the Plaintiffs are
unable to develop the said immovable property-I and immovable property-II
aggregating to 57,601.43 sq. mtrs. which are inter connected to each other
and hence the entire project of the Plaintiffs is being frustrated. This, despite
the Plaintiffs being the admitted owner of 98.99 per cent share therein. The
Defendant is aware of the same and the Defendant is further aware that the
development of immovable property-I is not possible without the
development of the immovable properties-I and II together. The Plaintiffs
apprehend that the Defendant may dispose of and/or create third party rights
in respect of his share to prevent development of the said immovable
properties-I and II together by the Plaintiffs. The Plaintiffs submit that grave
harm, injury, loss and prejudice would be caused to the Plaintiffs if the
interim reliefs are not granted. No harm, injury, loss or prejudice would be
caused to the Defendant if the interim reliefs are granted to the Plaintiffs. It
is submitted on behalf of the Plaintiffs that they have made out a strong prima
kpp 9 nms 1213/2013
facie case and are entitled to interlocutory reliefs as prayed for both in law
and equity. It is submitted that the Plaintiffs are entitled to interlocutory
reliefs to the effect that this Court may be pleased to permit the Plaintiffs to
carry on development work in respect of the suit property excluding an area of
581.38 sq.mtrs. as earmarked by the Plaintiffs on the plan annexed as a part
of Exhibit-J to the Plaint, on such terms and conditions as this Court may deem
fit and proper and restrain the Defendant by an order and injunction from
creating any third party rights in respect of his share. It is submitted that in
law the Defendant is bound by the Agreement entered into by Mangilal
Gulabchand Narsingji with the Plaintiffs. That the Agreement was in fact
concluded, is strongly supported by the conduct of Mangilal Gulabchand
Narsingji's two brothers and other heirs. In equity, the Plaintiffs who own
98.99 per cent share cannot be thwarted or their rights set at naught by the
Defendant who holds only 2.01 per cent.
3.13 The Plaintiffs have, without prejudice to the aforestated
submissions, submitted that this Court may mould the reliefs as prayed for in
the Notice of Motion as the Plaintiffs are ready and willing to secure and
safeguard the interest of the Defendant in the following manner by submitting
the below mentioned options to the Defendant, pending the hearing and final
disposal of the Suit.
(i) The Plaintiffs are ready to pay an amount of Rs. 2.70 crores to the
Defendant being the value of the undivided share of the Defendant as per
kpp 10 nms 1213/2013
Ready Reckoner; or
(ii) The Plaintiffs are ready to pay to the Defendant Rs. 7.25 crores as paid
by the Plaintiffs to each of the legal heirs of Mangilal Gulabchand Narsingji;
or
(iii) The Plaintiffs are ready and willing to furnish a Bank Guarantee of Rs.
7.25 crores in favour of the Prothonotary and Senior Master, High Court,
Bombay; or.
(iv) The Plaintiffs are ready and willing to carve out an area being the share
of the Defendant inherited from the Deceased Mangilal Gulabchand Narsingji
who was entitled to 1/3rd share (i.e. 2906.92 sq.mtrs.) out of 5 Annas share
(i.e. 8720.76 sq.mtr.) in the said immovable properties -I and/or II, as per the
choice of the Defendant; or
(v) The Plaintiffs are ready and willing to construct and earmark for the
Defendant, flats (having an area) equivalent to 581.38 sq.mtrs., free of charge
in the project being developed by he Plaintiffs on the immovable properties -I
and II; or
(vi) The Plaintiffs are ready and willing to furnish Bank Guarantee to the
tune of Rs. 10.70 crores in favour of the Prothonotary and Sr. Master being the
Ready Reckoner value for the area accruing to the Defendant's share of 581.38
sq.mtrs. plus 581.38 sq. mtrs. in lieu of TDR equivalent to 1162.76 sq.mtrs.
(12516 sq.ft.) at the rate of Rs. 8529/- per sq.ft.
kpp 11 nms 1213/2013
It is therefore submitted on behalf of the Plaintiffs that the interim relief as
sought in the Notice of Motion be granted to the Plaintiffs.
4. The Learned Senior Advocate appearing for the Defendant has on
instructions submitted as follows:
(i) that no oral agreement as alleged was entered into between the father
of the Defendant and the Plaintiffs. Although it may be correct that the Deed
of Conveyance was executed by the mother and brothers of the Defendant in
favour of the Plaintiffs on 14 th June,2012, it however does not mean that there
was an oral agreement between the father of the Defendant and that the
Plaintiffs are put to strict proof thereof;
(ii) that assuming for the sake of argument that the father of the Defendant
had entered into an oral agreement with the Plaintiffs, the father of the
Defendant being the Karta of the Hindu Undivided Family had no right to
alienate the share of the Defendant without the consent of the Defendant;
(iii) that assuming for the sake of argument that the father of the Defendant
had alienated the suit property, the same was not for legal necessity. In any
event, the burden to prove that the property was alienated for legal necessity
is upon the Plaintiff. This being a matter of proof, evidence will have to be led
and no reliefs can be granted at the interim stage;
(iv) that it is incorrect to say that the Defendant has only 581.38 square
metres of share in the immovable property-II;
kpp 12 nms 1213/2013
(v) that the Suit as filed is bad for non-joinder of necessary parties, since
the other legal heirs of deceased Mangilal are not joined as party Defendants
to the Suit;
(vi) that the immovable property-II belongs to Hindu Joint Family (HUF).
The present Plaintiffs are purchasers who have acquired interest in the joint
property. The Purchaser does not become a tenant in common with other
members of the joint family. He is not entitled to joint possession with them.
A consistent view has been taken by the Hon'ble Supreme Court in the case of
M.V.S. Manikayala Rao vs. M. Narasimhaswami1 and in the case of Hardeo Rai
vs. Sakuntala Devi and others 2 that a person who has purchased a share in the
joint family property cannot be said to be in possession of the joint family
property. He being the outsider can have only right to sue for partition. Upon
partition being granted pursuant to the decree of the court, the outsider can
be put in possession of the suit property;
(vii) that pursuant to the ratio laid down by the Hon'ble Supreme Court in
Budh Ram and others vs. Bansi and others 3, the Defendant has a right to be in
possession and enjoyment of each and every part of the property, equal to that
of other co-owners. Therefore, the Defendant has an interest in every
infinitesimal portion of the immovable property-II. Thus unless and until
partition takes place, the Plaintiffs cannot say that they are in possession of
1 AIR 1966 SC 470
2 2008 (7) SCC 46
3 (2010) 11 SCC 476
kpp 13 nms 1213/2013
any particular portion;
(viii) that although after the Deed of Partition in 1973 between Gulabchand
and his sons, there was a severance of the joint family status qua Mangilal's
branch, post the demise of Mangilal, the property in the hands of the heirs of
Mangilal was undoubtedly jointly owned. In other words, Mangilal's wife and
4 sons including the Defendant herein were co-owners/co-sharers of the
property;
(ix) that the attempt on the part of the Plaintiffs to distinguish the
judgments cited by the Defendant by saying that there was no HUF and the
heirs of Mangilal including the Defendant succeeded to the property by
succession and not survivorship will be of no consequence. Even if all the
heirs of Mangilal get the property by succession, their status as co-owner or
joint owners does not cease;
(x) that therefore no interim relief be granted in favour of the Plaintiff.
5. Mr. Tulzapurkar, the Learned Senior Counsel appearing for the
Plaintiffs, in rejoinder has repeated and reiterated his submissions recorded
earlier and has denied and disputed the submissions advanced on behalf of the
Defendant. He has also taken me through the Affidavit-in-Rejoinder filed by
the Plaintiffs. He has submitted that the Notice of Motion be therefore made
absolute with costs.
kpp 14 nms 1213/2013
6. I have considered the submissions as well as the case law cited on
behalf of the parties. The Defendant has contended that the Suit is bad for
non-joinder of necessary parties i.e. for non-joinder of his sister Shobha and all
the other legal heirs of Mangilal as party Defendants to the Suit. The
Defendant has not disputed that his sister Smt. Shobha has renounced the
world and taken DIKSHA. In fact in the recitals of the Indenture of
Conveyance dated 14th June, 2012 executed by the other legal heirs of the
Deceased Mangilal in favour of the Plaintiffs it is clearly set out that Smt.
Shobha has no right, title and interest in the estate of Deceased Mangilal.
7. It is a recognized principle of Hindu Law as noted by Mulla on Hindu
Law (Paragraph 111 of Seventeenth Edition) that when a person enters into a
religious order renouncing all worldly affairs, his action is tantamount to civil
death, and it excludes him/her altogether from inheritance and from a share
on partition. The Hon'ble Supreme Court has in the case of Shri Krishna
Singh vs. Mathura Ahir and others 4 held that "one who enters into a religious
order severs his connection with the members of his natural family. He is
accordingly excluded from inheritance. Entrance to a religious order, is
tantamount to civil death so as to cause a complete severence of his connection
with his relations, as well as with his property..."
4 (1981) 3SCC 689
kpp 15 nms 1213/2013
In view thereof, I am satisfied that the said Shobha Jain has no right title and
interest in the estate of the Deceased and is therefore not a necessary party
to the Suit. In any event, as submitted by the Plaintiffs, the Defendant cannot
espouse Shobha's case or claim any right on the basis of her alleged share.
Further, if Shobha has a share, the Defendant's share will decrease to below
2.01%. As regards the contention of the Defendant that all the legal heirs of
Mangilal are necessary parties to the Suit, as correctly submitted by the
Plaintiff, the Defendant himself admits in paragraph 4 of his reply that the
other legal heirs of Deceased Mangilal had executed a Deed of Conveyance
in favour of the Plaintiffs and therefore by virtue of the Deed of Conveyance
the Plaintiffs became owners of shares of all other legal heirs of Mangilal in
the suit immovable property save and except the undivided share of the
Defendant admeasuring 581.38 sq.mtrs. In this view of the matter, all the
other legal heirs of Deceased Mangilal are also not necessary parties to the
present Suit and the objection taken up by the Defendant is devoid of any
merit and is rejected.
8. It is contended by the Plaintiffs that the Deceased Mangilal Gulabchand
Narsingji along with his brothers Madanlal and Ranjeetmal had orally entered
into an agreement to sell the immovable property-II to the Plaintiffs. The said
oral agreement had taken place in May/June, 2004 when the three brothers
agreed to sell and transfer all their 1/3 rd share each out of 5 Annas share in the
kpp 16 nms 1213/2013
immovable property-II for a consideration of Rs. 11.50 crores each, subject to
the rights of the Society. In terms of the said oral agreement arrived at
between the Plaintiffs and the said Madanlal, Ranjeetmal and Mangilal, the
said Madanlal and Ranjeetmal under separate Indentures of Conveyance both
dated 2nd July, 2011, sold, transferred and conveyed all their undivided share,
right, title and interest to the extent of 1/3rd share each out of 5 Annas shares
in the said immovable property-II to the Plaintiffs for the consideration and on
the covenants recorded therein, subject to the rights of the Society. The said
Indentures of Conveyance both dated 2 nd July,2 011 are duly registered with
the Sub-Registrar of Assurances at Mumbai. It is submitted on behalf of the
Plaintiffs that when these conveyances were executed, Mangilal was ill and
hence the conveyance of his share was not executed at that time but kept
pending. However, Mangilal died in or around 20 th July, 2011. Thereafter the
Defendant's mother and brothers have also executed a conveyance on 14 th
June, 2012 in favour of the Plaintiffs on the basis of the oral agreement. I am
in agreement with the submission of the Plaintiffs that these are prima facie
strong factors to show that there exists an oral agreement as pleaded by the
Plaintiffs. Except for the bare denial of the Defendant, there is nothing to
establish otherwise. I have therefore prima facie come to a conclusion that the
father of the Defendant and his uncles did enter into an oral agreement in
respect of their share in the immovable property-II in favour of the Plaintiffs. I
am therefore also of the view that the Plaintiffs will be severely prejudiced if
kpp 17 nms 1213/2013
pending the hearing and final disposal of the Suit, the Defendant is allowed to
dispose of his shares in the property of his father in favour of any third party.
In view thereof, the Plaintiffs are entitled to interim relief in terms of prayer
clause (b) (i) of the Notice of Motion.
9. However, the Plaintiffs have submitted that they are entitled to carry
out the development work in respect of the immovable properties -I and II
excluding an area of 581.38 sq.mtrs. as earmarked by the Plaintiffs on the plan
annexed as part of Exhibit-J to the Plaint and to an order of injunction
restraining the Defendant, his agents, servants, heirs, executors, administrators
or any other person claiming through or under the Defendant from interfering
with the development of the immovable properties-I and II since the suit
property-II is not Joint Hindu Property or HUF property.
10. It is true that under the Deed of Partition dated 23 rd March, 1973, duly
registered vide Registration No. 15 of 1973, executed between Gulabchand,
Mangilal and Madanlal, the property in Suit was partitioned and Shri
Gulabchand Narsingji, Mangilal Gulabchand, Madanlal Gulabchand and
Ranjeetmal Gulabchand became entitled to as tenants in common in equal
specific 1/4th share in the following immovable property.
Survey No. A.G.A.s Square Meters
33 1 B 0-16-08 1669.28
kpp 18 nms 1213/2013
34 1A 3-21-00 14265.18
34 1B 0-06-00 607.02
34 IC 0-18-01 1827.38
34 ID (pt) 0-06-08 657.58
38 2-00-08 8144.30
Total 27170.74
It is also true that in the said Deed of Partition, it was expressly mentioned and
agreed between the parties that the said property is no longer family property.
It was further expressly stated that from the date of execution of the said
Deed of Partition, the parties have divided the said joint family property and
put an end to and severed their joint status in respect of the said property and
acquired a new status of separate owners. By virtue of the aforesaid express
understanding, the parties to the said Deed of Partition agreed that the said
property shall henceforth be held and enjoyed by the parties as co-owners in
severalty as tenants in common in equal 1 ¼ anna share therein to each of
them.
11. As submitted by the Plaintiffs, the undivided share of 5 Annas of
Gulabchand Narsingji Jain (8490.86 sq.mtrs.) from the aforesaid 27170.74
sq.mtrs. which he held in his personal and individual right (not jointly with
any one much less as HUF property) was devolved upon the following legal
heirs in their personal and individual right.
kpp 19 nms 1213/2013
Mangilal Gulabchand 5/3 2830.29 sq.mtrs.
Madanlal Gulabchand 5/3 2830.29 sq.mtrs.
Ranjitmal Gulabchand 5/3 2830.29 sq.mtrs.
The right, title and interest of Madanlal and Ranjeetmal as stated in the Plaint
and hereinabove is already acquired by the Plaintiffs under separate registered
conveyance. It is submitted that the share of the Mangilal was inherited by the
following legal heirs who have executed the conveyance in favour of the
Plaintiffs, save and except the Defendant:
Share of Mangilal Gulabchand 2830.29
Mrs. Badami Mangilal Jain 1/5 566.06 (Acquired)
Mr.Abhay Mangilal Jain 1/5 566.06 (Acquired)
Mr. Bharat Mangilal Jain 1/5 566.06 (Acquired)
Mr. Jitendra Mangilal Jain 1/5 566.06 (Acquired)
Mr. Dilip Mangilal Jain 1/5 566.06
12. The Plaintiffs submit that the Mitakshara School (to which the parties
belong), recognizes two modes of devolution of property viz. survivorship and
succession. The rule of survivorship applies to joint family property and the
rule of succession applies to property held in absolute severalty by the last
owner (Mulla Hindu Law 20th Edition Volume 1 page 100). It is submitted that
in the instant case, in view of the Deed of Partition, it cannot be disputed that
the Deceased Mangilal Gulabchand Jain (the last owner, before the Defendant,
kpp 20 nms 1213/2013
his mother and brothers) became the owner of his share in the said immovable
property-II in severity and in his personal individual right, and after his
demise the same devolved upon the aforesaid legal heirs as per the provisions
of the Hindu Succession Act and did not devolve by survivorship. In view
thereof, the suit property is not property held as HUF property.
13. Though I am prima facie not satisfied that the said immovable property-
II is the property belonging to the Hindu Undivided Family, the fact remains
that the Defendant is the co-owner of the property with the Plaintiffs. The
Hon'ble Supreme Court has in the case of Budh Ram and others vs. Bansi and
others (supra) held as follows:
"18...... Every co-owner has a right to possession and enjoyment
of each and every part of the property equal to that of other co-
owners. Therefore, in theory, every co-owner has an interest in
every infinitesimal portion of the subject matter, each has a right
irrespective of the quantity of its interest, to be in possession of
every part and parcel of the property jointly with others. A co-
owner of a property owns every part of the composite property
along with others and he cannot be held to b e a fractional
owner of the property unless partition takes place."
14. The Plaintiffs therefore cannot be permitted to develop the property
unless the property of which the Plaintiffs and the Defendant are co-owners, is
partitioned. In the circumstances though I see much substance in the
kpp 21 nms 1213/2013
submission advanced on behalf of the Plaintiffs that in view of the stand taken
by the Defendant, the Plaintiffs who hold 98.99 per cent share in the property
are not in a position to develop its property admeasuring 57,601.43 sq. mtrs.,
thereby frustrating the entire project of the Plaintiffs and is causing grave
hardship to the Plaintiffs, in view of the law laid down by the Hon'ble
Supreme Court in Budh Ram and others vs. Bansi and others (supra) interim
reliefs cannot be granted in favour of the Plaintiffs in terms of prayer clauses
(a) and (b) (ii) of the Notice of Motion. Hence, the following order:
(i) Ad-interim relief in terms of prayer clause (b) (i) granted in favour of
the Plaintiffs by an order dated 5th July, 2013, shall continue until the hearing
and final disposal of the Suit.
(ii) Hearing of the Suit is expedited.
(iii) The Defendant is directed to file his written statement on or before 25 th
November, 2013.
(iv) Place the Suit for framing of issues on 27th November, 2013.
15. The above Notice of Motion is accordingly disposed of with no order as
to costs.
(S. J. KATHAWALLA, J.)
