Gujarat High Court
Kalpitbhai Bharatkumar Patel vs Jariwala Developers on 26 June, 2025
NEUTRAL CITATION
C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14229 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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KALPITBHAI BHARATKUMAR PATEL
Versus
JARIWALA DEVELOPERS & ORS.
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Appearance:
MR CHINMAY M GANDHI(3979) for the petitioner(s) No. 1
MR ASHUTOSH R BHATT(2653) for the Respondent(s) No. 6
MR PR NANAVATI(508) for the Respondent(s) No. 6
RULE SERVED for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 26/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. P. R.
Nanavati waives service of notice of rule for the respondent
No.6. Though served, none appears for respondent Nos.1 to
5. With the consent of the parties, the matter is taken up for
final hearing.
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2. Heard learned Advocate Mr. Chinmay M. Gandhi for the
petitioner and learned Advocate Mr. P. R. Nanavati for the
respondent.
3. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
a) This Hon'ble Court be pleased to issue a writ of certiorari and/or
any other appropriate writ, order or direction in the nature of
certiorari holding and declaring the order dated 13.10.2010 passed
below Exh.110 in Civil Suit No.1117/2003 as erroneous, illegal and
contrary to law and the same be quashed and set-aside.
b) Pending admission, hearing and/or final disposal of this petition,
this Hon'ble Court be pleased to stay the implementation, operation
and execution of the order dated 13.10.2010 passed below Exh.110 in
Civil Suit No.1117/2003.
c) Such other and further relief as this Hon'ble Court may deem just, fit
and expedient be granted in favour of the petitioner.
d) Costs of this petition be provided for to the petitioner.
4. The parties will be referred to as per their original positions
before the Trial Court.
5. The short facts:
5.1. The petitioner herein happens to be defendant No. 7 in
Regular Civil Suit No. 1117 of 2003, filed by his mother
against respondent Nos.1 to 6 herein, who are original
defendants No. 1 to 6. The petitioner appears to have been
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joined later in point of time vide order dated 19th December,
2003 in the suit.
5.2. The original plaintiff late Rupaben Bharatkumar Patel
happens to be wife of defendant No. 2 and mother of
defendant No. 6 and also a partner in defendant No. 1-M/s.
Jariwala Developers, filed suit for dissolution and accounts of
the partnership firm i.e. defendant No. 1.
5.3. The original plaintiff appears to have made several
allegations against mismanagement of affairs of the firm by
defendant Nos. 2 and 6, which gave cause her to file the suit.
5.4. The suit has been contested by defendant Nos. 2 and 6,
denying all allegations of the plaintiff. The orders which were
passed by the Trial Court, whereby an injunction was
granted, was challenged by defendant Nos. 2 and 6 before
this Court. Thus, prima facie, defendant Nos. 2 and 6 have
contested the suit on its merits by not accepting any of the
allegations levelled against them in the suit.
5.5. The original plaintiff died during the pendency of the suit on
10th June, 2009 and by way of registered Will dated 26th
September, 2008, executed in favour of the petitioner herein,
whereby he was appointed as Executor of the Will as well as
Trustee to administer the properties of the deceased plaintiff-
defendant No.7 who also a beneficiary of Will.
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5.6. The defendant No. 7 appears to have filed an application
below Exh.102 to be joined as a legal heir of the deceased
plaintiff by transposing him as defendant No. 7. At the same
time, defendant No. 6, who also happens to be son of the
original plaintiff, had also filed an impugned application
below Exh.110 with a similar relief as prayed for in impugned
application. Thereby, he has requested himself to be
transposed as a plaintiff, being a legal heir of the original
plaintiff.
5.7. The impugned application was contested by defendant No. 7
on several grounds. After hearing the parties, the Trial Court,
vide its common order dated 13th October, 2010, passed
below Exh.102 and 110, respectively in the aforesaid suit,
allowed both these applications. Thereby, defendant Nos. 7
and 6 were, respectively, allowed to be joined as legal heirs
of the plaintiff and to be transposed accordingly.
6. Feeling aggrieved and dissatisfied with the aforesaid
impugned order, defendant No. 7 has questioned it, insofar
as the allowing of the impugned application by the Trial
Court filed by defendant No.7 below Exh.110 in the suit.
7. Submissions of petitioner - defendant No. 7:
7.1. Learned Advocate Mr. Gandhi appearing for the petitioner -
defendant No. 7, would submit that the Trial Court has
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committed serious error of law by allowing the impugned
application filed at the instance of defendant No. 6, thereby
transposing him as a plaintiff, being a legal heir of the
original plaintiff.
7.2. Learned Advocate Mr. Gandhi would further submit that the
original plaintiff, during her lifetime, filed the suit in question
and made several allegations against conduct of original
defendant Nos. 2 and 6, who happen to be her husband and
one of her sons respectively, for mismanagement of the
defendant No. 1 firm and considering their written statement
not accepting such allegations levelled against them by the
plaintiff, the impugned application filed at the instance of
defendant No. 6 could not have been allowed.
7.3. Learned Advocate Mr. Gandhi would further submit that by
allowing defendant No. 6 as a co-plaintiff, it would be
tantamount to allowing defendant No. 6, who was allegedly
mismanaging the affairs of defendant No. 1 as per the plaint,
would be allowed to conduct the suit by sitting in the driver's
seat, which is not permissible in law.
7.4. Learned Advocate Mr. Gandhi would further submit that
there are serious allegations levelled against defendant No. 6
as a partner of the defendant No. 1 firm by the plaintiff and
merely because defendant No. 6 happens to be son of the
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plaintiff would not ipso facto allow him to be transposed as a
co-plaintiff along with defendant No. 7, in whose favour Will
has been executed by the original plaintiff.
7.5. Learned Advocate Mr. Gandhi would further submit that
defendant Nos. 2 and 6 had filed a civil suit, being Regular
Civil Suit No. 662/2009, thereby challenged the Will of the
original plaintiff executed in favour of defendant No. 7 and
after appreciating all evidence on record, vide judgment and
decree dated 21st December, 2019, passed by the Principal
Senior Civil Judge, Ahmedabad (Rural) at Mirzapur in
Regular Civil Suit No. 662/2009 along with other suits,
thereby dismissed such suits and consequently challenge of
defendant No. 6 in regard to the Will executed by plaintiff's
mother in favour of defendant No. 7 stood as on date.
7.6. He would submit that by virtue of the Will of the original
plaintiff in favour of defendant No. 7, he alone would be
entitled to be transposed as the legal heir of the original
plaintiff, against whom there is no allegation of
mismanagement of the firm made by the plaintiff.
7.7. To buttress his argument, he has relied upon the following
decisions:
(i) Suresh Kumar Bansal V/s. Krishna Bansal & Anr. reported in (2010) 2
G.L.R. 1609 [(2010) 2 SCC 162].
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7.8. Making the above submissions, learned Advocate Mr. Gandhi
would request this Court to allow the present application.
7.9. Learned Advocate Mr. Gandhi has submitted a simple copy of
the aforesaid judgment and decree passed by the concerned
Trial Court in the suits filed by defendant Nos. 2 and 6
against petitioner and others. The same is allowed to be
taken on record, as it has been passed during the pendency
of the present writ application.
8. Submissions of defendant No. 6:
8.1. Per contra, learned advocate Mr. Nanavati appearing for
defendant No. 6, would submit that there is no error, much
less any gross error of law, committed by the Trial Court
while allowing impugned application filed below Exh.110.
This Court should not interfere with the reasoned order
passed by the Trial Court while exercising its power under
Article 227 of the Constitution of India.
8.2. Learned advocate Mr. Nanavati would further submit that
defendant No. 6 happens to be son of the original plaintiff
being a Class-I legal heir, is entitled to be joined as one of the
legal heirs of the original plaintiff and he could not be denied
to be joined as her legal heir.
8.3. Learned advocate Mr. Nanavati would further submit that
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merely because there are some allegations levelled against
defendant No. 6 by the plaintiff in the plaint that would not
be a factor to be considered while adjudicating the impugned
application filed by him below Exh.110.
8.4. Learned advocate Mr. Nanavati would further submit that
the Trial Court has correctly granted the impugned
application on the ground that defendant No. 6, who is also
one of the sons of the original plaintiff, requires to be
impleaded as her legal heir and thereby requires to be
transposed as a plaintiff and to be deleted as defendant No.6.
8.5. Learned advocate Mr. Nanavati would further submit that so
far as the challenged of Will and the reasons for such suits
filed by defendant Nos. 2 and 6 are concerned, he does not
have any personal knowledge and is unable to make further
submissions in the absence of such information from his
client.
8.6. Making the above submissions, learned Advocate Mr.
Nanavati for the respondents prayed for the dismissal of the
present application.
9. No other submissions are being made by any of learned
advocates for the parties.
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10. Heard learned advocates appearing for the respective parties
at length.
POINT FOR DETERMINATION
11. The short question falls for my consideration as to whether
any gross error of law was committed by the Trial Court
while allowing the impugned application filed below Exh.110
at the instance of defendant No. 6, thereby transposed him as
plaintiff by deleting him as defendant No. 6?
ANALYSIS
12. The facts which are narrated hereinabove are not much in
dispute. The record suggests that the plaintiff, during her
lifetime, not only filed a suit seeking dissolution of defendant
No. 1-firm, but also sought for accounts from the respective
active partners, namely defendant Nos. 2 and 6, who
allegedly mismanaged the affairs of defendant No. 1. Such
allegations are denied in toto by defendant Nos. 2 and 6, who
happen to be the husband and son of the original plaintiff.
The record also indicates that there are matrimonial disputes
between the plaintiff and defendant No. 2 and allegations and
counter-allegations, including the filing the application of
breach of injunction at the instance of defendant Nos. 2 and
6, were also filed by plaintiff when she was alive during the
course of the suit.
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13. Prima facie, it appears that when there is a specific allegation
levelled against defendant No.6 by the plaintiff and having
denied such allegations/facts in his written statement, even
though he would be one of the legal heirs of the original
plaintiff, he could not have been transposed as a co-plaintiff
and/or to be joined as a legal heir of the original plaintiff, as
the case may be. Once he would be allowed to be joined as a
co-plaintiff in the suit, the nature of the allegations levelled
against him as defendant No. 6 would require to be admitted
by him as a co-plaintiff, which he cannot in light of his
written statement. This would create an anomalous situation
wherein, on the one hand, defendant No. 6 has contested the
suit filed at the instance of the original plaintiff and on the
other hand, he wants to transpose himself as a co-plaintiff
being a legal heir of the original plaintiff requires to accept
averment/allegation levelled by original plaintiff against him.
Such situation could not have been allowed to be operated by
the Trial Court to happen especially when defendant No. 7 is
not only one of the Class-I legal heirs of the original plaintiff
being her son, but so also having registered Will of the
plaintiff in his favour. Thereby, defendant No. 7 was not only
bequeathed her property but was also appointed him as an
executor of her Will.
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14. It has come to light during the course of the hearing of the
present matter that the Will of the plaintiff was challenged by
defendant Nos. 2 and 6 by filing Regular Civil Suit No. 662 of
2009 before the concerned Trial Court, which was dismissed
on 21st December, 2019. The copy of the common judgment
and decree passed by the concerned Trial Court in the
aforesaid suits along with other suits filed by defendant Nos.
2 and 6 against the petitioner/defendant No. 7 herein is
placed on the record of the matter, which is allowed to be
taken on record and accordingly made part of the present
writ application. After going through the aforesaid judgment
passed by the concerned Trial Court, wherein issue as
regards the genuineness of the Will having been questioned
by defendant Nos. 2 and 6, is answered in the negative
against them.
15. Thus, as on date, in view of the aforesaid peculiar facts and
circumstances of the case, defendant No. 7 is not only one of
the Class-I legal heirs of the plaintiff but is also a legal
representative by virtue of the Will of the original plaintiff,
which is her last wish recorded in her registered Will,
whereby defendant No. 7 would be the appropriate person
being her legal heir, who can effectively represent her
interest/assets in the suit. The Trial Court has completely lost
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sight of the aforesaid peculiar facts and circumstances of the
case and by ignoring all these factors into account,
committed a serious error of law by allowing the impugned
application filed below Exh.110 at the instance of defendant
No. 6.
16. It is also profitable to take note of the observation made by
the Hon'ble Apex Court in the case of Suresh Kumar
Bansal (supra), wherein, in a similar fact of situation, it
allowed a person to represent the interest of the deceased,
who was holding the Will of the deceased, being his legal
representative. The observation made in the aforesaid
decision would countenance the argument canvassed by
learned advocate Mr. Gandhi.
CONCLUSION
17. The upshot of the aforesaid observations, discussions and
reasons, the order impugned in the present writ application
is required to be modified, which is in fact hereby modify.
Consequently, the impugned application filed below Exh.110
by defendant No.6 in Regular Civil Suit No. 1117/2003 @
City Civil Court, Ahmedabad City, is hereby rejected.
18. Defendant No. 7 only is permitted to be joined as plaintiff in
Regular Civil Suit No. 1117 of 2003 and is permitted to be
joined/represented as the legal heir of the original plaintiff
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and accordingly deleted as defendant No. 7 from the array of
parties to the suit.
19. As the suit is of the year 2003, it is hereby ordered to be
expedited subject to the cooperation of the parties to the suit
with the Trial Court. It is made clear that this Court has
neither gone into nor examined merit of claim made in the
suit which shall have to be independently examined by Trial
Court as per evidence coming forth on record of the Suit and
to be decided in accordance with law.
20. Thus, in view of the aforesaid, the present writ application
requires to be allowed, which is hereby allowed. Rule is made
absolute to the aforesaid extent. No order as to costs.
(MAULIK J. SHELAT, J)
Nilesh
