Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 2263-18 in S.C. Suit no. 8216-98
1 Date : 07.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2263 OF 2018
IN
S.C. SUIT NO. 8216 OF 1998
(CNR NO.MHCC01 0072952018 )
Chaganlal Ranmal Shah .. Plaintiff
Versus
Uttamchand Ranmal Shah & Ors. .. Defendants
Appearances :
Adv.Shrutika Lakhan i/b Bharat Joshi for plaintiff present.
Adv.S.P.Srivastava for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 07.11.2019
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
(a) The decree on admission be passed against the
Defendants No. 1(a), 1(e), 1(f), 1(g), 1(h) in view of
admission of the averments made in the adopted Written
Statement by the deceased Defendant no 1 and 2.
(b) The suit be decreed as prayed by decree on admission.
(c) Any other and such reliefs may be granted which the
Court deems fit.
(d) Cost be provided for Notice of Motion.
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2. It is contended by the plaintiff that he has filed present suit
for declaration, partition and allotment of ¼ th share in the estate
of deceased father. It is submitted by the plaintiff that original
defendant no. 1, 2 and 3 are his real brothers and legal heirs of
Successor of their father namely Ranmal Shah who expired in the
year 1975. Their mother Smt. Panidevi R. Shah expired in the
1989. It is submitted by the plaintiff that his father was owner of
the property situated at Mumbai with the tenancy right of new
General Stores, Shop No. 15, Abubakar Chawl, 239, Dharavi Main
Road, Mumbai 400 017 and plot of land at Village Samdari,
Taluka Sivana, District : Barmar, Rajasthan. (hereinafter shall be
referred as suit property).
3. It is contended by the plaintiff that the original defendant
no. 1 and 2 filed Common Written Statement on16.07.1999. The
defendant no. 1 expired on 01.12.2014 and after his death his
legal heirs were brought on record as Defendant no. 1(a) to 1(h).
Thereafter, the legal heirs of defendant no. 1 by filing Written
Statement dated 04.05.2017, have adopted the Written Statement
filed by original defendant no. 1 and 2. The original defendant no.
1 and 2 in their Written Statement at para no. 4 has categorically
admitted that the plaintiff and the defendants are the legal heirs of
deceased father Mr. Ranmal Shah and each one is entitled for
equal share in the property of deceased Mr. Ranmal Shah which
comes to 1/4th share each. The original defendants further in
para 7 of Written Statement admitted that the plaintiff has 1/4th
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3 Date : 07.11.2019
share in the property of deceased Ranmal Shah. Therefore, in
such circumstances the decree on Admission needs to be passed
against defendants. Thus, the plaintiff prayed for allowing present
Notice of Motion.
4. The Notice of Motion is opposed by defendant no. 1 (a) by
filing reply on her behalf as well as on behalf of the defendant no.
1(b) to 1(h). It is contended by the defendant no. 1(a) that, the
plaintiff failed to serve other defendants hence, the present suit as
well as Notice of Motion is not maintainable. The defendant no.
1(g) and 1(h) are minors. The plaintiff did not take any step to
appoint guardian of the defendant no. 1(g) and 1(h). Therefore,
the suit filed by the plaintiff itself is not maintainable and it is
defective, therefore, question of granting any relief to the plaintiff
does not arise.
5. It is further contended by the Legal Representatives of
defendant no. 1 that they have filed Written Statement on
04.05.2017. The plaintiff did not read entire averments made in
the Written Statement that all the legal heirs are entitled in the
property left by the deceased Ranmal Shah. It is contended by the
defendant no. 1(a) that the deceased Ranmal Shah has left various
properties in Mumbai City as well as at his native place. Most of
the properties are in the possession of the plaintiff which he failed
to disclose in the plaint. Therefore, the plaintiff has to disclose all
the properties left by the deceased Ranmal Shah and thereafter
appropriate order be passed in the present suit.
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6. It is further contended by the defendant no. 1(a) that the
plaintiff sold one flat of deceased Ranmal Shah and appropriate
the sale proceeds. The plaintiff failed to give account of sale
proceeds of the said flat. Therefore, the plaintiff should give
first account for the same and then asked for the partition of
other properties. Therefore, defendant no. 1 (a) prayed for
dismissal of Notice of Motion.
7. The plaintiff by filing rejoinder specifically denied that he
has not disclosed entire property of the deceased Ranmal Shah. It
is submitted by the plaintiff that deceased Ranmal Shah was the
owner of the property at Mumbai and at Rajasthan. So there are
no other properties of the deceased Ranmal Shah other than as
above. As per the family arrangement dated 18.12.1982 amongst
all the legal heirs of deceased Ranmal Shah, it was agreed that the
plaintiff would be in possession of General Store bearing no. 239,
Abubakar Chawl, Dharavi Main Road, Mumbai – 400 017 and the
defendants would be in possession of one storeyed building
adjoining with three plots of land for construction of house, three
plots of land for construction of shop and they are also in
possession of two shops which are already constructed and all the
above properties are situated at Village Samdari, Taluka Sivana,
District Barmar in Rajasthan. Thus, the plaintiff contended that he
has disclosed the entire properties of the deceased Ranmal Shah.
8. Heard both the sides. Perused Notice of Motion, reply,
rejoinder, plaint and Written Statement. The plaintiff filed present
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5 Date : 07.11.2019
suit for partition of suit property on the ground that he and
defendants are the legal heirs of deceased Ranmal Shah. Their
father expired in the year 1975 and mother expired in the year
1989. It is further case of plaintiff that on 18.12.1982 the family
settlement was arrived amongst all the legal heirs of deceased
Ranmal Shah, wherein it was agreed that the plaintiff would be
entitled to the shop in Mumbai and all the other heirs would be
entitled to the properties at Rajasthan. Thus, after considering the
pleading made in the plaint, it appears to me that the plaintiff case
is two folds, one as a legal heir of deceased Ranmal Shah, he is
entitled for 1/4th share in the suit property whereas, at the same
time he has relied on the family settlement dated 18.12.1982
whereby the shop at Mumbai was agreed to be handed over to him
and other properties at Rajasthan were agreed to be given to the
other defendants. Thus, due to contrary case pleaded by the
plaintiff, although the defendant no. 1 and 2 admitted 1/4th share
of the plaintiff but in my view, his entitlement can be decided only
by leading evidence. Even otherwise also the plaintiff failed to
give description of properties at Rajasthan. As per order 12 Rule
6, of Code of Civil Procedure, the Court may pass the Judgment on
Admission. The provision of order 12 Rule 6 of Code of Civil
Procedure is discretionary. Thus, in view of the above discussion,
in my view, it would be very unsafe to pass the decree on
admission at this stage. Therefore, in my view, the Notice of
Motion needs to be dismissed. Thus, I proceed to pass the
following order:
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ORDER
1. Notice of Motion No. 2263 of 2018 is hereby dismissed.
2. Plaintiff to bear its own cost.
3. Notice of Motion No. 2263 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 07.11.2019 Greater Bombay.
Dictated on : 07.11.2019
Typed on : 07.11.2019
Draft Submitted on : 07.11.2019
Checked on : 07.11.2019
Signed on : 07.11.2019
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7 Date : 07.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
08/11/2019 at 12.45 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
07/11/2019
JUDGMENT/ORDER signed by P.O.
on
08/11/2019
JUDGMENT/ORDER uploaded on 08/11/2019
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