Final Order 1

Order Details: Notice of Motion
Pdf Text: Order below Exh.1 and N/m No. 4177/19 [ 1 ] Common Order.
in S.C.Suit No. 110/18.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 1
AND
MHCC010114572019
Presented on : 11-11-2019
Registered on : 11-11-2019
Decided on : 13-02-2025
Duration : 5 years, 3 months, 2 days
NOTICE OF MOTION NO. 4177 OF 2019
IN
S. C. SUIT NO. 110 OF 2018
Vijay Jaganprasad Gautam )...Plaintiff
Versus
Mrs. Nirmala Ajay Vallabh alias Gautam )
and others )...Defendants
Shri Rakesh K. Agrawal, Advocate for the plaintiff.
Shri Vishwabhushan Kamble, Advocate for the defendant no.4(a) to
4(e).
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 13th FEBRUARY, 2025.
COMMON ORDER
Vide this notice of motion the plaintiff prays to pass decree
under Order 12 Rule 6 of the Code of Civil Procedure [In short, 'the
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Order below Exh.1 and N/m No. 4177/19 [ 2 ] Common Order.
in S.C.Suit No. 110/18.
Code'] against defendant no.4(a) to 4(e).
2. The plaintiff specifically pleads that he had instituted the
suit for partition and other relief in respect of suit premises bearing Flat
No.305, ‘B’ Wing, 3rd Floor, Veena Beena Apartment, Acharya Donde
Marg, Sewree, Mumbai. Defendant no.4(a) to 4(e) ['defendants' for the
sake of convenience as these are only contesting defendants] filed the
written statement at Exh.5 and expressly admitted that suit premises
was originally purchased by Shri Jagan Prasad Gautam, the father of the
plaintiff. Thus, it is not in dispute that the plaintiff, original defendant
no.1 to 3 and defendants are entitled to share 20% in suit premises.
Defendants have not filed any counterclaim. Hence prayed to pass
decree on such admission. Hence this notice of motion.
3. Defendants have resisted this notice of motion and filed
written notes of arguments at Exh.13. They contend that the plaintiff
has suppressed material facts and he did not take other properties of the
family of the plaintiff and defendants which are also held jointly by
their family. The decree under Order 12 Rule 6 of the Code can be
passed when there is admission either in pleading or otherwise and said
admission shall be unequivocal. Hence prayed to reject the notice of
motion.
4. It is submission of learned advocate for the plaintiff that
when there is no dispute about relationship in between the plaintiff and
defendants and as to nature of the suit premises which were originally
occupied by father of the plaintiff, there is no need to lead further
evidence to establish the case of the plaintiff. Defendants have not filed
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Order below Exh.1 and N/m No. 4177/19 [ 3 ] Common Order.
in S.C.Suit No. 110/18.
any counterclaim in respect of the properties that they claim to be joint
family property of the plaintiff and defendants. Hence admission in
written statement is sufficient to pass the decree. Hence prayed to allow
the notice of motion.
5. In reply, learned advocate for the defendants submits that
an admission to say to be sufficient to pass decree shall be clear and
unequivocal. The suit for partial partition of Hindu Joint Family
property is not maintainable. To substantiate his contention he relies
upon decision of Honourable High Court in Govindrao s/o Gangaramji
Ajmire V/s. Dadarao @ Shrawan s/o Gangaramji Ajmire (dead) LRs.
Indrani wd/o Shrawan Ajmire and others [2004(4) Mh.L.J. 653]
wherein the Honourable High Court has observed that the rule under
Hindu Law ensures a just partition; parties might otherwise be greatly
prejudiced as regards equitable distribution, retention of possession,
liability for improvements, and adjustment of accounts if the suit for
partial partition will be allowed. Defendants further rely upon decision
of Honourable Apex Court in Himani Alloys Ltd. V/s. Tata Steel Ltd.
(Civil Appeal No. 5077/2011) wherein the Honourable Apex Court has
observed unless the admission is clear, unambiguous and unconditional,
the discretion of the Court should not be exercised to deny the valuable
right of a defendant to contest the claim.
6. Admittedly, the plaintiff has instituted suit for partition in
respect of one immovable property vide Flat bearing No.305 and he
claims 1/5th share therein. There is no dispute that the plaintiff is real
brother of defendant no.2 and 3. The father of defendants and mother
of defendant no.1(a) to 1(d) were also real brother and sister of the
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Order below Exh.1 and N/m No. 4177/19 [ 4 ] Common Order.
in S.C.Suit No. 110/18.
plaintiff. One Jaganprasad, father of the plaintiff was original owner of
the suit premises. He expired on 01/12/2000. The mother of the
plaintiff Smt. Kamladevi expired on 14/12/2010. The mother of
defendant no.1(1) to 1(d) Mrs. Nirmala who was sister of the plaintiff
also expired during pendency of the suit and father of the defendants
namely Anil expired on 04/11/2012 prior to institution of the suit.
Defendant no.1 to 3 have filed written statement vide Exh.3 and they
admit the case of the plaintiff. They are the defendants who have filed
written statement (Exh.5) who resist the suit on the ground that the
plaintiff has not filed suit in respect of all properties that are possessed
by family of plaintiff and defendants in joint. Obviously they admit the
relationship between the plaintiff and themselves and nature of the suit
premises to be left by Jaganprasad. It is specific contention of the
plaintiff that when there is no dispute about the relationship and nature
of the suit property, the Court can pass decree on admission whereas
defendants state that unless all properties are included, the suit is not
maintainable. In such case, in the light of dictum of Honourable High
Court and Honourable Apex Court, it has to see whether decree can be
passed on the basis of admission by the defendants and whether suit is
maintainable on account of other properties hold by family of plaintiff
and defendants are not made subject matter of the suit.
7. In Govindrao Ajmire (supra) the Honourable High Court
dealt with the similar issue wherein the Honourable High Court has
referred Article 333(3)(i) of the Hindu Law by Mulla, 16th Edition,
wherein general rule is provided in respect of partition. It provides that
where a suit for partition is brought by a coparcener against the other
coparceners, it should embrace the whole family property. The
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Order below Exh.1 and N/m No. 4177/19 [ 5 ] Common Order.
in S.C.Suit No. 110/18.
Honourable High Court further observed that the father can bring about
a complete partition of joint family properties between himself and his
minor sons even against the will of the minor sons and partial partition
under Hindu Law is now accepted and recognized as valid by judicial
decisions. However there shall be a certain exception to admit said suit
for partial partition. A member of a joint property suing his coparceners
for partition of family property is bound to bring into common
hotchpotch the entire joint property in order that there may be
complete and final partition of family properties that may be in his
possession. The Honourable High Court considering said facts of
particular that case remitted the case to the trial Court directing the
plaintiff to implead necessary party and include entire joint family
property in the suit. The Honourable High Court further observed that it
is always open to the members of a joint Hindu family to divide some
properties of the family and to keep the remaining undivided. Such
properties as are not partitioned can be divided later on. Thus, it is seen
that members of Hindu Joint Family property can divide some
properties for their family and keep some properties in joint. It means if
all members of joint family property decide to effect the partial partition
and keep some properties in joint, it is permissible. Now the plaintiff
has filed suit for partition in respect of the suit premises and the
defendants contend that besides suit premises there are other properties
owned by joint family. It means defendants do not consent for partial
partition. Therefore it has to see whether it is the suit premises only
joint family property of plaintiff and defendants or there are other
properties held jointly by both parties to the suit.
8. Admittedly, this notice of motion is filed after written
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Order below Exh.1 and N/m No. 4177/19 [ 6 ] Common Order.
in S.C.Suit No. 110/18.
statement at Exh.5 is filed by defendants and the plaintiff relies upon
contents of said written statement to substantiate his prayer to pass
decree on admission. Vide written statement at Exh.5 defendants
specifically state that besides suit premises there are other immovable
property vide Flat No.702, tenanted Shop No.2, Flat No.1354 and
agricultural land bearing Khata Sankhiya 00054. They have also filed
documents in support of their contention. Copy of Exh.J to written
statement shows that two rooms vide Tenement No.1354 in Building
No.29 were allotted in the name of Smt. Kamladevi, the mother of the
plaintiff. Letter dated 18/03/1994 issued by Estate Manager of Bombay
Port Trust shows that the father of the plaintiff was holding Room No.2
at Jackeria Bunder Road. With this document defendants have also filed
copy of Agreement for Sale in respect of Flat No.305 executed in favour
of the plaintiff and his wife. They have also filed Leave and Licence
Agreement registerd vide No. 4429/2006 and registered vide different
No. 3199/2014 executed by wife of the plaintiff in favour of third
person in respect of Flat No.702. Thus, it is brought on record that
besides the suit premises the mother and father of the plaintiff have left
the two rooms vide Tenement No. 1354 in Building No.29 and Room
No.2 at Jackeria Bunder Road.
9. An Agreement for Sale dated 29/08/2003 registered vide
6835/2003 in favour of the plaintiff and his wife also shows that the
plaintiff and his wife possess Flat No.702. For the sake of discussion if it
is presumed that defendants have no concern with Flat No.702 owned
and possessed by the plaintiff and his wife, there are two other
properties vide Room No.2 situated at Jackeria Bunder Road and
Tenement No.1354 allotted in the name of mother of the plaintiff. The
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Order below Exh.1 and N/m No. 4177/19 [ 7 ] Common Order.
in S.C.Suit No. 110/18.
plaintiff has not given any explanation in notice of motion in respect of
those properties. Plaintiff nowhere states that those properties are not
part of joint family property. Thus, this cannot be taken as an admission
by the defendants when those properties are jointly owned and
possessed by the plaintiff and defendants and they have also interest
thereupon. It also suggests that the plaintiff has suppressed existence of
those properties. The plaintiff also failed to include agricultural land left
by his father. Thus, it is brought on record that the plaintiff has not
included all joint family properties of the family of plaintiff and of
defendants.
10. Though there is substance in submission of learned
advocate for the plaintiff that defendants have not filed counterclaim to
claim properties, it was necessary for the plaintiff to plead and show
that he has an exceptional case to seek the partial partition in respect of
suit premises alone. The plaintiff is silent as to existence of other
properties brought on record by the defendants. It is also not case of the
plaintiff that the properties not included in the suit are already
partitioned or they can not be subject matter of the suit. Obviously the
plaintiff relies upon provisions of Order 2 Rule 2 of the Code and rule
laid by the Honourable Apex Court in B.R.Patil V/s. Tulsa Y. Sawkar &
Ors. [2022 LiveLaw (SC) 165] wherein the Honourable Apex Court has
observed Order 2 Rule 3 does not compel a plaintiff to join two or more
causes of action in a single suit. Relying upon observation of
Honourable Apex Court in B.R.Patil (supra) it was submission of
learned advocate for the plaintiff that the plaintiff may lose his right
over the property not included in the suit and he may be precluded
from seeking partition of such properties in future.
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Order below Exh.1 and N/m No. 4177/19 [ 8 ] Common Order.
in S.C.Suit No. 110/18.
11. In view of observation of Honourable High Court in
Govindrao Ajmire (supra) which dealt with specifically issue as to
partial partition, the plaintiff ought to have make or plead an
exceptional case seeking partial partition. Though he may be justified
for filing suit for partial parition in respect of suit premises, considering
cause of action in view of provisions under Order 2 Rule 2 of the Code,
the peculiar facts of the case wherein the plaintiff has asked for
partition without including all properties, suit of the plaintiff is not
maintainable unless the plaintiff includes all properties which are jointly
possessed by the family of the plaintiff and all defendants. In such case,
mere fact that defendants admit relationship and nature of the suit
premises ipso facto cannot be a ground to pass decree on admission. If
such decree is passed, it will not make just partition.
12. The Honourable High Court in Govindrao Ajmire (supra)
has remitted the suit to the trial Court giving opportunity to the plaintiff
to join necessary party and include the properties. Considering rule laid
down therein, it is just and proper to give an opportunity to the plaintiff
to include all properties hold by family of the plaintiff and defendants
before the plaint is rejected for want of maintainability. In the result,
following order is passed :
- ORDER -
1. Notice of Motion No. 4177/2019 stands rejected.
2. The plaintiff to include all properties hold by family of the
-- 8 of 9 --
Order below Exh.1 and N/m No. 4177/19 [ 9 ] Common Order.
in S.C.Suit No. 110/18.
plaintiff and defendants within a month of the order being uploaded on
CIS, failure of which plaint shall be rejected.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 13/02/2025. Mumbai.
1. Dictated on : 13/02/2025.
2. Transcribed on : 01/03/2025.
3. Placed for correction on : 01/03/2025.
4. Checked on : 03/03/2025.
5. Correction carried on : 03/03/2025.
6. Signed on : 03/03/2025.
7. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03/03/2025. 4.21 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 13/02/2025.
Judgment/Order signed by P.O. on 03/03/2025.
Judgment/Order uploaded on 03/03/2025.
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