Bombay High Court
Neera Handa Daughter Of Shri K. L. Handa ... vs Morarji Hariram (Deleted) Thr. Lrs. ... on 25 November, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
Digitally signed
by JITENDRA
JITENDRA SHANKAR
SHANKAR NIJASURE
NIJASURE Date:
2022.11.29
18:51:11 +0530
11-cra-447-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.447 OF 2022
Neera Handa & Ors. ...Applicants
Versus
Morarji Hariram (Deleted) & Ors. ...Respondents
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Mr. M.P. Vashi, Senior Advocate with Aparna Deokar i/b M.P. Vashi
& Associates for the Applicants.
Ms. Firdaus Moosa i/b. Prakash Mahadik for Respondent Nos.1(a) to
1(c).
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CORAM : R.I. CHAGLA J
DATE : 25TH NOVEMBER, 2022
ORDER :
1. Heard the learned Advocates for the parties.
2. By this Civil Application the Applicants are challenging the impugned judgment and order dated 14th September, 2022 passed by the Appellate Court of Small Causes as well as the judgment and order dated 24th September, 2014 passed by the Trial Court. In view of the said judgments and orders being executed, an application has been taken out seeking stay of the impugned 1/4 11-cra-447-2022.doc judgments and orders.
3. Mr. Vashi, learned Senior Counsel appearing for the Applicant has referred to the findings in the impugned judgment and order of the Trial Court as well as findings of the impugned judgment and order of the Appellate Court. The Trial Court has not considered as to whether the Plaintiff could file a Suit in individual capacity without dissolution of the trust. The Appellate Court has proceeded on the premise that there is nothing in the cross examination about trust property or dissolution of the trust. The further finding is that the Suit property is individual property and not trust property and hence Suit filed in the individual capacity is maintainable.
4. The impugned judgments and orders have failed to take into consideration that the Suit property was purchased by the Trust and this is borne out from the documents on record which is the Indenture dated 9th July, 1948 which clearly mentions that the Suit property is being purchased by the Trustees. The Trust Deed is executed on 24th March, 1948 and is on record. Further, it is provided in Clause 6 of the Trust Deed that, " After the expiry of the said period of 50 years the Trustees shall divide and hand over the corpus of the trust properties in equal shares per stirpes among and 2/4 11-cra-447-2022.doc to the said Chhotalal and Morarji and any other son or sons that may be born to the Settlor by her husband the said Hariram radamsi and the sons and / or remoter male issue of such of them as may have died before the expiry of the said period of fifty years ". By this clause the Suit property was to be divided and handed over in equal shares amongst the sons of the settlor.
5. The Plaintiff's case is that the father and mother purchased the Suit property in 1948 for benefit of the Plaintiff and and his brother. However, this fails to consider Clause 6 of the Trust Deed and in particular the said Indenture by which the suit property had been purchased by the Trust and only after dissolution of the Trust in 1998, the property was to be divided and handed over in equal shares amongst the sons of the settlor. In my prima facie view, without any supporting evidence with regard to dissolution and vesting of the suit property in favour of the Plaintiff and his brother, the issue which arises is as to whether the Plaintiff in his individual capacity can file the present Suit and / or claim to be the landlord of the Suit property. This has not been considered by the Court below.
6. In that view of the matter, the execution of the impugned judgments and orders dated 14th September, 2022 and 24th 3/4 11-cra-447-2022.doc September, 2022 are stayed subject to the Applicants depositing compensation for occupation of the Suit property payable, as computed by the Respondent No.1 as per the statement tendered and taken on record and marked 'X' for identification, in this Court within a period of eight weeks from the date of this order.
7. It is clarified that the order of deposit of the said compensation as per the statement tendered by Respondent No.1 shall be subject to outcome of that Writ Petition (St.) No.97194 of 2020 filed in this Court which challenges the compensation as claimed by the Respondent No.1.
8. The Writ Petition (St.) No.97194 of 2020 shall be placed for hearing on 16th December, 2022.
[ R.I. CHAGLA J. ] 4/4