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 Page 2 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025 NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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. Page 3 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025
NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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 Page 4 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025 NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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 Page 5 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025 NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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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NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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 Page 7 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025 NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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 Page 11 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025 NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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 Page 12 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025 NEUTRAL CITATION C/SCA/14229/2010 JUDGMENT DATED: 26/06/2025 undefined 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 Page 13 of 13 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 08 2025 Downloaded on : Fri Jul 11 22:18:12 IST 2025