Bombay High Court
Kamlesh Jaysukhlal Bhuta And Anr vs Vasantben Ramnikhlal Bhuta ( Deleted ... on 2 January, 2025
Author: N.J.Jamadar
Bench: N.J. Jamadar
2025:BHC-OS:30
ia-2685-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.2685 OF 2023
IN
SUIT NO.3148 OF 2009
Kamlesh Jaysukhlal Bhuta and Anr. ...Applicants
VISHAL In the matter between
SUBHASH
PAREKAR Kamlesh Jaysukhlal Bhuta and Anr. ...Plaintiffs
Digitally signed by
VISHAL SUBHASH
versus
PAREKAR
Date: 2025.01.02
Vasantben Ramnikhlal Bhuta and Ors. ...Defendants
20:06:26 +0530
Mr. Girish Godbole, Senior Advocate with Mr. Vyom Shah, Mr.
Jimish Shah, Mr. Nitesh Menon, Mr. Virendra P., Ms. Aneesha
Munshi, Mr. Abhishek Bhosale, Ms. Palak Jain i/by Divya Shah
Associates, for the Applicants/Plaintiffs.
Mr. Shailesh Shah, Senior Advocate with Mr. D. Banarji, Mr. Aditya
Udeshi, Mr. Netaji Gawade i/by M/s. Sanjay Udeshi and Co., for
Defendant Nos.2 to 5.
Mr. Jagdish Aradwad (Reddy) for SRA.
Mr. S.K.Dhekale, Court Receiver, High Court, Bombay.
CORAM : N.J. JAMADAR, J.
RESERVED ON : JULY 16, 2024
PRONOUNCED ON : JANUARY 02, 2025
--------------
JUDGMENT :
1. The Applicants/Plaintiffs have preferred this application seeking sale of part of the suit property described as 'Larger Andheri Property' and the distribution of the sale proceeds between the Plaintiffs and Defendants, permission to independently develop the larger Andheri property and also direct the sale of such part of CTS Nos.397, 397/A and CTS No.397/1 to 284 (part of the suit Vishal Parekar, PS 1/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc properties) owned by M/s. R.J. Constructions, on such terms as this Court may deem fit.
2. At the outset, it may be necessary to note the nature and subject matter of the instant suit and Suit No.389 of 2010, instituted by the Defendants.
3. Jaysukhlal Bhuta - original Plaintiffs No.1, and Ramnikhlal, husband of Defendant No.1 and the predecessor in title of Defendant Nos.2 to 5, jointly, owned around 83 properties described in Exhibit B to the Plaint. Kamlesh Bhuta - Applicant No.1 is the son of Jaysukhlal and Bhanumati Bhuta - applicant No.2, is the wife of Jaysukhlal Bhuta. Defendant Nos.2 to 5 are the descendants of Ramnikhlal.
4. The Plaintiffs assert, the suit properties described in Exhibits B and C are the joint properties and/or joint family properties of Jaysukhlal and Ramnikhlal.
5. The Defendants contend, out of 83 properties described in Exhibit B to the Plaint, 8 properties described in Exhibit C were exclusively owned by Ramnikhlal, and, thus, the Defendants are the Vishal Parekar, PS 2/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc exclusive owners of the said properties. Conversely, Jaysukhlal and his descendants have no right, title and interest therein.
6. The Plaintiffs have instituted the instant suit for declaration that the properties mentioned in Exhibits B are joint family properties, and for partition and separate possession of the said properties.
7. The Defendants have instituted Suit No.389 of 2010, inter alia, for a declaration that the properties mentioned in Exhibit C to the Plaint in the said suit exclusively belonged to Ramnikhlal, and, for partition of the remaining joint family properties. A prayer is also made that the joint family properties which cannot be partitioned by metes and bounds ought to be sold and the sale proceeds be distributed in accordance with the share of the parties.
8. The Plaintiffs assert, area of the joint family properties described in Exhibit B aggregates approximately 4,63,680 sq. meters. The instant Interim Application is preferred in respect of the properties bearing CTS Nos.397, 397A, 397/1 to 284, 401, 402, 402/1, 404/A/1, 404/A/2, 404/1 to 39, 422, 422/1 to 15 admeasuring about 90,836.72 sq. meters situated at Village Mogra, Vishal Parekar, PS 3/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Taluka Andheri, referred to as 'the Larger Andheri Property', asserting that:
(a) The Larger Andheri Property has been encroached by the slum dwellers. In or around 2010, notifications were issued under the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 (the Slum Act, 1971), declaring various properties forming part of the larger Andheri property as slum rehabilitation area. Despite the initiative by the Plaintiffs to submit a joint proposal as co-owners of the said property as the portions of the larger Andheri property are affected by the slums, the Defendants refused to co-operate with the Plaintiffs.
(b) Few housing co-operative societies (proposed) have sprang up.
Those housing co-operative societies have filed proceedings under the Slum Act, 1971 for acquisition of the portions of the larger Andheri property and rehabilitation of the slum dwellers residing thereat. Faced with the acquisition proceedings, the Plaintiffs were constrained to take out Notice of Motion Nos.365 and 366 of 2014 seeking permission of the Court to develop those portions of the joint family properties. The Defendants resisted. By an order dated 2 February 2017, this Court permitted each of the co-owners to make independent representations for developing the properties before the Competent Authority. The Defendants have not made any Vishal Parekar, PS 4/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc representations.
(c) The endeavour of the Plaintiffs to develop portions of the larger Andheri property was also thwarted by the Defendants by filing objections to the effect that the proposal cannot proceed without the consent of the co-owners - Defendants. Eventually, by an order dated 5 October 2021, the Slum Rehabilitation Authority has held that the proposal of the Plaintiffs for development of the plots forming part of the larger Andheri property stood 'filed' for want of consent of the co-owners. The said decision is challenged in WP No.64 of 2022 filed by the Plaintiffs.
9. The Plaintiffs seek interim orders on the premise that, out of the larger Andheri Property, an area admeasuring 61,513.40 sq. meters is jointly owned by the Plaintiffs and Defendants, and, they are entitled to 30,756.70 sq. meters each. What is in dispute is, the share of the Plaintiffs in part of CTS Nos.397, 397A, 397/1 to 284 admeasuring 14,661.66 sq. meters only (disputed property).
10. According to the Plaintiffs, the disputed property is owned by the Plaintiffs and Defendants in equal shares as it was owned by family partnership firm M/s. R.J.Constructions, in which Jaysukhlal - original Plaintiffs No.1, and Ramnikhlal, the Vishal Parekar, PS 5/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc predecessor in title of the Defendants, were partners having equal shares. There are documents which either evidence or contain an admission on the part of the predecessor in title of the Defendants and/or Defendants, that the larger Andheri property, including the disputed property, is co-owned by the Plaintiffs and Defendants, whether individually or by virtue of Jaysukhlal (original Plaintiffs) and Ramnikhlal, being the partners, having equal shares in M/s. R.J. Constructions. The Plaintiffs are, thus, entitled to partition of the larger Andheri property.
11. The Applicants/Plaintiffs aver, larger Andheri Property is, however, not capable of being partitioned by metes and bounds on account of the topography of the land, two big nallas, which flow across the land; reservation of about 16,000 sq. meters as a recreation ground under the Development Plan 2034, existence of around 11 Tabelas sprawled across portions of the larger Andheri Property, reservation of an area admeasuring 5500 sq. meters for DP roads, set back area, etc., aviation height restrictions and more importantly, encroachment by more than 20,000 slum dwellers, with more than 3700 tenements across the portions of the larger Andheri property, and various acquisition proceedings in respect of some portions of larger Andheri property.
Vishal Parekar, PS 6/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 :::
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12. In view of the aforesaid hindrances which make the partition of the Larger Andheri Property by metes and bounds virtually impossible, there is no alternative but to dispose of the larger Andheri Property by allotment of the properties therein to one party, subject to payment of just compensation and/or market value to the other party.
13. In the application, the Plaintiffs have ascribed reasons which, according to the Plaintiffs, make the Plaintiffs more suitable for the sale of the larger Andheri Property to them. It is, inter alia, contended that the Defendants do not have the financial means or inclination to purchase the property. Alternatively, if the Defendants have financial ability, they can pay the share of the Plaintiffs subject to payment of just market rate to be discovered by holding inter se auction or bidding.
14. The Plaintiffs have suggested the mode, terms and procedure of inter se bidding, as set out in Exhibit TT. For the said purpose, the Plaintiffs have estimated the base price of the larger Andheri property at Rs.165 Crores approximately.
15. Lastly, it is averred, on account of the disinclination and Vishal Parekar, PS 7/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc reluctance of the Defendants to cooperate with the Plaintiffs in the development of the larger Andheri property, there is an imminent risk of acquisition of portions of the larger Andheri Property under the provisions of Section 14 of the Slum Act, 1971. In that event, both the Plaintiffs and Defendants would suffer an irreparable loss as valuable property would be acquired at a throw away price in accordance with the provisions of the Slum Act, 1971. It is, therefore, imperative in the interest of equity, justice and fairness to pass interim orders as prayed for by the Plaintiffs.
16. An affidavit in reply came to be filed on behalf of the Defendants resisting the prayers in the Interim Application. At the threshold, the Defendants contend that the prayers in the instant application cannot be granted as it would amount to granting final reliefs at an interim stage without trial, and, thereby, the rights of the Defendants would be irretrievably prejudiced. The Defendants have categorically asserted that the properties bearing CTS Nos.397, 397A, 397/1 to 284 exclusively belong to the Defendants as Ramnikhlal had acquired the said properties under Deeds of Indenture, during the period 1939 to 1948, out of his own funds. Reliance on the Deed of Partnership dated 30 March 1972 to show that those properties (disputed property) were brought in the stock Vishal Parekar, PS 8/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc of the firm M/s. R.J.Constructions, is wholly misplaced. The said Partnership Deed nowhere indicates that Ramnikhlal had brought in disputed properties as an asset of the partnership firm. Therefore, the claim of the Plaintiffs over the disputed properties is completely unsustainable.
17. The Defendants have denied that the Defendants have not taken measures to assert and/or protect their rights over the portions of the larger Andheri property. The Defendants filed an appeal along with M.A.No.23 of 2017 to assail the order dated 30 June 2017, declaring lands bearing CTS Nos.397 (part), 397/29 to 44 and 422 (part) admeasuring 10032.434 sq. meters as slum rehabilitation area under Section 3(C)(1) of the Slum Act, 1971. The Defendants have also filed an appeal along with M.A.No.8 of 2011 challenging the Notification dated 23 December 2008 issued under Section 4(1) of the Slum Act, 1971 in respect of CTS Nos.397 (part), 397/275 to 284 admeasuring 7,326 sq. meters.
18. The Defendants categorically denied that they have adopted obstructionist approach. The Defendants are entitled to protect their rights in the disputed properties. The Plaintiffs have no right, title and interest to develop the properties which exclusively Vishal Parekar, PS 9/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc belonged to Ramnikhlal. Therefore, the instant application seeking permission to develop the larger Andheri property or sale of the larger Andheri property, comprising properties over which the Plaintiffs can lay no proprietary title, cannot be entertained.
19. The Defendants further contend that the Plaintiffs have unilaterally determined the base price of Rs.165 Crores to suit their case. Measures to have inter se bidding is suggested with an oblique motive to trample upon the rights of the Defendants, and, also prevent discovery of true market value of the larger Andheri property. Such proposal cannot be countenanced.
20. In the alternative, and without prejudice to the aforesaid contentions, in the event the Court comes to the conclusion that the larger Andheri property is required to be sold, the Defendants contend, bids may be invited from the public at large, so that the best price can be fetched.
21. Moreover, properties bearing CTS Nos.401, 402, 402/1, 404/A/1, 404/A/2, 404/1 to 39, 422 and 422/1 to 15 were purchased in the name of Nagardas Bhuta and Kashiben N. Bhuta, and, are thus joint family properties. These properties can be Vishal Parekar, PS 10/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc divided by metes and bounds, and, there is no need to sale those properties.
22. An additional affidavit was filed on behalf of the Applicants/Plaintiffs to substantiate their claim that the larger Andheri property cannot be partitioned by metes and bounds. A report of Nadkarni & Co., Architects, Interior Designers and Valuers dated 1 March 2024 was sought to be pressed into service in support of the said claim. A reference is made to a Notification dated 29 June 2017 issued by the Government of Maharashtra under Section 14(1) of the Slum Act, 1971 to acquire 6,962.4 sq. meters land out of Survey Nos.397, 397/275 to 284, to bolster up a case that there is an imminent danger of acquisition of substantial portion of the larger Andheri property by the State Government.
23. In the further affidavit in reply filed on behalf of Defendant No.3, it is reiterated that the question as to whether the properties cannot be partitioned by metes and bounds and, therefore, the portion of the said properties be sold, is contentious and complex, and cannot be decided in the Interim Application, without providing an opportunity to the Defendants to lead evidence. By this application, the Plaintiffs desire to preempt the entire trial Vishal Parekar, PS 11/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc procedure. The Defendants contend that the claim of the Plaintiffs that the larger Andheri property cannot be partitioned by metes and bounds, cannot be accepted as a gospel truth.
24. The Defendants have, in turn, placed reliance on a report submitted by Shreeya Services Pvt. Ltd., Architects, to the effect that the larger Andheri property can be partitioned equitably. With reference to the Notification issued under Section 4(1) of the Act, 1971, the Defendants contend some properties were also notified under the Notification dated 23 December 2008, which was challenged by the Defendants by filing an appeal. Therefore, the Plaintiffs cannot take any advantage of the fact that the Notifications have been issued for acquisition of the property which are exclusively owned by the Defendants.
25. In the wake of the aforesaid pleadings, I have heard Mr. Girish Godbole, learned Senior Advocate for the Applicants/Plaintiffs and Mr. Shailesh Shah, learned Senior Advocate for the Defendants, at some length. The learned Counsel took the Court through the pleadings and documents in the instant suit and Suit No.389 of 2010, the documents annexed with this application, reply thereto and especially the rival reports of Architects, relied upon by the Vishal Parekar, PS 12/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc respective parties.
26. By this application, the Plaintiffs essentially seek permission to exclusively develop larger Andheri property or the sale of the larger Andheri property to either of the parties in inter se bidding with the other party being paid the value of their share as discovered in the inter se bidding.
27. Mr. Godbole, learned Senior Advocate for the Applicants/ Plaintiffs submitted that the prayers in the instant application deserve consideration from a perspective which is, in essence, beneficial to both the parties. Laying emphasis on the fact that the valuable suit properties, especially the larger Andheri property, face an imminent risk of acquisition at a nominal price under the provisions of the Slum Act, 1971, Mr. Godbole urged that continuing the status quo would cause irretrievable prejudice to both the parties. The factors of large scale encroachments and the proceedings for acquisition of the portions of the larger Andheri property under the provisions of the Slum Act, 1971 were pressed into service to draw home the point that this is a fit case where the Court would be justified in permitting the change in the nature of the suit properties during the pendency of the suit. To this end, Mr. Vishal Parekar, PS 13/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Godbole placed reliance on the decision of the Supreme Court in the case of Maharwal Khewaji Trust (Regd.) Faridkot V/s. Baldev Dass1.
28. Mr. Godbole further submitted that a practical and pragmatic view of the matter is required to be taken. Encroachments over the larger Andheri property is indisputable. In addition, on account of the topography of the suit properties, reservations in the Development Plan, existence of a number of large cattle sheds (tabelas), reservation for DP roads and the aviation height restrictions, partition of the larger Andheri property by metes and bounds is impracticable.
29. Baking upon the report of M/s. Nadkarni and Company, Architects, especially the conclusion (pages 734-735), Mr. Godbole urged that the reasons ascribed by the Architects for arriving at the conclusion that the equitable division of the Larager Andheri Property is not practicable, cannot be brushed aside lightly. Each of the circumstances noted by the Architect bear upon the partibility of the subject suit lands from the point of view of economic viability and development potential.
30. Mr. Godbole submitted that to address such a situation, the 1 (2004) 8 SCC 488 Vishal Parekar, PS 14/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc legislature has enacted the Partition Act, 1894. Laying special emphasis on the statement of objects and reasons of the Partition Act, 1894, Mr. Godbole strenuously submitted that a preliminary decree for partition is not a pre-condition for the exercise of the power to direct the sale of the joint family properties. Nor is it necessary that the Court must record a positive finding that the partition by metes and bounds is not reasonable or convenient. It should only appear to the Court that the suit property is not capable of division by metes and bounds. To buttress this submission, Mr. Godbole placed strong reliance on the decisions of the Supreme Court in the cases of R.Ramamurthi Iyer V/s. Raja V. Rajeswara Rao2 and Rani Aloka Dhdhoria and Ors. V/s. Goutam Dudhoria and Ors.3
31. As a second limb of the submission, Mr. Godbole would urge that, given the peculiar facts of the case, this Court is not denuded of the power to order the sale at an interim stage, if the Court finds it expedient in the interest of justice. The Court can always resort to inherent powers under Section 151 of the Code of Civil Procedure, 1908, as such a course is not expressly prohibited. Reliance was placed on a decision of the Gujarat High Court in the case of 2 (1972) 2 SCC 721 3 (2009) 13 SCC 569 Vishal Parekar, PS 15/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Hirachand Kikabhai V/s. Chandrasen Motichand4 and a judgment of the Supreme Court in the case of Rajendra Prasad Gupta V/s. Prakash Chandra Mishra and Ors.5.
32. Mr. Godbole further submitted that the resistance to the sale of the disputed properties on the premise that those properties are solely owned by the Defendants does not merit countenance, as there are four documents which clearly demonstrate that the disputed property was brought by the predecessor in title of the Defendants as a capital in M/s. R.J.Constructions. Attention of the Court was invited to the Development Agreement dated 2 July 2004 executed by and between Ramnikhlal and Jaysukhlal in the capacity of partners of M/s. R.J.Constructions and M/s. Aditi Developers, wherein the disputed property was shown to have been brought in as the capital of Ramnikhlal, and, consequently, the property of the firm. Secondly, in Suit No.3179 of 2004 instituted by Ramnikhlal, Jaysukhlal and R.J.Constructions, it was again categorically asserted that Ramnikhlal had brought the said property in the firm M/s. R.J.Constructions, and, thereby, the Plaintiffs therein were the owners of the disputed property. 4 1966 ILR Guj 143 5 (2011) 2 SCC 705 Vishal Parekar, PS 16/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc
33. In the face of these documents which, in a sense, constitute admission in pleadings, the claim of the Defendants that they are the exclusive owners of the disputed property, is clearly unsustainable. In any event, Mr. Godbole urged, the applicants have suggested a mechanism to protect the interest of the Defendants qua the disputed property in the event the court orders the sale. Even otherwise, the Court may put appropriate conditions to protect the interest of the Defendants qua the claim with regard to the disputed property.
34. In opposition to this, Mr. Shah, learned Senior Advocate for the Defendants, at the outset, submitted that this application is actuated by a design to preempt the trial of all the disputed questions of facts and law by seeking the sale of the larger Andheri property and present a fait accompli to the Defendants. Taking the Court through the prayers in the plaint, especially the relief of declaration in prayer clause (a) and partition by metes and bounds in prayer clause (b), Mr. Shah urged with tenacity that those principal prayers in the plaint would stand granted without proof and trial if the Court grants the alternate prayer contained in prayer clause (b)(i) of sale of the suit properties, at an interim stage. Such a course is legally impermissible, urged Mr. Shah. Vishal Parekar, PS 17/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 :::
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35. An earnest endeavour was made by Mr. Shah to draw home the point that whether the partition of the suit properties by metes and bounds is not reasonable and practicable, is a matter rooted in facts, and that question warrants determination at the trial. A summary inquiry, like the present one, which the applicants desire the Court to embark upon to determine whether the partition is possible, is not permissible.
36. At any rate, the matter is also within the province of the experts, urged Mr. Shah. In the case at hand, there are conflicting reports of the experts. The report of Shreeya Services Pvt. Ltd., Architects, solicited by the Defendants, in terms, records that the equitable division of the larger Andheri property is practicable. At this stage, according to Mr. Shah, the Court is not equipped to give primacy to one of the two conflicting reports sans evidence. Therefore, according to Mr. Shah, the proper course would be to conclude the trial expeditiously as the pleadings are complete. The proposed course of action has the propensity to by-pass all the provisions of the Code, including Order XX Rule 18.
37. Refuting the submissions on behalf of the applicants premised on the provisions of the Partition Act, 1894, Mr. Shah asserted that Vishal Parekar, PS 18/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc the recourse to the provisions of the Partition Act, can be made at the time of passing of the decree. None of the judgments, on which reliance was placed on behalf of the applicants, were rendered in a case where the Court resorted to the provisions of the Partition Act, at an interim stage. Therefore, at this juncture, recourse to the provisions of the Partition Act, 1894 is extremely tenuous.
38. Mr. Shah further urged that, in the facts of the case, in view fo the two conflicting reports, even it cannot be said that it appears to the Court that the partition of the larger Andheri property is not reasonable or practicable. The Defendants have fairly pleaded the true state of affairs as regards the ownership of the suit lands. The fact that the Defendants have admitted that there are joint family properties does not necessarily imply that the Defendants have admitted that those properties cannot be divided by metes and bounds. Thus, the recourse to the provisions of Order XII Rule 6 of the Code, is not at all warranted.
39. Mr. Shah urged with a degree of vehemence that the question as to whether the disputed property was brought in the partnership firm by deceased Ramnikhlal, cannot be decided at this stage. The aspect as to whether the recitals in the Development Agreement, or Vishal Parekar, PS 19/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc for that matter, pleadings in the previous proceedings constitute an admission that the disputed properties formed part of the partnership asset, is a matter which must await adjudication at the trial post evidence. Taking the Court through the Partnership Deed, especially clause (4) thereof, Mr. Shah submitted that the question as to whether there was compliance with the reciprocal promise contained therein, has to be decided at the trial.
40. Mr. Godbole joined the issue by canvassing a submission that the disputed properties, which were incontrovertibly shown as the property of R.J.Constructions, vested in late Ramnikhlal and Jaysukhlal, as the partners of the said firm. The Partnership Act contemplates liquidation of the assets of the partnership as the primary step to the settlement of accounts between the partners upon the dissolution of a firm. Both Plaintiffs and Defendants, in their respective suits, are, inter alia, seeking the dissolution of the partnership M/s.R.J.Constructions. Therefore, there is no impediment in ordering the sale of the disputed property as well, for the parties are not at issue on the point that the firm M/s. R.J. Constructions stood dissolved. To bolster up this submission, Mr. Godbole placed reliance on the judgment of Supreme Court in the case of S.V.Chandra Pandian & Ors. vs. S.V.Sivalinga Nadar & Ors.6. 6 (1993) 1 SCC 589 Vishal Parekar, PS 20/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Consideration :-
41. Before appreciating the aforesaid submissions canvassed across the bar, it may be apposite to precisely ascertain the area over which the parties are at issue, with regard to the proprietary rights. In the further affidavit in reply, the Defendants have classified the suit properties which are joint family properties, properties over which the Defendants claim exclusive ownership and the properties which exclusively belonged to the Plaintiffs. The properties bearing CTS Nos. 401, 404, 404/A/1, 404/A/2, 404/1 to 39, 422, and 422/1 to 15, having been purchased by Nagardas Bhuta and Kashiben Bhuta, are stated to be the undisputed joint family properties. Properties bearing CTS No.402 and 402/1 are stated to be the properties belonging to the Plaintiffs and, thus, solely owned by the Plaintiffs. The properties bearing CTS Nos.397, 397A, 397/1 to 284 are the properties solely owned by the Defendants (disputed properties).
42. The controversy between the parties, thus, revolves around the questions as to whether the disputed properties form part of joint family properties and whether the larger Andheri property cannot be partitioned by metes and bounds and whether the circumstances of the case are such that the Court, at an interim Vishal Parekar, PS 21/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc stage, ought to direct the sale of the Larger Andheri Property without going for the trial, and, if the circumstances so warrant, what ought to be the modalities of the sale ?
43. Evidently, the distinct considerations would come into play as regards the three sets of suit properties, as classified by the defendants. In respect of the undisputed joint family properties, the question as to whether the said properties are not conveniently and reasonably partible would be at the hub of the matter, since these does not seem much controversy over the entitlement of Jaysukhlal Bhuta, the predecessor in title of the Plaintiffs, and Ramnikhlal Bhuta, the predecessor in title of the defendants. With regard to the disputed properties, over which the defendant claim right, title and interest, to the exclusion of the Plaintiffs, the question of title would be required to be determined in addition to the necessity of sale on account of impracticability of partition by metes and bounds. The third set comprising the properties bearing CTS No. 402 and 402/1, which the defendants concede, exclusively belong to the Plaintiffs, a declaration to that effect would suffice.
44. Taking the third set first, it is necessary to note, in the affidavit in reply dated 7th February, 2024, in paragraph 18, it was, Vishal Parekar, PS 22/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc inter alia, contended that the properties including the properties bearing CTS Nos. 402 and 402/1 were purchased in the names of Nagardas Bhuta and Kashiben N. Bhuta and therefore those were joint family properties. However, in the further affidavit in reply by defendant No. 3, it has been categorically asserted that the properties bearing CTS Nos. 402 and 402/1 are the properties of the Plaintiffs solely. In paragraph No. 9 of the said affidavit, it has been further asserted that the defendants have no claim over the said properties of the Plaintiffs. It would be contextually relevant to note that in the report of Shreeya Services Pvt. Ltd., Architects appointed by the Defendants also, it is recorded that the Architects were instructed to exclude CTS Nos. 402 and 402/1 as those properties were in the exclusive ownership of the Plaintiffs. It would be also necessary to note that Mr. Shah, learned Senior Advocate for the Defendants, also canvassed submissions on the premise that the properties bearing CTS Nos. 402 and 402/1 exclusively belong to the Plaintiffs.
45. In view of the aforesaid stand of the defendants, on an affidavit, I am inclined to hold that there is no impediment, even at this stage, in making a declaration that the properties bearing CTS Nos. 402 and 402/1, are exclusively owned by the Plaintiffs, and Vishal Parekar, PS 23/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc thus, exclude those properties from further consideration.
46. This leads me to the consideration of the prayers in the instant application qua the first set of the suit properties, namely, the undisputed joint family properties. At the outset, it is necessary to note the nature of a suit for partition. A judicial determination in a suit for partition involves broadly two parts. First, whether a party claiming partition has a share in the suit property and, if yes, whether such a party is entitled to a division and separation of his share. Second, once the aforesaid question is answered in the affirmative, the actual division of the properties, which is primarily in the nature of a ministerial act.
47. A useful reference in this context can be made to a decision of the Supreme Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and Others7 wherein the nature of a suit for partition was expounded, as under:-
7] In a suit for partition or separation of a share, the prayer is not only for declaration of Plaintiffs's share in the suit properties, but also division of his share by metes and bounds. This involves three issues:
(i) whether the person seeking division has a share or interest in the suit property/properties;
(ii) whether he is entitled to the relief of division and separate possession; and
(iii) how and in what manner, the property/properties should be
7 (2009) 9 Supreme Court Cases 689.
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In a suit is for partition or separation of a share, the court at the first stage decides whether the Plaintiffs has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations / combinations /alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
48. The thrust of the submission of Mr. Shah was that the instant application obviates the judicial determination as to the entitlement and partiability of the suit properties and, instead, directly calls upon the Court to venture into the division of the properties in a particular fashion i.e. by the sale of the suit properties. An earnest endeavour was made by Mr. Shah to draw home the point that the said exercise can only be at the stage of passing of the final decree. A two-pronged challenge was mounted by Mr. Shah. One, the case that the suit properties cannot be reasonably and conveniently partitioned has not been pleaded adequately. Two, there is no warrant for invoking the provisions contained in sections 2 and 3 of the Partition Act, 1893, at this stage.
49. The statement of objects and reasons for the enactment of Vishal Parekar, PS 25/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Partition Act, 1893 indicates the circumstances which necessitated the enactment and the mischief the legislation proposed to address. It explicitly records that, under the law, as it then stood, the Court was enjoined to give the share to each of the parties and could not direct a sale and division of the proceeds in any case whatever. There were insuperable practical difficulties in the way of making an equal division, and it was realized that the Court was either powerless to give effect to its decree or was driven to all kinds of shifts and expedients in order to do so. It was, therefore, proposed to supply the said defect in the law, by giving the Court, under proper safeguard, a discretionary authority to direct a sale where a partition cannot reasonably be made and the sale would, in the opinion of the Court, be more beneficial for the parties. At the same time, having regard to the strong attachment of the people in this country to their landed possession, it was proposed to make the consent of parties interested at least to the extent of a moiety a condition precedent to the exercise by the Court of the said power. Thus, in order to prevent any oppressive exercise of the said privilege, it was proposed to give such of the shareholders as do not desire a sell, the right to buy the others out at a valuation to be determined by the Court.
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50. Keeping in view, the aforesaid object of the Partition Act, 1893, the provisions contained in sections 2 and 3 of the Act, 1893, deserve to be extracted. They read as under:-
2] Power to Court to order sale instead of division in partition suits - Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3] Procedure when sharer undertakes to buy -
(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sale the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf. (2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
51. From a conjoint reading of sections 2 and 3 of the Act, 1893, it becomes discernible that the Court invoking the power to direct the sale of the property in a suit for partition, must first record a finding that the case is such that a decree for partition might have been passed. Secondly, on account of the nature of the property which is the subject matter of the suit, the number of shareholders, who are Vishal Parekar, PS 27/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc entitled to be allotted the shares in the suit property or any other special circumstances, it appears to the Court that a division of the property, cannot reasonably or conveniently be made and consequently a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. It must be remembered that section 2 confers a discretion on the Court and as is the case with the exercise of discretion in other jurisdictions, such discretion must be exercised judiciously and after being informed of all the relevant considerations.
52. A profitable reference in this context can be made to the decision of the Supreme Court in the case of R.Ramamurthi Iyer (supra) wherein, the import of the provisions contained in sections 2 and 3 of the Act, 1893 was expounded in the following terms :
8] ..........The scheme of Sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made, the court can in its discretion, on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribute the proceeds among the shareholders. Now where a court has been requested under Section 2 to direct a sale any other shareholder can apply for leave to buy at a valuation the share or shares of the party or parties asking for sale. In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sale the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court. other words if a-Plaintiffs in a suit for partition has invoked the power of the court to order sale instead of division in a partition suit under section 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it any it is bound Vishal Parekar, PS 28/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc to order a valuation of the shares in question and offer to sale the same to the shareholder undertaking or applying to buy it at a valuation. The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner. It would appear from the Objects and Reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. There could be, instances where "there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to. its decree or was- driven to all kinds of shifts and expedient in order to do so. The court was, therefore, given a discretionary authority to direct a salt where. a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties. But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court.
53. In the aforesaid case, it is of critical salience to note, in the context of the controversy at hand, that the Supreme Court enunciated in clear and explicit terms that the language of section 2 of the Partition Act, 1893 does not appear to make the Court to give a finding that the property is incapable of division by metes and bounds.
54. The aforesaid pronouncement was followed by the Supreme Court in the case of Rani Aloka Dudhoria vs. Goutam Dudhoria8. A Division Bench of the Delhi High Court in the case of Kusum Kumria and Others vs. Pharma Venture (India) Private Limited and Anr. 9 8 (2009) 13 Supreme Court Cases 569.
9 2015 SCC OnLine Del 13042.
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(iv) If a division by metes and bounds cannot be made without further enquiry, then first, the preliminary decree shall be passed and thereafter a commissioner is appointed to physically examine the property to suggest manner of division. (Ref : Shub Karan Bubna, para 18.2).
........ .......
(ix) In a partition suit, under Section 2 of the Partition Act, having regard to the nature of the property or large number of shareholders or in other special circumstance, if it appears to the court that the division of the property cannot reasonably or conveniently be made and that a sale of the property would be more beneficial, it can direct sale of the property and distribution of the proceeds as per shares declared. In addition, the court may be requested to direct sale by shareholders, interested individually or collectively to the extent of one moeity or upwards. (Ref : Shub Karan Bubna, para 18.2 and R. Rmamurthi Iyer, para 8).
(x) It is not obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only, "appear" that it is not so capable of division. Parties may jointly agree to such dispossession of the property. (Ref : R. Ramamurthi Iyer, para
13).
(xi) The request from the shareholder (s) for sale of the property does not have to be in the nature of a formal prayer. (Ref : Rani Aloka Dudhoria, para 48; R. Rmamurthi Iyer, para 13) If a party or co-sharer asks for sale of a property under Section 2 of the Partition Act, it is the duty of the court to order the valuation of the shares (Ref.: Malati Ramachandra Raut).
(xii) The words employed in Section 3(1) only require the shareholder has to merely inform the court or to notify to it that he is prepared to buy at a valuation the share of the party asking for sale. No formal application for the purpose is necessary (R. Ramamurthi Iyer). It is obligatory upon the court to offer to sale the same to the shareholder(s) who seek to buy the shares of the other party in terms of Section 3 at the price determined upon such valuation. The court has no discretion or option or choice in this matter. (Ref : Malati Ramchandra Raut, para 9; R. Ramamurthi Iyer, paras 8 and 11).
(xiii) The right of a co-sharer to purchase a property directed to be sold under Section 3 of the Partition Act accrues on the date the co-sharer request the court to sale the property to him. The valuation of the shares has to be made on the date of accrual of this right. (Ref : Malati Ramchandra Raut, para 10).
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(xiv) In a partition suit, the Plaintiffs is not wholly dominus litis. After a shareholder has applied for leave to buy at a valuation under Section 3 of the Partition Act, the Plaintiffs who requested the court to exercise the power under Section 2 of ordering the sale, cannot withdraw the suit under Order 23 Rule 1 of the CPC. (Ref :R. Rmamurthi Iyer, paras 9 and 10).
55. Mr. Shah submitted that the decision in the case of R. Ramamurthi Iyer (supra) was at the stage of passing of the decree and not at an interim stage, as is the case at hand. It was urged that the nature and character of the suit property cannot be changed during the pendency of the suit and till rights of the parties are adjudicated. Reliance on the decision of the Supreme Court in the case of Maharwal Khewaji Trust (supra) on behalf of the Plaintiffs, does not advance the cause of the submission on behalf of the Plaintiffs as the Supreme Court has emphasized the principle of maintaining the status-quo during the pendency of the proceeding, urged Mr. Shah.
56. In the case of Maharwal Khewaji Trust (supra), the Supreme Court has observed that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and Vishal Parekar, PS 31/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc may further lead to multiplicity proceedings.
57. Ordinarily, the recourse to the provisions contained in sections 2 and 3 of the Partition Act, 1893 can be at the stage of a decree for partition. However, from the text of section 2 of the Partition Act, 1893 an inexorable and immutable rule that recourse to sections 2 and 3 of the Act is not permissible at an interim stage, cannot be deduced.
58. If upon consideration of all the circumstances, the Court is satisfied that, in a given case, a decree for partition might have been made, the Court can proceed to determine whether a case for exercise of discretion to order the sale of the suit property is made out. Therefore, the resistance on behalf of the defendants that the stage is not ripe for considering the recourse to sections 2 and 3 of the Partition Act, 1893 does not merit acceptance, unreservedly. Undoubtedly, the change in the status-quo, the maintenance of which is the norm, until the adjudication of the rights of the parties, can be permitted only where a justifiable case of irreparable loss or irretrievable damage is made out. Whether the facts of the case at hand are such as to warrant exercise of such discretionary power ? Vishal Parekar, PS 32/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 :::
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59. An answer to the aforesaid question will hinge upon the considerations which inform the exercise of discretion under section 2 of the Partition Act, 1893, noted above. First and foremost, the nature of the suit properties. By and large, two factors appear to be rather incontestable. One, a substantial portion of the suit properties has been encroached upon. In the application, the Plaintiffs assert that there is encroachment by more than 20000 slum dwellers, with over 3700 tenements across the portions of Larger Andheri Property. Second, proceedings have been initiated for declaration of portions of Larger Andheri Property for rehabilitation of the slum dwellers under the Slum Act, 1971.
60. It is imperative to note that in an attempt to refute that the case of the Plaintiff's that the defendants did not take steps to challenge the acquisition proceeding or assert their right to redevelop the properties encroached upon by the slum dwellers, the defendants have placed on record the copies of appeals preferred before the Slum Tribunal assailing the acquisition (Exhibit A and to the affidavit in reply). It appears that in those appeals, the Plaintiffs and their predecessor in title also joined. (Implication of this wold be considered while determining the controversy as regards the disputed properties). To add to this, to the additional Vishal Parekar, PS 33/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc affidavit, the Plaintiffs have annexed a copy of the notification dated 29th June, 2024 wherein in exercise of the powers conferred by sub section (1) of Section 14 of the Act and clause (i) of Section 3D of the Slum Act, 1971, the Government made a declaration to acquire the properties including the disputed properties and Survey Nos. 401 and 401 (P).
61. The situation which thus obtains is that a large tract of the Larger Andheri Property has been encroached upon. The Proceedings have been initiated under the Slum Act, 1971 to acquire portions of Larger Andheri Property. Indeed the Plaintiffs and the defendants have assailed the acquisitions by resorting to the proceedings which they considered appropriate. It is common knowledge that where the property is encroached upon by slum dwellers, in a metropolis like Mumbai, where land commands a premium and there is also a legislative policy to protect the interest of the persons who happen to be slum dwellers and displaced, the factum of such large scale encroachment is a relevant consideration. It must weigh in, in determining whether the property can be reasonably and conveniently partitioned by metes and bounds.
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62. The topography of the Larger Andheri Property also deserves consideration. It is asserted that two big nallas flow across the land. Those nallas divide Larger Andheri Property into such sub plots as to render equitable division impracticable. The regulatory designations in the development plan and provisions for DP Road reservation for recreation ground etc. put further hindrances in the equitable division of Larger Andheri Property.
63. Mr. Shah the learned counsel for the defendants would urge that all the aforesaid difficulties are rooted in facts. At this stage, the claim of the Plaintiffs cannot be taken at its face value. It was urged that the report of Nadkarni & Co., Architects, will have to be tested at the trial. Mr. Shah further urged that the report of M/s. Shreeya Services Private Limited, Architects, appointed by the defendants, on the other hand, indicates that equitable partition of the Larger Andheri Property is possible. Therefore, at this stage, it cannot be said with certainty that it appears that partition of the Larger Andheri Property is not reasonably possible.
64. I have perused the reports of Nadkarni & Co., Architects and M/s. Shreeya Services Private Limited, Architects. It is true, at this stage, the Court may not be equipped to give precedence to one Vishal Parekar, PS 35/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc report over another. However, the factors which are taken into account by respective Architects, can be examined. In the report dated 1st March, 2024, Nadkarni & Co., has culled out the factors which, in their opinion, render an equitable sub division of the Larger Andheri Property or the disputed property, not possible. The conclusions read as under:
44) As described above, the proposed development plan roads divide the Larger Property as well s the Truncated Property into five sub-plots of varying sizes. The existing nallas further sub-
divide two of the sub-plots in the Larger Property and one of the sub-plots in the Truncated Property into two parts of varying sizes. Thus the Larger Property is divided into seven parts of varying sizes by the proposed development plan roads and the existing nallas, while the Truncated Property is divided into six parts of varying sizes by the proposed development plan roads and the existing nallas.
45) As also described above, the sub-plots created out of the Larger Property and the Truncated Property are affected by a number of factors viz. Development plan reservation for Garden/ Park (ROS 1.5), co-operative housing societies formed by the slum-dwellers, existing tabelas (cattle sheds) and highway buffer zones. The areas affected by these factors vary significantly from sub-plot to sub-plot, and also overlap each other in varying proportions, resulting in significant difference in the FSI permissible and consumable on each of the sub-plots.
46) Moreover, the height restrictions that would be imposed by the Civil Aviation Authority combined with the sloping nature of the Larger Property and the Truncated Property would result in further difficulty in consumption of FSI thereon.
47) Due to the above reasons, an equitable sub-division of the Larger Property or the Trucated Property into two parts would not be possible. Any sub-division of the Larger Property or the Truncated Property will divide such property in an inequitable manner and one of the parties would have to accept the less than equitable portion out of the Larger Property or the Truncated Property.
65. In contrast, in its report, M/s. Shreeya Services Private Vishal Parekar, PS 36/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Limited, Architects, professed to propose an equitable distribution of the Larger Andheri Property. The special circumstances associated with the property on account of large scale encroachment by the slum dwellers, existence of large cattle sheds (tabelas), the effect brought about by the passing of nallas, the division of the Larger Andheri Property as well as disputed property into plots on account of passing of nallas, reservation of lands for DP roads and other designations and overall situation of the lands so as to afford equitable partition of the property from the perspective of economic viability and development potential, does not seem to have been adequately weighed in by M/s. Shreeya Services Private Limited, Architects.
66. At this juncture, the fact that there is no dispute about the character of the undisputed joint family properties (as claimed by the defendants) assumes decisive significance. With the encroachment of the properties and the resultant litigation as well as the vicissitudes of fortunes of litigation, having regard to the numerous stake holders involved therein, the possibility of the parties succeeding in obtaining actual physical possession of a substantial part of Larger Andheri Property appears remote. Conversely, if the properties are not redeveloped by the owners by Vishal Parekar, PS 37/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc resorting to the provisions contained in the Slum Act, 1971, there is an imminent possibility of those properties being acquired by the State Government under the provisions of Slum Act, 1971. It need not be emphasized that compensation to be awarded under the Slum Act, 1971 to the owner of the property can never be commensurate with the development potential of the lands, in a city like Mumbai.
67. In this view of the matter, the submission on behalf of the Plaintiffs that allowing the status-quo to continue may cause irreparable loss to both the Plaintiffs and the defendants, can not be brushed aside lightly. If the other factors which impede the equitable distribution of the properly, adverted to above, are considered in juxtaposition with the large scale encroachment of the subject property, in my considered view, a justifiable case for exercise of the discretion under sections 2 and 3 of the Partition Act, 1893 so far as the undisputed joint family properties (out of Larger Andheri Property) can be said to have been made out.
68. As regards the disputed properties i.e. properties bearing CTS Nos.397, 397/A and CTS No.397/1 to 284, the Plaintiffs seek to draw support to their claim that the disputed properties form part of the property of M/s. RJ Constructions (of which deceased Vishal Parekar, PS 38/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc Jaysukhlal Bhuta and Ramnikhlal Bhuta were the partners) from the purported admission on the part of defendants and the predecessor in title of the defendants. It was submitted that there are documents of unimpeachable character which record such clear and explicit admissions. Since these are the admissions in pleadings, the Plaintiffs assert, they stand on a higher pedestal and can thus form the basis of an adjudication.
69. Reliance was placed on the copies of the judgments in Appeal No. 31 of 1981 (Exhibit 3) and Appeal No. 13 of 1986 (Exhibit 4) delivered by the Maharashtra Slum Tribunal under section 4(3) of the Slum Act, 1971, jointly preferred by Jaysukhlal and Ramnikhlal Bhuta and their successors in interest in respect of the properties bearing CTS Nos.397, 397/A and CTS No.397/1 to 284, respectively. The Plaintiffs were shown as the owners of the said property along with the predecessor in title of the defendants. Secondly, the Deed of Partnership dated 30th March, 1972 between Jaysukhlal and Ramnikhlal clearly records that Ramnikhlal Bhuta had agreed to bring in the property situated at Andheri which was then valued at Rs. 5 lakh in the partnership as his capital.
70. To bolster up the submission that the disputed property was Vishal Parekar, PS 39/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc the property of the firm, reliance was placed on the Development Agreement dated 2nd July, 2004 wherein it was, inter alia, recorded that, Ramnikhlal had acquired the subject properties bearing CTS Nos. 397, 397/A and CTS No.397/1 to 284 and under the partnership dated 30th March, 1972 brought the said property as his capital in the partnership firm and thereupon both Ramnikhlal and Jaysukhlal acquired the ownership over the said property. Attention of the Court was also invited to the copy of the plaint in Suit No. 3179 of 2024 wherein it was asserted that Ramnikhlal and Jaysukhlal Bhuta were the partners of M/s. RJ Constructions, a partnership firm, and they owned the property bearing Survey Nos.
397. Ramnikhlal Bhuta had brought the said property into the partnership firm and thus the Plaintiffs became the owners of the said property.
71. Mr. Godbole, the learned Senior Advocate for the Plaintiffs, strenuously submitted that in the face of the aforesaid documents, it can hardly be contested that the disputed properties form part of the property of the partnership firm, M/s. RJ Constructions. Once there is material to show that the properties were brought in the stock of the firm, the manner in which the properties become the firm's property looses significance. Since both the partners have Vishal Parekar, PS 40/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc passed away and the parties are ad idem that M/s. RJ Constructions the firm, is required to be dissolved, the first step towards settlement of accounts would be disposal of the property of the firm. To this end, Mr. Godbole, placed a heavy reliance on the decision of the Supreme Court in the case of S.V.Chandra Pandian (supra).
72. In the said case, Supreme Court after tracing the legal position, enunciated that, "regardless of its character the property brought into the stock of a firm or acquired by a firm during its subsistence for the purposes and in the course of its business shall constitute the property of the firm unless the contract between the partners provides otherwise. On the dissolution of the firm each partner becomes entitled to his share in the profits, if any, after the accounts are settled in accordance with section 48 of the Partnership Act. The mode of settlement of accounts set out in section 48 clearly indicates that the partnership asset in its entirety must be converted into money and from the pool the disbursement has to be made as set out in clause (a) and sub- clauses (i), (ii) and (iii) of clause (b) and thereafter if there is any residue that has to be divided among the partners in the proportions in which they were entitled to a share in the profits of the firm."
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73. Mr. Shah, the learned Senior Advocate, joined the issue by canvassing a submission that the question as to whether the disputed properties belong to M/s. RJ Constructions, the partnership firm or the defendants exclusively, can only be decided at the trial based on evidence. The institution of the suit to remove the encroachment over the property or appeal under section 4(3) of the Slum Act, 1971 claiming that either M/s. RJ Constructions or both the Plaintiffs and Defendants were the owners of the disputed properties cannot have determinative significance. As there is a dispute inter se Plaintiffs and Defendants over the ownership of the property and the Defendants have instituted independent suit claiming exclusive ownership over the disputed properties, the issue can not be decided sans evidence. Mr. Shah submitted that whether the reciprocal premises under the Partnership Deed were fully performed so as to divest the exclusive ownership of Ramnikhlal in the disputed properties, is also a matter which warrants consideration.
74. Admissions, if true and clear, are considered to be the best proof of the facts admitted. It is also well recognized that the admissions in pleadings or judicial admissions made by the parties stand on a higher footing than evidentiary admissions. Such judicial Vishal Parekar, PS 42/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc admissions can be made the foundation of the rights of the parties. In contrast, evidentiary admissions which are receivable at the trial as evidence are, by themselves, not conclusive. They can be shown to be wrong. (Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram And Ors.10).
75. In the case at hand, prima facie, it appears that the fact that the disputed properties were originally acquired by Ramnikhlal Bhuta appears incontestable. The claim of joint ownership over the disputed properties rests on the premise that Ramnikhlal had brought the disputed properties in the partnership as a partnership stock. The Deed of Partnership (Exhibit 99) inter alia records that the parties had agreed that Ramnikhlal who owned the Property at Andheri, then valued at Rs. 5 lakh, shall bring the same in the partnership firm as his capital and thereupon the value thereof shall be credited in the capital account of Ramnikhlal, the first partner in the books of partnership as the capital brought by him.
76. The Plaintiffs want the Court to believe that the subsequent Deed and pleadings referred to above indicate that the said exercise was done and the disputed properties bearing CTS Nos.397, 397A, 397/1 to 284 assumed the character of the property of the firm. 10 1974(1) SCC 242.
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ia-2685-2023.doc Whether the disputed properties were impressed with the character of the properties of the partnership firm, would turn on the compliance of the reciprocal promises as indicated above and the adjustment of the accounts of the partners. There is, in my considered view, an element of controversy as to whether Ramnikhlal Bhuta was divested of the exclusive ownership in consideration of the other partner contributing capital to the partnership firm, as agreed. In the peculiar facts of the case, in my view, the said question cannot be determined on the basis of the pleadings in the proceedings instituted by M/s. RJ Constructions or the Plaintiffs and the Defendants jointly for recovering the possession of the encroached properties. It would be in the fitness of things to leave the said question for decision upon appreciation of evidence.
77. The upshot of aforesaid consideration is that so far as the undisputed joint family properties, the Court does not find any impediment in ordering the sale of those properties even at this stage as such sale appears to be for the benefit of both the parties. However, as regards the disputed properties, the Court considers it appropriate to defer the decision to the final disposal of the suit. Vishal Parekar, PS 44/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 :::
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78. This propels me to the appropriateness of the modalities of sell suggested on behalf of the Plaintiffs. In a sense, the Plaintiffs have reckoned base price of the Larger Andheri Property at Rs. 165 Crores, and proposed inter se bidding by the Plaintiff and Defendants so as to bye out the other party. Mr. Godbole submitted that the Court may devise any other method which protects the interest of both the parties.
79. Mr. Shah, learned counsel for the Defendants, would, however, urge that the modality of the sale suggested by the Plaintiffs is neither just nor equitable. On the one hand, the valuation is too low. On the other hand, the entire exercise is actuated by a desire to usurp the property by taking undue advantage of the situation.
80. Prima facie, the mode of sale suggested by the Plaintiffs especially determination of the sale price by inter se bidding does not merit countenance. It is imperative to note that under sub section (1) of section 3, whenever a shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court is enjoined to order a valuation of shares, in such a manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained. If two or more shareholders Vishal Parekar, PS 45/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court. Under section 6 of the Partition Act, 1893, every sale under section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think fit and may be varied from time to time. Sub section (2) of Section 6 gives liberty to the shareholders to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase-money or any part thereof instead of paying the same as to the Court may seem reasonable. Section 8 of the Partition Act provides that any order for sale made by the Court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, 1908.
81. If the discretionary power vested in the Court under the Partition Act, 1893, is construed in the light of the object of the Act, 1893, adverted to above, it becomes abundantly clear that that the privilege to buy the share of the co-owner (of the property), can not be exercised in an oppressive manner. The determination of reserved price by the Court is a measure to ensure that the property is sold at an optimum price.
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82. In a situation like the present one, where the property is huge, encumbered with encroachments and associated disadvantages, the proper course would be to have the sale by a public auction, where the true market price of the property is discovered, albeit, by giving the parties an option to bid in the said public auction without deposit of earnest money.
83. The ad-hoc base price, as suggested by the Plaintiffs, cannot be the basis of sale nor can the bidding be restricted to the parties. Undoubtedly, the parties will have the right to match the offer made by a stranger purchaser in the auction sale and, thereafter the parties may bid inter se if they wish to, over and above the said price discovered in the public auction.
84. For the foregoing reasons, I am inclined to partly allow the instant application in respect of undisputed joint family properties out of the Larger Andheri Property.
Hence, the following order.
ORDER 1] The application sands partly allowed.
2] It is hereby declared that the Plaintiffs are the exclusive owners Vishal Parekar, PS 47/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc of the properties bearing CTS Nos. 402 and 402/1. 3] The prayer to direct the sale of disputed properties i.e. CTS Nos.397, 397A, 397/1 to 284 stands rejected.
4] The prayer to direct the sale of undisputed joint family properties (out of 'Larger Andheri Property') i.e. properties bearing CTS Nos. 401, 404/A/1, 404/A/2, 404/1 to 39, 422, 422/1 to 15 stands allowed subject to the following conditions:
(a) The Court Receiver, High Court, Bombay is appointed to conduct the sale of afore-described undisputed joint family properties.
(b) M/s. Shetgiri and Associates, Architects is appointed to assess the value of the afore-described properties and submit a valuation report to the Court within a period of six weeks so as to determine the reserve price.
(c) The Court Receiver shall submit a report to the Court, after receipt of the valuation, indicating the terms and conditions of sale, which may include:
(i) The sale shall be on "As Is Where Is" and "Whatever There Is" basis.
(ii) The sale shall be by public auction.
(iii) The parties shall be at liberty to participate in the bidding without deposit of earnest money and they shall have the right to match the highest bid submitted by the stranger purchaser and, thereafter, Vishal Parekar, PS 48/49 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:32:22 ::: ia-2685-2023.doc the parties shall be entitled to bid inter se over and above the price offered by the stranger purchaser, if any, in the auction sale.
(d) In the event the sale is confirmed, the Court may pass appropriate orders regarding the disposal and distribution of the sale proceeds.
5] Application disposed.
6] Costs in cause.
(N.J.JAMADAR, J.)
1. At this stage, Mr. Shailesh Shah, the learned Senior Advocate for the Defendants seeks stay to the execution and operation of this order.
2. Since the Court has directed that the valuation report be obtained so as to determine the reserve price and the Architect appointed by the Court shall submit a valuation report within a period of six weeks, no prejudice is likely to be caused to the defendants as there is ample time to the defendants to move the appeal court.
3. Oral application for stay thus stands rejected.
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