Tuesday, 8 November 2016

Whether in partition suit court can carve out only share of plaintiff?

The learned Judge was right when he proceeded on the assumption that the property continued to be with the joint family. It is on this basis, he rightly came to the conclusion that the plaintiff had approximately 1/3rd share in the property. But he was wholly in the error when he held that since there are no other pleadings on behalf of other co-owners, he could ignore their share. In a partition suit, every co-owner, whether a plaintiff or defendant, is as good as a plaintiff and no Court could say that only the share of the plaintiff would be carved out, and the rest of the owners should fight separate battle.
IN THE HIGH COURT OF BOMBAY
Appeal From Order No. 206 of 1988 in Special Civil Suit No. 230 of 1987
Decided On: 28.09.1988
 Vijaysingh Rajasingh Varma
Vs.
Vishinkumari Udaysingh Varma (Smt.) and Ors.
Coram:
Hosbet Suresh, J.

Citation: 1989 (2) Bom CR 139

1. One Rajasingh was the owner of several proporties in Bombay and Thane, out of which one property comprising of about 121 acres of land is si properties tuated at Majewadi, Thane. That is the subject matter of this appeal. Rajasingh died on December 12, 1971. He had two wives; one Laxmi who died in 1945 and the other Parvati. From his first wife he had a son and two daughters viz. Udaysingh (son) and Sushila and Ramavati (daughters). From his second wife also he had a son and two daughters viz. Vijaysingh (son) and Anita and Pramila (daughters). Udaysingh died on April 12, 1985 leaving behind his widow and 4 children. This suit has been filed by Vijaysingh as against the widow and the children of Udaysingh. Defendant No. 1 is the widow of Udaysingh and Defendant Nos. 2 to 5 are the children of Udaysingh. Defendant No. 8 is the mother of the plaintiff Defendant Nos. 9 and 10 are the sisters of the plaintiff while defendant Nos. 11 and 12 are the steps-sisters of the plaintiff i.e. direct sisters of Udaysingh. Defendant No. 6 is a partnership concern. Defendant No. 7 is said to be the person who has entered into an agreement with defendant No. 6 for the purpose of purchase and development of the suit property. Defendant No. 13 are the builders who have in turn entered into an agreement with defendant Nos. 6 and 7 for the purpose of development of a portion of the suit property.
2. The plaintiff instituted the suit in the Court of Civil Judge Senior Division, Thane, being Special Civil Suit No 230 of a declaration that the suit property is the self-acquired property belongs to the plaintiff and his mother exclusively. In the alternative he has prayed for a declaration that the plaintiff has 8/28 share in the suit property and consequently he has asked for partition and possession. In the further alternative he has asked for cancellation of certain documents whereby some time in September 1966 the property has been agreed to be sold to defended No. 6. There is also prayer in the further alternative that if the Court holds that there is a partnership, in that event the plaintiff and his mother would also have a share in the suit property. There are various other prayers for cancellations of certain documents some of which I shall presently deal with, to the extent it is necessary for the purpose of disposing of this appeal.
3. This suit was filled some time in the month of May 1987. Soon thereafter on May 29, 1987 the plaintiff made an application for grant of temporary injunction restraining defendant Nos. 1 to 7 and 13 from developing the suit properly and /or from in any manner acting in pursuance of certain agreements which defendant No. 6 etc. The prayer also included a prayer for injunction restraining the defendants from dealing with disposing of , alienating parting with possession of or creating any third party interest in respect of the suit property.
4. The learned Judge granted an ad-interim injunction as prayed for and thereafter posted the matter for hearing. In the ordinary course after completion of filling of all affidavits, the matter reached for final hearing before the learned Judge some time in January 1988. The learned Judge thereafter by an order dated January 27, 1988 came to the conclusion that the plaintiff in any event had 1/3 share in the suit property and having come to that conclusion he passed an order which is impugned here viz. that the defendants are restrained from developing the property to the extend of 1/3rd undivided. share of the plaintiff in the suit property and vacated the order which was granted earlier to the extent of 2/3rd area of the suit property. The plaintiff filed this appeal against the said order. So also defendant Nos. 1 to 7 and 13 filed an appeal against the same order on the ground that the learned Judge could not have passed an order restraining them form developing to extent of 1/3rd area of the suit property. That appeal is Appeal From Order No. 210 of 1988. Similarly, Parvatibai, the mother of the plaintiff defendant No. 8 herein, was also advised to file an appeal being Appeal From Order No. 222 of 1988. All these three appeals can now be disposed of by this common order.
5. Briefly, the facts which are relevant for the purpose of deciding this appeal are as follows:
On or about September 15, 1966, deceased Rajasingh entered into a deed of partnership with son-Udaysingh and also with four others to constitute a firm known as "M/s. United Leech Corporation." The deed of partnership says that the business of the partnership shall be that of purchasing the suit property under an agreement entered into by the said firm on the same day with the owners of the property. It also says that the capital required by the partnership firm to the extent of Rs. 12,00,000/- for the purpose of purchasing the suit property shall be contributed by Rajasingh and his son Udaysingh. The remaining partners would bring in their capital after the property is purchased for the purpose of developing the suit land. The partnership further provides that after the property is purchased, on development of the land, while apportioning the net profit or loss of the partnership business, Rajasingh and Udaysingh would be entitled to recoup initially the said sum of Rs 12,00,000/- as given by them for the purpose of the purchase of this property and thereafter the remaining profits shall be divided on certain percentage viz, Rajasingh and Udaysingh would altogether get 60% (i.e. 30% each) and the remaining four partners would get 10% each. It is not necessary for me to deal with the various other clauses excepting that there is clause which says that if any of the partner dies during the continuance of the partnership, the heirs and/or legal representative of such a deceased partner shall be taken as a partner in the place of the deceased-partner.
6. On the same day the said partnership entered into an agreement with Rajasingh, Udaysingh and also other members of the joint family for the purpose of purchase of the suit property for a sum of Rs. 12,00.000/- The mode of payment was that initially a sum of Rs. 3,00,000/- was to be paid on the execution of the agreement. Then, a sum Rs. 1,00,000/- was to be paid on obtaining a sanction of the sale on behalf of the minor members of the said joint and undivided Hindu family, and the remaining amount of Rs. 3,00,000/- was to be paid on completion of the purchase of the property subject to certain other conditions and terms.
7. It appears that initially the said sum of Rs. 3,00,000/- was paid by Rajasingh and Udaysingh to themselves as out of this amount a mortgage loan of Rs. 2.40,000/- was to be cleared. Thereafter in the name of the firm a further sum of Rs. 3,00,000/- has been paid to the joint family, obviously by the head of the joint family. No further amount seems to have been paid to the joint family.
8. Pursuant to this agreement, an application was made in the High Court for the purpose of getting a sanction for the sale of the minors share which was granted some time in 1967. The plaintiff himself was a minor at that time. But what is significant is that no further steps whatsoever have been taken for the purpose of sale of the suit land to the said partnership concern, with the result the suit property continued to remain with the joint family.
9. The evidence shows that after the death of Rajasingh, Udaysingh as the senior most member of the said joint Hindu family, continued to be in possession of the suit property. In fact there is an admission on his part that the possession was with him even in 1976 and thereafter. He had stated on oath in certain earlier proceedings that he was not a partner, and the partners were only his financiers.
10. In 1971 Rajasingh died. However, nobody was brought on record in his place in the said partnership. In all probability the partnership as such was not functioning. At the same time the partnership was not dissolved. The situation ultimately enabled defendant No. 7 thereafter to enter into an agreement with defendant No. 6 on the strength of this partnership and the agreement for sale.
11. In the mean while the Urban Land (Ceiling and Regulation ) Act, 1976 came into force and Udaysingh was advised to make a declaration as required under the said Act which he did. It is significant that in all proceedings before the competent authority under the said
Act, Udaysingh did not disclose that there was any agreement with the United Leech Corporation. He also did not say, anywhere that the said partnership when the application was made, Udaysingh was still in possession and in his application he had disclosed that he had 1/5th share in the property. He had also disclosed the names of the other members of the undivided family including the plaintiff and parvati (defendant No. 8) saying that each one of them has 1/5th share in the property.
12. Thereafter on or about July 23, 1980 defendant No. 7 entered into an agreement with defendant No. 6 under which he agreed to develop the suit properly and he would pay a price calculated at the rate of Rs. 5.41/- per square feet of the floor space available in accordance with the exemption and /or no objection and/or permission which may be granted under the Urban Land (Ceiling and Regulation) Act 1976 for putting up buildings structure etc. Under the agreement, initially, on signing the agreement he had to pay Rs. 51,000/- and he had to pay a further sum of Rs. 10,00,000/- at or before the expiration of nine months from the date of the receipt of exemption or the permission for development or no paid by four equal six monthly installments and it says how the balance has to be paid. Apart from entering into an agreement and perhaps paying the earnest amount there is nothing to indicate as to what steps defendant No. 7 took for the purpose of developing the land. But of course he contends that it was he who made efforts to get the necessary assumption from the competent authority under the said Act in respect of the excess land. An exemption order came to be passed on or about March 29, 1984 whereby Udaysingh as the Karta of Hindu undivided family was given permission to construct houses for weaker sections of the society under section 21 of the Act. Across the Bar, it is argued that the Court should take judicial notice of the fact that such exemptions are not easily given unless a considerable amount is spent for which there can be no proof, A spacious plea in a corrupt society.
13. Thereafter there is a further agreement dated July 15, 1985 between defendant Nos. 6 and 7 which purports to say that there was delay in getting the necessary exemption and as a result of which there was a dispute between the parties which came to be settled and then the agreement was entered into Under this agreement defendant No. 7 was to pay, to the said partnership a lump sum of Rs. 90,00,000/- and again the mode of payment shows that they had already paid Rs. 51,000/- under the agreement and further a sum of Rs. 2.50,000/- and a further sum of Rs. 1,50,000/- and a further sum of Rs. 5,50,000/- have already paid in part consideration of this agreement on three different dates and the balance was to be paid again in four equal six monthly installments the first subsequent at or before the expiration of every six months thereafter. No development took place even after signing this agreement. In between there were various litigations. One Madhukar Bhoir and 34 others who claimed to be the tenants in respect of this property, had instituted certain proceedings in the Court of Civil Judge, Junior Division, Thane in the year 1977 as against the said partnership. Udaysingh and one other person. That suit came to be dismissed on or about October 24, 1983. These proceedings have been relied upon by the plaintiff to show that the said partnership firm was never in possession of the suit property during the period of this litigation.
14. Udaysingh died on April 12, 1985. On October 1, 1986 defendant Nos. 6 and 7 entered into an agreement with defendant No. 13 for the purpose of development of a part of the suit land. Under this agreement, defendant No. 13 had to pay a sum of Rs. 1,00,000/- on or before the execution of the said agreement and a sum of Rs. 49,00.000/- at or before the expiration of the six months from the date of the said agreement of defendant No 7. On payment of Rs. 50,00,000/- defendant No. 13 was to be put in possession. It is defendant No. 13's case that they have paid a sum of Rs. 60,00,000/- to defendant No. 7 and defendant No. 13 has been put in possession of a part of the property which has been described as Sectors 'A' and 'C' of the suit property. The amount has been calculated at the rate of Rs. 21,50/- per square feet of the floor space available for the development. In others words initially defendant No. 7 agrees to pay to the owners of the property at the rate of Rs. 5.41/- per square feet. He in turn enters into an agreement with defendant No. 13 whereby he would get the payment at the rate of Rs. 21.50/- per square feet. That is his profit. Thereafter defendant No. 13 would develop the property, construct buildings and sell them on ownership basis. That it the broad scheme of this agreement.
15. In between defendant Nos. 1 to 7 filed a special civil suit in the Court of Joint Civil Judge Thane being suit No. 64 of 1987 as against one Tulsiram N. Bhoir and 33 others for a declaration that these defendants have no right or authority to obstruct the plaintiffs (in that suit) with the work of filling up the land and with the work of construction of buildings on the said property etc. After filing the suit the plaintiff obtained an order of injunction dated February 7, 1987, which strained the defendants in that suit from obstructing the plaintiff from carrying out the work of filling and constructing in the said property. On February 10,1987 the defendants in the suit made an application for vacating and \or modifying the order of ad-interim injunction. On February 11, 1987 the order granted earlier on February 7, 1987 was stayed by the same learned Judge. In this suit the plaintiff herein and defendant No. 8 Parvatibai were not parties. They made an application February 17, 1987 to be joined as party defendants in that suit. That application was granted. By an order dated March 7,1987, the earlier order dated February 7, 1987 granting ad-interim injunction was confirmed. However the learned Judge continued the status quo which continued till about March 17, 1987 when the defendants in that suit as also the plaintiff herein, and the said Parvitabai (defendant No. 8 herein) preferred two appeals in the High Court being Appeal From Order No . 255 of 1987 and Appeal From Order No. 256 of 1987. In those proceedings an order was passed by khatri, J., on April 29, 1987, whereby the plaintiffs in that suit were permitted to till up a certain portion of the land and to bring it up to the level of the road on condition that the portion of the land shall be restored to its original condition by them if in the said Appeals from order., the order of the trial Court was reversed. Thereafter on or about August 12, 1987 the appeals were disposed of as they were not passed. But as regards the order dated April 29, 1987 which permitted filling up of the property by the plaintiffs in that suit a statement was recorded, by the High Court to the effect that defendant No. 7 herein had not carried on any development of the property since April 29,1987 and that an affidavit to that effect would be filed on or before August 18, 1987 whereupon the undertaking given by them would be discharged. I have referred to these facts to show that in fact, there could have been no development of the land or filing up of the land till about August 18, 1987.
16. In the meanwhile on the plaintiff filing the present suit, the Court granted an order of injunction dated May 29, 1987 which injunction restrained the defendants from developing the property and the order remained in force till January 27, 1988. Thereafter the present appeals have been preferred. Therefore, the simple question is as to whether there could have been any development of the property as such before filing these appeals so as to raise any equity in favour of defendant Nos. 7 and /or 13?
17. The learned Judge by his order case to the conclusion that the plaintiff had 1/3rd share in the property. It was an undivided share and therefore, having come to that conclusion he could not have permitted any development of the land by anyone. However, he felt that since the plaintiff alone has filed the suit claiming his share of the property and since there are no pleadings on behalf of other defendants viz., defendant Nos. 8 to 12, he could reserve his finding in respect of their claim and that is how he thought he could permit the development of 2/3rd of the area. Similarly, with regard to agreement dated September 15, 1966 whereby Rajasingh and Udaysingh and other members of the his family had agreed to sell the land to the partnership of United Leach Corporation, he again reserved his finding on these documents. In others words, it is clear that the partnership (defendant No. 6) had no right, title or interest at all in the suit property, so also there is nothing to indicate that the partnership was ever in possession of the suit property. The learned Judge was right when he proceeded on the assumption that the property continued to be with the joint family. It is on this basis, he rightly came to the conclusion that the plaintiff had approximately 1/3rd share in the property. But he was wholly in the error when he held that since there are no other pleadings on behalf of other co-owners, he could ignore their share. In a partition suit, every co-owner, whether a plaintiff or defendant, is as good as a plaintiff and no Court could say that only the share of the plaintiff would be carved out, and the rest of the owners should fight separate battle.
18. The learned Judge thereafter proceeds on an erroneous assumption that defendant Nos. 1 to 5 as also defendant Nos. 6,7 and 13 are in possession of the suit property of the suit property and that therefore, they could be permitted to develop this land. The fact remains that this was un-undeveloped land till almost the commencement of the litigation. On account of various orders which were all in force till August 1987, nobody could have developed this land. At the most there could have been filling up of he land to a certain extent. Therefore, since the property is an open land of the undivided joint family and if, prime facie, the co-sharers had their right in respect of the property, I cannot understand as to how any development can be permitted without the actual division of the property by metes and bounds.
19. Mr. Ajit P. Shah appearing for defendants Nos. 1 to 7, emphasised the fact that whatever be the portion, as to whether the partnership was in possession or not, whether Udaysingh was in
possession or not having obtained permission under the Urban Land (Ceiling and Regulation) Act, if the property is not allowed to be developed the whole exemption would be lost to the parties and, therefore, it is necessary with a view to keep the said exemption order alive, that the development should be permitted. He submitted that it is in the interest of all concerned that this development should not be hampered with by any order of the Court.
20. If the parties could agree to the development of the property, there is no problem at all. But if 2/3 owners of the property are not willing to any such development without consent, certainly they are entitled to object such unilateral development. Again, in the present case the development is not for and on behalf of the Hindu Undivided Family, but defendant No. 6, 7, and 13 claim an independent right for which there is no basis at all. They are as good as trespassers on the land the only object of theirs being to chimerically export the land for themselves.
21. Mr. J.I. Mehta for defendant No. 13 pointed out that if the exemption order had not been obtained the surplus land would have been acquired by the Government. In that event the Government would have acquired by the entire land for a sum of Rs. 2,00,000/- and odd. He further submitted that by virtue of the order of exemption, today the land is worth more than two corers of rupees. He submitted that this Joint Hindu undivided family had no capacity to develop this property. It is defendant No. 7 who succeeded in getting the exemption order from the Urban Land (Ceiling) authorities and it is defendant No. 7 with defendant No. 13 who are developing this property and if that is so that cannot be restrained by any order of the Court.
22. He did concede that there was an inherent defect in the order. The learned Judge has come to the conclusion that the share of the plaintiff is undivided. However, having regard to the order of exemption and having regard to the fact that the land has been divided into various sectors a portion of the land not exceeding the share of defendant Nos. 1 to 5 can be allowed to be developed and in that event the plaintiff would not suffer. He further emphasised the fact that even though there is no partition, ultimately, if he can be said to be an alien of the share of one of the co-owners and the property developed would be with in the share co-sharer would get there would be no prejudice to the other co-sharers. He pointed out that he has already given a sum of Rs 50,00,000/- to defendant No. 7. He has also spent a considerable amount of about Rs 15,00,000/- in filling up the land. Photographs have been produced before me to show as to how the work of filling up of the land was done. It appears that the land is described, in revenue records as "Pot- Kharaba", almost a waste land low lying by the side of the creek and therefore the land can be developed only by filling up which work has been done by defendant No. 13 It is on this basis he submitted that even if the suit property is liable to be partitioned, the equities between the parties will have to be worked out and in that event a blanket injunction will be inquisitions.
23. As against this both, Mr. Dhanuka as also Mr. Dada, who appear for the appellant and defendant No. 8 respectively, submitted that there is no equity in favour of defendant No. 7 or 13. Mr. Dhanuka, particularly pointed out that if one has regard for the earlier order dated April 29, 1987 passed by khatri J, and the order dated August 12, 1987 passed by Daud. J in the earlier proceedings it is clear that no development had taken place at all. By May 29, 1987 the plaintiff had filed a suit and obtained an order of injunction restraining the defendants from developing the property. If, therefore, knowing full well that litigation has been the instituted by the parties, the defendants continued to fill up the land, that cannot be taken into account. Mr. Dhanuka also submitted that the property has been transferred to defendant No. 6 the firm. The original firm had never functioned. After the death of Rajasingh the firm had completely changed in its composition and the agreement to sell dated September 15, 1966 could have has no reference or relevance to the present firm of defendant No. 6. So also defendant No. 7 has no title whatsoever and there can be no equity in favour of such persons. Mr. Dada submitted that giving permission to defendant No. 7 and defendant No. 13 to construct and sell would be giving them permission to dupe the public. In any event this is not a suit for specific performance by these defendants and there can be no question of permitting them to develop the plaintiff's suit for partition.
24. Therefore, the question is what qualities can there be in favour of defendant Nos. 7 and 13 I for one, find none in their favour. If defendants No. 7 has invested him money it is purely for commercial exploitation. He thought he could risk a litigations take this property and develop the same make profit and walk out from this property. So also defendant No. 13. Both Mr. Dhanuka as also Mr. Dada are right in their submission that if the development of the property is permitted in the present circumstances , that development would be without any lots of any right, title or interest in the property. The recitals of the agreement entered into by defendant Nos. 6 and 7 as also by defendant No. 13 with defendant Nos. 6 and 7 show that the parties who have entered into an agreement have no right title or interest in respect of the property. If there is no interest whatsoever in respect of this property and yet defendant Nos. 7 and 13 want to develop the property, it would only mean that they would ultimately commit a fraud on the public. The object of the Urban Land (Ceiling and Regulation) Act 1976 is to see that the surplus land goes to the benefit of the society at large the houseless and the needy. It is by and large for the State to acquire the same at a low price and build houses for those who have no roof over their heads. If a private owner houses for those who have no roof over their heads. If a private owner can be expected to construct houses for the weaker section, why not the State machinery, itself ? But unfortunately the law itself is so designed as to provide for exemption on the plea of the owner himself developing the land for the economically weaker section of the society. This provision is wholly misused by the Authorities concerned. It is this provision that has created such middlemen like defendant No. 7. It is this provision that has enabled defendant No. 7 to claim merit and virtue in him, in getting the exemption on spending a considerable amount. It is this provision that has created artificial inflation in the price of land. The exemption is in favour of Udaysing has the Karta of Hindu undivided family. But its sought to be exploited by builders, contractors and land-grabbers such as defendant Nos. 7 and 13, all to make money at the cost of the society, with little concern for the public or for that matter the object of the law.
25. Therefore, without any title whatsoever these defendants want to construct buildings and enter into agreements with various innocent purchasers of the flats and collect money, black and white and finally walk out of the property with no concern for any one. Neither in equity nor in law can any permission be given to them as that would be affixing the seal of this Court in their sinister design to exploit.
26. Now there are only two arguments which are left out, and which are only to be stated to be rejected. Firstly, Mr. Mehta submitted that the agreement dated September 15, 1966 together with the deed of partnership of the same date would show that the suit property had already been thrown in the hotch pot of the assets of the firm and therefore the property belonged to the firm of defendant No. 6. This submission finds no support in any of the affidavits. If the suit property had become the property of the firm that being a matter of fact there ought to have been an averment to that effect in the affidavits. Of course, there could not have been any such contention, as every document on record and the entire conduct of the parties were all against any such plea. The second contention is that there has been considerable delay on the part of the plaintiff in filling this suit and seeking the relief of injunction. Mr. Mehta says that the plaintiff had attained the age of majority in 1971 and he did were aware of defendant No. 7's agreement with defendant No. 6 in the year 1981 and he did not then rush to the Court. But why ? Defendant No 6 had no right title or interest whatsoever and if defendant No. 7 enters in to any such agreement why should the plaintiff rush to any Court ? It is only when defendant Nos. 6, 7 and 13 tried to fill up the land the plaintiff filed his suit. I find that there is no delay on the part of the plaintiff and defendant No. 8 that they were not aware of the terms of the agreements as such and on the other hand they had given public notice asserting their claim that the property belonged to the Hindu undivided family. In any event more delay is no ground to deny any equitable relief to a party. Delay must amount to leaches.
27. Mr. Dhanuka protested against the learned Judge observing in his judgement that "admittedly" defendant Nos. 6 and 7 and 13 are in possession of the suit property. He submitted that there is no such admission any where. On the other hand it is his case that it is the Hindu undivided family that is in possession of the suit property. I am inclined to agree with Mr. Dhanuk's
submission. The suit property is an open land -described in the revenue records as "Pot-Kharaba", Just because defendant No.13 fills up a part of the land with truck loads of mud, that too without any right whatsoever and without the consent of the co owners, it cannot be said that defendant No. 13 is in possession of the land. As far as defendant Nos. 6 and 7 are concerned there is not a little of evidence that they are in possession of the land.
In the result, I pass the following order :
Appeal is allowed.
The impugned order to the extent it vacates the order of injunction in respect of the 2/3rd area of the undivided property is set aside and in its place the following order is passed.
Defendants viz., respondent Nos. 1 to 7 & 13 are restrained from carrying on any filling or construction work on the suit property or in any manner disposing of the suit property or any thereof till the disposal of the suit.
I further direct that defendant Nos. 6, 7, and 13 shall pay the costs of this appeal in three sets: one set to the appellant second set to respondent No. 8 and third set to respondent Nos. 9 to 12.

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