1 nms.1829.2011-s.1366.2011.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1829 OF 2011 IN SUIT NO. 1366 OF 2011 Sarojkumar Nathmal Agarwal & Ors. ...Plaintiffs Vs. Sajjan Nathmal Agarwal & Ors. ...Defendants Mr. Hiralal Thacker, Sr. Advocate a/w. Ms. Nityoah Menta a/w Mr. Jay Mehta i/b. Nityoah Suneel & Assoc., for the Plaintiffs Mr. Yusuf Iqbal a/w. Mr. Neveine Majra i/b. Yusuf & Assoc., for Defendants 1,3,4 & 5 Mr. Birendra Saraf a/w. Ms. Pooja Kshirsagar i/b. Yogesh Adhia for Defendants 2,6 and 8 Mr. Gaurav Joshi i/b. IC Legal for Defendants 9 to 11 CORAM : SMT. ROSHAN DALVI, J. DATED : 23RD JUNE, 2011 P.C. : 1. Parties have filed affidavits including the affidavit in Sur-Rejoinder to this Notice of Motion and all Counsel state that the Notice of Motion can be disposed off upon the affidavits. Hence, the Notice of Motion is disposed off. 2. The suit is for partition of the properties and estates of the late Shivdanmal Rajbax Agarwal HUF. The Plaintiffs claim 1/3 rd share in the HUF properties. The Plaintiffs claim ancillary reliefs of disclosure of the estate and possession of the property. 2 nms.1829.2011-s.1366.2011.sxw 3. The HUF properties are described in the list Exhibit-B to the plaint. The list shows 8 immovable properties. 4. The Plaintiffs have relied upon a partial deed of partition dated 21 st January 1971, Exhibit-E to the plaint. Under that deed of partition the factum of HUF, for which there is a presumption in law is admitted. Several properties are partitioned between the three parties being the wife of late Shivdanmal Agarwal, one Ramkuribai and her two sons Gangaram and Nathmal. The properties in Schedule I to the partition deed came to the share of Ramkuribai. The properties in Schedule II came to the share of Gangaram. The properties in Schedule III came to the share of Nathmal. Consequently, these properties ceased to be the properties of the HUF though the HUF continued. 5. Whatever be the other properties of the HUF were not partitioned and hence continued to be the properties of the HUF, which continued. The suit is filed showing inter alia properties which went to the share of Ramkuribai. These properties were already partitioned. Hence the partition suit cannot be filed for partitioning the properties which were already partitioned. 6. Similar is the case with Schedule II in Exhibit-E, being the properties which went to the share of Gangaram. Property Nos. 6 and 7 in Exhibit-B, which are in Rajasthan went to the share of the father of the parties Nathmal. These are also sought to be again partitioned. 3 nms.1829.2011-s.1366.2011.sxw 7. In the Notice of Motion the Plaintiffs claim the relief of injunction in respect of property Nos.1 and 2 in Exhibit-B to the plaint. 8. Since they are shown to be already partitioned and went to the share of Ramkuribai as her absolute property as averred in paragraph 8 of the plaint, the Plaintiffs cannot claim partition of these properties or their 1/3 rd right therein upon such partition. 9. The Plaintiffs, however, have claimed under the Will of the Ramkuribai. The Will itself shows that she treated the property as her absolute property and dealt with it as such. Upon reliance of the Will itself also, the suit for partition for the same properties would not lie. Hence no relief of injunction can be granted in this Notice of Motion. 10.There shall be no order in the Notice of Motion and no order as to costs. (SMT. ROSHAN DALVI, J.)