1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2208 OF 1987 SUIT NO. 2208 OF 1987 SUIT NO. 2208 OF 1987 1A. MISS JANKI BHOJRAJ MAKHIJA ) 1A. MISS JANKI BHOJRAJ MAKHIJA ) 1A. MISS JANKI BHOJRAJ MAKHIJA ) of Bombay Indian Inhabitant ) of Bombay Indian Inhabitant ) of Bombay Indian Inhabitant ) the Sole Executrix of the Last ) the Sole Executrix of the Last ) the Sole Executrix of the Last ) Will and Testament of the ) Will and Testament of the ) Will and Testament of the ) Plaintiff No.1 residing at ) Plaintiff No.1 residing at ) Plaintiff No.1 residing at ) 62-A, Collector Colony, ) 62-A, Collector Colony, ) 62-A, Collector Colony, ) Chembur Colony, Bombay 400 074. ) Chembur Colony, Bombay 400 074. ) Chembur Colony, Bombay 400 074. ) 2. MISS MOHINI BHOJRAJ MAKHIJA, ) 2. MISS MOHINI BHOJRAJ MAKHIJA, ) 2. MISS MOHINI BHOJRAJ MAKHIJA, ) 3. MISS SAVITRI BHOJRAJ MAKHIJA ) 3. MISS SAVITRI BHOJRAJ MAKHIJA ) 3. MISS SAVITRI BHOJRAJ MAKHIJA ) Plaintiffs No.1 to 3 all of ) Plaintiffs No.1 to 3 all of ) Plaintiffs No.1 to 3 all of ) Bombay Indian Inhabitants ) Bombay Indian Inhabitants ) Bombay Indian Inhabitants ) residing at 62-A, Collector ) residing at 62-A, Collector ) residing at 62-A, Collector ) Colony, Chembur Colony, ) Colony, Chembur Colony, ) Colony, Chembur Colony, ) Bombay 400 074. )..PLAINTIFFS Bombay 400 074. )..PLAINTIFFS Bombay 400 074. )..PLAINTIFFS VERSUS VERSUS VERSUS 1. LACHHMADAS BHOJRAJ MAKHIJA, ) 1. LACHHMADAS BHOJRAJ MAKHIJA, ) 1. LACHHMADAS BHOJRAJ MAKHIJA, ) 2 2A. SMT. VANDANA wd/o NARAYAN BHOJRAJ ) 2A. SMT. VANDANA wd/o NARAYAN BHOJRAJ ) 2A. SMT. VANDANA wd/o NARAYAN BHOJRAJ ) Makhija, of Bombay Indian ) Makhija, of Bombay Indian ) Makhija, of Bombay Indian ) Inhabitant, the Sole heir and ) Inhabitant, the Sole heir and ) Inhabitant, the Sole heir and ) legal representative of the ) legal representative of the ) legal representative of the ) defendant No.2, since deceased, ) defendant No.2, since deceased, ) defendant No.2, since deceased, ) residing at 62-A, Collector ) residing at 62-A, Collector ) residing at 62-A, Collector ) Colony, Chembur Colonhy, ) Colony, Chembur Colonhy, ) Colony, Chembur Colonhy, ) Bombay 400 074. ) Bombay 400 074. ) Bombay 400 074. ) 3. ARJUN BHOJRAJ MAKHIJA ) 3. ARJUN BHOJRAJ MAKHIJA ) 3. ARJUN BHOJRAJ MAKHIJA ) 4. MISS GANGA BHOJRAJ MAKHIJA ) 4. MISS GANGA BHOJRAJ MAKHIJA ) 4. MISS GANGA BHOJRAJ MAKHIJA ) 5. MISS JANKI BHOJRAJ MAKHIJA ) 5. MISS JANKI BHOJRAJ MAKHIJA ) 5. MISS JANKI BHOJRAJ MAKHIJA ) 6. MISS GOPI BHOJRAJ MAKHIJA ) 6. MISS GOPI BHOJRAJ MAKHIJA ) 6. MISS GOPI BHOJRAJ MAKHIJA ) 7. SHYAM BHOJRAJ MAKHIJA, ) 7. SHYAM BHOJRAJ MAKHIJA, ) 7. SHYAM BHOJRAJ MAKHIJA, ) Defendants No. 1 to 7, all of ) Defendants No. 1 to 7, all of ) Defendants No. 1 to 7, all of ) Bombay Indian Inhabitants ) Bombay Indian Inhabitants ) Bombay Indian Inhabitants ) residing at 62-A, Collector Colony,) residing at 62-A, Collector Colony,) residing at 62-A, Collector Colony,) Chembur Colony, Bombay 400 074,and ) Chembur Colony, Bombay 400 074,and ) Chembur Colony, Bombay 400 074,and ) 8. SMT. SUSHILA widow of ) 8. SMT. SUSHILA widow of ) 8. SMT. SUSHILA widow of ) Ramchand Bhojraj Makhija of Bombay ) Ramchand Bhojraj Makhija of Bombay ) Ramchand Bhojraj Makhija of Bombay ) Indian Inhabitant, the sole )_ Indian Inhabitant, the sole )_ Indian Inhabitant, the sole )_ heir & legal representative of ) heir & legal representative of ) heir & legal representative of ) Defendant No.8, since deceased ) Defendant No.8, since deceased ) Defendant No.8, since deceased ) residing at Laxmi Colony at ) residing at Laxmi Colony at ) residing at Laxmi Colony at ) Chembur, Bombay 400 074. Chembur, Bombay 400 074. Chembur, Bombay 400 074. 9. MRS. JYOTI PRAKASH ASWANI, ) 9. MRS. JYOTI PRAKASH ASWANI, ) 9. MRS. JYOTI PRAKASH ASWANI, ) 3 an Adult, Indian Inhabitant, ) an Adult, Indian Inhabitant, ) an Adult, Indian Inhabitant, ) residing at 709, Sun-Cop, Hsg. ) residing at 709, Sun-Cop, Hsg. ) residing at 709, Sun-Cop, Hsg. ) Society, Four Bunglows, ) Society, Four Bunglows, ) Society, Four Bunglows, ) Andheri (West), Bombay. )..DEFENDANTS Andheri (West), Bombay. )..DEFENDANTS Andheri (West), Bombay. )..DEFENDANTS Mr. S.N.Vaishnawa i/b. N.M.Vaishnawa & Co. for Mr. S.N.Vaishnawa i/b. N.M.Vaishnawa & Co. for Mr. S.N.Vaishnawa i/b. N.M.Vaishnawa & Co. for Plaintiffs. Plaintiffs. Plaintiffs. Mr. H.K.Vazirani for Defendants Nos.1 & 2A. Mr. H.K.Vazirani for Defendants Nos.1 & 2A. Mr. H.K.Vazirani for Defendants Nos.1 & 2A. Mr. V.M.Talreja for Defendant No.3. Mr. V.M.Talreja for Defendant No.3. Mr. V.M.Talreja for Defendant No.3. CORAM: S.K.SHAH,J. CORAM: S.K.SHAH,J. CORAM: S.K.SHAH,J. JUDGMENT RESERVED ON 26.9.2006. JUDGMENT RESERVED ON 26.9.2006. JUDGMENT RESERVED ON 26.9.2006. JUDGMENT PRONOUNCED ON: 04.10.2006. JUDGMENT PRONOUNCED ON: 04.10.2006. JUDGMENT PRONOUNCED ON: 04.10.2006. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The Plaintiffs have filed the suit for 1. The Plaintiffs have filed the suit for 1. The Plaintiffs have filed the suit for appointment of an Administrator in respect of the appointment of an Administrator in respect of the appointment of an Administrator in respect of the assets, moveable and immovable, left by the deceased and assets, moveable and immovable, left by the deceased and assets, moveable and immovable, left by the deceased and for direction to give accounts of all the assets. for direction to give accounts of all the assets. for direction to give accounts of all the assets. . Deceased, Laxmibai, is the widow of Bhojraj Makhija. . Deceased, Laxmibai, is the widow of Bhojraj Makhija. . Deceased, Laxmibai, is the widow of Bhojraj Makhija. The Plaintiffs Nos. 2 and 3 and the Defendants Nos. The Plaintiffs Nos. 2 and 3 and the Defendants Nos. The Plaintiffs Nos. 2 and 3 and the Defendants Nos. 4,5 and 6 are the sons of deceased Bhojraj. Defendant 4,5 and 6 are the sons of deceased Bhojraj. Defendant 4,5 and 6 are the sons of deceased Bhojraj. Defendant No.9, who was subsequently added as party, is the No.9, who was subsequently added as party, is the No.9, who was subsequently added as party, is the granddaughter of Bhojraj. The original plaintiff Nos.1, granddaughter of Bhojraj. The original plaintiff Nos.1, granddaughter of Bhojraj. The original plaintiff Nos.1, 4 3, Defendant No.6 and Defendant No.7 have expired during 3, Defendant No.6 and Defendant No.7 have expired during 3, Defendant No.6 and Defendant No.7 have expired during the pendency of the suit, each leaving Will bequeathing the pendency of the suit, each leaving Will bequeathing the pendency of the suit, each leaving Will bequeathing the property that may fall to their share. the property that may fall to their share. the property that may fall to their share. . Bhojraj Makhija expired on 18.5.1967. He hailed from . Bhojraj Makhija expired on 18.5.1967. He hailed from . Bhojraj Makhija expired on 18.5.1967. He hailed from Pakistan. There he was employed in a Port Trust at Pakistan. There he was employed in a Port Trust at Pakistan. There he was employed in a Port Trust at Karachi. After his retirement and after partition, he Karachi. After his retirement and after partition, he Karachi. After his retirement and after partition, he migrated to India in 1947 along with his children. migrated to India in 1947 along with his children. migrated to India in 1947 along with his children. After retirement, he had received certain retirement After retirement, he had received certain retirement After retirement, he had received certain retirement benefits. benefits. benefits. . The Plaintiffs allege that after migration, Bhojraj . The Plaintiffs allege that after migration, Bhojraj . The Plaintiffs allege that after migration, Bhojraj acquired a piece of land in Chembur upon which he put up acquired a piece of land in Chembur upon which he put up acquired a piece of land in Chembur upon which he put up a structure and started residing therein along with the a structure and started residing therein along with the a structure and started residing therein along with the members of his family, viz. Plaintiffs and the members of his family, viz. Plaintiffs and the members of his family, viz. Plaintiffs and the Defendants. The said house situates at 62-A, Collector Defendants. The said house situates at 62-A, Collector Defendants. The said house situates at 62-A, Collector Colony,Chembur Colony, Bombay 400 074. During his Colony,Chembur Colony, Bombay 400 074. During his Colony,Chembur Colony, Bombay 400 074. During his lifetime, he also acquired a piece of land for the lifetime, he also acquired a piece of land for the lifetime, he also acquired a piece of land for the purpose of setting up of a business in the name of his purpose of setting up of a business in the name of his purpose of setting up of a business in the name of his elder son, Bhagwandas and later got the business elder son, Bhagwandas and later got the business elder son, Bhagwandas and later got the business transferred to his own name in the Government records. transferred to his own name in the Government records. transferred to his own name in the Government records. The said piece of land was Plot No.1803(3-D) situate at The said piece of land was Plot No.1803(3-D) situate at The said piece of land was Plot No.1803(3-D) situate at adjacent to the old Barrack, newly numbered as 064009 adjacent to the old Barrack, newly numbered as 064009 adjacent to the old Barrack, newly numbered as 064009 R.C.C. Barrack No.7, situate at Chembur Colony, R.C.C. Barrack No.7, situate at Chembur Colony, R.C.C. Barrack No.7, situate at Chembur Colony, Chembur, Bombay - 400 074. The Plaintiffs allege that Chembur, Bombay - 400 074. The Plaintiffs allege that Chembur, Bombay - 400 074. The Plaintiffs allege that the deceased Bhojraj had constructed on the said plot the deceased Bhojraj had constructed on the said plot the deceased Bhojraj had constructed on the said plot and carried on business in the name and style of and carried on business in the name and style of and carried on business in the name and style of 5 "Makhija Stores" near Netaji Market Main Road, Chembur "Makhija Stores" near Netaji Market Main Road, Chembur "Makhija Stores" near Netaji Market Main Road, Chembur Colony. They allege that the said business was a Colony. They allege that the said business was a Colony. They allege that the said business was a proprietory concern of the deceased Bhojraj. Deceased proprietory concern of the deceased Bhojraj. Deceased proprietory concern of the deceased Bhojraj. Deceased Bhojraj was assisted by his sons, including Defendant Bhojraj was assisted by his sons, including Defendant Bhojraj was assisted by his sons, including Defendant Nos. 1 to 3 and 7 and 8. The business was that of Nos. 1 to 3 and 7 and 8. The business was that of Nos. 1 to 3 and 7 and 8. The business was that of General Stores which continues till today. The shop General Stores which continues till today. The shop General Stores which continues till today. The shop consisted of ACC Sheets and was assessed for the rent consisted of ACC Sheets and was assessed for the rent consisted of ACC Sheets and was assessed for the rent purpose at Rs.36/- per month and the rateable value was purpose at Rs.36/- per month and the rateable value was purpose at Rs.36/- per month and the rateable value was Rs.375/- per annum. Rs.375/- per annum. Rs.375/- per annum. . Bhojraj died in Bombay on 18.5.1967, leaving behind . Bhojraj died in Bombay on 18.5.1967, leaving behind . Bhojraj died in Bombay on 18.5.1967, leaving behind the house, shop premises and the business of Makhija the house, shop premises and the business of Makhija the house, shop premises and the business of Makhija Stores. The Plaintiffs allege that the suit estate Stores. The Plaintiffs allege that the suit estate Stores. The Plaintiffs allege that the suit estate after the death of Bhojraj belongs to all the Plaintiffs after the death of Bhojraj belongs to all the Plaintiffs after the death of Bhojraj belongs to all the Plaintiffs and the Defendants and have been administered jointly by and the Defendants and have been administered jointly by and the Defendants and have been administered jointly by Plaintiff No.1, Defendant No.1 and Defendants Nos.2 and Plaintiff No.1, Defendant No.1 and Defendants Nos.2 and Plaintiff No.1, Defendant No.1 and Defendants Nos.2 and 3. However, the accounts of the business were 3. However, the accounts of the business were 3. However, the accounts of the business were maintained only by the Defendant No.1. They allege that maintained only by the Defendant No.1. They allege that maintained only by the Defendant No.1. They allege that from out of the income of the business of Makhija from out of the income of the business of Makhija from out of the income of the business of Makhija Stores, the amount of Rs.1200/- per month was taken by Stores, the amount of Rs.1200/- per month was taken by Stores, the amount of Rs.1200/- per month was taken by the Plaintiff No.1 for herself and for other heirs and the Plaintiff No.1 for herself and for other heirs and the Plaintiff No.1 for herself and for other heirs and the entire amount was being utilised for the family the entire amount was being utilised for the family the entire amount was being utilised for the family expenses. They further allege that Defendant No.3 was expenses. They further allege that Defendant No.3 was expenses. They further allege that Defendant No.3 was taking a sum of Rs.500/- per month and was also taking a sum of Rs.500/- per month and was also taking a sum of Rs.500/- per month and was also contributing the same for family expenses. Defendant contributing the same for family expenses. Defendant contributing the same for family expenses. Defendant No.1 was withdrawing Rs.1300/- per month for his No.1 was withdrawing Rs.1300/- per month for his No.1 was withdrawing Rs.1300/- per month for his maintenance and contribution towards the family maintenance and contribution towards the family maintenance and contribution towards the family 6 expenses. This arrangement continued right upto expenses. This arrangement continued right upto expenses. This arrangement continued right upto August/September, 1986. August/September, 1986. August/September, 1986. . The Plaintiffs further allege that after Defendant . The Plaintiffs further allege that after Defendant . The Plaintiffs further allege that after Defendant No.1 got married in 1984, he got separated his No.1 got married in 1984, he got separated his No.1 got married in 1984, he got separated his kitchen from the Plaintiffs in August 1986 and kitchen from the Plaintiffs in August 1986 and kitchen from the Plaintiffs in August 1986 and thereafter completely stopped making the payments and thereafter completely stopped making the payments and thereafter completely stopped making the payments and started attempts to exclude the Plaintiffs and the other started attempts to exclude the Plaintiffs and the other started attempts to exclude the Plaintiffs and the other defendants from the administration of the estate of the defendants from the administration of the estate of the defendants from the administration of the estate of the deceased Bhojraj with effect from about September, 1986. deceased Bhojraj with effect from about September, 1986. deceased Bhojraj with effect from about September, 1986. As a result, the Defendant no.3 - Arjun went to Dubai As a result, the Defendant no.3 - Arjun went to Dubai As a result, the Defendant no.3 - Arjun went to Dubai for service. The Plaintiffs allege that they tried to for service. The Plaintiffs allege that they tried to for service. The Plaintiffs allege that they tried to persuade the Defendant No.1, but the Defendant No.1 had persuade the Defendant No.1, but the Defendant No.1 had persuade the Defendant No.1, but the Defendant No.1 had designs to deprive the Plaintiffs and the other designs to deprive the Plaintiffs and the other designs to deprive the Plaintiffs and the other defendants from their lawful share and dues in the defendants from their lawful share and dues in the defendants from their lawful share and dues in the estate of the deceased. The Defendants stopped showing estate of the deceased. The Defendants stopped showing estate of the deceased. The Defendants stopped showing books of accounts as also making monthly payments for books of accounts as also making monthly payments for books of accounts as also making monthly payments for the purpose of the family. Therefore, the Plaintiffs by the purpose of the family. Therefore, the Plaintiffs by the purpose of the family. Therefore, the Plaintiffs by their Advocate’s letter dated 5.2.1987, called upon the their Advocate’s letter dated 5.2.1987, called upon the their Advocate’s letter dated 5.2.1987, called upon the the Defendant no.1 to make payments and not to exclude the Defendant no.1 to make payments and not to exclude the Defendant no.1 to make payments and not to exclude the Plaintiffs from administration of the estate of the the Plaintiffs from administration of the estate of the the Plaintiffs from administration of the estate of the deceased Bhojraj. However, by his Advocate’s letter deceased Bhojraj. However, by his Advocate’s letter deceased Bhojraj. However, by his Advocate’s letter dated 21.2.1987, the Defendant no.1 falsely replied the dated 21.2.1987, the Defendant no.1 falsely replied the dated 21.2.1987, the Defendant no.1 falsely replied the Plaintiffs’ Advocate’s letter and claimed that the Plaintiffs’ Advocate’s letter and claimed that the Plaintiffs’ Advocate’s letter and claimed that the business of Makhija Stores was run by him as his business of Makhija Stores was run by him as his business of Makhija Stores was run by him as his proprietory concern alleging that he was paying rent of proprietory concern alleging that he was paying rent of proprietory concern alleging that he was paying rent of Rs.300/- per month to his father deceased Bhojraj. Rs.300/- per month to his father deceased Bhojraj. Rs.300/- per month to his father deceased Bhojraj. 7 Attempts of persuasion failed and, therefore, the Attempts of persuasion failed and, therefore, the Attempts of persuasion failed and, therefore, the Plaintiffs filed the aforesaid suit. Plaintiffs filed the aforesaid suit. Plaintiffs filed the aforesaid suit. 2. Defendants Nos. 3 to 6 and 8 and 9 have filed 2. Defendants Nos. 3 to 6 and 8 and 9 have filed 2. Defendants Nos. 3 to 6 and 8 and 9 have filed Written Statement supporting the case of the Plaintiffs. Written Statement supporting the case of the Plaintiffs. Written Statement supporting the case of the Plaintiffs. . The other defendants, except defendant No.1, The other defendants, except defendant No.1, The other defendants, except defendant No.1, have not filed any written statement. have not filed any written statement. have not filed any written statement. 3. Defendant No.1 resisted the suit by his Written 3. Defendant No.1 resisted the suit by his Written 3. Defendant No.1 resisted the suit by his Written Statement dated 8.3.1988. He contends that after having Statement dated 8.3.1988. He contends that after having Statement dated 8.3.1988. He contends that after having migrated in 1947, he had accompanied his father, migrated in 1947, he had accompanied his father, migrated in 1947, he had accompanied his father, deceased Bhojraj, to Karachi for certain recoveries to deceased Bhojraj, to Karachi for certain recoveries to deceased Bhojraj, to Karachi for certain recoveries to be made from the Port Trust. After return, a plot was be made from the Port Trust. After return, a plot was be made from the Port Trust. After return, a plot was obtained and the shop was constructed thereon by him but obtained and the shop was constructed thereon by him but obtained and the shop was constructed thereon by him but with the advice of his father Bhojraj. That shop was with the advice of his father Bhojraj. That shop was with the advice of his father Bhojraj. That shop was constructed somewhere in 1951. It is he who had started constructed somewhere in 1951. It is he who had started constructed somewhere in 1951. It is he who had started the business and was carrying on the said business in the business and was carrying on the said business in the business and was carrying on the said business in the name and style of Makhija Stores as its sole the name and style of Makhija Stores as its sole the name and style of Makhija Stores as its sole proprietor. He contends that his father Bhojraj had proprietor. He contends that his father Bhojraj had proprietor. He contends that his father Bhojraj had retired and was old enough, was helping him and advising retired and was old enough, was helping him and advising retired and was old enough, was helping him and advising him when necessary. He alone was managing the affairs him when necessary. He alone was managing the affairs him when necessary. He alone was managing the affairs of the business. He contends that his father had made of the business. He contends that his father had made of the business. He contends that his father had made every child well settled and got them good independent every child well settled and got them good independent every child well settled and got them good independent jobs for maintaining themselves. He further contends jobs for maintaining themselves. He further contends jobs for maintaining themselves. He further contends that he used to pay a sum of Rs.300/- per month to his that he used to pay a sum of Rs.300/- per month to his that he used to pay a sum of Rs.300/- per month to his father till he was alive as rent for the use and father till he was alive as rent for the use and father till he was alive as rent for the use and 8 occupation of the shop. He contends that various occupation of the shop. He contends that various occupation of the shop. He contends that various business and other documents that had been issued from business and other documents that had been issued from business and other documents that had been issued from time to time were issued in his name as proprietor of time to time were issued in his name as proprietor of time to time were issued in his name as proprietor of Makhija Stores. He himself used to pay the taxes. Makhija Stores. He himself used to pay the taxes. Makhija Stores. He himself used to pay the taxes. 4. It is further the contention of the Defendant 4. It is further the contention of the Defendant 4. It is further the contention of the Defendant No.1 that after his father expired in 1967, he has been No.1 that after his father expired in 1967, he has been No.1 that after his father expired in 1967, he has been continuously, exclusively and without obstruction and continuously, exclusively and without obstruction and continuously, exclusively and without obstruction and interruption from anyone has been in possession of the interruption from anyone has been in possession of the interruption from anyone has been in possession of the plot and the shop thereon for more than last 36 years plot and the shop thereon for more than last 36 years plot and the shop thereon for more than last 36 years and, therefore, by an adverse possession claimed and, therefore, by an adverse possession claimed and, therefore, by an adverse possession claimed exclusive right, title and interest therein. exclusive right, title and interest therein. exclusive right, title and interest therein. 5. With regard to the residential house/bungalow,