1 NM-3412 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Notice of Motion No.3412 of 2007 IN Suit No.2545 of 2007 Halima Mohd. Siddique Farooqui & ors. .. Plaintiffs v/s. Kadir Yaqub Patrawala & ors. .. .. Defendants Mr.Rajiv Ravi i/by Bilawala & Co. for Plffs. Mr.Swapnil Bangur with Mr.Dipak Shukla i/by Vinod Mistry & Co. for Deft.Nos.7 to 11. Ms.Armin Wandrewala with Kanchan Shivkar i/by Gajaria & Co. for Deft. Nos.1, 2, 4 & 5. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 14th December, 2010 P.C. : 1.The suit is for administration of the estate of the deceased one Yacub M. Patrawala, who had married three wives and had 17 children through them. Two of the wives had pre-deceased the deceased. These wives had certain properties in their names. They died intestate. Those properties would devolve upon the deceased and their respective children. 2 NM-3412 2.The Plaintiffs have claimed the estate of the deceased which stood in the name of the deceased upon being acquired by the deceased as also part of the estate of the two pre-deceased wives which devolved upon the deceased by intestate succession to the extent of 25%. The deceased left behind one wife and the children of the three wives. The Plaintiffs are the children of two pre-deceased wives. The contesting Defendants essentially form two groups of children, one of the pre-deceased wife and the other wife who survived the deceased. 3.Several of the properties of the deceased are admitted. The relationship between the parties is admitted. The share that would devolve upon them is also essentially admitted. Hence in the admitted properties, each of these parties would have a specified share. Two contesting group of Defendants being Defendant Nos.1, 2, 4 and 5 and Defendant Nos.7 and 11 have tendered their own submissions/statements/comments/Minutes of the orders showing the admissions as regards the relationship and the extent of the share as also admissions with regard to some of the properties of the deceased which form the subject-matter of the suit. 4.The two statements in writing made by these two groups of the Defendants and signed by their Advocate on their 3 NM-3412 behalf are taken on record as admissions of the parties recorded upon which necessary orders required to be passed forthwith. 5.Upon such admissions, those properties mentioned in their statements are required to be divided and distributed amongst the heirs of the deceased to the extent of their admitted shares. A preliminary decree in that behalf, required to be passed under the provisions of Order XX Rule 18 of the Code of Civil Procedure, is accordingly passed. 6.The parties have been earlier directed to apportion the properties between themselves given the fact that there are various claimants to the extent of small portions of the property representing their share. That could be best done by working out options for taking some of the properties to the exclusion of the others to make out their approximate shares through mediation or negotiations between the parties. That has not been worked out. Hence the Commissioner for Taking Accounts would be required to be appointed and necessary directions in that behalf required to be given. Accordingly, the Commissioner for Taking Accounts is appointed. The Commissioner for Taking Accounts shall take each of the admitted properties mentioned in Exhibit-B to the Plaint or in the statement made by the 4 NM-3412 Plaintiffs Advocate for the sake of convenience and value the properties. Upon such valuation, the Commissioner for Taking Accounts shall partition and divide the properties by metes and bounds, if possible or by sale of the properties and distribution of the sale-proceeds in the ratio of the shares mentioned against each of the parties in the statements of the Defendants admitting their shares. Three properties mentioned in the Plaint are disputed. They have to be separately dealt with in this Notice of Motion and directions are required to be passed in respect of each of them. 7.Commercial Premises at Bellasis Road : These premises is 7500 sq. ft. in area. The deceased was a tenant thereof. The old premises has been redeveloped. The Plaintiffs claim share in the tenancy rights of the developed premises. The Defendants claim that the deceased had entered into a partnership with certain members of the family. The partnership ran in the name and style of M/s.Modern Enterprise. The partnership let out the premises on rent. 8.The Defendants have produced the original partnership deed. It is dated 23 rd February 2005. It is a partnership between seven members of the family. Each page of the partnership deed is initialed by the 5 NM-3412 deceased as well as others. The Plaintiffs dispute the execution of the partnership deed itself and contend that it was forged or got up document signed by the Defendants under the misrepresentation. To show the forgery and all misrepresentations, the Plaintiffs have drawn my attention to certain initials and signatures which appear to be different on each page. A look at pages do show the curve of the letter P of the surname of the deceased Patrawala to be narrow or broad at different places. However, the document is not required to be adjudged only upon eligibility or consistency of the signatures. Since the Defendants contend that the partnership was a running concern, the substantial evidence in that behalf would have essentially to be considered. The deceased executed a declaration on the very next day i.e. on 24 th February 2005. The declaration is also similarly initialed and signed. It mentions about the same premises. It shows the share of the deceased along with the others. It is in the nature of a Will. It inter alia declares that in the event of the death of the deceased, his 20% share would devolve upon his wife Mehfuja and 2% would be given to charity. This is out of 25% share of the deceased. This document is almost analogous to the partnership deed itself. If the deceased executed the partnership deed, he could have executed the declaration on the next day. If the deceased was made 6 NM-3412 to sign under a misrepresentation, the same would hold true of both the documents. The declaration is neither on a stamp paper nor is it registered. Hence the precise date of the declaration becomes rather immaterial. The deceased has also executed an Affidavit-cum-indemnity on 24 th February 2005. That is also in terms of the other documents. 9.Defendant Nos.7 to 11 have shown the bank account of the firm. The firm is shown to have the account in Bombay Mercantile Co-operative Bank. The account is opened on 1 st March 2005 in the joint names of four of the partners including the deceased. This bank account is the circumstantial evidence to show the execution of the partnership deed. The entries in the account show large deposits and withdrawals immediately upon deposits. It was, therefore, a running account almost immediately after the firm was constituted. 10.The partnership firm was sought to be registered. The application for registration was initially filed on 7 th February 2006. It has been checked on that date by the office of the Registrar. It has been ultimately filed on 19 th April 2006. The deceased expired on 21 st April 2006. It is contended on behalf of the Plaintiffs that this was sought to be filed two days before the death of the deceased and, therefore, is a suspicious 7 NM-3412 document. The copy of the entire document shows that it was indeed filed since February 2006. In fact, after the death of the deceased also an entry has been made on 26 th July 2006. This is another circumstantial evidence to show the running of the partnership firm. 11.The partners appear to have given the property on lease. An indenture of lease was executed on 29 th June 2006. The lease is executed after the death of the deceased and by some of the heirs of the deceased. That document cannot be taken to be substantial evidence of the partnership firm legitimately and genuinely constituted by the deceased. In fact that shows how some of the heirs of the deceased, who were partners of the deceased, dealt with that property. 12.It is contended on behalf of Defendant Nos.7 to 11 that due to certain disputes between the partners of the deceased, an arbitration petition came to be filed on 17 th August 2007 where this document is relied upon. That would not be a defence to an administration suit where the property dealt with by the partners is claimed as an estate of the deceased. 13.It is contended on behalf of Defendant Nos.1, 2, 4 and 5 that the partnership firm filed income tax returns. That would be legitimate evidence to show the business 8 NM-3412 of the firm. The income tax returns of the partnership firm filed since 2005 are not produced, though relied upon. 14.The fact that this property forms a part of the estate of the deceased is denied. The property, however, is appropriated by or dealt with by some of the heirs of the deceased. The case of waste of the estate of the deceased is not strictly made out. In any event, the property is leased and earns monthly rents. The indenture of lease has been shown by Defendant Nos.7 to 11. At the final hearing of the suit upon evidence, the genuineness or otherwise of the partnership deed, would be tested. Pending that a case for Court Receiver is not made out. Defendant Nos.1, 3, 4, 8 and 9 and the wife of Defendant No.1 are the partners of the firm. Defendant Nos.1, 3, 4, 8 and 9 must, therefore, be restrained from transferring, encumbering or creating third party rights in the premises except giving it on lease as has been done until now, pending the suit. 15.The properties of Hanifa, the first wife of the deceased, who pre-deceased the deceased : The Ground, first, second and the fourth floors of building Haji Moosa Patrawala Industrial Estate : Hanifa co-owned the property along with other co- owners. She had a 17% share therein. Her 17% share 9 NM-3412 devolved upon intestacy upon the deceased as well as her seven children. The deceased had a 25% share in the 17% share of Hanifa. That is claimed to be the estate of the deceased and to that extent the Plaintiffs claim their share along with the other Defendants who were her biological children. This claim is set out in paragraph 2, Exhibit-D to the Plaint. This claim is clear. However, Defendant Nos.1 to 6, who are the biological children of Hanifa, claim that Plaintiff Nos.2 and 3, who are the biological children of the other pre-deceased wife of the deceased one Saida, being appropriated the properties of Saida and had not sought to share them along with their stepbrothers and sisters who are the children of Hanifa. Defendant Nos. 1, 2, 4 and 5 contend that by a family arrangement the share of Hanifa was not taken by the deceased but devolved upon her children. The grandfather of these Defendants gave a share to Hanifa and her children at the time of the second marriage of the deceased in the first and second floors of the property. Thereafter by the family arrangement the fourth floor came to the share of the family members who co-owned the property. These Defendants have relied upon letters addressed to the tenants attorning the tenancy in that behalf. These letters are not produced, though relied upon. The Plaintiffs have denied the family arrangement. The Plaintiffs contend that the Defendants are holding the 10 NM-3412 property in trust for all the heirs. 16.Defendant Nos.1, 2, 4 and 5 further contend that Plaintiff No.1, who is the biological sister of Defendant Nos.1 to 6, was given her share by way of flat in Jasmin Apartment at Mazgaon. The Plaintiffs claim that that was separately gifted to her. The Plaintiffs have not produced any registered gift deed. 17.Plaintiff Nos.2 and 3, who are the children of Saida, are stated to have appropriated a plot of land at Kausa which is in their possession as also a building in Mahim which stood in the name of their biological mother Saida. They contend that since the Plaintiffs have appropriated the properties of Saida, they cannot claim a share in the properties of Hanifa. This may appear equitable but cannot be determined in the absence of a counter claim. However, in view of the denial by the family arrangement that the deceased had a 25% share in the 17% share of Hanifa, no orders in respect of that property can be passed in the Notice of Motion. The precise share of the respective heirs would be decided at the trial. 18.Residential flat No.4 in Patrawala Co-operative Housing Society : This also belongs to Hanifa and would be similarly considered at the trial. 11 NM-3412 19.Advance of Rs.38 Lakhs : The Plaintiffs claim that the deceased advanced Rs.38 Lakhs to Defendant No.9. That amount is not repaid and the debt forms the estate of the deceased. Defendant No.9 has not accepted this case and has called upon the Plaintiffs to prove it. This would have to be proved in a separate litigation. Upon a decree being passed, it would form an estate of the deceased and would be considered in this administration suit. 20.Bank balances and Fixed Deposits Receipts : The Plaintiffs contend that the deceased left large bank balances and Fixed Deposits in Union Bank of India, Byculla Branch, Bombay Mercantile Bank Ltd., Kemps Corner Branch and the Central Bank of India, opposite Nair Hospital, Mumbai. The Plaintiffs do not have particulars of the bank accounts. 21.Hence the following order : ORDER i)The submissions/statements/comments/Minutes of the orders showing the admissions of the Defendants as regards the relationship and the extent of the share of the parties as also admissions with regard to some of the properties of the deceased which form the subject- 12 NM-3412 matter of the suit are taken on record. ii)Preliminary decree is passed. The admitted properties of the deceased are partitioned between the parties in the ratio set out in the aforesaid submissions/statements/comments/Minutes of the orders. iii)Defendant Nos.1, 3, 4, 8 and 9 shall not transfer, encumber or create third party rights in the Commercial premises at Bellasis Road except giving it on lease as has been done until now, pending the suit. iv)The Managers of Union Bank of India, Byculla Branch, Bombay Mercantile Bank Ltd., Kemps Corner Branch and the Central Bank of India, opposite Nair Hospital, Mumbai are requested to furnish a statement certified by them under the Bankers Book Evidence Act of the accounts/FDRs of the deceased in the respective branches of these banks. None of the parties, including the Plaintiffs shall operate any bank account or liquidate any FDR of the deceased without the permission of the Court pending the suit. v)No other order in the Notice of Motion. vi)No order as to costs. (SMT.ROSHAN DALVI, J.) 13 NM-3412