IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT No.2828 of 1984 NARENDRASINGH S. CHADHA ..PLAINTIFF VS. HARDESHKAUR J. CHADHA & ORS. .. DEFENDANTS Mr. A. Dasgupta i/b M/s. Jhangiani Narula & Associates for the Plaintiffs. None for the Defendants CORAM: DR. D.Y.CHANDRACHUD, J DATE : 27TH AUGUST, 2009 P.C. 1. The suit has been instituted for a declaration that the Plaintiff, with the Defendants, is entitled to the right, title and interest in respect of a properties situated at Khar. A description of the property is contained in Exhibit A to the Plaint. A declaration has been sought that the family arrangement arrived at by and between the Plaintiff and Defendant Nos.4, 5 and 6 for division of the properties mentioned in Exhibit A and of the business carried on in the firm name and style of Hotel Evergreen, as recorded in a Deed of Partnership dated 3rd March 1980 and the Deed of Dissolution dated 7th June 1983, is valid and binding. A decree for partition by metes and bounds of the property known as Evergreen Building situate at plot 12A, 3rd Road, Khar, is sought in the manner indicated. 2. The Plaintiff and Defendant Nos. 4, 5 & 6 are brothers. Another brother, Jagdeep Singh, died in 1980. The Defendant Nos.1 to 3 are his heirs and legal representatives. Under an Indenture of 22nd May 1943, the Plaintiff’s mother purchased certain immovable property at Khar admeasuring 683 sq. yards together with two buildings and an outhouse standing thereon. On 5th June 1969, the Plaintiff together with Defendant Nos.4, 5 & 6 and his deceased brother and mother entered into a Partnership for carrying on a business of a lodging and boarding house in the name of Hotel Evergreen. The Plaintiff’s mother died on 14th March 1977. His father had pre-deceased her on 23rd July 1963. Prior to his death, the Plaintiff’s father was carrying on the business of a lodging and boarding house by the name of Hotel Evergreen, as a sole proprietor. 3. The Plaintiff’s mother had also purchased a property bearing plot No.20, 21, and 22 at Khar Suburban scheme on 22nd May 1943, in which, a business of a lodging and boarding house was conducted. 4. The case of the Plaintiff is that on 17th August 1977, a Family Agreement was arrived at between the Plaintiff, Defendant Nos.4, 5 and 6 and their deceased brother in respect of the property and business of the lodging and boarding house. Under the arrangement, the deceased brother and Defendant No.6 agreed to take the buildings constructed on the property and known as Jagdeep Cottage and Kuki Villa. In consideration thereof, the other brother and Defendant No.6 agreed to surrender their right and interest in the business carried on in the name of Hotel Evergreen and the property in favour of the Plaintiff and Defendant Nos.4 & 5. The Plaintiff has made out a case that the original agreement has been lost and/or is misplaced by passage of time. The Plaintiff, however, stated that, photocopies of the original has been taken and were compared. The family arrangement was, according to the Plaintiff, acted upon and the Plaintiff alongwith Defendant Nos.4 & 5 took over the business of Hotel Evergreen and the property. 5. On 3rd March 1980, a Deed of Partnership was entered into between the Plaintiff and Defendant Nos.4 & 5 in respect of the business carried on in the firm of Hotel Evergreen. The Plaintiff alongwith Defendant Nos. 4 & 5 acquired the right, title and interest therein. On 7th June 1983, a Deed of Dissolution was executed by which the Plaintiff and Defendant Nos. 4 & 5 dissolved the business with effect from 3rd June 1983. Thereupon, according to the Plaintiff, he became entitled to the ground floor and the second floor of the building known as Evergreen, to the firm name and style of Hotel Evergreen together with the hotel called GURU alongwith all the licences. The Plaintiff was liable to discharge all the liabilities of the bankers. Defendant No.4 is stated to be entitled to the third floor and the terrace of the building together with the right to the balance FSI. Defendant No.5 is stated to be entitled to the first floor and garage liable to discharge liabilities to the extent of Rs.2,20,000/-. The division has been acted upon. The case of the Plaintiff is that in pursuance of the provisions of clause 15 of the Deed of Dissolution, he acquired the share of Defendant No.4. Defendant No.5 has been conducting a separate business from the first floor, for which, electricity and water connection have been installed. The Plaintiff has stated that, he has paid and discharged the dues of Syndicate Bank and taken over possession of a portion of the premises in the occupation of the Bank. 6. According to the Plaintiff, on the request of the heirs of the deceased brother, Defendant Nos.1 to 3 and Defendant No.6, a joint declaration was executed confirming the family arrangement dated 17th August 1977. The deed was executed by Defendant Nos. 4 & 5 and the Plaintiff and bears their signatures. A joint declaration has been executed by Defendant Nos.1, 2, 3, 4, 5 & 6 and the Plaintiff. 7. Defendant No.5 filed two suits in the City Civil Court, being Suit No.1198 of 1986 and 3142 of 1995, seeking a declaration that, he is entitled to possess the premises coming to his share under the Deed of Dissolution dated 7th June 1983. Negotiations took place between the parties and certain Consent Terms are arrived at between the Plaintiff and Defendant Nos.1, 2, 3, 4 & 6. Defendant No. 5 has however, not executed the Consent Terms. According to the Plaintiff the properties which had come to the share of Defendant Nos.1, 2, 3, 4 & 6 were initially mortgaged by their mother. The aforesaid Defendants including Defendant No.5, executed a Deed of Re- Conveyance dated 25th February 1991, together with the Plaintiff, which is duly registered. 8. The Defendants have been served with the Writ of Summons, but have failed to enter appearance. The averments contained in the Plaint and the claim of the Plaintiff are, therefore, not been controverted. The Plaintiff has filed his own Affidavit of evidence dated 12th April 2008, together with a compilation of the documents. The Affidavit contains a recital of the salient facts which have been referred to earlier, in this judgment. In the absence of any contest, the claim of the Plaintiff has been duly proved on the Affidavit of evidence and the evidence produced on record. The suit shall accordingly stand decreed in terms of prayer clauses (a) & (b). There shall be preliminary decree in terms of prayer clause (c). (Dr. D.Y.Chandrachud, J)