1 NM-165 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Notice of Motion No.165 of 2011 IN Suit No.2110 of 2004 Ramila Kilachand ... ... Plaintiff v/s. Harsh Rajnikanth Kilachand & ors. ... Defendants Mr.Karl Tamboly i/by Bharucha & Partners for Plaintiff. Ms.Samindra Survey i/by Little & Co. for Deft.Nos.45, 47 & 108. Ms.A.B. Kapadia i/by Dapthary Fereira & Diwan for Deft.No. 81. Mr.A. Bookwala, Sr. Counsel i/by Kanga & Co. for Deft.No. 74. Mr.A. Rajadhaksha, Sr. Counsel i/by Kanga & Co. for Deft.No.74A. Mr.Y.S. Jahagirdar, Sr. Counsel i/by M.A. Narvekar for Deft.No.33. Mr.Amit Surve i/by Khaitan & Jayakar for Deft.Nos.9, 6 & 7. Mr.Gautam Patel with Sanida Vedpathak i/by Maneksha & Sethna for Deft.Nos.1 to 4, 78 to 80, 83 & 85. Mr.S.H. Doctor, Sr. Counsel with Ms.J.M. Sidhwa i/by Malvi Ranchoddas & Co. for Deft.Nos.23 to 29, 82, 84, 86, 92, 100 & 107. Mr.Zal Andhyarunjinha with Ms.Pinky Patel i/by Desai & Diwanji for Deft.Nos.50 to 53. 2 NM-165 Mr.Vivek Shetty i/by DSK Legal for Deft.No.39. Ms.S. Cooper i/by Anish Wadia for Deft.No.35. ------ CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 4th February 2011 Date of pronouncing the order : 15th March 2011 ORDER : 1.The suit of the Plaintiff is inter alia for partition of several properties listed in Exhibits A, B, D, F and K to the Plaint and for various other reliefs in respect of various properties of the joint family of the parties as also the properties alleged to be belonging to such joint family. 2.This Notice of Motion is for partition of one of the suit properties listed in Exhibit-A to the Plaint and for certain movables therein. The immovable property is a dwelling house of the parties called Kilachand bungalow at Nepeansea Road, Mumbai, upon CTS Nos.234, 236. 341, 342, 343 and 344 of Malabar Hill Division, Mumbai. 3.This Notice of Motion is taken out by Defendant No.33. Defendant No.33 is one of the members of the HUF, initially formed by one Kilachand Devchand, who left behind four sons. The relationships of the four sons 3 NM-165 with Kilachand as their predecessor-in-title as also their successors-in-title are admitted. Joint family of the parties, therefore, admittedly consists of four separate branches. These are the branches of the four sons of Kilachand  Tulsidas, Ambalal, Ramdas and Chinubhai. 4.Defendant No.33 is one of the sons of Tulsidas. He has applied on behalf of his branch. He claims 1/4th share in the aforesaid property. 1/4th share of all the four branches is not denied by any of the Defendants who are members of the HUF. Each of the four branches is, therefore, entitled to 1/4th share in the properties which are admitted to be belonging to the HUF. The aforesaid immovable property along with the movables therein are admitted to be belonging to the HUF. 5.Upon such admission of the relationship of the parties and the aforesaid shares in the properties, a preliminary decree of partition with regard to that property would require to be passed unless shown otherwise. 6.An application in that behalf may be made by the Plaintiff herself or any of the Defendants who are members of the HUF since in a suit for partition each of the Defendants assumes the character of a Plaintiff 4 NM-165 for partitioning admitted properties of the HUF, of course, subject to Defendant No.33 valuing 1/4th share of the immovable property sought to be partitioned and paying ad-valorem Court fees thereon. 7.Defendant No.33 has shown by separate clear colour- coded plans how the aforesaid property is partible and how it can be partitioned in four equal parts having four separate entrances consisting of 1/4th of the built upon or constructed portion and open space along side each of the portions. 8.Defendant Nos.1 to 4, 23 to 29, 50 to 53, 80 to 84, 86, 92, 100 and 107 have filed their respective affidavits- in-reply to the Notice of Motion. The essential case in reply is that Defendant No.33 had alleged the oral partition in a suit filed by Defendant No.23 in the City Civil Court, Bombay being Suit No.934 of 2010 restraining the entry of Defendant Nos.74 and 74A in any part of the aforesaid property and had sought to enforce it. The oral partition has not been accepted by the Court. The order of the Court has been final. That is hardly a defence to an application for partition of one of the properties in a partition suit by one of the Defendants. If the oral agreement was accepted, partition would have been ordered in terms of that agreement. If it is not accepted or if there is no 5 NM-165 oral agreement also, the Defendants would be entitled to partition the HUF property when the property belonging to the family is admitted and the shares of the branches, who claim the property, are also admitted. In fact, it is because it has been disallowed upon the case of oral agreement earlier that an application is made for partition as per the admitted specified shares of the members of the HUF now. 9.It is also contended that Defendant No.33 has only a life interest in the property to the extent of 50% share bequeathed to him under the Will of his father, of the 1/4th share of his father in the said property and his sons and his wife would get that 50% share in the property absolutely. It is also contended that the other 50% of the 25% share of Tulsidas is to devolve upon the two sisters of Defendant Nos.33 to which he has no right. The Will holds good only for the branch of Tulsidas family. The wife as well as the sons of Defendant No.33 accept the partition as his successors-in-title to the extent of the 50% of the 25% share of Tulsidas in the aforesaid property. Hence Defendant No.33 and his family would have a 12.5% share in the entire aforesaid immovable property. Defendant No.33 as also his wife and sons can claim such share upon the admitted share 6 NM-165 of Tulsidas. 10.Aside from Defendant No.33 and his sons and daughter, Tulsidas left behind two other daughters who are the sisters of Defendant No.33 being Defendant No.48 and one Kunjalata Jhaveri. Kunjalata Jhaveri has left behind one son and two daughters who are Defendant Nos. 45, 46 and 47. The 25% share of Tulsidas, which is claimed by Defendant No.33, has to be shared by Defendant No.33 with his sister Nina and the children of his deceased sister Kunjalata. It is not shown in the affidavit-in-support of the Notice of Motion by Defendant No.33 how he claims the entire share of 25% of Tulsidas in the said property which includes the share of his two sisters. In prayer (c) of this Notice of Motion, Defendant No.33 has claimed only 12.5% share in the movable properties of the HUF described in Exhibit-B to the Plaint. It is seen that 6.25% share in the entire aforesaid immovable property would belong to Defendant No.48 and 6.25% share would belong to Defendant Nos.45, 46 and 47. 11.With regard to that 50% of the 25% share of Tulsidas that is bequeathed to the sisters of Defendant No.33, they alone would have a right to challenge the partition to the extent it denies their share. Defendant No.48 has not been represented in this Notice 7 NM-165 of Motion. She is shown to have been served a copy of this Notice of Motion as also a further notice of the specific date of hearing of this Notice of Motion as per the specific directions of this Court. The notice is shown to have been served upon her agent, the watchman of the building, as per the rules of the residents of the building. An Agreement titled Unattested Agreement dated 27 th March 1989 is produced by Defendant No.33 on the Court s query. It is seen that Defendant No.48, who is an unmarried sister of Defendant No.33, is entitled to Rs.47.5 Lakhs under the aforesaid agreement as her share computed by the beneficiaries of the Trust including herself. Out of this amount, Rs.12.5 Lakhs are shown to have been deposited since 30th March 1989 in a Savings Bank Account in Grindlays Bank in the name of a Trust for her benefit called Nina s Trust, but is not shown to have been kept invested till date. Rs.35 Lakhs have been agreed to have been kept as security deposit, payable to Defendant No.48 without interest, upon her vacating the portion of the immovable property in which she actually resides. That agreement has been entered into by and between Defendant No.33, his sister Kunjalata and her husband in their personal capacity as also in their capacity as trustees of Nina s Trust . Defendant No.48, who is the sole beneficiary of the said amount is not a signatory to the said unattested 8 NM-165 Agreement . Defendant No.48 has chosen not to attend Court or be represented despite service of this Notice of Motion as also the further notice directed to be sent to her. Her interest is required to be protected by the Court. The entire amount of Rs.47.5 Lakhs, computed as her share in the aforesaid immovable property, would have to be deposited by Defendant No.33 in this Court if the partition is to be effectuated. Defendant Nos.45, 46 and 47 representing the married sister of Defendant No.33 have not opposed the partition. 12.The Defendants, who are members of the other branches of Kilachand family, therefore, cannot dispute the application for partition upon admitted the relationship of the parties and 1/4th share of the branches. 13.The Plaintiff has not disputed it as she has also claimed that relief. 14.The other parties, who are not family members of the family of Kilachand Devchand, are not at issue upon the fact that the aforesaid property belonged to Kilachand who left behind four sons constituting four branches of HUF which has since continued joint. 9 NM-165 15.Defendant No.33 has entered into an assignment of the undivided share of Tulsidas with Defendant Nos.74 and 74A. Since the aforesaid property is a dwelling house, Defendant Nos.74 and 74A cannot come into possession of that 1/4th share. It is, therefore, incumbent upon Defendant No.33 to apply for partition of his share which he has assigned to Defendant Nos.74 and 74A so that the assignees can enter upon that specified partitioned share. 16.Defendant No.33 can, therefore, be granted a preliminary decree of partition of the aforesaid immovable property being Kilachand House by metes and bounds, subject to the protection of the 6.25% share of Defendant No.48 in the entire aforesaid property and subject to payment of Court fees on the total value of his share the said property. 17.Defendant No.33 has illustratively shown how the aforesaid immovable property can be partitioned by metes and bounds. The four partitioned shares are seen to be equally and equitably made. None of the Counsel on behalf of the other members of the HUF has shown any dispute with regard thereto. 18.The application is, therefore, within a very narrow 10 NM-165 ambit. The application is required to be allowed. A preliminary decree of partition by metes and bounds of the aforesaid property can be passed in terms of the sketch plan, Exhibit-B to the Notice of Motion. 19.Under the provisions of Order XV Rule 1 of the Code of Civil Procedure (CPC) when the parties are not at issue, the Court may at once pronounce judgment. Consequently, with regard to the aforesaid property, the judgment is required to be pronounced under Order XV Rule 1 of the CPC to the extent of the claim of partition of the 1/4th share of the 4 branches in the aforesaid immovable property. Similarly a judgment on admission would be required to be passed upon the admitted shares of the family members under Order XII Rule 6 of the CPC as a part of the claim in suit being admitted. Since it is a suit for partition, such claim can be made by the Defendants as much as the Plaintiff. A preliminary decree for partition would, at first, be required to be passed under Order XX Rule 18 of the CPC upon the admitted relationship of the parties and the admitted equal 1/4th share of the 4 branches of the family. 20.In a similar case of co-ownership of two brothers having an 50% equal share in their joint property, a preliminary decree for partition of the property by 11 NM-165 metes and bound came to be passed by the Delhi High Court upon seeing and construing the admitted fact of co-ownership of the brothers from their pleadings in the suit before the Court as also in the earlier suit between them. That was in the case of Umang Puri vs. Pramode Chandra Puri in CS (OS) No.1695/2006 under Order XII Rule6 read with Order XX Rule 18 of the CPC. The Court relied upon the judgment of the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. vs. Union Bank of India, AIR 2000 SC 2740 which considered the objects and reasons of the amendment of the said provision allowing judgments to be passed upon even a part of the claim in the suit building admitted thus: Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. Hence the judgment observed: We should not unduly narrow down the meaning of this Rule as the object is to enable a 12 NM-165 party to obtain a speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed. 21.Of course, the suit is in respect of various other properties with which the parties are at dispute. With regard to the other properties, the suit would be required to be heard upon oral and documentary evidence of the parties. It is only with regard to the aforesaid property out of immovable properties claimed in the suit that a judgment can be passed. That would be a judgment for a part of the claim. 22.With regard to the partition of the movables listed in Exhibit-B to the Plaint, Counsel on behalf of all the branches state that the movables can be partitioned and distributed upon ascertaining an approximate value of the movables after which they can be distributed to the four branches of the family in equal shares. 23.Defendant No.33 can also be granted a preliminary decree of partition of the aforesaid movable properties listed in Exhibit-B to the Plaint subject to 13 NM-165 ascertainment of the valuation of the movables, cost of such ascertainment and subject to payment of Court fees on the total value of his share in the said movables also. 24.Hence the following order: ORDER (1)Defendant No.33 shall deposit Rs.3 Lakhs in Court towards the Court fees payable for the 1/4th share in Kilachand House and the movables therein claimed by him within two weeks from today. (2)The amount shall be utilised towards payment of Court fees as may be computed by the office of the Prothonotary and Senior Master of this Court. (3)Defendant No.33 shall deposit in Court Rs.47.5 Lakhs towards the agreed share of Defendant No.48 within four weeks from today. (4)Upon the deposits being made as per Clauses (1) and (3) above, the 1/4th share of the branch of Tulsidas is determined and decreed in the aforesaid immovable property being Kilachand House as shown in the plans annexed to the Affidavit-in-support of the above Notice of Motion. 14 NM-165 (5)The share of Tulsidas branch shall be the portion shown in green colour in the plan Exhibit-2 to the Affidavit-in-support of the above Notice of Motion. (6)Defendant No.33 shall be entitled to put up a partition as shown in the aforesaid plan to partition his 1/4th share in the aforesaid immovable property at his cost. (7)Defendant No.33 shall initially deposit Rs.1 Lakh, on account, as fees of the valuer for valuation of the movables shown in the list Exhibit-B to the Plaint. (8)Upon the deposit being made as per Clause (7) above, the Prothonotary and Senior Master of this Court shall appoint a valuer from the panel of valuers of this Court to value the movables shown in Exhibit-B to the Plaint. (9)The valuer shall fix an appointment, the notice of which shall be given to the members of the HUF, 48 hours in advance of the appointment by Defendant No.33. (10)The valuer shall inspect the movables and make his report within four weeks of the appointment date to Court and give a copy of this report to the members of the HUF. 15 NM-165 (11)The valuer shall prepare and submit his bill for his fees as per rules to the Prothonotary and Senior Master of this Court. The Prothonotary and Senior Master shall pay the professional fees of the valuer computed as per the Rules from the deposit of Rs.1 Lakh made by Defendant No.33. (12)Defendant No.33 shall be entitled to 1/4th value of the movables or 1/4th of the movables as may be agreed upon by the other members of the HUF. (13)The other members of the HUF shall also be entitled to their respective 1/4th share of the four branches of the HUF in the aforesaid immovable property, Kilachand House as also in the aforesaid movable properties upon they depositing in Court Rs.3 Lakhs towards the Court fees, payable by them for partitioning their 1/4th share in the said properties. (14)Upon the deposits made as per Clause (13) above, each of the other three branches shall be entitled to apply to claim their share. 25.The Notice of Motion is disposed of accordingly. 26.This order is stayed for 4 weeks. (SMT.ROSHAN DALVI, J.)