1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 1172 OF 2010 IN SUIT NO. 2683 OF 2000 Savitridevi Chhotelal Tiwari & Ors. .. Plaintiffs Vs. Amaravati Budhiraj Tiwari & Ors. .. Defendants Mr. Satish Chhotelal Tiwari Plaintiff No.2 present in person. Mr. R. D. Mishra for Defendant Nos.2, 1A to 1C. CORAM : MRS. R. S. DALVI, J. DATE : 14th June, 2010. P.C. 1. This is a suit for partition between three branches of one family. The relationship between the parties is admitted. The joint property of the brothers is set out in the family settlement (Exhibit ‘C”) to the plaint. The properties mentioned in the family settlement are admitted. 2. These properties are to be partitioned. The Plaintiffs who are the heirs and legal representatives of one brother, have applied for their 1/3rd share on partition. The Plaintiffs are in possession of one flat in Sion which is also a part of the joint properties. The Defendants are in possession and control of all other properties being 2 dairies and several residential flats. It is the Defendants’ 2 case that from the retiral benefits of the predecessor-in-title of the Plaintiffs, certain other properties have been purchased by the Plaintiffs which were agreed to be considered as joint property and the Plaintiffs have not brought in the retiral benefits for the benefit of the family. 3. The Defendants have admitted that they have sold several properties, more specially 5 out of 8 rooms in Tiwari Sadan, 1 shop and 1 room in the chawl in Kisan Nagar and the 1st floor flat in Shree Nagar Society. The Plaintiffs are not given any share in sale proceeds. The Defendants claim that the sale proceeds are utilized in the construction of the village properties in which the Plaintiffs have a share and such share may be enjoyed by the Plaintiffs. The Plaintiffs do not claim use and enjoyment of the village properties. They claim that the village properties, so constructed by the Defendants may be used and occupied by the Defendants. 4. Since the relationship between the parties as well as the joint properties of the parties are admitted, a preliminary decree for partition is required to be passed for determining the Plaintiffs’ 1/3rd share but upon taking into consideration the retiral dues of the Plaintiffs’ predecessor- in-title. 5. Pending the actual partition, the properties which are admittedly not sold are required to be protected 3 against further transfer. 6. Hence the following order :- :: O R D E R :: 1. The joint properties of the parties are partitioned so as to give the Plaintiffs their 1/3rd share therein. 2. The suit is referred to the Commissioner for taking Accounts. He shall ascertain the retiral dues of the Plaintiffs’ predecessor-in-title. He shall value all the properties of the parties including the aforesaid properties which are sold by the Defendants. He shall determine the Plaintiffs’ 1/3rd share either upon the aggregate value of the properties or upon division by metes and bounds if that is agreed upon by the parties. 3. The Defendants shall not deal with, dispose of, alienate or part with possession of the shop called Ramesh Dairy Farm, residential premises on the 1st and 2nd floor above Ramesh Dairy Farm, the Godown in Kisan Nagar, 3 rooms also in Kisan Nagar and another shop called Tiwari Dairy pending the trial decree in the suit. 4. Under the circumstances, the prayer for appointment of Court Receiver is rejected. 5. The Notice of Motion is disposed of accordingly. The parties shall be entitled to put up the suit on board for passing a final decree after the Plaintiffs’ 1/3 share is 4 determined as directed above. ( R. S. DALVI, J.)