1 NMT.747/2010-LC S.1182/1979 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 747 OF 2010 AND NOTICE OF MOTION NO.748 OF 2010 IN L. C. SUIT NO. 1182 OF 1979 Madhvani Private Ltd. ...Plaintiff Vs. Natwarlal Thakordas Parekh & Ors. ...Defendants Mr. U.J. Makhija with Mr. Rajesh Shah i/b. Federal & Rashmikant for Plaintiff Mr. K.H. Mody with Mr. O. Mohandas i/b. Little & Co., for Defendants Ms. Alpana Gone i/b. Sonal Doshi & Co., for Defendant No.4/Applicant CORAM : SMT. ROSHAN DALVI, J. DATED : 8TH OCTOBER, 2010 P.C. : 1. This is a partition suit between members of a family. The title of the family is traced since the earliest Will dated 6th November 1953 of one Parvatiben who had a ½ share in the suit property along with her co-owner Santokben. Parvatiben died on 4th January 1954 in Uganda leaving several properties in Uganda and few properties in India. Her Will was probated in Uganda. Two constituted attorneys were appointed to obtain Letters of Administration of the Will of Parvatiben executed in Uganda for a limited purpose under Section 241 of the Indian Succession Act, 1925 for the properties in Mumbai. The suit property is one such property. Letters of Administration were granted on 18th March 1957. Under that Will 2 NMT.747/2010-LC S.1182/1979 Muljibhai, the husband of the Parvatiben who was a residual legatee obtained a ½ share. Under the Will of Muljibhai dated 14th June 1956 his 4 sons were bequeathed that ½ share. Executors were appointed in respect of his Will. Muljibhai also left behind certain properties in Uganda and few in Mumbai. For the execution of his properties in Mumbai Defendants 1 and 2 were appointed as Constituted Attorneys to obtain Letters of Administration from the High Court at Bombay under Section 241 of the Indian Succession Act, 1925. These Letters of Administration has been granted on 5th April 1963. 2. The Defendant No.4 who has filed this application is one of the legatees. Defendants 1 and 2 represented that estate in the suit. Defendant No.1 has expired. Defendant No.2 has filed written statement. He represented the estate of the deceased Parvatiben and accordingly also of Muljibhai. 3. As late as on 26th March 1998 he has written a letter to his attorneys stating that his Vakalatnama stood cancelled because he no longer represented the estate of Parvatiben. Copy of this letter is shown to be marked to the Defendant No.4 in the suit. 4. It is not known whether the copy of the letter of Defendant No.2 was sent to her. If that letter is not received she would understand that Defendant No.2 continues to represent the estate of Parvatiben. She would be guided by the written statement of Defendant No.2. The written statement of Defendant No.2 has been filed in 1987. It was served upon her. She has not filed her own written statement or contested the stand of Defendant 3 NMT.747/2010-LC S.1182/1979 No.2 in the written statement filed by Defendant No.2 representing the estate of Parvatiben in which she claims a share. If, therefore, Defendant No.2 continued to represent the estate and defend the suit, Defendant No.4 (or for that matter any of the other Defendants similarly placed such as Defendants 6 and 7, who have filed Notice of Motion No.748 of 2010) would not require to defend the suit separately. 5. My attention is drawn to a letter dated 18th July 2005 inter alia addressed to Defendant No.4 by the attorneys of the Plaintiff sending a copy of the affidavit of documents, the compilation of documents and a copy of the written statement of Defendants 17A to 17E. That letter also would not show that Defendant No.2 would not represent her interest in the estate of Parvatiben. 6. Much is made about the fact by both parties that the delay is of 30 years. I do not find it so. The Letters of Administration has been issued on 5th April 1963. The suit itself was not filed until 1979. Delay always cannot be counted from the date of the filing of the suit or the service of summons alone. It must be required to be adjudicated from which date the Defendant must personally defend the suit on merits. In this case filing of the written statement in 1987 by Defendant No.2 which has been accepted on record must determine the rights of Defendant No.4 for the estate of Parvatiben. If Defendant No.2 ceases to act, Defendant No.4 must take charge. She must then herself represent the estate of Parvatiben to claim the interest therein. She cannot be disallowed by the Court to do so on the ground that the Plaintiff filed a suit in 1979. Of course if she is informed 4 NMT.747/2010-LC S.1182/1979 that the Defendant No.2 would no longer represent her interest and does not take steps for many years or for an unreasonably long period, she would personally not be permitted to represent her interest separately In this case, that would have been shown by the copy letter dated 26th March 1998, if it was shown to have been served upon her and received by her. That letter is not shown to have been served upon her though a copy is marked to her. This is despite the fact that she has a residential address in Mumbai which she is stated to often visit. 7. It would be travesty of justice if neither Defendant No.2 represents the interest of Defendant No.4 (of that matter Defendants 6 and 7 similarly) nor are they allowed to do so. 8. Hence they must be allowed to defend the suit, but since the written statement of Defendant No.2 filed since 1987 has not been challenged and no separate written statement has been filed, no separate written statement can be allowed to be filed at present, 23 years after the filing of that written statement. 9. Hence the following order: The order of this Court dated 20th November 2009 is neither required to be confirmed nor set aside. It is modified to the following extent. (a) Defendant Nos.4,6 and 7 shall be entitled to defend the suit in the place stead of Defendant No.2 upon the written statement filed by Defendant No.2 since 1987. (b) Defendants 4, 6 and 7 or any of them shall be entitled to lead 5 NMT.747/2010-LC S.1182/1979 evidence based upon such pleadings to represent the estate of Parvatiben in the suit. (c) Defendants 4, 6 and 7 shall also be entitled to represent the estate of Parvatiben for any mediation that takes place for creating options for settlement of the dispute in respect of the shares of the parties in this partition suit. (d) The final hearing which was stood over to 4th December 2009 is now stood over to 25th October 2010. (e) The affidavit of examination-in-chief of the Plaintiffs has been filed and served upon the Defendants including Defendant Nos.4, 6 and 7 as per the instructions taken by Mr. Makhija on behalf of the Plaintiffs. (f) A fresh copy of the affidavit may be served on Defendants 4, 6 and 7. (g) Copy of the affidavit of documents of the Plaintiff as well as the compilation of documents have been served upon Defendant No.4 under the letters of Plaintiffs’ attorneys dated 18th July 2005. (h) A copy of the affidavit of documents as well as compilation of documents shall be served upon Defendants 6 and 7 also. (i) The admissibility of the documents of the Plaintiffs shall be considered on the next date of hearing. (j) Adjourned to 25th October 2010. (k) The parties shall continue to negotiate settlement of their disputes by creating options for partitioning the suit property or by some of the parties buying over the share of the others by the process of Mediation. (SMT. ROSHAN DALVI, J.)