1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 203 OF 2009 IN NOTICE OF MOTION NO. 988 OF 2008 IN SUIT NO. 419 OF 2008 WITH NOTICE OF MOTION NO. 1640 OF 2009 Babitadevi Soni widow of Ladhuramji Soni .. Appellant Vs. Rameshchandra Veerchandji Soni and ors. .. Respondents Mr. P.K. Dhakephalkar, Senior Advocate i/by Mr. Kunal Cheema for appellant. Mr. Sanjay Jain a/w Mr. Ramesh Jain for respondent nos.1 to 13. Mr. Sanjay Kothari a/w Ms. Sheeja John & Prantik Majumdar i/by M.P. Savla & Co. for respondent no.14. Mr. K.L. Vyas, Court Receiver present. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. January 11, 2010. P.C. 1. This intra court appeal has been filed by the original plaintiff in Suit No. 419 of 2008. The said suit has been filed for a declaration that the 2 plaintiff is the co-owner and entitled for 1/27th undivided share in respect of two different properties which are called as the suit properties and they are (a) a plot admeasuring 653.86 sq.mtrs. spread over in CTS No. 1474, 1474/1, 1474/2, 1475 and 1475/1 to 4 and (b) plot admeasuring 316 sq. yrds. from land bearing Survey No. 146-A, Hissa No. 7 of Vile – Parle. The suit is based on the agreement dated 21/1/1997 which is admittedly called as a family arrangement. By way of a collateral relief, the plaintiff also has prayed for setting aside the Indenture of Conveyance dated 16/6/2006 entered between defendant nos.1 and 3 on one hand and defendant no.14 on the other hand. The plaintiff has also prayed for partition of the suit properties and for possession of her 1/27th share from the same. 2. The partnership firm by name M/s. Soni Builders was formed sometimes in June 1982 and three brothers by name Ladhuramji, Himmatlalji and Rameshchandraji were the three partners whereas defendant no.13 Devrajji Soni as a working partner. The first property was purchased by the three brothers sometimes in October, 1981 and by way of an agreement was made over as a property of the partnership firm after it was formed. Whereas the second property was purchased by the partnership firm by an agreement of 11/6/1982. The plaintiff is the wife of 3 deceased Ladhuramji and defendant nos.7 to 12 are her children, whereas defendant nos.2 to 6 are the children of Himmatlalji who died on 8/6/1989. The plaintiff’s husband died on 18/3/1990. It is the case of the plaintiff that on 21/1/1997 the family members of the three brothers entered into a family arrangement and as per the same, defendant no.7 and defendant no.2 were agreed to be admitted as the partners in place of Ladhuramji and Himmatlalji respectively and the partnership was to continue. However, without inducting defendant nos.2 and 7 as the partners, defendant no.1 with the support and connivance of defendant no.13 has signed the impugned agreement dated 16/6/2006 in favour of defendant no.14 so as to develop the suit property and the LRs of Ladhuramji and Himmatlalji have been excluded from any benefit accruing to them of the said agreement. It is the assertion of the plaintiff that she is entitled for 1/27th share in the suit property and it is required to be divided and she must be put in possession of the said share on such partition. Defendant No. 7 has filed affidavit in the suit supporting the case of his mother and stating that despite the family arrangement dated 21/1/1997 he has not been inducted as a partner and the said arrangement, therefore, has been acted upon by defendant nos.1 and 13 in bits and pieces and as per their convenience. Whereas defendant no.2 has filed an affidavit in the suit and has opposed the relief prayed for by the 4 plaintiff, contending that the plaintiff and more particularly Ladhuramji group has not acted upon the family arrangement in toto and, therefore, defendant no.7 was not inducted as a partner. 3. In the pending suit the plaintiff took out Notice of Motion No. 988 of 2008 and prayed for injunction and for appointment of Court Receiver. By the impugned order dated 13/2/2009 the learned Single Judge was pleased to reject the Motion by holding that, (a) the plaintiff is not a co-owner of the suit property and, therefore, she cannot sue for partition, (b) the suit was totally misconceived and time barred and (c) the suit was filed not for claiming the value of the share of the deceased partners or for not being admitted to the partnership but for 1/27th undivided share in two suit properties. 4. We have heard Mr. Dhakephalkar the learned Senior Counsel with Mr. Cheema for the plaintiff. We have perused the partnership deed and more particularly Clause Nos.7, 15 and 16 as well as the suit plaint. We have also perused the agreement for family arrangement entered between all the three groups represented by three brothers on 21/1/1997 and more particularly called as Ladhuramji group, Himmatlalji group and 5 Rameshchandraji group. 5. The suit has not been filed for the specific performance of the agreement dated 21/1/1997. As per Clause Nos.15 and 16 of the partnership deed, the family members of the deceased partners are not entitled for any share in the property of the partnership firm, but the LRs or the nominees of the LRs are required to be inducted as the partners in place of the deceased partner. Defendant No.7 surprisingly has not filed any suit for the execution of the agreement for family arrangement dated 21/1/1997 till this date. Though the plaintiff is a party to the said agreement, she has not prayed for the specific performance of the same and even if she had done so, the issue of limitation, even for prima facie consideration, would not support her case for entertaining the Notice of Motion for either appointment of Court Receiver or for injunction, as the suit has been filed in the year 2008 i.e. almost after 11 years. 6. We, therefore, do not find any error in the impugned order of refusing to appoint Court Receiver or to pass an order of injunction, which is a discretionary relief on prima facie considerations. Hence, this appeal must fail at the threshold. 6 7. The appeal is hereby dismissed. 8. We clarify that this order is without prejudice to the rights of defendant no.7. 9. Notice of Motion No. 1640 of 2009 does not survive and shall stand disposed as such. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE,J.)