1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1774 OF 2008 IN SUIT NO.1551 OF 1979 GUNMALA GHENDMAL JHAVERI ..PLAINTIFF VS. SUSHILA KANAKMAL GANDHI & ORS. ..DEFENDANTS Ms. Saumya Shrikrishna with Mr. Vivek Sharma for the Defendants Mr. Kishore Jain i/b Harilal Thakore & Co. for the Plaintiff CORAM: Smt. ROSHAN DALVI, J. DATED: 25 th March, 2009 Oral Order: 1. This Chamber Summons has taken exception to the report of the Commissioner, High Court, Bombay dated 24.10.2008 made upon the preliminary decree being passed in the suit. 2. The suit is for partition. The Plaintiff claims 1/3 rd share in the suit property (the suit was filed by the original Plaintiff. The present plaintiffs are her heirs brought on record pending the suit. They shall be referred to as the Plaintiff). The suit property is a tenanted building which has seven 2 residential flats, one show room, one shop and one hoarding. The Plaintiff inter alia alleged in paragraph (13) of the plaint that the Defendants in collusion and without knowledge and consent of the Plaintiffs have transferred the tenancy of the ground floor premises (which consists of show room and the shop). The Plaintiffs alleged in paragraph (14) of the plaint that the Defendants unauthorisedly and wrongfully created tenancy in respect of the third party for the ground floor premises. The Plaintiff claims that tenancy is unauthorised and illegal and not binding upon the Plaintiff. The Plaintiff also averred that she apprehended that the Defendants would create further rights in other parts of the suit property. The Plaintiffs averred in paragraph (16) of the Plaint that the alterations were made in the premises for attempting to create further rights and hence she applied for partition and separate possession of the suit property. The Plaintiff also averred in paragraph (18) of the Plaint that Defendants committed act of waste and would diminish the value of the suit property which would tantamount to creating an encumbrance thereon. 3. The Plaintiff has sued for the declaration of her 1/3 rd share, partition of the suit property by metes and bounds, inquiries to be made for partition in the property and directions to be given for appointment of Commissioner for effecting partition 3 for perpetual order of injunction restraining transfer, creation of third party rights or disposing of any part of the premises and for making all inquiries and taking accounts in respect of the rents and profits recovered by Defendants No.1 to 4 and Defendants No.5 & 6 (they shall be referred to as the Defendants). 4. The three shares in the building are stated to be of the Plaintiffs, Defendants No.2, 3 & 4 and of Defendants No.5 & 6. This suit is concerned with the Plaintiff's 1/3 rd share, the other Defendants have neither claimed nor disputed their rights in the suit premises. 5. The evidence was led to determine the declarative relief prayed for by the Plaintiffs. By Judgment upon evidence dated 16.07.2002 / 24.07.2002 of this court the suit came to be decreed in favour of the Plaintiffs in terms of prayer (a), (b) & (d). Hence the declaration of the Plaintiff's 1/3 rd share in the suit property, order for partition the property by metes and bounds and the order of injunction came to be passed. Further Commissioner came to be appointed under prayer (c) and in terms of prayer (g). This related to inquiries to be made and accounts to be taken in respect of rents and profits recovered by the Defendants. 4 6. The parties have led evidence before the Commissioner for taking accounts (Commission). The Commissioner has made inquiries and taken accounts in respect of rents and profits recovered by the Defendants from the tenants in the suit building. 7. The rents and profits recovered from the seven residential flats is accepted by the Plaintiffs. The rent receipt book has been produced by the Defendants. The rent receipt book shows the basic rent, property tax, repairs, water charge, electricity and land tax separately collected from all the tenants throughout. The Plaintiff has claimed only basic rent collected, other collection being expenses which must necessarily have been expended by the Defendants whilst in the management of the suit property. The Commissioner has considered the total net basic rent collected by the Defendants and not paid to the Plaintiff which the Plaintiff would be entitled to. 8. The real dispute between the parties is with regard to the commercial premises and the hoarding. The Defendants have led evidence only of Defendant No.2. He has been examined and cross- examined upon the receipts of monies in respect of the tenanted premises. His evidence shows that though he was chosen as a witness from amongst the Defendants and 5 his Advocate called upon him to depose, he has feigned ignorance of the various matters. He has not produced any evidence with regard to the rents being collected except the rent receipt book out of which three rent receipts are marked Exhibit A, B & F. Certain assessment bills and property tax bills marked as Exhibit C & D, which are not material to consider in view of the aforesaid rent receipts, and a registered Deed of Lease as Exhibit E. 9. The Plaintiff has led evidence of a reputed Architect. He has submitted his report of valuation of the suit property. That is the precise purpose of the inquiry contemplated under the preliminary decree. His report dated 19.06.2003. It has been proved by him by direct evidence and marked Exhibit G. His report shows the market value ascertained from four distinct transactions in the locality at the relevant time. This report has been challenged on the ground that these four transactions are in respect of Sale Deeds and not Lease Deeds. It is contended on behalf of Defendants No.2 to 4 who have taken out this Chamber Summons that since the suit property is entirely tenanted, Lease Deeds alone should have been considered. That is not the reason to reject the report. Witness was available for cross- examination. Defendants were allowed to lead evidence. In fact I am told that after initial inquiry was made by the Commissioner further 6 evidence was also allowed to be led. The Defendants could have cross- examined the expert witness who was the Architect to determine to what extent the valuation put on account of the transactions being in respect of outright sales could be different from that of Lease. No such cross- examination is made. Witness therefore, who was available for cross- examination and who was an expert witness could show the court the difference, if any, in the transactions of sale and Lease. The Defendants have not even fairly challenged the valuation of the Architect to state what according to them would have been the fair market value for Lease Deeds, upon the sale value shown in the four transactions. The Defendants have not led any evidence of any other expert witness also. In view thereof and for total lack of any evidence on this score his report cannot be challenged, rejected or amended. 10. Further challenge is on the ground that the four transactions upon which the valuation is considered is in buildings built in 1960 and 1976. The suit building has been constructed in 1937. It is a heritage building. It is a stone structure. It is aptly called Stone Building. It is on the sea- face at Chowpatty, Mumbai. The stone building is necessarily of a far better architectural quality than concrete buildings built few decades thereafter. It is not the 7 case of the Defendants that the building is old or dilapidated or that it requires repairs. The Architect has considered the depreciation with regard to the period of construction, the age of the building and its life. Since it is a stone construction the total life of 80 years is given. The building has not run out its course of life. Hence upon allowing depreciation the valuation of the building would be correct and cannot be challenged. 11. Further exception is taken to the fact that the Architect was not told about the pendency of the litigations. It is submitted that the valuation of the property would greatly diminish if it is the subject matter of litigation. That argument is also incorrect. That may hold good qua third parties. The dispute between the owners inter se cannot devalue the property in partition suit or any suit for accounts. The market rent of the tenements in the property would not change because a co-owner sues for partition. 12. Yet further reason for rejection of the report is on the ground that the purchasers would consider parking spaces in the building which would increase the value of the transactions as also the rental of the premises. The Architect has deposed that no parking space was available in the premises in question and hence that aspect not been 8 considered in the said report. There is no evidence led by the Defendants to show the number of car parking spaces available which could have been considered. Since the report goes on the footing that there are no car parking spaces available, no enhancement in the value is made and hence the objection does not sustain. 13. The Witness has been asked about the type of the showroom now exhibiting vehicles. The witness has not been aware that the shop premises was closed for 25 years prior to November 2000. These aspects do not matter. The inquiry which is contemplated is only with regard to the price that would be obtainable upon transfer of the tenancy. The Architects evidence of the present costs of construction has been made on the basis of Central Public Works Department Manual, showing the costs of index in the city. That aspect has not been challenged. Based upon this valuation report the transactions of transfer that took place with regard to the commercial premises have been considered by the Commissioner. 14. The Defendants No.2 to 4 claim that only the rents actually received by them is required to be accounted for and divided to give the Plaintiff's 1/3 rd share. That contention is wholly incorrect. The Plaintiff has alleged collusion, apprehension of 9 creation of third party rights and acts of waste by the Defendants. Hence the inquiries as well as accounts are ordered in the preliminary decree in respect of rents and profits recovered by the Defendants. The counsel on behalf of the Defendants No.2 to 4 argued that willful default is not alleged in the plaint and hence the determination of the valuation of the premises in the suit property cannot be made and rents and compensation which could be recovered but is not shown to be recovered cannot be directed to be accounted for or disbursed. That argument is also wholly incorrect. The very purpose of partition suit is upon the premise that the co-owner no longer desires to continue as such and has applied for his or her share. Upon collusion, acts of waste etc. inquiries directed to be held is therefore, to determine the truth of the transactions in the face of the case of collusion by the Defendants in management. Hence these inquiries are required to be made and must be considered, since the court is interested only in the ascertainment and determination of the truth of the transactions of the parties. In any event the preliminary decree passed which was challenged in appeal, has been confirmed. The appeal has been dismissed. The inquiries made must therefore be heeded. 15. The report has been proved in evidence. It is not shattered 10 in cross- examination. The report deserves acceptance. 16. There is a hoarding on the suit building leased to Selvel. The inquiry was to be made with regard to the rents collected, in respect of the hoarding. It was for the Defendants to produce accounts in respect of rents for the hoarding. The Defendants failed to produce accounts. Hence the Plaintiff examined the officer of Selvel. The officer has produced documents with regard to the payment of rent / compensation in respect of the hoarding on the suit building in two separate files. These files show the original letters written by Selvel to various Defendants annexing the cheque in respect of the compensation as Selvel was directed to pay. The original letters have been receipted and acknowledged by several Defendants. It is admittedly received by the Defendants whose signatures are taken on the original documents. Each of these letters, kept in the normal course of the business of the Selvel, has been produced to show the transactions in the normal course of conduct of that party in respect of the payment of rents. 17. From the file witness has produced a letter dated 08.09.2003 addressed by Defendant No.4 to Selvel. It requires Selvel to issue cheques in the names of the heirs of one Motilal Zaveri as stated in his Will. The extent of the 11 shares of several of the Defendants, which include the children who are not Defendants on record and not yet co- owners of the suit property, are shown co-owners in the letter to be paid the proportionate compensation. Defendant No.4 has signed a letter as executor of the Will of Motilal Zaveri showing the children of the Defendants as co-owners. The Will is not probated. The directions contained in the Will could not have been effected. Defendant No.4 has acted as Executor de son tort. He is liable as such. He has misused his position as Executor of the Will, without having it probated. He has accordingly committed mis- appropriation of the estate of the deceased and breach of trust. It is under his letter that the directions have been given for payment of compensation to parties who were not otherwise entitled for want of probate of the Will. He is liable and responsible to account for the compensation that he has sought to collect in the individual names of the children of the Defendants before their rights in law were determined by the competent court. 18. The officer of Selvel shows the extent of the rent / compensation paid by Selvel through the years for the hoarding on the suit building. The Plaintiff is entitled to 1/3 rd Share in the total amount of rent / compensation collected from Selvel. The Commissioner has made necessary 12 inquiry under the aforesaid evidence. The Commissioner has taken accounts and ascertained the exact amounts of rents / compensation received from the suit hoarding. The Plaintiff is entitled to 1/3 rd share in such rent / compensation. Impertinently Defendant No.4 has stated in his evidence that he is not liable to account for and cannot state the rents received by others from Selvel. Those others are the family members of the Defendants. They are the children who are not yet entitled to legal rights, their predecessors- in-title being yet alive. They are not entitled also under the Will of the deceased, since the Will remained unprobated, Defendant No.4 alone is liable to account for and bring back the amount of compensation he directed Selvel to pay those others. 19. Counsel on behalf of Defendants No.2 to 4 who have taken out this Chamber Summons has herself relied upon the case of Peary Mohan Mookerjee Vs. Manohar Mookerjee, AIR 1924 Calcutta 160 , in which in fact it has been held that if a person by mistake or otherwise assumes the character of trustee when it does not belong to him and accordingly becomes the trustee de son tort, he may be called upon to account by the cestui que trust for moneys received by him under such trust and he cannot say and he would not be heard to say that he had no right to act as trustee. Defendant No.4 is shown to have acted as such. He must 13 account for what he received. 20. Defendant No.2 in his Affidavit in Examination- in-chief has stated that when rent receipts are challenged in the name of new persons only the nominal increase in the rent receipts is shown. He has given an illustration of another building of the Plaintiff which shows the same practice. That statement may be correct. However, it proceeds on two footings (1) that there is a transfer of tenancy and (2) that consideration has passed upon transfer which is not reflected in the rent receipt -- it is taken at one time from the new tenant which is inducted in the premises. If that consideration, which is now legally obtainable, is not accounted for, as in this case, there is no question of nominal rent being only reflected as correct rent in the rent receipts. Hence if the rent in the new rent receipts is to be accepted, the amount paid as consideration for transfer of the tenancy, which would constitute the market value of the premises, would be the amount shown to be taken by the landlord in management. The extent of the consideration received upon the transfer is reflected in the Architect's report showing the market value of the premises upon transfer. That amount has been accounted for by the Commissioner as directed. 21. The report of the Commissioner, therefore, shows the total rent / compensation received by Defendants No.2 to 4 and 14 Defendants No.5 & 6 and their family members from Selvel from April 1983 to March 2008 correctly. The report also shows market rent of the two commercial premises shown as per the evidence of the Architect which cannot be faulted. 22. The report further shows the share in the net basic rents of the tenanted premises which excludes expenses incurred by way of property tax, repairs, water charges and land tax separately collected. The calculation of the Commissioner must be accepted as no errors are otherwise shown therein. 23.Counsel on behalf of Defendant No.2 to 4 has relied upon the case of Jaiswal Coal Co. Vs. Fatehganj Co-operative Marketing Society Ltd, AIR 1975 Calcutta 303, in which it is held that in the suit for accounts upon concealing the true nature of the transactions, an order u/s 75(c) of the CPC can be passed for issuing the Commission to examine or adjust accounts. Such power may be subject to conditions and limitations as may be prescribed. 24. Under Order 26 Rules 11 & 12 of the CPC the Commissions to examine accounts must be under directions of the court to make such examination or adjustments. Specific instructions are to be passed whether the Commissioner is merely to transmit the proceedings or also report his own 15 opinion on the point referred for his examination. Upon the preliminary decree of partition being passed the Commissioner was appointed not only to transmit any proceedings; he was appointed to make ''all inquiries'' and ''take all accounts'' in respect of rents and profits recovered by the Defendants. This includes the power to make report. 25. The provisions of Order 26 Rules 13 to 18 relate to the appointment of Commissioners. Under Rule 13 a Commission can be issued to make partition of the property in a partition suit. Under Rule 14, the Commissioner has powers to divide the property into the requisite shares and allot them and upon such allotment to prepare a report which, upon confirmation by the Court, the court is required to pass a decree thereon. Under Rule 16 the Commissioner appointed under Order 26 has statutory powers to examine parties and witnesses' and call persons to give evidence, examine documents and other things relevant to the inquiry and enter upon the suit premises. Under Rule 18 the parties are enjoined to appear before the such Commissioner. 26. It is clear that the Commissioner appointed in this case had to proceed to execute the commission under the provisions of Order 26 Rules 13 to 18 as much as u/s 75(c) of the CPC. 16 The Commissioner's jurisdiction cannot be faulted. 27. The report of the Commissioner is in accordance with the directions. It has considered, the rents recovered not only by the parties to the suit but wrongfully recovered in the names and by their children without any legal right thereto in respect of the hoarding, the basic net rent in respect of the tenanted premises and the rent as per market value which is accepted to be recovered upon premises being valued at the market value and accounts being taken in respect of the commercial premises. 28. The Commissioners Report dated 24.10.2008 is accepted. 29. The challenge to the report lacks bonafides. Chamber Summons is dismissed. The Defendants, more specially Defendant No.4 who has acted as trustee / executor de son tort, shall make payment of the amounts representing 1/3 rd share to the Plaintiff in the suit forthwith. 30. The suit property has been partitioned. The actual partition by metes and bounds is required to be effected. The suit building has, as aforesaid, seven residential tenants, two commercial premises and one hoarding. Advocate on behalf of the Defendants No.2 to 4 states that the three divisions 17 may be effected giving two tenancies of similar nature to each of the branches. That would leave out two commercial premises and the hoarding as well as one residential premises. The parties apply for time to work out the most equitable way of the distribution of the last mentioned premises in three almost equal parts. Suit is kept on board for passing final decree of partition on 15.06.2009. (Smt. Roshan Dalvi, J)