1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.505 OF 2008 IN SUMMARY SUIT NO.1952 OF 2004 Narendra V. Mehta ...Plaintiff Vs. Ramesh Harilal Shah & N.H. Shah ...Defendant And Navin H. Shah ...Applicant Mr.O.A. Das for Plaintiff Mr. Jase Jorge for Defendant Applicant in person CORAM: SMT.ROSHAN DALVI, J. DATED: 25TH NOVEMBER, 2008 P.C. 1. The Plaintiff has obtained the decree and taken out an Execution Application therein. The Plaintiff has sought to attach the right, title and interest of the Defendant in the suit flat being Flat No.21 on 4th floor of Rekha Building No.2, 46, Ridge Road, Mumbai-400 006 and the movable property belonging to the Defendant. 2. The Applicant is the brother of the Defendant. Aside from the Defendant and the Applicant there is one more 2 brother and two more sisters of the parties. Hence, the Defendant has 1/5th share in the suit flat which can be attached and sold in execution of the decree obtained by the Plaintiff. The flat is a two bed room flat. The flat is required to be partitioned. 3. It is the case of the Defendant that the Plaintiff has no right to partition or secure in execution any portion of the flat in which the Applicant lives with his family members as also another brother. (The 2 sisters are married and living elsewhere). However, in execution of the Plaintiff's decree the flat is required to be partitioned such that from the Defendant' s 1/5th share in the undivided flat, the Plaintiff would be able to execute his decree. 4. The claim of the Plaintiff in Suit along with interest until today is approximately Rs.7 lakhs. The Suit flat is valued at more than Rs.2 Crores. 5. The most equitable partition between the parties for obtaining execution out of the Defendant's 1/5th share would be to divide, partition and sell the kitchen with one attached bathroom and toilet in execution so that that portion of the Defendant' s 1/5th share fetches a reasonable market value. 3 Though constrained, the Applicant agrees to make a partition such as would cause the least inconvenience to the Applicant and is beneficial to all the parties. 6. The Suit flat is stated to be about 871 sq. ft. carpet area. Hence, the Defendant's 1/5th share is 175 sq. ft. carpet area. The parties cannot tell the Court the exact carpet area of the kitchen, bathroom and toilet along with a passage which are required to be sold out of the Defendant's 1/5th share. Nevertheless such a partition is indispensable. 7. From the present main door of the suit premises the purchaser of the kitchen, bathroom and toilet would be required to obtain an entry into the door of the kitchen, which is near the main door of the suit flat. Thereafter the bathroom and toilet would be required to be joined to the kitchen to give the purchaser a self-contained unit. 8. This would be sufficient to pay off the Plaintiff's claim in execution of this decree. It would also beget further amount which would be paid off to the Defendant upon satisfaction of the Plaintiff's decree. Since the Defendant's 1/5th share is to the extent of 175 sq. ft. carpet area, the remainder of the area after the sale of the kitchen, bathroom and toilet as also 4 the passage between the kitchen, bathroom and toilet would be the remainder of the Defendant's 1/5th share. 9. The Applicant agrees to pay off the Defendant at the present market value to the extent of such share of the Defendant remaining unsold after the aforesaid partition is made for satisfaction of the Plaintiff' s claim in execution of the decree obtained by the Plaintiff. Until the Defendant is so paid off, the Defendant would continue to have an interest only to the extent of the area left after the kitchen, bathroom and toilet with passage is sold from the Defendant's 1/5th share. 10. For the sake of clarification the premises ultimately agreed to be sold by the parties in execution of the Plaintiff' s decree is shown in red on a sketch plan which shall be kept on record. 11. The Plaintiff or the purchaser shall be entitled to put up the partition along with the extra main door as shown in the sketch plan in red. 12. Chamber Summons is disposed off accordingly. 5 (SMT. ROSHAN DALVI, J.)