Bombay High Court

Kamlesh Jaysukhlal Bhuta And Anr vs Vasantben Ramnikhlal Bhuta ( Deleted ... on 2 January, 2025

Author:
N.J.Jamadar

Bench:
N.J. Jamadar

2025:BHC-OS:30

ia-2685-2023.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION NO.2685 OF 2023
IN
SUIT NO.3148 OF 2009

Kamlesh Jaysukhlal Bhuta and Anr. ...Applicants
VISHAL In the matter between
SUBHASH
PAREKAR Kamlesh Jaysukhlal Bhuta and Anr. ...Plaintiffs
Digitally signed by
VISHAL SUBHASH
versus
PAREKAR
Date: 2025.01.02
Vasantben Ramnikhlal Bhuta and Ors. ...Defendants
20:06:26 +0530

Mr. Girish Godbole, Senior Advocate with Mr. Vyom Shah, Mr.
Jimish Shah, Mr. Nitesh Menon, Mr. Virendra P., Ms. Aneesha
Munshi, Mr. Abhishek Bhosale, Ms. Palak Jain i/by Divya Shah
Associates, for the Applicants/Plaintiffs.
Mr. Shailesh Shah, Senior Advocate with Mr. D. Banarji, Mr. Aditya
Udeshi, Mr. Netaji Gawade i/by M/s. Sanjay Udeshi and Co., for
Defendant Nos.2 to 5.
Mr. Jagdish Aradwad (Reddy) for SRA.
Mr. S.K.Dhekale, Court Receiver, High Court, Bombay.

CORAM : N.J. JAMADAR, J.
RESERVED ON : JULY 16, 2024
PRONOUNCED ON : JANUARY 02, 2025

--------------

JUDGMENT :

1. The Applicants/Plaintiffs have preferred this application

seeking sale of part of the suit property described as 'Larger

Andheri Property' and the distribution of the sale proceeds between

the Plaintiffs and Defendants, permission to independently develop

the larger Andheri property and also direct the sale of such part of

CTS Nos.397, 397/A and CTS No.397/1 to 284 (part of the suit

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properties) owned by M/s. R.J. Constructions, on such terms as this

Court may deem fit.

2. At the outset, it may be necessary to note the nature and

subject matter of the instant suit and Suit No.389 of 2010, instituted

by the Defendants.

3. Jaysukhlal Bhuta - original Plaintiffs No.1, and Ramnikhlal,

husband of Defendant No.1 and the predecessor in title of Defendant

Nos.2 to 5, jointly, owned around 83 properties described in Exhibit

B to the Plaint. Kamlesh Bhuta - Applicant No.1 is the son of

Jaysukhlal and Bhanumati Bhuta - applicant No.2, is the wife of

Jaysukhlal Bhuta. Defendant Nos.2 to 5 are the descendants of

Ramnikhlal.

4. The Plaintiffs assert, the suit properties described in Exhibits

B and C are the joint properties and/or joint family properties of

Jaysukhlal and Ramnikhlal.

5. The Defendants contend, out of 83 properties described in

Exhibit B to the Plaint, 8 properties described in Exhibit C were

exclusively owned by Ramnikhlal, and, thus, the Defendants are the

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exclusive owners of the said properties. Conversely, Jaysukhlal and

his descendants have no right, title and interest therein.

6. The Plaintiffs have instituted the instant suit for declaration

that the properties mentioned in Exhibits B are joint family

properties, and for partition and separate possession of the said

properties.

7. The Defendants have instituted Suit No.389 of 2010, inter alia,

for a declaration that the properties mentioned in Exhibit C to the

Plaint in the said suit exclusively belonged to Ramnikhlal, and, for

partition of the remaining joint family properties. A prayer is also

made that the joint family properties which cannot be partitioned

by metes and bounds ought to be sold and the sale proceeds be

distributed in accordance with the share of the parties.

8. The Plaintiffs assert, area of the joint family properties

described in Exhibit B aggregates approximately 4,63,680 sq.

meters. The instant Interim Application is preferred in respect of

the properties bearing CTS Nos.397, 397A, 397/1 to 284, 401, 402,

402/1, 404/A/1, 404/A/2, 404/1 to 39, 422, 422/1 to 15

admeasuring about 90,836.72 sq. meters situated at Village Mogra,

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Taluka Andheri, referred to as 'the Larger Andheri Property',

asserting that:

(a) The Larger Andheri Property has been encroached by the slum

dwellers. In or around 2010, notifications were issued under the

Maharashtra Slum Areas (Improvement, Clearance And

Redevelopment) Act, 1971
(the
Slum Act, 1971
), declaring various

properties forming part of the larger Andheri property as slum

rehabilitation area. Despite the initiative by the Plaintiffs to submit

a joint proposal as co-owners of the said property as the portions of

the larger Andheri property are affected by the slums, the

Defendants refused to co-operate with the Plaintiffs.

(b) Few housing co-operative societies (proposed) have sprang up.

Those housing co-operative societies have filed proceedings under

the
Slum Act, 1971
for acquisition of the portions of the larger

Andheri property and rehabilitation of the slum dwellers residing

thereat. Faced with the acquisition proceedings, the Plaintiffs were

constrained to take out Notice of Motion Nos.365 and 366 of 2014

seeking permission of the Court to develop those portions of the

joint family properties. The Defendants resisted. By an order dated

2 February 2017, this Court permitted each of the co-owners to

make independent representations for developing the properties

before the Competent Authority. The Defendants have not made any

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representations.

(c) The endeavour of the Plaintiffs to develop portions of the

larger Andheri property was also thwarted by the Defendants by

filing objections to the effect that the proposal cannot proceed

without the consent of the co-owners - Defendants. Eventually, by

an order dated 5 October 2021, the Slum Rehabilitation Authority

has held that the proposal of the Plaintiffs for development of the

plots forming part of the larger Andheri property stood 'filed' for

want of consent of the co-owners. The said decision is challenged in

WP No.64 of 2022 filed by the Plaintiffs.

9. The Plaintiffs seek interim orders on the premise that, out of

the larger Andheri Property, an area admeasuring 61,513.40 sq.

meters is jointly owned by the Plaintiffs and Defendants, and, they

are entitled to 30,756.70 sq. meters each. What is in dispute is, the

share of the Plaintiffs in part of CTS Nos.397, 397A, 397/1 to 284

admeasuring 14,661.66 sq. meters only (disputed property).

10. According to the Plaintiffs, the disputed property is owned by

the Plaintiffs and Defendants in equal shares as it was owned by

family partnership firm M/s. R.J.Constructions, in which

Jaysukhlal - original Plaintiffs No.1, and Ramnikhlal, the

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predecessor in title of the Defendants, were partners having equal

shares. There are documents which either evidence or contain an

admission on the part of the predecessor in title of the Defendants

and/or Defendants, that the larger Andheri property, including the

disputed property, is co-owned by the Plaintiffs and Defendants,

whether individually or by virtue of Jaysukhlal (original Plaintiffs)

and Ramnikhlal, being the partners, having equal shares in M/s.

R.J. Constructions. The Plaintiffs are, thus, entitled to partition of

the larger Andheri property.

11. The Applicants/Plaintiffs aver, larger Andheri Property is,

however, not capable of being partitioned by metes and bounds on

account of the topography of the land, two big nallas, which flow

across the land; reservation of about 16,000 sq. meters as a

recreation ground under the Development Plan 2034, existence of

around 11 Tabelas sprawled across portions of the larger Andheri

Property, reservation of an area admeasuring 5500 sq. meters for

DP roads, set back area, etc., aviation height restrictions and more

importantly, encroachment by more than 20,000 slum dwellers,

with more than 3700 tenements across the portions of the larger

Andheri property, and various acquisition proceedings in respect of

some portions of larger Andheri property.

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12. In view of the aforesaid hindrances which make the partition

of the Larger Andheri Property by metes and bounds virtually

impossible, there is no alternative but to dispose of the larger

Andheri Property by allotment of the properties therein to one

party, subject to payment of just compensation and/or market value

to the other party.

13. In the application, the Plaintiffs have ascribed reasons which,

according to the Plaintiffs, make the Plaintiffs more suitable for the

sale of the larger Andheri Property to them. It is, inter alia,

contended that the Defendants do not have the financial means or

inclination to purchase the property. Alternatively, if the

Defendants have financial ability, they can pay the share of the

Plaintiffs subject to payment of just market rate to be discovered by

holding inter se auction or bidding.

14. The Plaintiffs have suggested the mode, terms and procedure

of inter se bidding, as set out in Exhibit TT. For the said purpose,

the Plaintiffs have estimated the base price of the larger Andheri

property at Rs.165 Crores approximately.

15. Lastly, it is averred, on account of the disinclination and

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reluctance of the Defendants to cooperate with the Plaintiffs in the

development of the larger Andheri property, there is an imminent

risk of acquisition of portions of the larger Andheri Property under

the provisions of
Section 14
of the Slum Act, 1971. In that event,

both the Plaintiffs and Defendants would suffer an irreparable loss

as valuable property would be acquired at a throw away price in

accordance with the provisions of the
Slum Act, 1971
. It is,

therefore, imperative in the interest of equity, justice and fairness to

pass interim orders as prayed for by the Plaintiffs.

16. An affidavit in reply came to be filed on behalf of the

Defendants resisting the prayers in the Interim Application. At the

threshold, the Defendants contend that the prayers in the instant

application cannot be granted as it would amount to granting final

reliefs at an interim stage without trial, and, thereby, the rights of

the Defendants would be irretrievably prejudiced. The Defendants

have categorically asserted that the properties bearing CTS

Nos.397, 397A, 397/1 to 284 exclusively belong to the Defendants

as Ramnikhlal had acquired the said properties under Deeds of

Indenture, during the period 1939 to 1948, out of his own funds.

Reliance on the Deed of Partnership dated 30 March 1972 to show

that those properties (disputed property) were brought in the stock

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of the firm M/s. R.J.Constructions, is wholly misplaced. The said

Partnership Deed nowhere indicates that Ramnikhlal had brought

in disputed properties as an asset of the partnership firm.

Therefore, the claim of the Plaintiffs over the disputed properties is

completely unsustainable.

17. The Defendants have denied that the Defendants have not

taken measures to assert and/or protect their rights over the

portions of the larger Andheri property. The Defendants filed an

appeal along with M.A.No.23 of 2017 to assail the order dated 30

June 2017, declaring lands bearing CTS Nos.397 (part), 397/29 to

44 and 422 (part) admeasuring 10032.434 sq. meters as slum

rehabilitation area under
Section 3(C)(1)
of the Slum Act, 1971. The

Defendants have also filed an appeal along with M.A.No.8 of 2011

challenging the Notification dated 23 December 2008 issued under

Section 4(1)
of the Slum Act, 1971 in respect of CTS Nos.397

(part), 397/275 to 284 admeasuring 7,326 sq. meters.

18. The Defendants categorically denied that they have adopted

obstructionist approach. The Defendants are entitled to protect

their rights in the disputed properties. The Plaintiffs have no right,

title and interest to develop the properties which exclusively

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belonged to Ramnikhlal. Therefore, the instant application seeking

permission to develop the larger Andheri property or sale of the

larger Andheri property, comprising properties over which the

Plaintiffs can lay no proprietary title, cannot be entertained.

19. The Defendants further contend that the Plaintiffs have

unilaterally determined the base price of Rs.165 Crores to suit their

case. Measures to have inter se bidding is suggested with an oblique

motive to trample upon the rights of the Defendants, and, also

prevent discovery of true market value of the larger Andheri

property. Such proposal cannot be countenanced.

20. In the alternative, and without prejudice to the aforesaid

contentions, in the event the Court comes to the conclusion that the

larger Andheri property is required to be sold, the Defendants

contend, bids may be invited from the public at large, so that the

best price can be fetched.

21. Moreover, properties bearing CTS Nos.401, 402, 402/1,

404/A/1, 404/A/2, 404/1 to 39, 422 and 422/1 to 15 were

purchased in the name of Nagardas Bhuta and Kashiben N. Bhuta,

and, are thus joint family properties. These properties can be

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divided by metes and bounds, and, there is no need to sale those

properties.

22. An additional affidavit was filed on behalf of the

Applicants/Plaintiffs to substantiate their claim that the larger

Andheri property cannot be partitioned by metes and bounds. A

report of Nadkarni & Co., Architects, Interior Designers and Valuers

dated 1 March 2024 was sought to be pressed into service in

support of the said claim. A reference is made to a Notification

dated 29 June 2017 issued by the Government of Maharashtra

under
Section 14(1)
of the Slum Act, 1971 to acquire 6,962.4 sq.

meters land out of Survey Nos.397, 397/275 to 284, to bolster up a

case that there is an imminent danger of acquisition of substantial

portion of the larger Andheri property by the State Government.

23. In the further affidavit in reply filed on behalf of Defendant

No.3, it is reiterated that the question as to whether the properties

cannot be partitioned by metes and bounds and, therefore, the

portion of the said properties be sold, is contentious and complex,

and cannot be decided in the Interim Application, without providing

an opportunity to the Defendants to lead evidence. By this

application, the Plaintiffs desire to preempt the entire trial

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procedure. The Defendants contend that the claim of the Plaintiffs

that the larger Andheri property cannot be partitioned by metes

and bounds, cannot be accepted as a gospel truth.

24. The Defendants have, in turn, placed reliance on a report

submitted by Shreeya Services Pvt. Ltd., Architects, to the effect

that the larger Andheri property can be partitioned equitably. With

reference to the Notification issued under
Section 4(1)
of the Act,

1971, the Defendants contend some properties were also notified

under the Notification dated 23 December 2008, which was

challenged by the Defendants by filing an appeal. Therefore, the

Plaintiffs cannot take any advantage of the fact that the

Notifications have been issued for acquisition of the property which

are exclusively owned by the Defendants.

25. In the wake of the aforesaid pleadings, I have heard Mr. Girish

Godbole, learned Senior Advocate for the Applicants/Plaintiffs and

Mr. Shailesh Shah, learned Senior Advocate for the Defendants, at

some length. The learned Counsel took the Court through the

pleadings and documents in the instant suit and Suit No.389 of

2010, the documents annexed with this application, reply thereto

and especially the rival reports of Architects, relied upon by the

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respective parties.

26. By this application, the Plaintiffs essentially seek permission

to exclusively develop larger Andheri property or the sale of the

larger Andheri property to either of the parties in inter se bidding

with the other party being paid the value of their share as

discovered in the inter se bidding.

27. Mr. Godbole, learned Senior Advocate for the Applicants/

Plaintiffs submitted that the prayers in the instant application

deserve consideration from a perspective which is, in essence,

beneficial to both the parties. Laying emphasis on the fact that the

valuable suit properties, especially the larger Andheri property,

face an imminent risk of acquisition at a nominal price under the

provisions of the
Slum Act, 1971
, Mr. Godbole urged that continuing

the status quo would cause irretrievable prejudice to both the

parties. The factors of large scale encroachments and the

proceedings for acquisition of the portions of the larger Andheri

property under the provisions of the
Slum Act, 1971
were pressed

into service to draw home the point that this is a fit case where the

Court would be justified in permitting the change in the nature of

the suit properties during the pendency of the suit. To this end, Mr.

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Godbole placed reliance on the decision of the Supreme Court in the

case of Maharwal Khewaji Trust (Regd.) Faridkot V/s. Baldev Dass1.

28. Mr. Godbole further submitted that a practical and pragmatic

view of the matter is required to be taken. Encroachments over the

larger Andheri property is indisputable. In addition, on account of

the topography of the suit properties, reservations in the

Development Plan, existence of a number of large cattle sheds

(tabelas), reservation for DP roads and the aviation height

restrictions, partition of the larger Andheri property by metes and

bounds is impracticable.

29. Baking upon the report of M/s. Nadkarni and Company,

Architects, especially the conclusion (pages 734-735), Mr. Godbole

urged that the reasons ascribed by the Architects for arriving at the

conclusion that the equitable division of the Larager Andheri

Property is not practicable, cannot be brushed aside lightly. Each of

the circumstances noted by the Architect bear upon the partibility

of the subject suit lands from the point of view of economic viability

and development potential.

30. Mr. Godbole submitted that to address such a situation, the
1 (2004) 8 SCC 488

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legislature has enacted the
Partition Act, 1894
. Laying special

emphasis on the statement of objects and reasons of the
Partition

Act, 1894
, Mr. Godbole strenuously submitted that a preliminary

decree for partition is not a pre-condition for the exercise of the

power to direct the sale of the joint family properties. Nor is it

necessary that the Court must record a positive finding that the

partition by metes and bounds is not reasonable or convenient. It

should only appear to the Court that the suit property is not capable

of division by metes and bounds. To buttress this submission, Mr.

Godbole placed strong reliance on the decisions of the Supreme

Court in the cases of R.Ramamurthi Iyer V/s. Raja V. Rajeswara

Rao2 and Rani Aloka Dhdhoria and Ors. V/s. Goutam Dudhoria and

Ors.3

31. As a second limb of the submission, Mr. Godbole would urge

that, given the peculiar facts of the case, this Court is not denuded of

the power to order the sale at an interim stage, if the Court finds it

expedient in the interest of justice. The Court can always resort to

inherent powers under
Section 151
of the Code of Civil Procedure,

1908, as such a course is not expressly prohibited. Reliance was

placed on a decision of the Gujarat High Court in the case of

2 (1972) 2 SCC 721
3 (2009) 13 SCC 569

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Hirachand Kikabhai V/s. Chandrasen Motichand4 and a judgment of

the Supreme Court in the case of Rajendra Prasad Gupta V/s.

Prakash Chandra Mishra and Ors.5.

32. Mr. Godbole further submitted that the resistance to the sale

of the disputed properties on the premise that those properties are

solely owned by the Defendants does not merit countenance, as

there are four documents which clearly demonstrate that the

disputed property was brought by the predecessor in title of the

Defendants as a capital in M/s. R.J.Constructions. Attention of the

Court was invited to the Development Agreement dated 2 July 2004

executed by and between Ramnikhlal and Jaysukhlal in the

capacity of partners of M/s. R.J.Constructions and M/s. Aditi

Developers, wherein the disputed property was shown to have been

brought in as the capital of Ramnikhlal, and, consequently, the

property of the firm. Secondly, in Suit No.3179 of 2004 instituted

by Ramnikhlal, Jaysukhlal and R.J.Constructions, it was again

categorically asserted that Ramnikhlal had brought the said

property in the firm M/s. R.J.Constructions, and, thereby, the

Plaintiffs therein were the owners of the disputed property.

4 1966 ILR Guj 143
5 (2011) 2 SCC 705

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33. In the face of these documents which, in a sense, constitute

admission in pleadings, the claim of the Defendants that they are

the exclusive owners of the disputed property, is clearly

unsustainable. In any event, Mr. Godbole urged, the applicants have

suggested a mechanism to protect the interest of the Defendants

qua the disputed property in the event the court orders the sale.

Even otherwise, the Court may put appropriate conditions to

protect the interest of the Defendants qua the claim with regard to

the disputed property.

34. In opposition to this, Mr. Shah, learned Senior Advocate for

the Defendants, at the outset, submitted that this application is

actuated by a design to preempt the trial of all the disputed

questions of facts and law by seeking the sale of the larger Andheri

property and present a fait accompli to the Defendants. Taking the

Court through the prayers in the plaint, especially the relief of

declaration in prayer clause (a) and partition by metes and bounds

in prayer clause (b), Mr. Shah urged with tenacity that those

principal prayers in the plaint would stand granted without proof

and trial if the Court grants the alternate prayer contained in

prayer clause (b)(i) of sale of the suit properties, at an interim

stage. Such a course is legally impermissible, urged Mr. Shah.

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35. An earnest endeavour was made by Mr. Shah to draw home

the point that whether the partition of the suit properties by metes

and bounds is not reasonable and practicable, is a matter rooted in

facts, and that question warrants determination at the trial. A

summary inquiry, like the present one, which the applicants desire

the Court to embark upon to determine whether the partition is

possible, is not permissible.

36. At any rate, the matter is also within the province of the

experts, urged Mr. Shah. In the case at hand, there are conflicting

reports of the experts. The report of Shreeya Services Pvt. Ltd.,

Architects, solicited by the Defendants, in terms, records that the

equitable division of the larger Andheri property is practicable. At

this stage, according to Mr. Shah, the Court is not equipped to give

primacy to one of the two conflicting reports sans evidence.

Therefore, according to Mr. Shah, the proper course would be to

conclude the trial expeditiously as the pleadings are complete. The

proposed course of action has the propensity to by-pass all the

provisions of the Code, including Order XX Rule 18.

37. Refuting the submissions on behalf of the applicants premised

on the provisions of the
Partition Act, 1894
, Mr. Shah asserted that

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the recourse to the provisions of the
Partition Act
, can be made at

the time of passing of the decree. None of the judgments, on which

reliance was placed on behalf of the applicants, were rendered in a

case where the Court resorted to the provisions of the
Partition Act
,

at an interim stage. Therefore, at this juncture, recourse to the

provisions of the
Partition Act, 1894
is extremely tenuous.

38. Mr. Shah further urged that, in the facts of the case, in view fo

the two conflicting reports, even it cannot be said that it appears to

the Court that the partition of the larger Andheri property is not

reasonable or practicable. The Defendants have fairly pleaded the

true state of affairs as regards the ownership of the suit lands. The

fact that the Defendants have admitted that there are joint family

properties does not necessarily imply that the Defendants have

admitted that those properties cannot be divided by metes and

bounds. Thus, the recourse to the provisions of Order XII Rule 6 of

the Code, is not at all warranted.

39. Mr. Shah urged with a degree of vehemence that the question

as to whether the disputed property was brought in the partnership

firm by deceased Ramnikhlal, cannot be decided at this stage. The

aspect as to whether the recitals in the Development Agreement, or

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for that matter, pleadings in the previous proceedings constitute an

admission that the disputed properties formed part of the

partnership asset, is a matter which must await adjudication at the

trial post evidence. Taking the Court through the Partnership Deed,

especially clause (4) thereof, Mr. Shah submitted that the question

as to whether there was compliance with the reciprocal promise

contained therein, has to be decided at the trial.

40. Mr. Godbole joined the issue by canvassing a submission that

the disputed properties, which were incontrovertibly shown as the

property of R.J.Constructions, vested in late Ramnikhlal and

Jaysukhlal, as the partners of the said firm.
The Partnership Act

contemplates liquidation of the assets of the partnership as the

primary step to the settlement of accounts between the partners

upon the dissolution of a firm. Both Plaintiffs and Defendants, in

their respective suits, are, inter alia, seeking the dissolution of the

partnership M/s.R.J.Constructions. Therefore, there is no

impediment in ordering the sale of the disputed property as well, for

the parties are not at issue on the point that the firm M/s. R.J.

Constructions stood dissolved. To bolster up this submission, Mr.

Godbole placed reliance on the judgment of Supreme Court in the

case of
S.V.Chandra Pandian & Ors. vs. S.V.Sivalinga Nadar & Ors.6
.
6 (1993) 1 SCC 589

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Consideration :-

41. Before appreciating the aforesaid submissions canvassed

across the bar, it may be apposite to precisely ascertain the area

over which the parties are at issue, with regard to the proprietary

rights. In the further affidavit in reply, the Defendants have

classified the suit properties which are joint family properties,

properties over which the Defendants claim exclusive ownership

and the properties which exclusively belonged to the Plaintiffs. The

properties bearing CTS Nos. 401, 404, 404/A/1, 404/A/2, 404/1 to

39, 422, and 422/1 to 15, having been purchased by Nagardas

Bhuta and Kashiben Bhuta, are stated to be the undisputed joint

family properties. Properties bearing CTS No.402 and 402/1 are

stated to be the properties belonging to the Plaintiffs and, thus,

solely owned by the Plaintiffs. The properties bearing CTS Nos.397,

397A, 397/1 to 284 are the properties solely owned by the

Defendants (disputed properties).

42. The controversy between the parties, thus, revolves around

the questions as to whether the disputed properties form part of

joint family properties and whether the larger Andheri property

cannot be partitioned by metes and bounds and whether the

circumstances of the case are such that the Court, at an interim

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stage, ought to direct the sale of the Larger Andheri Property

without going for the trial, and, if the circumstances so warrant,

what ought to be the modalities of the sale ?

43. Evidently, the distinct considerations would come into play as

regards the three sets of suit properties, as classified by the

defendants. In respect of the undisputed joint family properties, the

question as to whether the said properties are not conveniently and

reasonably partible would be at the hub of the matter, since these

does not seem much controversy over the entitlement of Jaysukhlal

Bhuta, the predecessor in title of the Plaintiffs, and Ramnikhlal

Bhuta, the predecessor in title of the defendants. With regard to the

disputed properties, over which the defendant claim right, title and

interest, to the exclusion of the Plaintiffs, the question of title would

be required to be determined in addition to the necessity of sale on

account of impracticability of partition by metes and bounds. The

third set comprising the properties bearing CTS No. 402 and 402/1,

which the defendants concede, exclusively belong to the Plaintiffs, a

declaration to that effect would suffice.

44. Taking the third set first, it is necessary to note, in the

affidavit in reply dated 7th February, 2024, in paragraph 18, it was,

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inter alia, contended that the properties including the properties

bearing CTS Nos. 402 and 402/1 were purchased in the names of

Nagardas Bhuta and Kashiben N. Bhuta and therefore those were

joint family properties. However, in the further affidavit in reply by

defendant No. 3, it has been categorically asserted that the

properties bearing CTS Nos. 402 and 402/1 are the properties of the

Plaintiffs solely. In paragraph No. 9 of the said affidavit, it has been

further asserted that the defendants have no claim over the said

properties of the Plaintiffs. It would be contextually relevant to note

that in the report of Shreeya Services Pvt. Ltd., Architects

appointed by the Defendants also, it is recorded that the Architects

were instructed to exclude CTS Nos. 402 and 402/1 as those

properties were in the exclusive ownership of the Plaintiffs. It would

be also necessary to note that Mr. Shah, learned Senior Advocate for

the Defendants, also canvassed submissions on the premise that the

properties bearing CTS Nos. 402 and 402/1 exclusively belong to

the Plaintiffs.

45. In view of the aforesaid stand of the defendants, on an

affidavit, I am inclined to hold that there is no impediment, even at

this stage, in making a declaration that the properties bearing CTS

Nos. 402 and 402/1, are exclusively owned by the Plaintiffs, and

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thus, exclude those properties from further consideration.

46. This leads me to the consideration of the prayers in the

instant application qua the first set of the suit properties, namely,

the undisputed joint family properties. At the outset, it is necessary

to note the nature of a suit for partition. A judicial determination in

a suit for partition involves broadly two parts. First, whether a

party claiming partition has a share in the suit property and, if yes,

whether such a party is entitled to a division and separation of his

share. Second, once the aforesaid question is answered in the

affirmative, the actual division of the properties, which is primarily

in the nature of a ministerial act.

47. A useful reference in this context can be made to a decision of

the Supreme Court in the case of
Shub Karan Bubna @ Shub Karan

Prasad Bubna vs. Sita Saran Bubna and Others7
wherein the nature

of a suit for partition was expounded, as under:-

7] In a suit for partition or separation of a share, the prayer is not
only for declaration of Plaintiffs's share in the suit properties, but
also division of his share by metes and bounds. This involves three
issues:

(i) whether the person seeking division has a share or interest in
the suit property/properties;

(ii) whether he is entitled to the relief of division and separate
possession; and

(iii) how and in what manner, the property/properties should be

7 (2009) 9 Supreme Court Cases 689.

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divided by metes and bounds ?

In a suit is for partition or separation of a share, the court at
the first stage decides whether the Plaintiffs has a share in the suit
property and whether he is entitled to division and separate
possession. The decision on these two issues is exercise of a
judicial function and results in first stage decision termed as
`decree' under Order 20 Rule 18(1) and termed as `preliminary
decree' under Order 20 Rule 18(2) of the Code. The
consequential division by metes and bounds, considered to be a
ministerial or administrative act requiring the physical inspection,
measurements, calculations and considering various permutations
/ combinations /alternatives of division is referred to the
Collector under Rule 18(1) and is the subject matter of the final
decree under Rule 18(2).

48. The thrust of the submission of Mr. Shah was that the instant

application obviates the judicial determination as to the entitlement

and partiability of the suit properties and, instead, directly calls

upon the Court to venture into the division of the properties in a

particular fashion i.e. by the sale of the suit properties. An earnest

endeavour was made by Mr. Shah to draw home the point that the

said exercise can only be at the stage of passing of the final decree. A

two-pronged challenge was mounted by Mr. Shah. One, the case that

the suit properties cannot be reasonably and conveniently

partitioned has not been pleaded adequately. Two, there is no

warrant for invoking the provisions contained in
sections 2
and
of

the Partition Act, 1893, at this stage.

49. The statement of objects and reasons for the enactment of

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Partition Act, 1893
indicates the circumstances which necessitated

the enactment and the mischief the legislation proposed to address.

It explicitly records that, under the law, as it then stood, the Court

was enjoined to give the share to each of the parties and could not

direct a sale and division of the proceeds in any case whatever.

There were insuperable practical difficulties in the way of making

an equal division, and it was realized that the Court was either

powerless to give effect to its decree or was driven to all kinds of

shifts and expedients in order to do so. It was, therefore, proposed

to supply the said defect in the law, by giving the Court, under

proper safeguard, a discretionary authority to direct a sale where a

partition cannot reasonably be made and the sale would, in the

opinion of the Court, be more beneficial for the parties. At the same

time, having regard to the strong attachment of the people in this

country to their landed possession, it was proposed to make the

consent of parties interested at least to the extent of a moiety a

condition precedent to the exercise by the Court of the said power.

Thus, in order to prevent any oppressive exercise of the said

privilege, it was proposed to give such of the shareholders as do not

desire a sell, the right to buy the others out at a valuation to be

determined by the Court.

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50. Keeping in view, the aforesaid object of the
Partition Act,
, the provisions contained in
sections 2
and
of the Act, 1893,

deserve to be extracted. They read as under:-

2] Power to Court to order sale instead of division in partition
suits - Whenever in any suit for partition in which, if instituted prior
to the commencement of this Act, a decree for partition might have
been made, it appears to the Court that, by reason of the nature of the
property to which the suit relates, or of the number of the
shareholders therein, or of any other special circumstance, a division
of the property cannot reasonably or conveniently be made, and that a
sale of the property and distribution of the proceeds would be more
beneficial for all the shareholders, the Court may, if it thinks fit, on the
request of any of such shareholders interested individually or
collectively to the extent of one moiety or upwards, direct a sale of the
property and a distribution of the proceeds.

3] Procedure when sharer undertakes to buy -

(1) If, in any case in which the Court is requested under the last
foregoing section to direct a sale, any other shareholder applies for
leave to buy at a valuation the share or shares of the party or parties
asking for a sale, the Court shall order a valuation of the share or
shares in such manner as it may think fit and offer to sale the same to
such shareholder at the price so ascertained, and may give all
necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as
provided in sub-section (1), the Court shall order a sale of the share or
shares to the shareholder who offers to pay the highest price above the
valuation made by the Court.

(3) If no such shareholder is willing to buy such share or shares at the
price so ascertained, the applicant or applicants shall be liable to pay
all costs of or incident to the application or applications.

51. From a conjoint reading of
sections 2
and
of the Act, 1893, it

becomes discernible that the Court invoking the power to direct the

sale of the property in a suit for partition, must first record a finding

that the case is such that a decree for partition might have been

passed. Secondly, on account of the nature of the property which is

the subject matter of the suit, the number of shareholders, who are

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entitled to be allotted the shares in the suit property or any other

special circumstances, it appears to the Court that a division of the

property, cannot reasonably or conveniently be made and

consequently a sale of the property and distribution of the proceeds

would be more beneficial for all the shareholders. It must be

remembered that
section 2
confers a discretion on the Court and as

is the case with the exercise of discretion in other jurisdictions,

such discretion must be exercised judiciously and after being

informed of all the relevant considerations.

52. A profitable reference in this context can be made to the

decision of the Supreme Court in the case of R.Ramamurthi Iyer

(supra) wherein, the import of the provisions contained in
sections
and
of the Act, 1893 was expounded in the following terms :

8] ..........The scheme of
Sections 2
and
apparently is that if the
nature of the property is such or the number of shareholders is so
many or if there is any other special circumstance and a division of the
property cannot reasonably or conveniently be made, the court can in
its discretion, on the request of any of the shareholders interested
individually or collectively to the extent of one moiety or upwards,
direct a sale of the property and distribute the proceeds among the
shareholders. Now where a court has been requested under
Section 2

to direct a sale any other shareholder can apply for leave to buy at a
valuation the share or shares of the party or parties asking for sale. In
such a situation it has been made obligatory that the court shall order a
valuation of the share or shares and offer to sale the same to the
shareholder who has applied for leave to buy the share at a price
ascertained by the court. other words if a-Plaintiffs in a suit for
partition has invoked the power of the court to order sale instead of
division in a partition suit under
section 2
and the other shareholder
undertakes to buy at a valuation the share of the party asking for sale
the court has no option or choice or discretion left to it any it is bound

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to order a valuation of the shares in question and offer to sale the same
to the shareholder undertaking or applying to buy it at a valuation. The
purpose underlying the section undoubtedly appears to be to prevent
the property falling into the hands of third parties if that can be done in
a reasonable manner. It would appear from the Objects and Reasons
for the enactment of the
Partition Act
that as the law stood the court
was bound to give a share to each of the parties and could not direct a
sale or division of the proceeds. There could be, instances where
"there were insuperable practical difficulties in the way of making an
equal division and the court was either powerless to give effect to. its
decree or was- driven to all kinds of shifts and expedient in order to do
so. The court was, therefore, given a discretionary authority to direct a
salt where. a partition could not reasonably be made and the sale
would, in the opinion of the court, be more beneficial to the parties.
But having regard to the strong attachment of the people in this
country to their landed possessions the consent of the parties
interested at least to the extent of a moiety in the property was made a
condition precedent to the exercise by the court of the new power. At
the same time in order to prevent any oppressive exercise of this
privilege those shareholders who did not desire a sale were given a
right to buy the others out at a valuation to be determined by the court.

53. In the aforesaid case, it is of critical salience to note, in the

context of the controversy at hand, that the Supreme Court

enunciated in clear and explicit terms that the language of
section 2

of the Partition Act, 1893 does not appear to make the Court to give

a finding that the property is incapable of division by metes and

bounds.

54. The aforesaid pronouncement was followed by the Supreme

Court in the case of
Rani Aloka Dudhoria vs. Goutam Dudhoria8
.

A

Division Bench of the Delhi High Court in the case of
Kusum Kumria

and Others vs. Pharma Venture (India) Private Limited and Anr.
8 (2009) 13 Supreme Court Cases 569.

9 2015 SCC OnLine Del 13042.

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after an elaborate analysis of the provisions and precedents,

summed up the principles, inter alia, as under:

(iv) If a division by metes and bounds cannot be made without further
enquiry, then first, the preliminary decree shall be passed and
thereafter a commissioner is appointed to physically examine the
property to suggest manner of division. (Ref : Shub Karan Bubna, para
18.2).

........ .......

(ix) In a partition suit, under
Section 2
of the Partition Act, having
regard to the nature of the property or large number of shareholders or
in other special circumstance, if it appears to the court that the
division of the property cannot reasonably or conveniently be made
and that a sale of the property would be more beneficial, it can direct
sale of the property and distribution of the proceeds as per shares
declared. In addition, the court may be requested to direct sale by
shareholders, interested individually or collectively to the extent of one
moeity or upwards. (Ref : Shub Karan Bubna, para 18.2 and R.
Rmamurthi Iyer, para 8).

(x) It is not obligatory on the court to give a positive finding that the
property is incapable of division by metes and bounds. It should only,
"appear" that it is not so capable of division. Parties may jointly agree
to such dispossession of the property. (Ref : R. Ramamurthi Iyer, para

13).

(xi) The request from the shareholder (s) for sale of the property does
not have to be in the nature of a formal prayer. (Ref : Rani Aloka
Dudhoria, para 48; R. Rmamurthi Iyer, para 13) If a party or co-sharer
asks for sale of a property under
Section 2
of the Partition Act, it is the
duty of the court to order the valuation of the shares (Ref.: Malati
Ramachandra Raut).

(xii) The words employed in
Section 3(1)
only require the shareholder
has to merely inform the court or to notify to it that he is prepared to
buy at a valuation the share of the party asking for sale. No formal
application for the purpose is necessary (R. Ramamurthi Iyer). It is
obligatory upon the court to offer to sale the same to the shareholder(s)
who seek to buy the shares of the other party in terms of
Section 3
at
the price determined upon such valuation. The court has no discretion
or option or choice in this matter. (Ref : Malati Ramchandra Raut, para
9; R. Ramamurthi Iyer, paras 8 and 11).

(xiii) The right of a co-sharer to purchase a property directed to be sold
under
Section 3
of the Partition Act accrues on the date the co-sharer
request the court to sale the property to him. The valuation of the
shares has to be made on the date of accrual of this right. (Ref : Malati
Ramchandra Raut, para 10).

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(xiv) In a partition suit, the Plaintiffs is not wholly dominus litis. After
a shareholder has applied for leave to buy at a valuation under
Section
of the Partition Act, the Plaintiffs who requested the court to exercise
the power under
Section 2
of ordering the sale, cannot withdraw the
suit under
Order 23 Rule 1 of the CPC
. (Ref :R. Rmamurthi Iyer, paras
9 and 10).

55. Mr. Shah submitted that the decision in the case of R.

Ramamurthi Iyer (supra) was at the stage of passing of the decree

and not at an interim stage, as is the case at hand. It was urged that

the nature and character of the suit property cannot be changed

during the pendency of the suit and till rights of the parties are

adjudicated. Reliance on the decision of the Supreme Court in the

case of Maharwal Khewaji Trust (supra) on behalf of the Plaintiffs,

does not advance the cause of the submission on behalf of the

Plaintiffs as the Supreme Court has emphasized the principle of

maintaining the status-quo during the pendency of the proceeding,

urged Mr. Shah.

56. In the case of Maharwal Khewaji Trust (supra), the Supreme

Court has observed that unless and until a case of irreparable loss

or damage is made out by a party to the suit, the Court should not

permit the nature of the property being changed which also includes

alienation or transfer of the property which may lead to loss or

damage being caused to the party who may ultimately succeed and

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may further lead to multiplicity proceedings.

57. Ordinarily, the recourse to the provisions contained in

sections 2
and
of the Partition Act, 1893 can be at the stage of a

decree for partition. However, from the text of
section 2
of the

Partition Act, 1893 an inexorable and immutable rule that recourse

to
sections 2
and
of the Act is not permissible at an interim stage,

cannot be deduced.

58. If upon consideration of all the circumstances, the Court is

satisfied that, in a given case, a decree for partition might have been

made, the Court can proceed to determine whether a case for

exercise of discretion to order the sale of the suit property is made

out. Therefore, the resistance on behalf of the defendants that the

stage is not ripe for considering the recourse to
sections 2
and
of

the Partition Act, 1893 does not merit acceptance, unreservedly.

Undoubtedly, the change in the status-quo, the maintenance of

which is the norm, until the adjudication of the rights of the parties,

can be permitted only where a justifiable case of irreparable loss or

irretrievable damage is made out. Whether the facts of the case at

hand are such as to warrant exercise of such discretionary power ?

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59. An answer to the aforesaid question will hinge upon the

considerations which inform the exercise of discretion under

section 2
of the Partition Act, 1893, noted above. First and foremost,

the nature of the suit properties. By and large, two factors appear to

be rather incontestable. One, a substantial portion of the suit

properties has been encroached upon. In the application, the

Plaintiffs assert that there is encroachment by more than 20000

slum dwellers, with over 3700 tenements across the portions of

Larger Andheri Property. Second, proceedings have been initiated

for declaration of portions of Larger Andheri Property for

rehabilitation of the slum dwellers under the
Slum Act, 1971
.

60. It is imperative to note that in an attempt to refute that the

case of the Plaintiff's that the defendants did not take steps to

challenge the acquisition proceeding or assert their right to

redevelop the properties encroached upon by the slum dwellers, the

defendants have placed on record the copies of appeals preferred

before the Slum Tribunal assailing the acquisition (Exhibit A and

to the affidavit in reply). It appears that in those appeals, the

Plaintiffs and their predecessor in title also joined. (Implication of

this wold be considered while determining the controversy as

regards the disputed properties). To add to this, to the additional

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affidavit, the Plaintiffs have annexed a copy of the notification dated

29th June, 2024 wherein in exercise of the powers conferred by sub

section (1) of
Section 14
of the Act and clause (i) of
Section 3D
of

the Slum Act, 1971, the Government made a declaration to acquire

the properties including the disputed properties and Survey Nos.

401 and 401 (P).

61. The situation which thus obtains is that a large tract of the

Larger Andheri Property has been encroached upon. The

Proceedings have been initiated under the
Slum Act, 1971
to acquire

portions of Larger Andheri Property. Indeed the Plaintiffs and the

defendants have assailed the acquisitions by resorting to the

proceedings which they considered appropriate. It is common

knowledge that where the property is encroached upon by slum

dwellers, in a metropolis like Mumbai, where land commands a

premium and there is also a legislative policy to protect the interest

of the persons who happen to be slum dwellers and displaced, the

factum of such large scale encroachment is a relevant

consideration. It must weigh in, in determining whether the

property can be reasonably and conveniently partitioned by metes

and bounds.

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62. The topography of the Larger Andheri Property also deserves

consideration. It is asserted that two big nallas flow across the land.

Those nallas divide Larger Andheri Property into such sub plots as

to render equitable division impracticable. The regulatory

designations in the development plan and provisions for DP Road

reservation for recreation ground etc. put further hindrances in the

equitable division of Larger Andheri Property.

63. Mr. Shah the learned counsel for the defendants would urge

that all the aforesaid difficulties are rooted in facts. At this stage,

the claim of the Plaintiffs cannot be taken at its face value. It was

urged that the report of Nadkarni & Co., Architects, will have to be

tested at the trial. Mr. Shah further urged that the report of M/s.

Shreeya Services Private Limited, Architects, appointed by the

defendants, on the other hand, indicates that equitable partition of

the Larger Andheri Property is possible. Therefore, at this stage, it

cannot be said with certainty that it appears that partition of the

Larger Andheri Property is not reasonably possible.

64. I have perused the reports of Nadkarni & Co., Architects and

M/s. Shreeya Services Private Limited, Architects. It is true, at this

stage, the Court may not be equipped to give precedence to one

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report over another. However, the factors which are taken into

account by respective Architects, can be examined. In the report

dated 1st March, 2024, Nadkarni & Co., has culled out the factors

which, in their opinion, render an equitable sub division of the

Larger Andheri Property or the disputed property, not possible.

The conclusions read as under:

44) As described above, the proposed development plan roads
divide the Larger Property as well s the Truncated Property into
five sub-plots of varying sizes. The existing nallas further sub-

divide two of the sub-plots in the Larger Property and one of the
sub-plots in the Truncated Property into two parts of varying sizes.
Thus the Larger Property is divided into seven parts of varying
sizes by the proposed development plan roads and the existing
nallas, while the Truncated Property is divided into six parts of
varying sizes by the proposed development plan roads and the
existing nallas.

45) As also described above, the sub-plots created out of the Larger
Property and the Truncated Property are affected by a number of
factors viz. Development plan reservation for Garden/ Park (ROS
1.5), co-operative housing societies formed by the slum-dwellers,
existing tabelas (cattle sheds) and highway buffer zones. The areas
affected by these factors vary significantly from sub-plot to sub-plot,
and also overlap each other in varying proportions, resulting in
significant difference in the FSI permissible and consumable on
each of the sub-plots.

46) Moreover, the height restrictions that would be imposed by the
Civil Aviation Authority combined with the sloping nature of the
Larger Property and the Truncated Property would result in further
difficulty in consumption of FSI thereon.

47) Due to the above reasons, an equitable sub-division of the
Larger Property or the Trucated Property into two parts would not
be possible. Any sub-division of the Larger Property or the
Truncated Property will divide such property in an inequitable
manner and one of the parties would have to accept the less than
equitable portion out of the Larger Property or the Truncated
Property.

65. In contrast, in its report, M/s. Shreeya Services Private

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Limited, Architects, professed to propose an equitable distribution

of the Larger Andheri Property. The special circumstances

associated with the property on account of large scale

encroachment by the slum dwellers, existence of large cattle sheds

(tabelas), the effect brought about by the passing of nallas, the

division of the Larger Andheri Property as well as disputed

property into plots on account of passing of nallas, reservation of

lands for DP roads and other designations and overall situation of

the lands so as to afford equitable partition of the property from the

perspective of economic viability and development potential, does

not seem to have been adequately weighed in by M/s. Shreeya

Services Private Limited, Architects.

66. At this juncture, the fact that there is no dispute about the

character of the undisputed joint family properties (as claimed by

the defendants) assumes decisive significance. With the

encroachment of the properties and the resultant litigation as well

as the vicissitudes of fortunes of litigation, having regard to the

numerous stake holders involved therein, the possibility of the

parties succeeding in obtaining actual physical possession of a

substantial part of Larger Andheri Property appears remote.

Conversely, if the properties are not redeveloped by the owners by

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resorting to the provisions contained in the
Slum Act, 1971
, there is

an imminent possibility of those properties being acquired by the

State Government under the provisions of
Slum Act, 1971
. It need

not be emphasized that compensation to be awarded under the
Slum

Act, 1971
to the owner of the property can never be commensurate

with the development potential of the lands, in a city like Mumbai.

67. In this view of the matter, the submission on behalf of the

Plaintiffs that allowing the status-quo to continue may cause

irreparable loss to both the Plaintiffs and the defendants, can not be

brushed aside lightly. If the other factors which impede the

equitable distribution of the properly, adverted to above, are

considered in juxtaposition with the large scale encroachment of the

subject property, in my considered view, a justifiable case for

exercise of the discretion under
sections 2
and
of the Partition

Act, 1893 so far as the undisputed joint family properties (out of

Larger Andheri Property) can be said to have been made out.

68. As regards the disputed properties i.e. properties bearing CTS

Nos.397, 397/A and CTS No.397/1 to 284, the Plaintiffs seek to

draw support to their claim that the disputed properties form part

of the property of M/s. RJ Constructions (of which deceased

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Jaysukhlal Bhuta and Ramnikhlal Bhuta were the partners) from

the purported admission on the part of defendants and the

predecessor in title of the defendants. It was submitted that there

are documents of unimpeachable character which record such clear

and explicit admissions. Since these are the admissions in

pleadings, the Plaintiffs assert, they stand on a higher pedestal and

can thus form the basis of an adjudication.

69. Reliance was placed on the copies of the judgments in Appeal

No. 31 of 1981 (Exhibit 3) and Appeal No. 13 of 1986 (Exhibit 4)

delivered by the Maharashtra Slum Tribunal under
section 4(3)
of

the Slum Act, 1971, jointly preferred by Jaysukhlal and Ramnikhlal

Bhuta and their successors in interest in respect of the properties

bearing CTS Nos.397, 397/A and CTS No.397/1 to 284, respectively.

The Plaintiffs were shown as the owners of the said property along

with the predecessor in title of the defendants. Secondly, the Deed of

Partnership dated 30th March, 1972 between Jaysukhlal and

Ramnikhlal clearly records that Ramnikhlal Bhuta had agreed to

bring in the property situated at Andheri which was then valued at

Rs. 5 lakh in the partnership as his capital.

70. To bolster up the submission that the disputed property was

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the property of the firm, reliance was placed on the Development

Agreement dated 2nd July, 2004 wherein it was, inter alia, recorded

that, Ramnikhlal had acquired the subject properties bearing CTS

Nos. 397, 397/A and CTS No.397/1 to 284 and under the

partnership dated 30th March, 1972 brought the said property as

his capital in the partnership firm and thereupon both Ramnikhlal

and Jaysukhlal acquired the ownership over the said property.

Attention of the Court was also invited to the copy of the plaint in

Suit No. 3179 of 2024 wherein it was asserted that Ramnikhlal and

Jaysukhlal Bhuta were the partners of M/s. RJ Constructions, a

partnership firm, and they owned the property bearing Survey Nos.

397. Ramnikhlal Bhuta had brought the said property into the

partnership firm and thus the Plaintiffs became the owners of the

said property.

71. Mr. Godbole, the learned Senior Advocate for the Plaintiffs,

strenuously submitted that in the face of the aforesaid documents, it

can hardly be contested that the disputed properties form part of

the property of the partnership firm, M/s. RJ Constructions. Once

there is material to show that the properties were brought in the

stock of the firm, the manner in which the properties become the

firm's property looses significance. Since both the partners have

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passed away and the parties are ad idem that M/s. RJ Constructions

the firm, is required to be dissolved, the first step towards

settlement of accounts would be disposal of the property of the firm.

To this end, Mr. Godbole, placed a heavy reliance on the decision of

the Supreme Court in the case of
S.V.Chandra Pandian
(supra).

72. In the said case, Supreme Court after tracing the legal

position, enunciated that, "regardless of its character the property

brought into the stock of a firm or acquired by a firm during its

subsistence for the purposes and in the course of its business

shall constitute the property of the firm unless the contract

between the partners provides otherwise. On the dissolution of the

firm each partner becomes entitled to his share in the profits, if

any, after the accounts are settled in accordance with
section 48

of the Partnership Act. The mode of settlement of accounts set out

in section 48 clearly indicates that the partnership asset in its

entirety must be converted into money and from the pool the

disbursement has to be made as set out in clause (a) and sub-

clauses (i), (ii) and (iii) of clause (b) and thereafter if there is any

residue that has to be divided among the partners in the

proportions in which they were entitled to a share in the profits of

the firm."

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73. Mr. Shah, the learned Senior Advocate, joined the issue by

canvassing a submission that the question as to whether the

disputed properties belong to M/s. RJ Constructions, the

partnership firm or the defendants exclusively, can only be decided

at the trial based on evidence. The institution of the suit to remove

the encroachment over the property or appeal under
section 4(3)
of

the Slum Act, 1971 claiming that either M/s. RJ Constructions or

both the Plaintiffs and Defendants were the owners of the disputed

properties cannot have determinative significance. As there is a

dispute inter se Plaintiffs and Defendants over the ownership of the

property and the Defendants have instituted independent suit

claiming exclusive ownership over the disputed properties, the

issue can not be decided sans evidence. Mr. Shah submitted that

whether the reciprocal premises under the Partnership Deed were

fully performed so as to divest the exclusive ownership of

Ramnikhlal in the disputed properties, is also a matter which

warrants consideration.

74. Admissions, if true and clear, are considered to be the best

proof of the facts admitted. It is also well recognized that the

admissions in pleadings or judicial admissions made by the parties

stand on a higher footing than evidentiary admissions. Such judicial

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admissions can be made the foundation of the rights of the parties.

In contrast, evidentiary admissions which are receivable at the trial

as evidence are, by themselves, not conclusive. They can be shown

to be wrong. (
Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram

And Ors.10
).

75. In the case at hand, prima facie, it appears that the fact that

the disputed properties were originally acquired by Ramnikhlal

Bhuta appears incontestable. The claim of joint ownership over the

disputed properties rests on the premise that Ramnikhlal had

brought the disputed properties in the partnership as a partnership

stock. The Deed of Partnership (Exhibit 99) inter alia records that

the parties had agreed that Ramnikhlal who owned the Property at

Andheri, then valued at Rs. 5 lakh, shall bring the same in the

partnership firm as his capital and thereupon the value thereof

shall be credited in the capital account of Ramnikhlal, the first

partner in the books of partnership as the capital brought by him.

76. The Plaintiffs want the Court to believe that the subsequent

Deed and pleadings
referred to above
indicate that the said exercise

was done and the disputed properties bearing CTS Nos.397, 397A,

397/1 to 284 assumed the character of the property of the firm.
10 1974(1) SCC 242.

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Whether the disputed properties were impressed with the character

of the properties of the partnership firm, would turn on the

compliance of the reciprocal promises as indicated above and the

adjustment of the accounts of the partners. There is, in my

considered view, an element of controversy as to whether

Ramnikhlal Bhuta was divested of the exclusive ownership in

consideration of the other partner contributing capital to the

partnership firm, as agreed. In the peculiar facts of the case, in my

view, the said question cannot be determined on the basis of the

pleadings in the proceedings instituted by M/s. RJ Constructions or

the Plaintiffs and the Defendants jointly for recovering the

possession of the encroached properties. It would be in the fitness of

things to leave the said question for decision upon appreciation of

evidence.

77. The upshot of aforesaid consideration is that so far as the

undisputed joint family properties, the Court does not find any

impediment in ordering the sale of those properties even at this

stage as such sale appears to be for the benefit of both the parties.

However, as regards the disputed properties, the Court considers it

appropriate to defer the decision to the final disposal of the suit.

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78. This propels me to the appropriateness of the modalities of sell

suggested on behalf of the Plaintiffs. In a sense, the Plaintiffs have

reckoned base price of the Larger Andheri Property at Rs. 165

Crores, and proposed inter se bidding by the Plaintiff and

Defendants so as to bye out the other party. Mr. Godbole submitted

that the Court may devise any other method which protects the

interest of both the parties.

79. Mr. Shah, learned counsel for the Defendants, would, however,

urge that the modality of the sale suggested by the Plaintiffs is

neither just nor equitable. On the one hand, the valuation is too low.

On the other hand, the entire exercise is actuated by a desire to

usurp the property by taking undue advantage of the situation.

80. Prima facie, the mode of sale suggested by the Plaintiffs

especially determination of the sale price by inter se bidding does

not merit countenance. It is imperative to note that under sub

section (1) of
section 3
, whenever a shareholder applies for leave to

buy at a valuation the share or shares of the party or parties asking

for a sale, the Court is enjoined to order a valuation of shares, in

such a manner as it may think fit and offer to sell the same to such

shareholder at the price so ascertained. If two or more shareholders

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severally apply for leave to buy as provided in sub-section (1), the

Court shall order a sale of the share or shares to the shareholder

who offers to pay the highest price above the valuation made by the

Court. Under
section 6
of the Partition Act, 1893, every sale under

section 2
shall be subject to a reserved bidding, and the amount of

such bidding shall be fixed by the Court in such manner as it may

think fit and may be varied from time to time. Sub section (2) of

Section 6
gives liberty to the shareholders to bid at the sale on such

terms as to non-payment of deposit or as to setting off or accounting

for the purchase-money or any part thereof instead of paying the

same as to the Court may seem reasonable.
Section 8
of the

Partition Act provides that any order for sale made by the Court

under
section 2
,
or 4 shall be deemed to be a decree within the

meaning of
section 2
of the Code of Civil Procedure, 1908.

81. If the discretionary power vested in the Court under the

Partition Act, 1893
, is construed in the light of the object of the Act,

1893, adverted to above, it becomes abundantly clear that that the

privilege to buy the share of the co-owner (of the property), can not

be exercised in an oppressive manner. The determination of

reserved price by the Court is a measure to ensure that the

property is sold at an optimum price.

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82. In a situation like the present one, where the property is huge,

encumbered with encroachments and associated disadvantages, the

proper course would be to have the sale by a public auction, where

the true market price of the property is discovered, albeit, by giving

the parties an option to bid in the said public auction without

deposit of earnest money.

83. The ad-hoc base price, as suggested by the Plaintiffs, cannot be

the basis of sale nor can the bidding be restricted to the parties.

Undoubtedly, the parties will have the right to match the offer made

by a stranger purchaser in the auction sale and, thereafter the

parties may bid inter se if they wish to, over and above the said

price discovered in the public auction.

84. For the foregoing reasons, I am inclined to partly allow the

instant application in respect of undisputed joint family properties

out of the Larger Andheri Property.

Hence, the following order.

ORDER

1] The application sands partly allowed.

2] It is hereby declared that the Plaintiffs are the exclusive owners

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of the properties bearing CTS Nos. 402 and 402/1.

3] The prayer to direct the sale of disputed properties i.e. CTS

Nos.397, 397A, 397/1 to 284 stands rejected.

4] The prayer to direct the sale of undisputed joint family properties

(out of 'Larger Andheri Property') i.e. properties bearing CTS Nos.

401, 404/A/1, 404/A/2, 404/1 to 39, 422, 422/1 to 15 stands

allowed subject to the following conditions:

(a) The Court Receiver, High Court, Bombay is appointed to

conduct the sale of afore-described undisputed joint family

properties.

(b) M/s. Shetgiri and Associates, Architects is appointed to

assess the value of the afore-described properties and submit a

valuation report to the Court within a period of six weeks so as

to determine the reserve price.

(c) The Court Receiver shall submit a report to the Court, after

receipt of the valuation, indicating the terms and conditions of

sale, which may include:

(i) The sale shall be on "As Is Where Is" and "Whatever
There Is" basis.

(ii) The sale shall be by public auction.

(iii) The parties shall be at liberty to participate in the
bidding without deposit of earnest money and they
shall have the right to match the highest bid
submitted by the stranger purchaser and, thereafter,

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the parties shall be entitled to bid inter se over and
above the price offered by the stranger purchaser, if
any, in the auction sale.

(d) In the event the sale is confirmed, the Court may pass

appropriate orders regarding the disposal and distribution of

the sale proceeds.

5] Application disposed.

6] Costs in cause.

(N.J.JAMADAR, J.)

1. At this stage, Mr. Shailesh Shah, the learned Senior Advocate

for the Defendants seeks stay to the execution and operation of this

order.

2. Since the Court has directed that the valuation report be

obtained so as to determine the reserve price and the Architect

appointed by the Court shall submit a valuation report within a

period of six weeks, no prejudice is likely to be caused to the

defendants as there is ample time to the defendants to move the

appeal court.

3. Oral application for stay thus stands rejected.

(N.J.JAMADAR, J.)

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