Shivani S. Roy and another vs Hari Pada Roy and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 428

IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Smt. Shivani S. Roy and another ..... Plaintiffs.
Versus
Shri Hari Pada Roy and others...... Defendants.
Notice of Motion No. 1113 of 1995 in Suit No. 1469 of 1995, decided on 13-8-1997.
Advocates appeared :
Janak Dwarkadas with Ravi Kadam i/b Humranwala Co., for the plaintiffs.
I.M. Chagla with Mr. F.E. Divetri D.J. Khambata i/b Federal Rashmikant, for defendants.

Headnote:Order XL, Rule I-Evidence Act, 1872, Sections 3, 58 and 61Division of jointly owned property Sought to be partitioned-Contention-Entire amount paid from account of defendant 1, and purchase was not on joint basis-Documents prove the funds to be transferred from joint partnership firm and than made the purchases-Held-Prima facie case is made out.-In view of the above at this stage it cannot be said that the defendant No.1 is not the Co-owner of the suit premises. In contrast to this, the income tax returns of the deceased from the years 1978-79 to 1984-85 shows that he was in receipt of Rs. 6,000/ - per year or rent. Prima facie it appears to this Court that the defendant No.1 either made deliberate false statements in the Small Causes Court or a totally false case is sought to be put forward in this Court in answer to the case put forward by the plaintiffs. A perusal of the statements made in the pleadings and in the evidence before the Small Causes Court read with the admissions made in the income tax and wealth tax returns leads this Court to a prima facie view that the plaintiffs are entitled to half share in the suit property.
       Order XL, Rule 1-Evidence Act, 1872, Section 58-Partition of jointly armed property-Resisted Ground-Property purchased from own funds--However, in earlier proceedings joint name was not in dispute-Contention-Admission of joint names not relevant-Held-An admission with sufficient proof is legally admissible-Evidence of tax returns only to avoid facts.- The decision of the Supreme Court reported in AIR 1954 SC 526, is of no avail to the defendants in the face of all the admissions made. Even according to the defendant No. 1 himself at least the ownership of flat No. 32 by the deceased is admitted. It appears that the defence put forward by the defendant No.1 is lacking in bona fides. In Sri Chands case defendants case cannot be used to strengthen the case of the plaintiffs. The aforesaid proposition is not at all applicable in the facts and circumstances of this case. For the past many years defendant No. 1 has been treating the deceased as part of the joint family. The defence now taken are merely an attempt to avoid the admissions made earlier.
       Order XL, Rule 1-Prima facie case to appoint receiver-Ownership joint of both parties-Claim for 1/2 undivided share-Declaration suit Admission of joint ownership by debt with plaintiff-Admission cannot be allowed by defendant-Appointment of receiver proper.-Having used the bona fide personal requirement of the Plaintiff No.3 to gain possession of the suit premises at this stage defendant cannot be permitted to say that the family of the deceased was not joint with the family of the defendant No. 1.
       Sections 3, 58 and 61-See Code of Civil Procedure, 1908, Order XL, Rule 1.
       Section 58-See Code of Civil Procedure, 1908, Order XL, Rule 1.

JUDGMENT - S.S. NIJJAR, J.:---This suit has been filed for a declaration to the effect that the plaintiffs are the owners of half undivided share of the suit premises being Flat Nos. 31 and 32, Belle View, 85 Bhulabhai Desai Road, Bombay-400 026, more particularly described in Schedule at Exhibit-A to the plaint and delineated in the sketch at Exhibit-B, and for partition of the same by metes and bounds and the plaintiffs be put in possession of half portion thereon. In the alternative, it is prayed that in the event the Court holds that the suit premises are incapable of being partitioned by metes and bounds the same be sold by and under the directions of this Court and the plaintiffs be paid their half share out of the sale proceeds.

2. This Notice of Motion has been taken out with a prayer that pending the hearing and final disposal of the suit, Court Receiver, Bombay be appointed as Receiver of the suit premises with all powers under Order 40, Rule 1 of the C.P.C. including power to partition the suit premises and put the plaintiffs in possession of half portion of the suit premises on such terms and conditions as this Hon'ble Court may deem fit and proper. It is also prayed that the defendant Nos. 1 to 6 be restrained by an order and injunction from dealing with, disposing of, alienating or parting with possession of the suit premises. Voluminous pleadings have been filed by both the parties. Affidavit in support of the Notice of Motion has been filed, followed by affidavit in reply, rejoinder, sur-rejoinder and sur-sur-rejoinder.

3. Plaintiff No. 1 is the widow of one Shiva Pada Roy, hereinafter called "the deceased" who passed away on 20th November, 1983. Plaintiff Nos. 2 and 3 are the sons of the deceased whereas defendant No. 7 is the married daughter of the deceased. The deceased died intestate. The plaintiffs and defendant No. 7 are the only heirs and legal representatives of the deceased. The first defendant is the elder brother of the deceased. Defendant No. 2 is the wife of defendant No. 1. Defendant No. 3 is the son of defendant Nos. 1 and 2. Defendant No. 4 is the wife of defendant No. 3. Defendant No. 5 is the daughter of defendant Nos. 1 and 2. Defendant No. 6 is the husband of defendant No. 5.

4. According to the plaintiffs, deceased and the first defendant were joint in residence and business and lived as one family. Almost all immovable properties were jointly owned either in the joint names of the deceased and the first defendant or in the joint names of the respective spouses i.e. plaintiff No. 1 and defendant No. 2. Almost all business and trading concerns were jointly owned. Even though certain businesses were carried on in partnership with third parties, the deceased and his family members on the one hand and the defendant Nos. 1 to 4 on the other hand, were always equal partners in such partnership concerns and firms. Prior to 1962 both the brothers lived in a residential flat at Chandralok Building, Manav Mandir Road, Malbar Hill, Bombay-400 006. Defendant No. 1 came to Bombay in 1943. Four brothers viz. L.M. Roy, K.P. Roy, S.P. Roy (deceased) and H.P. Roy (Defendant No. 1) lived together at K.P. Roy's residence at Opera House. In 1952 L.M. Roy, S.P. Roy and defendant No. 1 moved to rented premises at Andheri. In 1953 defendant No, 1 purchased a flat at Anand Nagar, Forget Street. The deceased also moved into the same flat. In 1959 defendant No. 1 purchased flat at Chandralok. There also both the families resided together. Defendant No. 1 sold Chandralok flat in 1962. In the same year the two brothers jointly acquired the suit premises consisting of flat Nos. 31 and 32. The flats together admeasure approximately 1500 sq. ft. After taking possession of the said premises the families of the two brothers started residing therein. The two families resided together at the suit premises till about 1968. At all material times the two brothers were co-owners of the suit premises. During that time the suit pr

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