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2014 Supreme(Bom) 1343
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J
NADEEM MAJID OOMERBHOY - Applicant
RASHID ABDUL SATTAR OOMERBHOY of Bombay - Plaintiff
Versus
NARGIS MAJID OOMERBHOY - Respondent
NOTICE OF MOTION NO. 2485 OF 2012 WITH SUIT NO. 671 OF 2002
Decided on: 8TH JULY 2014
Advocate Appeared
FOR THE PLAINTIFF Mr. Astad Randeria, with Ms. Aditi Prabhu, i/b M/s. Desai Desai Carrimjee & Mulla.
FOR THE APPLICANT IN THE NOTICE OF MOTION & THE 7TH DEFENDANT IN THE SUIT Mr. K.G. Munshi, with Mr. Z.A. Jariwala, i/b M/s. Thakore Jariwala & Associates, for the Applicants in N/M No. 2485 /12 and for Defendant No. 7 in Suit No. 671/2002.
FOR DEFENDANTS NOS. 4 TO 6 Mr. Rahul Singh
Mr. Shailesh Thakkar, i/b M/s. Shailesh Thakkar & Co., for Defendant No. 1A and 8.
Headnote:
Trust Properties - Ahmed Oomerbhoy Wakf Trust - Section 92(1)(f), (g), (h) of CPC, Order XX Rule 18, Order XXVI Rule 14(3), Rules 238(f), (g) and 239 of the OS Rules - The court passed an order for the division and distribution of the properties of the Ahmed Oomerbhoy Wakf Trust. The court relied on Section 92(1)(f), (g), (h) of the CPC, Order XX Rule 18, Order XXVI Rule 14(3), Rules 238(f), (g) and 239 of the OS Rules to make the order, and also considered the principles of equity and justice in reaching its decision.
Fact of the Case:
The suit sought a dissolution and distribution of the properties of the Ahmed Oomerbhoy Wakf Trust. The Trust owned several immovable properties, and the Plaintiff and Defendants were entitled to 50% share each in the properties. The Court Receiver was appointed, and a preliminary decree was passed in the suit. The Commissioner for Taking Accounts was appointed to submit a report about the manner in which the Trust properties and assets could be partitioned amongst the respective shareholders in the two groups. After several meetings and hearings, the division of the properties proved fruitless. The Plaintiff and Defendants made proposals for the division of the properties, and the Court accepted the proposal made by the Majid Group.
Finding of the Court:
The Court found that there was no valid objection to the division proposed by the Majid Group. The Court held that the Plaintiff and the Sattar Group had accepted, albeit in qualified terms, the Majid Group’s proposal. The Court also found that the question of valuation of tenancies should not be allowed to come in the way of the distribution or division that the Majid Group sought. The Court also held that there was no procedural or statutory impediment in passing an order for the division and distribution of the properties.
Issues: The main issue was whether the division and distribution of the properties of the Trust should be allowed as proposed by the Majid Group, and whether there were any valid objections to the proposed division.
Ratio Decidendi: The Court relied on Section 92(1)(f), (g), (h) of the CPC, Order XX Rule 18, Order XXVI Rule 14(3), Rules 238(f), (g) and 239 of the OS Rules to make the order for the division and distribution of the properties. The Court also considered the principles of equity and justice in reaching its decision.
Final Decision: The Court ordered the Sattar group to indicate its choice of the two Lots shown in Annexure “2” to the order, and upon the Sattar group making that election, it would be exclusively entitled to the properties comprised in the lot of its choice. Should the Sattar group not indicate its choice, it would be deemed to have forfeited its right of first option/first refusal, and the Majid group would then have the first option to select any of the two Lots.
(PER G.S. PATEL, J.)
1. Subject only to further directions indicated below, this order will dispose of both this notice of motion and this suit.
2. The suit, filed in 2002, seeks a dissolution and distribution of the properties of the Ahmed Oomerbhoy Wakf Trust (“the Trust”; “the Wakf”). Admittedly, this is a private trust. The Plaintiff and Defendants No. 2 to 6 form one group, “the Sattar Group”; Defendants No. 7 and 8 together constitute the second group, “the Majid Group”. The two groups are, and this is also admitted, jointly entitled to 50% share each in the properties of the Trust.
3. The Trust owned four immovable properties. In addition, there were two properties that belonged to Ahmed Oomerbhoy (since deceased) personally. These are admittedly divisible equally between the two groups. A mere particularized description of these properties is tabulated in Annexure “1” to this order. These are briefly described as follows:
a) The Dadar building, which has two wings and is fully tenanted;
b) The Usmania Building at Byculla, also fully tenanted;
c) The Mohammadi Manzil building also at Byculla, and also fully tenanted;
d) The factory / mill premises of the Trust at Two Tanks, Byculla (“the Factory Premises”).
4. The entirety of the Factory Premises at Two Tanks, Byculla actually consists of six separate plots. Of this, C.S. Nos. 1009 and 1010 are the properties that did not belong to the Trust, but to Ahmed Oomerbhoy personally. These are the two plots that are admittedly equally divisible between the two groups. The Trust owned four plots that were part of the Factory Premises: C.S. Nos. 1011, 1012, 1014 and 1015. At some point, there were several tenants spread across the Factory Premises, including some partnership firms of the Oomerbhoy family. There were also several structures on the Factory Premises. Those have since, under orders of this Court, been demolished under orders of this Court.
5. On 6th May 2004, the Court Receiver of this Court was appointed Receiver on all the Trust properties. On 10th July 2007, a preliminary decree was passed in the suit. That decree was made on Notice of Motion No. 2004 of 2007 by Khanwilkar, J. (as he then was). The preliminary decree was passed by consent and was in terms of prayer clauses (a), (b) and (c) of the present suit, which reads thus:
“(a) that this Hon’ble Court be pleased to Order and Decree that Ahmed Oomerbhoy Trust Trust be dissolved and its affairs be wound up by and under the Directions of this Hon’ble Court;
(b) that this Hon’ble Court be pleased to ascertain and declare the shares of each of the beneficiaries in the assets of the Ahmed Oomerbhoy Trust;
(c) that the Hon’ble Court be pleased to partition the assets of the Ahmed Oomerbhoy Trust amongst the beneficiaries entitled thereto in accordance with their respective interests as per the Trust Deed dated 24th February 1938 and the share be allotted and awarded to such beneficiaries.”
6. A Commissioner for Taking Accounts was appointed. He was directed to submit a report about the manner in which the Trust properties and assets could be partitioned amongst the respective shareholders in the two groups. The report was to be submitted within three months.
7. For the next five years or more, from July 2007 till November 2012, several meetings and hearings were held by the Commissioner for Taking Accounts for the purpose of this report to effect the division. All this work proved fruitless.
8. Before the Commissioner for taking accounts, the Plaintiff filed an affidavit on behalf of the Sattar Group saying that the combined value of the Usmania building and Mohammadi Manzil building taken together and the value of the two buildings at Dadar were almost the same with only a minor price difference. I will turn to this affidavit presently.
9. This Notice of Motion was filed on 6th November 2012 by the 7th Defendant of the Majid Group. It sought a direction to the Sattar Group to submit to this Court two lots of t
