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2014 Supreme(Bom) 1333
High Court of Judicature at Bombay
G.S. PATEL, J.
Rashid Abdul Sattar Oomerbhoy & Another
Versus
Nargis Majid Oomerbhoy & Others
Notice of Motion No. 2485 of 2012 With Suit No. 671 of 2002
Decided on: 08-07-2014
For the Plaintiffs:Astad Randeria, with Ms. Adita Prabhu, i/b M/s. Desai Desai Carrimjee & Mulla, Advocates.
For the Defendants:K.G. Munshi with Z.A. Jariwala, i/b M/s. Thakore Jariwala & Associates, Mr. Rahul Singh, Shailesh Thakkar, i/b M/s. Shailesh Thakkar & Co., N.R. Bandodkar, Advocates.
The main legal point established in the judgment is that the court has the inherent power to make an order for division and distribution of trust properties, and there is no statutory impediment in passing such an order.
Headnote:
Trust Properties - Ahmed Oomerbhoy Wakf Trust - Indian Trusts Act, 1882, Section 92(1)(f), (g), (h); Code of Civil Procedure, 1908, Section 51, Order XXI Rule 18, Order XXVI Rule 14(3), Rules 38(f), (g), 39; Bombay High Court (Original Side) Rules - The judgment discusses the division and distribution of properties of the Ahmed Oomerbhoy Wakf Trust. The court accepted the proposal for division made by the Majid Group and directed the Sattar Group to indicate their choice of properties for division. The court also addressed concerns about valuation differential and tenancy rights, and passed directions for further orders.
Fact of the Case:
The suit filed in 2002 sought dissolution and distribution of the properties of the Ahmed Oomerbhoy Wakf Trust. The Trust owned four immovable properties and two properties belonging to Ahmed Oomerbhoy personally. The Commissioner for Taking Accounts was appointed to submit a report on the partition of the properties, but the process proved fruitless. The Plaintiff and Defendants were divided into two groups, and several proposals for division were made.
Finding of the Court:
The court found that the division proposed by the Majid Group was equitable and feasible, and the Sattar Group had accepted the proposal in qualified terms. The court held that there was no valid objection to the proposed division and that the Plaintiff's commitments on affidavit supported the division. The court also addressed concerns about valuation differential and tenancy rights, and held that there was no impediment in passing an order for division.
Issues: The main issue was the division and distribution of the Trust properties among the two groups. The court also addressed concerns about valuation differential and tenancy rights affecting the distribution.
Ratio Decidendi: The court held that the proposed division by the Majid Group was equitable and feasible, and the Plaintiff's commitments on affidavit supported the division. The court also addressed concerns about valuation differential and tenancy rights, and held that there was no impediment in passing an order for division.
Final Decision: The court directed the Sattar Group to indicate their choice of properties for division and passed directions for further orders.
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 5th April 2014, 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 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 o
