2018 Supreme(Bom) 123
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHALINI PHANSALKAR-JOSHI, J.
Haresh Chetan Thadani & Others - Petitioners
Versus
Chetan Bulchand Thadhani (Since Deceased) & Others - Respondents
Writ Petition Nos. 13710 of 2017 & 296 of 2018
Decided On : 24-01-2018
For the Petitioners:Pankaj Kowli, Sandeep Sharma, i/by M/s. Ranjit & Co., Advocates.
For the Respondents:Rajkumari C. Nichani, Advocate.
Headnote:
Hindu Succession Act, 1956 - Section 15(2)(a) – Civil Procedure Code,1908 - Order 1 Rule 10 – Admission - Assets of Partnership Firm - Testamentary Suit - Respondent No.2 and his son Petitioner in Writ Petition of had filed a Suit, bearing for dissolution of the said Partnership Firm and various other reliefs against Petitioner in Writ Petition filed in this Court. In the said Suit Court Receiver was appointed by this Court - Petitioners who are sons of deceased were appointed as Agents of Court Receiver in respect of assets of Partnership Firm - Due to enhancement of pecuniary jurisdiction of City Civil Court Bombay Suit was transferred to said Court and it was assigned new number being Suit - Appointment of Court Receiver however continued in said Suit as per order passed by this Court - During pendency of said Suit Original Plaintiff No -1-Chetan Thadhani expired and his legal heirs were brought on record and since Original Plaintiff No2 and Original Defendant were legal heirs of deceased their names were substituted as legal heirs of Plaintiff – Held, As regards submission of learned counsel for Petitioners that Natasha daughter of deceased is very much party to this Suit and she can sufficiently represent estate of Deceased and also interest of Respondent No -5 her father Trial Court has rightly held that right of her father stand on independent footing and he has to make out his claim as a legal heir and legal representative of deceased and therefore as he has raised certain points for consideration of Court therefore his impalement in Suit is necessary - At this stage it may also be stated that as a matter of fact it is not necessary to go into issue as to whether Respondent No .5. is really legal representative or successor to property left behind by deceased because that issue is neither finally concluded by Trial Court nor it can be concluded by this Court and it has to be kept open to be decided after parties lead evidence or after some decision is given in Letters of Administration - Writ Petitions stand dismissed
1. Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of learned counsel for both the Petitioners and learned counsel for Respondent No.5.
2. As both these Writ Petitions raise the common question of law and are between the same parties and arising out of the same order, they are being decided by this common Judgment.
3. The father of the present Petitioners, namely, Chetan Bulchand Thadhani, his sons Sunil and Haresh, who are the Petitioners herein, were the Partners of the Firm known as M/s. Evergreen Trades and Agencies. Flat Nos.5 and 6, Meenakshi Apartment, 32nd Road, Bandra (West), Mumbai-400050 and the factory premises, namely, the front half portion of the Building on Plot No.I36-A, Mahal Industrial Estate, Mahakali Caves Road, Andheri (East), Mumbai, are the estates of the said Firm. Late Shri Chetan Thadhani, the father of the present Petitioners, and Respondent No.2 and his son, Sunil, the Petitioner in Writ Petition No.296 of 2018, had filed a Suit, bearing No.3349 of 1989, for dissolution of the said Partnership Firm and various other reliefs against Haresh, Petitioner in Writ Petition No.13710 of 2017 filed in this Court. In the said Suit, the Court Receiver was appointed by this Court. The Petitioners herein, who are the sons of deceased Chetan Thadhani, were appointed as the 'Agents' of the Court Receiver in respect of the assets of the Partnership Firm. Due to enhancement of the pecuniary jurisdiction of the City Civil Court, Bombay, the Suit was transferred to the said Court and it was assigned new number, being Suit No.9812 of 1989. The appointment of Court Receiver, however, continued in the said Suit, as per the order passed by this Court.
4. During pendency of the said Suit, Original Plaintiff No.1-Chetan Thadhani expired and his legal heirs were brought on record and since Original Plaintiff No.2-Sunil and Original Defendant No.1-Haresh were the legal heirs of deceased Chetan Thadhani, their names were substituted as legal heirs of Plaintiff No.1-Chetan. The name of the daughter of Plaintiff No.1-Chetan, namely, Respondent No.3-Komal Suresh Chainani, was also brought on record as Original Defendant No.2. She claimed the property of her father's share in the said Firm, claiming some rights in Flat Nos.5 and 6, which were the part of the assets of the Partnership Firm.
5. During pendency of the Suit, Respondent No.3-Komal Suresh Chainani also expired on 6th November 2012, leaving behind her daughter Respondent No.4-Natasha Prakash Tilokani and her husband Respondent No.5-Suresh Chainani. As per the order passed in Chamber Summons No.1875 of 2014 and another Chamber Summons No.1839 of 2014, the name of her daughter 'Natasha' alone was brought on record as her legal heir and the Chamber Summons for bringing the name of her husband on record came to be rejected. This order was challenged by her husband, namely, Respondent No.5-Suresh in Civil Revision Application No.213 of 2015 filed in this Court. In the said Revision Application, as it was contended that, deceased Komal Chainani had also executed a 'Will', bequeathing her share in the assets of the Partnership Firm in the name of her husband and her daughter, the said Revision Application came to be disposed of, directing Respondent No.5-Suresh Chainani, her husband, to take out a fresh Chamber Summons, enclosing therewith a copy of the 'Will' and the proceedings instituted in this Court on the basis of that 'Will'.
6. In view thereof, the fresh Chamber Summons No.1078 of 2015 was filed before the Trial Court by Respondent No.5-Suresh for impleading him also as legal heir of Respondent No.3-Komal. This Chamber Summons was strongly resisted by the Petitioners herein contending, inter alia, that, as the suit property was inherited by deceased Komal from her father in the presence of her daughter, her husband cannot inherit any rights therein.
7. The Trial Court, however, allowed the said Chamber Summons ho