2019 Supreme(Bom) 760

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
DAULATBANOO SADRUDDIN NANAVATI - Appellant
Versus
TAZALDIN SADRUDDIN NANAVATI - Respondent
Notice of Motion No. 955 of 2018; Suit No. 493 of 2018
Decided on : 02-05-2019

Headnote:

Code of Civil Procedure, 1908 – Order XXVI Rule 13, Order XX Rule 18, Order XII Rule 6 – Preliminary Decree – Notice Of Motion – Reliefs for partition – By this notice of motion, the applicant seeks a judgment on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908 in terms of prayer clause (a) of the plaint, by way of a preliminary decree on admission in terms of Order XX Rule 18(2) of the Code of Civil Procedure, 1908 and seeks further declaration that the plaintiff along with defendant nos.1 to 4 on one hand and the defendant nos.5 to 8 on the other hand have undivided 1/2 share in each of the properties described firstly to sixthly in the schedule, Exhibit "A" to the plaint and seeks further reliefs for partition of those properties by appointing a commission under Order XXVI Rule 13 of the Code of Civil Procedure, 1908 – Whether the plaintiff is not entitled to file a suit for partition in respect of selected lands/properties held by the two groups as alleged in paragraphs 20 and 23(i) of the written statement of the defendant nos. 5 to 8 – Whether the plaintiff cannot seek partition as "the distribution and division of the properties of the two groups has been agreed upon and provided for in the consent terms/agreement which have been acted upon by both parties", as alleged in paragraphs 23(i) and (k) pages 513 and 514 of the written statement of the defendant nos. 5 to 8 – Whether the plaintiff is not entitled to seek partition - as the disputes were settled as per socalled consent terms - alleged agreement and parties have acted as per the same and have altered their position as alleged in the said written statement at paragraph 14 page 424 – Whether as the consent terms have been acted upon by the benefits have been received by the Nanavati group [as stated in paragraph 9(m) subparagraphs (i) to (xiii) pages 417 and 418 of the said written statement] and by the Rajwani Group [as stated in paragraph 9(o) sub-paragraphs (i) to (xii) page 419 of the said written statement], the plaintiff and the Nanavati Group are estopped from seeking to resile therefrom as alleged in paragraph 19 page 509 and paragraph 23(rr) page 527 of the said written statement – Whether the suit is barred by the law of limitation – Whether the suit is bad for misjoinder of causes of action – Whether the suit is bad for non-joinder of necessary parties – Whether the alleged termination of the consent terms is valid as alleged in paragraph 48 of the plaint – Whether there is no merit in the contentions of defendant nos. 5 to 8 that the consent terms is valid or subsisting as mentioned in paragraph 58 of the plaint – Whether the plaintiff proves that the consent terms does not create or confer any enforceable right on any of the parties as alleged in paragraph 58 of the plaint – Whether the plaintiff proves that the consent terms dated 12th December, 2008 is not an agreement and an enforceable contract for the reasons alleged/set out in paragraphs 61 to 63 of the plaint – Whether the plaintiff proves that the agreement/writing dated 12th December, 2008 (Exhibit C to the plaint) has been abandoned as alleged in paragraph 63 of the plaint – Whether the plaintiff proves that the consent terms is no longer enforceable on account of fundamental change in circumstances as alleged/set out in paragraph 64 of the plaint – Whether the plaintiff proves that there is any repudiatory breach by the Rajwani Group as alleged/set out in paragraph 65 of the plaint – Whether the plaintiffs claim that it has been brought an end to the arrangement as contained in the consent terms as alleged in paragraph 66 of the plaint is valid and legal – Whether the plaintiff proves that the consent terms is void ab-initio as alleged in paragraph 67 of the plaint – Whether the plaintiff failed and neglected to cooperate and take necessary steps for reconstitution of partnership of the Firms M/s.Habitat Construction and M/s.Nanavati Construction Company as per the consent terms by the plaintiff – Whether there are outstanding liabilities to be discharged by the partnership firms in relation to Baitul Karim and Versova property including statutory liabilities – Whether the plaintiff proves that the firm Nanavati Construction Company stood dissolved as alleged in paragraph 4(b) of the plaint – Held, Order XII, Rule 6 of the CPC, either party may get rid of so much of the rival claims about which there is no controversy. – Under Order XII, Rule 6 admissions can be inferred from the facts and circumstances of the case. – The Rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed. – It is held by the Honble Supreme Court that the provision under Order XII, Rule 6 of the CPC is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word "may" has been used. – The principles laid down by the Honble Supreme Court in the case of Karam Kapahi and ors. vs. Lal Chand Public Charitable Trust and anr. (supra), would apply to the facts of this case. – Court is respectfully bound by the said judgment. – In a suit for partition or separation of a share, the prayer is not only for declaration of the plaintiffs share in the suit properties, but also division of his share by metes and bounds. – This involves three issues, namely (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 divided by metes and bounds – It is held that in regard to immovable properties i.e. buildings, plots, etc. or movable properties where the Court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the Court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds. – Senior Counsel submits that in this matter, the parties have agreed the mode and manner of development of these properties and the method of distribution of those properties in the manner prescribed under the consent terms. – Judgment relied upon by the learned Senior Counsel for the plaintiff thus would assist the case of the defendant Nos. 5 to 8 and not the plaintiff. – Doctrine of estoppel is a branch of the rule against assumption of inconsistent positions. – One who knowingly accepts the benefit of a contract is estopped from denying the binding effect on him of such contract. Since both the parties have partly acted upon the consent terms and have availed of part of the benefits under the said consent terms, the principles laid down by the Honble Supreme Court in the case of Punjab & Sind Bank and anr. vs. S. Ranveer Singh Bawa and anr. (supra) would apply to the facts of this case. – Court is respectfully bound by the said Judgment. – Court is in agreement with the view expressed by the High Court. – Plaintiff has not even averred in her plaint that she is ready and willing to return the benefits availed of by her under the provisions of the consent terms. – Court is not inclined to exercise the discretion vested in this Court under Order XII, Rule 6 of the Code of Civil Procedure, 1908. – Notice of Motion Dismissed