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2018 Supreme(Bom) 2197
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Gupte, J.
Bai Rabiabai Widow Of Ebrahim Mia Mohamed Haji Janmahomed Chotani - Appellant
Versus
Official Assignee Of Bombay - Respondent
Chamber Summons No. 905 of 2015 in Suit No. 208 of 1950
Decided On : 23-02-2018
Mr. Girish S. Godbole, a/w. Mr. Karan S. Thorat, Advocates, for the Appellant/Plaintiff Nos. 1(b), 1(c), 1(d), 1d(i) to 1d(v), 2(b), 2(c(i) to 2(c)(iv), 3(a), 3(b), 4(c), 4(d), 4(e) (In Suit No. 208 of 1950); Mr. Vishal Kanade, a/w. Mr. Vishesh Kalra and Mr. Prakash Kadam, i/b. Vidhii Partners, Advocates, for the Appellant; Mr. Z.A. Shaikh, Section officer from Official Assignee, Mr. K.D. Rane, Master and Second Court Receiver, for the Appearing party
Headnote:
Transfer of Property Act - Section 54 - Partition Of Suit Property - Possession Of Property - This chamber summons is taken out by a third party applicant who claims to have interest in subject matter of present suit - Plaintiffs claim to be legal heirs suit was originally filed against one who is only other legal heir and representative of deceased - A preliminary decree was passed in suit determining respective shares of parties - Since was declared insolvent during pendency of suit official liquidator was brought on record in place and stead had during his lifetime entrusted property to manage same but on or after his death his heirs claimed to hold property in lieu of certain debts claimed as due by deceased - Court receiver appointed in suit in respect of property filed a suit for possession against family who claimed to have interest in suit property as transferee - By a consent decree passed in that suit share of family in entire suit property was recognized - Share was made up of share in suit property and other part coming - Pursuant to preliminary decree there was a physical partition of suit property by which plot forming part of suit property were inter alia allotted to family as their share in suit property – Held, It is possible under this provision even for an agreement purchaser who is said to be in possession of property and in whose case entire purchase consideration is paid to transferor and transferor is no more interested in prosecuting or defending suit to apply for leave to prosecute or defend a partition suit on behalf of his transferor - In present case family is not before court - That may be for a good reason namely that they have entered into transactions referred to by applicant and purportedly divested themselves substantially of their title or interest in suit property they have purportedly received their consideration under these documents and may not be interested in prosecuting or defending suit - It is Applicant who alone is now interested in subject matter of suit and that is what is relevant - Right of family to sue for partition of suit property can be said to have been effectively transferred to Applicant - It is no more necessary to consider whether Applicant has legal as contrasted with commercial interest in suit property - What is important is that Applicant is only person who may now claim to represent share of family and to that extent defend suit - Applicant in short is interested in subject matter of suit by virtue of creation of rights in his favour pending suit and must therefore be impleaded – Order Accordingly.
JUDGMENT
S. C. Gupte, J. - Heard learned Counsel for the parties.
2. This chamber summons is taken out by a third party applicant, who claims to have interest in the subject matter of the present suit.
3. The suit is for partition of property. The property was initially owned by one Mia Mahomed Chotani. The Plaintiffs claim to be legal heirs of Mia Mahomed. The suit was originally filed against one Usman Chotani, who is the only other legal heir and representative of the deceased Mia Mahomed. A preliminary decree was passed in the suit determining the respective shares of the parties. Since Usman was declared insolvent during the pendency of the suit, the Official Liquidator was brought on record in place and stead of Usman. Mia Mahomed had during his lifetime entrusted the property to one Krishnadas Gordhandas Madiwale to manage the same, but on or after his death, his heirs (collectively described hereinafter as ''Madiwale family'') claimed to hold the property in lieu of certain debts claimed as due by the deceased Mia Mohamed. The Court Receiver appointed in the suit in respect of the property filed a suit for possession against Madiwale family, who claimed to have interest in the suit property as transferee from Mia Mahomed and Usman. By a consent decree passed in that suit, 1/4th share of Madiwale family in the entire suit property was recognized. The share was made up of 1/5th share of Usman in the suit property and the other part coming from Mia Mahomed. Pursuant to the preliminary decree, there was a physical partition of the suit property, by which Plot Nos. 13 to 16, forming part of the suit property, were inter alia allotted to Madiwale family as their share in the suit property. Apart from the property, which was divided physically, there is one particular portion of the suit property, which could not be divided inter alia by reason of reservation under the relevant development control regulations. Presently, the surviving contest in the suit herein pertains to this plot of land having an area of 25422. 10 sq. ft. , which is under reservation. (There is a contest between the parties as to the correct area of this plot of land, the Plaintiffs claiming the area to be 25422. 10 sq. ft. , whilst, according to the Applicant, it is 45978 sq. ft. We are, however, not concerned with this dispute in this chamber summons. )
4. The Applicant claims to be a transferee under Madiwale family. By reason of several documents executed by the latter in favour of the former, the entire portion of the suit property, which came to Madiwale family, is said to have been dealt with by them in favour of the Applicant. The Applicant has, in pursuance of these documents, which are placed on record, developed Plot Nos. 13 to 16, erected buildings thereon, and sold flats and tenements therein to third parties. Even conveyances have been effected in respect of these properties in favour of organisation/s of flat purchasers. The Applicant, however, would like to implead himself as a party defendant to the present suit so as to agitate the rights of Madiwale family in respect of the balance property, namely, the reserved portion of land, which is still undivided, as noticed above.
5. Mr. Godbole, learned Senior Counsel appearing for the Plaintiffs, opposes the application. Learned Counsel, firstly, submits that the documents, on which the Applicant claims his entitlement to be impleaded as a party Defendant, are insufficiently stamped. Learned Counsel further submits that the Applicant is a third party, who only has commercial interest in the suit property as opposed to legal interest. Learned Counsel also relies on Section 54 of the Transfer of Property Act and submits that as an agreement purchaser, that is to say, if the documents relied upon by the Applicant are held to amount to an agreement for purchase, the Applicant merely has a right to specific performance and that right he can claim only against Madiwale family. Learned Counsel submits
