Partition suit involving immovable properties partly outside original jurisdiction requires prior leave under Clause XII Letters Patent; absence renders plaint wholly rejectable under Order VII Rule 11 as partial partition impermissible.

JUDGEMENT :

FIRDOSH P. POONIWALLA, J.

1. This Interim Application has been filed by original Defendant Nos. 1, 3 and 4 seeking rejection of the Plaint under Order VII Rule 11 of the Code of Civil Procedure 1908 (the ‘CPC’) on the ground that it is barred by law as no leave under Clause XII of the Letters Patent of this Court has been obtained by the Plaintiff.

2. The present Suit has been filed seeking the following final reliefs :

“(a) that this Hon'ble Court be pleased to declare that the property described in Exhibit "C" are properties left behind by the deceased father and the Plaintiff has 1/7th share in the same.

(b) that this Hon'ble Court be please to declare that the Plaintiff is entitled to 1/7th share in the property described in Exhibit "C" and further prays that this Hon'ble Court be pleased to pass a decree of partition, partitioning the suit properties by metes and bounds alongwith agumentations and be pleased to handover to the Plaintiff, her share in the suit properties described in Exhibit "C";

(c) that this Hon'ble Court be pleased to declare that the agreements entered into by Defendants no. 1 to 4 with Defendant no. 7 in respect of the land at Dindoshi and various agreements executed by Defendant Nos. 1 to 4 and 7 with the flat purchasers are not binding on the Plaintiff;

(c)(i) That this Hon'ble Court be pleased to declare that the Agreement dated 30.12.2006 (Exh. "R") and Agreement dated 06.01.2010 (Exh. "S") executed by the Defendant no.1 to 4 in favor or Defendant no.7 are illegal, unlawful and bad in law and the same is not binding upon the plaintiff.

(c)(ii) That this Hon'ble Court be pleased to direct the defendant no.1to 4 to deposit entire amount of sale proceeds of the suit properties to the extent of 1/7th share of the plaintiff in this Hon'ble Court.

(c)(iii)That this Hon'ble Court be pleased to declare that all other agreements and transaction entered into by Defendant no.1 to 4 with Defendant no.7 or any other party after death of deceased father and without consent of the plaintiff are illegal, unlawful, bad in law and not binding upon the plaintiff ”

3. The properties described in Exhibit ‘C’ are as under:

“LIST OF ANCESTRAL MOVABLE AND IMMOVABLE PROPERTIES HELD BY THE DECEASED FATHER SHRI. DAMODAR (DAMJIBHAI) RAGHAVJI TANK AS THE KARTA OF THE HUF

1. Old S.Nos. 34/1, 31/1, 39/7, 29/2 and 39/4 now bearing New City Survey Nos. 104-A, 104-C, 104-D, 104-E, 104-F, 104-G, 104-H, 104-I and 104-J, admeasuring 68,373.20 sq. mtrs. or thereabouts and situated at Village Dindoshi, Taluka Borivli, Malad, Mumbai.

2) Agricultural land in District Vardha, Nagpur, Maharashtra

3. Landed property and a living house at S.No. 123. Village Talaja, District Bhavtagar, Gujarat.

4. 2 flats in Neelganga CHS, Bandra, Mumbai

5. Savings a/c and fixed deposits at Bank of Baroda, Bandra Branch

6. Gold ornaments in the locker at Bank of Baroda, Bandra Branch.

7. Cash in savings a/c no. 4900 of Bank of Saurashtra situated at Talaja.

8. Cash in saving a/c no. 7626 in Bank of India situated at Talaja.”

SUBMISSIONS OF THE APPLICANTS (ORIGINAL DEFENDANT NOS. 1, 3 AND 4)

4. Mr. Mayur Khan