Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 323

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Rameshbhai Dalpatbhai Modi and Others – Petitioners
Versus
Babubhai Ratanji Marfatiya and Others – Respondents
Special Civil Application No. 20697 of 2016, Civil Application (for Direction) No. 2 of 2020, Civil Application (Fixing Date of Early Hearing) No. 3 of 2020
Decided On : 07-05-2021

Advocates:
Advocate Appeared:
For the Petitioners: Mr. Chaitanya S. Joshi, Mr. Sudhakar B. Joshi.
For the Respondents: Mr. Jal Unwala, Ms. Tejal A. Vashi.

Point of Law: Partition – Decree - When Apex Court held final decree is always required to be in conformity with preliminary decree but that does not mean that preliminary decree before final decree is passed cannot be altered, amended or modified by trial Court in event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.

Headnote:
Code of Civil Procedure, 1908 - Order XXII Rule 12(c) - Constitution of India, 1950 - Article 227 - Registration Act, 1908 - Section 6(5) - Mesne profit - Ancestral property - Possession - 1/3rd share - Partition of immovable properties other than agricultural land - Challenged order passed by learned 3rd Additional Senior Civil Judge passed below in Regular Civil Suit whereby application of petitioners for impleadment as defendants in Regular Civil Suit is rejected - Whether at stage of drawing of final decree petitioners can be permitted to be impleaded as defendants in Regular Civil Suit under Order I Rule 3 and 10 of Code? Provisions of Order I Rule 10 prescribes that Court can join any person who is necessary and proper party in proceedings.
Finding of the court: A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus Court may recognise other mode of partition in exceptional cases based upon continuous evidence for a long time in shape of public document not mere stray entries then only it would not be in consonance with spirit of the provisions of Section 6(5) and its Explanation - Though preliminary decree has achieved finality as no appeal is preferred by the petitioner or any other person, in view of decision in case of Vineeta Sharma vs. Rakesh Sharma (supra), daughters of late Ratanji Bhana may be entitled to coparcenary share in the suit property and accordingly, due to such event of changed circumstances, after preliminary decree is drawn, same can be modified, altered or amended. In that view of the matter, petitioners and all daughters and their legal heirs of late Ratanji Bhana are entitled to be impleaded as party defendants in pending Regular Civil Suit - Court has not gone into the merits of matter as to whether petitioners or other daughters or their legal heirs are entitled to share in partition of suit property or not. Trial Court is required to decide such issue in accordance with law.
Result: Civil Applications are disposed of.

JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr. Chaitanya Joshi for the petitioners and learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tejal Vashi for the respondents through video conference.

2. By this petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 3.10.2016 passed by the learned 3rd Additional Senior Civil Judge, Valsad passed below Exh.97 in Regular Civil Suit No. 161 of 2006 whereby the application of the petitioners for impleadment as defendants in the Regular Civil Suit No. 161 of 2006 is rejected.

3. Factual matrix of the case are as under.

4. One Ratanji Bhana Marfatiya was owner of land bearing Survey Nos. 240 Part, 239, 241/1, 240/2 Part and 241/2 situated at Nankawada, Taluka and District Valsad having Khata No. 226 (herein-after referred to as “the suit property”). After the demise of Ratanji Bhana Marfatiya on 5.1.1957, the suit property was of the ownership of his wife Maniben. Revenue entry no. 1198 was mutated in favour of Maniben on 22.2.1957 in respect of the suit property. Maniben expired on 30.5.1967 survived by her legal heirs comprising of three sons Bhikhubhai, Babubhai and Dineshbhai and five daughters Bhikhiben, Kamuben, Gajraben, Ramanben and Urmilaben.

5. Respondent no. 1-Babubhai Ratanji Marfatiya filed Special Civil Suit No. 35/1989 for partition of the suit property amongst three brothers only in the Court of Senior Civil Judge, Valsad.

6. The Senior Civil Judge, Valsad passed the judgment and decree dated 28.2.1995 declaring that respondent no. 1 has 1/3rd share in the suit property and is entitled to get the possession of his 1/3rd share and is also entitled to get mesne profit from the defendants from the date of suit till the delivery of possession and the Court Commissioner was appointed to make partition as per Order XXII Rule 12(c) of the Code of Civil Procedure, 1908 (for short “the Code”) to make partition of immovable properties other than agricultural land.

7. Thereafter, preliminary decree was drawn and subsequently, the suit was converted to Regular Civil Suit No. 161/2006 as the final decree was not passed. The petitioners therefore, filed an application Exh.80 in Regular Civil Suit No. 161/2006 stating that the sisters of respondent no. 1 and daughters of late Ratanji Bhana Marfatiya had 1/8th share in the property of their deceased father and accordingly prayed that five daughters of late Ratanji Bhana and their heirs be joined as parties defendants in the suit under Order I Rule 10 of the Code. The Senior Civil Judge, Valsad, however, by order dated 26.4.2011 rejected the application Exh.80 for joining party in the Regular Civil Suit No. 161/2006.

8. It appears that prior to initiation of the aforesaid proceedings for joining parties, petitioner no. 1 being legal heir and son of Kamuben-daughter of late Ratanji Bhana as Kamuben also expired on 8.6.2004, preferred Special Civil Suit No. 26/2009 before the Court of Principal Senior Civil Judge, Valsad with a prayer to declare that five daughters of deceased Ratanji Bhana has 1/8th share in the suit property and judgment and decree dated 28.2.1995 passed in Special Civil Suit No. 35/1989 by the Senior Civil Judge, Valsad is not binding upon the five daughters of late Ratanji Bhana and their heirs. Special Civil Suit No. 26/2009 is pending for adjudication before the Court of Senior Civil Judge, Valsad.

9. The petitioners being aggrieved by order dated 26.4.2011 passed below application Exh.80 in Regular Civil Suit No. 161/2006 preferred an appeal before the Additional District Judge, Valsad being Civil Misc. Appeal No. 15/2011 which came to be allowed vide order dated 20.10.2014. Respondent no. 1 therefore, preferred Special Civil Application No. 1235/2015 challenging the said order whereby the petitioners were permitted to be joined as defendants in Regular Civil Suit No. 161/2006. This Court (Coram: Hon'ble Ms. Justice Harsha Devani, as her Lady

Click Here to Read the rest of this document

2021 Supreme(Guj) 323

Cases Referred (20)