IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION TALLE SHUBHAM ASHOKRAO FIRST APPEAL NO. 128 OF 2025.

Digitally signed by TALLE SHUBHAM ASHOKRAO Date: 2025.04.02 20:32:53 +0530

1. Atul Purshottam Borkar ]

an adult of Mumbai, Indian Inhabitant, ] residing at 31/A, Kurla Kamgar Nagar, S.G. ]

Barve Marg, Kurla (East), Mumbai 400 024. ] …Appellant ] (Org. Plainti VS.

1. Mrs. Kumudini Ravindra Amrute, ]

of Mumbai, Indian Inhabitant, residing at ] 31/A, Kurla Kamgar Nagar S. G. Barve Marg, ] Kurla (East), Mumbai 400 024. ]

1(a). Kiran Ravindra Amrute, ]

of Mumbai, Indian Inhabitant, residing at ] 31/A, Kurla Kamgar Nagar S. G. Barve Marg, ] Kurla (East), Mumbai 400 024. ]

2. Mrs. Latika Sanjay Redkar ]

of Mumbai, Indian Inhabitant, residing at ] 28/D, Kurla Kamgar Nagar S. G. Barve Marg, ] Kurla (East), Mumbai 400 024. ]

3. Ashutosh Purushottam Borkar, ]

of Mumbai, Indian Inhabitant, residing at ] 181/10, Samarth Nagar, Kandiwali, Mumbai ] 400 101. (Deceased) ]

3a. Smt. Aparna Ashutosh Borkar ] 3b. Ms. Charulata Ashutosh Borkar ]

Both adults of Mumbai, Indian Inhabitants, ]

residing at B001, Gokul Nagari 1 (A&B) CHS ] ...Respondents.

Ltd., 90 Feet Road, Thakur Complex, Kandivali ] (Org.

East, Mumbai 101. ] Defendants)

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Mr. Rajesh Kachare, Mr. Ajit Tamhane, Mr. Amit Potnis, Mr. Sandeep Suryavanshi i/b Tamhane and Co. for the Appellant. Mr. Rupesh Sohoni for the Respondent.

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Coram : Sharmila U. Deshmukh, J.

Reserved on: March 20, 2025.

Pronounced on : April 2, 2025.

JUDGMENT :

1. The First Appeal is at the instance of the Original Plainti being dissatisfied with the Judgment and order dated 30th August, 2024, passed by the City Civil Court, Greater Mumbai, dismissing Suit No. 3355 of 2009. Suit No. 3355 of 2009 was initially instituted before the High Court being Suit No. 863 of 2009 and due to enhancement of pecuniary jurisdiction was transferred to the City Civil Court and re- numbered as Suit No. 3355 of 2009. For sake of convenience parties are referred to by their status before the Trial Court.

PLEADINGS:

2. S.C Suit No 3355 of 2009 has been instituted seeking administration of estate and for partition and possession of 1/4th share of suit property of one Purshottam Shantappa Borkar claimed to have died intestate in Mumbai qua the suit property described in Exhibit-A as under:-

“ Ex- “A”

Description of the suit property

1. Sixty Three shares bearing Nos. 2014 to 2033, 5501 to 5514, 5892 to 5901, 8980 to 8988, 12614, 13984 to 13987 and 14929 to 14933 of the Kurla Kamgar Co. Operative Housing Society Limited, S. G. Barve Road, Kurla (East), Mumbai – 400 024, and of the face value of Rs. 50/- each.

2. Plot of land bearing No. 31/A admeasuring about 1250 sq. ft. with the Tenement No. 31/A having built- up area of about 700 sqr. ft. standing thereon out of the property of the Kurla Kamgar Co-Operative Housing Society Limited at Kamgar Nagar, S. G. Barve Road, Kurla (East) , Mumbai – 400 024.”

3. The Plaintiff and the Defendants are siblings. The plaint pleads that the deceased was the exclusive owner of immovable and movable properties including the suit property. The deceased Purshottam Borkar expired on or before 2^nd June, 1993. The Defendant No 1 was married and was permitted by deceased to reside in the suit property alongwith her family as the Defendant No 1’s husband had deserted her. The suit premises consists of seven rooms out of which four rooms are in use and occupation of Plaintiff and three room are in occupation of Defendant No 1. After the death of their father, the Defendant No. 1 had filed Petition No. 553 of 1998 for obtaining probate in respect of purported Will dated 10^th May, 1991 alleged to have been executed by the deceased. Citations came to be issued which was duly served upon the Plaintiff and the Defendants however the Plaintiff aws assured by Defendant No. 1 that he need not take any steps take as the Defendant No. 1 will take all necessary steps to protect the interest of all. The Plaintiff was fur