APP-551-2004.DOC

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL NO. 551 OF 2004

IN

SUIT NO. 3578 OF 2000

Kamleshsingh Harnamsingh Chowhan

…Appellant

Versus

Gangasingh

Motisingh

Chowhan

(deceased) and Ors.

…Respondents

Mr. Vivek Kantawala with Mr. Amey Patil, Ms. Bhairavi

Waravdekar, Ms. Hetal Jobanputra and Mr. Shanay Bafna,

i/b. M/s. Vivek Kantawala & Co. for the Appellant.

Mr. Fredun Devitre, Senior Counsel with Mr. Zubin Behram

Kamdin, Senior Counsel and Ms. Vidya Nair i/b. M/s. Wadia

Ghandy & Co. for Respondent Nos.2 to 4.

Mr. K.H. Mody, i/b. M/s. S. Pathak & Co. for Respondent No.5.

CORAM:

B.R. GAVAI &

RIYAZ I. CHAGLA, JJ.

JUDGMENT RESERVED ON

21ST DECEMBER, 2018.

JUDGMENT PRONOUNCED ON

11TH JANUARY, 2019.

J U D G M E N T :- (Per Riyaz I. Chagla J.)

1.

This Appeal challenges an order and judgment of the

learned Single Judge of this Court dated 22nd July, 2004 (“the

impugned judgment”) by which the Suit filed by the Appellant /

Plaintiff was dismissed on the ground that no case was made out

by the Plaintiff.

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2.

An Appeal had been preferred by the Appellant challenging

the impugned judgment which was disposed of by a judgment of

this Court dated 18th December, 2013. The Division Bench of this

Court set aside the impugned judgment and remanded the matter

for a fresh trial on the ground that it would be unfair on the parties

to proceed with the Appeal on record as it stands. The judgment of

the Division Bench was challenged by the Respondent before the

Supreme Court and the Supreme Court passed an order dated

27th April, 2015 setting aside the judgment of the Division Bench

and held that

“the clear finding recorded by the learned trial court

that the parties are agreed that no oral evidence was

necessary in the suit and that the only document that

was required to be interpreted is the deed dated 29th

March, 1949, we are of the view that the High Court

ought not to have remanded the matter for a de novo

trial and ought to have considered all the issues on

the basis of the aforesaid position agreed to by and

between the parties”.

3.

As a result thereof, this Appeal is required to be determined

in light of the remand by the Supreme Court for consideration of

all the issues on the basis of the position agreed to by and

between the parties. Accordingly, we are determining this Appeal

on the agreed position recorded by the learned Trial Court that no

oral evidence is necessary and that the only document required to

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be interpreted is the Deed (Indenture of Trust) dated 29th March,

1949.

4.

At the outset, it would be necessary to mention that after

substantially hearing the matter a suggestion was made to the

parties that the parties may explore the possibility of amicable

settlement since the disputes involved were amongst close

relatives. The parties agreed to refer the dispute to mediation and

agreed on the name of Hon'ble Justice J.P. Devadhar, Retired as

mediator. This is recorded in the order dated 6th December, 2018

passed by this Court. Pursuant thereto mediation was held and a

mediation report was prepared which is dated 14th December,

2018. It was recorded therein that mediation had failed as the

offer of Rs.5 lakhs made by Respondent Nos. 2 to 4 to the

Appellant in full and final settlement of his claim was considered

by the Appellant to be unreasonable and unacceptable to the

Appellant.

A brief background of facts is necessary.

5.

An Indenture of Trust was executed on 31st March, 1949

between one Parvatibai Chowhan (“the Settler”) and Rai Bahadur

Kunwar Motisingh Lalsingh and Kunwar Gagasingh Motisingh

(hereinafter referred to as the said Motisingh and the said

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Grangasingh) as original trustees which settled the trust property

being a plot of land with building constructed thereon and income

arising therefrom. The sai