Suit No. 2715 of 2004. Case: Bhargav Dilip Dholi Vs Smt. Chandrabala P. Dholi and Ors.. High Court of Bombay (India)
| Case Number | Suit No. 2715 of 2004 |
| Counsel | For Appellant: Jayshree Dholi, Constituted Attorney and For Respondents: Manjiri Shah, Z. Jariwala, Jyoti Ghag, Sameer Khedekar, Advs., i/b., Thakore Jariwala and Associates |
| Judges | Roshan Dalvi, J. |
| Issue | Bombay Inams (Kutch Area) Abolition Act, 1958 - Sections 2 and 6; Evidence Act - Section 106; Transfer of Property Act; Civil Procedure Code (CPC) - Order 14 Rule 4 - Order 20 Rule 18; Hindu Law; Land Revenue Code |
| Judgement Date | June 30, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
Roshan Dalvi, J.
-
The Plaintiff has sued for partition of the properties stated to be belonging to the Hindu Undivided Family (HUF) of which the Plaintiff claims to be the coparcener. The Plaintiff claims 1/20th share in the properties of the HUF shown in the list of assets annexed as Exhibit-A to the Plaint.
-
The relationship between the parties is admitted. The Plaintiff is the son of Defendant No. 2 and the grandson of Defendant No. 1 and one Premji Velji Dholi/Joshi (Premji). The Plaintiff is the great grandson of one Velji Ghiga Dholi/Joshi. Defendant Nos. 3 and 4 are the Plaintiff's uncles and the sons of Defendant No. 1 and the said Premji. Defendant Nos. 5 to 15 are the wives and children of Defendant Nos. 2, 3 and 4. Defendant Nos. 16, 17 and 18 are the 3 partnership firms in which the Plaintiff claims 1/20th share. The partnership of Defendant No. 16 is the oldest partnership floated by the Plaintiff's grandfather. The partnerships of Defendant Nos. 17 and 18 were thereafter floated by the Plaintiff's father and uncles during the subsistence of the first partnership. All the partners of the 3 partnerships have been family members inducted from time to time therein by Premji since the first induction of Defendant No. 3, the eldest son of Premji on 26.10.1965, as shall be dealt with presently.
-
It is the case of the Plaintiff that his great grandfather owned an agricultural immovable property consisting of land and a house in village Bara, Taluka Abdasa, District Kutch in the State of Gujarat. After the death of his great grandfather, his grandfather Premji inherited that property. He sold the right, title and interest of his grandfather in the ancestral property to the cultivator who was cultivating the agricultural land, one Shamji Omarji Bhanushali. The Plaintiff has relied upon and produced as Exhibit-D in evidence of Mutation Entry No. 66 in Form 6 certified by the Talathi of village Bara, Abdasa, showing the mortgage rights of the Plaintiff's great grandfather Velghi Ghiga and the right of the aforesaid cultivator (who was the mortgagor) for the land under Survey No. 152. The entry showing the mortgage of the land is made on 11.2.1962. It is the Plaintiff's case that from the proceeds of such sale the Plaintiff's grandfather Premji came to Mumbai to start his business. The Plaintiff's grandfather initially started his business as a partner in M/s. Shivdas Haridas & Company and later started his own partnership in the name of M/s. Premji Odhavji & Company. It is further the Plaintiff's case that his grandfather, who was initially a partner with certain outsiders, got those partners retired from the firm and inducted his own sons and thereafter his wife as well as his grandsons and his daughters-in-law in the partnership firm of M/s. Premji Odhavji & Company. It is also the Plaintiff's case that the sons of Premji being Defendant Nos. 2, 3 and 4 herein, floated 2 other partnership firms in the names of Dilipkumar & Company and Dholi Brothers in which they took their own grandmother, their wives and their children as partners from time to time. It is, therefore, the Plaintiff's case that from the nucleus of the HUF property being the ancestral property consisting of the ancestral land and house in which his great grandfather had right, title and interest consequent upon the mortgage created by the cultivator Bhanushali and later sold to Bhanushali, the initial partnership business was started by the Plaintiff's grandfather. The Plaintiff's grandfather made profits in the initial partnership business. After retiring therefrom, he started his own partnership firm. He admitted his sons as partners and continued therein until his death in 1991. From the profits of that firm made by his wife and sons, they floated other firms and made further profits.
-
It is the Plaintiff's case that from the profits of those firms the Defendants have purchased various movable and immovable properties in which the Plaintiff has 1/20th share. It is his case that he is the only coparcener and family member who has been excluded from the partnership businesses and the properties of the HUF in view of the divorce of his parents. The Plaintiff has accordingly sued for partition of his share.
-
The Defendants have admitted the relationship of the parties. The Defendants have also admitted the various partnership firms mentioned by the Plaintiff in which they have been partners initially along with the Plaintiff's grandfather Premji and later amongst themselves. The Defendants have also admitted to have acquired various properties more specially 4 residential flats purchased by Defendant Nos. 1, 2, 3 and 4. They have not stated from which funds they have purchased those flats.
-
It is their case that Premji had no immovable ancestral property in village Bara, which he could sell and the proceeds of which he could bring to Mumbai to start his business. It is their case that the agricultural land was in the possession and cultivation of the said Bhanushali, who was declared a tiller of the land and accordingly an owner of the land, and so Premji or his father Velji Ghiga had no land which they could sell even to the same cultivator. It is their case that Premji came to Mumbai and started his business from his own funds and not from the proceeds of the ancestral property at village Bara. It is the case of the Defendants that Velji came to Mumbai since 1951 and commenced business as a partner in M/s. Shivdas Haridas & Company. It is the Defendants' case that Premji never received any amount from the agricultural land and hence the Plaintiff has not shown any nucleus of the HUF property, from which any business was carried on by Premji or the Defendants. The Defendants, therefore, contend that the properties, more specially residential flats were purchased by them out of their own separate self acquired funds from their separate businesses which were not family businesses and are their self acquired properties in which the Plaintiff has no share. The Defendants contend that the businesses were contractual partnerships, though incidentally only family members have been partners therein and there has been no business of the HUF of Premji or the Defendants.
-
It is the case of the Defendants that the Plaintiff has been paid maintenance along with the alimony being paid to his mother upon divorce obtained by consent of the parties in the divorce petition filed by the Plaintiff's mother and the Plaintiff is not entitled to any further amount as a coparcener in the HUF of the family of Premji.
-
Upon such a case between the parties, the following issues came to be framed:
(1) Whether the Plaintiff is a member of the HUF of his grandfather one Premji Velji Dholi.
(2) Whether Premji Velji Dholi died leaving behind the assets and properties listed in the Schedule, Exhibit-A to the Plaint.
(3) What relief, if any, the Plaintiff is entitled to?
It may be mentioned that upon the presumption in law of the existence of a joint family amongst Hindus and upon the admission of the relationship between the parties, the Plaintiff's status as a member of the HUF of his grandfather Premji is admitted. The aforesaid issues, therefore, do not arise for consideration. The properties listed in Exhibit-A to the Plaint are admitted to be the properties of the Defendants though not of Premji. What is essentially disputed is the right of the Plaintiff as a coparcener in the business conducted by the family members, who are other coparceners, being the Defendants in this Suit along with Premji, and after his death amongst some of themselves as businesses of the HUF. What is also disputed is the right of the Plaintiff in the admitted properties shown in the list Exhibit-A to the Plaint. What is also disputed is that those properties were the properties of Premji or acquired from joint family funds or out of joint family businesses. Consequently, the issues already framed are required to be recast under the provisions of Order XIV Rule 4 of the Code of Civil Procedure. The issues are recast and answered as follows:
(1) Whether the Plaintiff's grandfather Premji Velji Dholi/Joshi started his business from the funds of the Hindu Undivided Family (HUF) to which he belonged. - Yes
(2) Whether the partnership firms in which Premji and the Defendants carried on business are the businesses of the HUF. - Yes
(3) Whether the movable and immovable properties, in the list of assets, Exh.-A to the Plaint being 3 flats and 1 godown in the names of Defendant Nos. 1, 2 and 4, purchased from the profits of the HUF businesses, the bungalow in village Bara and the ornaments can be taken as HUF properties in which the Plaintiff, as a coparcener, has 1/20th share. - Yes
(4) What relief, if any, is the Plaintiff entitled to? - As per final order.
-
The Plaintiff's constituted attorney as well as the Counsel on behalf of the Defendants have extensively argued on each of the aforesaid aspects.
-
The Plaintiff's mother, who is his Constituted Attorney, has led evidence on behalf of the Plaintiff. The Plaintiff has further led evidence of the Tahsildar of village Bara and one of the panchas who made the panchanama in the presence of the Tahsildar of village Bara. The Defendants have not led any oral evidence.
-
The Plaintiff has got produced the panchanama prepared in the presence of the Talathi of village Bara, a certificate issued by the Talathi, a mutation entry under Form No. 6 bearing No. 66 in respect of Survey No. 52, which was admittedly ancestral land of the father of Premji, a Dakhla/certificate of the Talathi in respect of a house in village Bara, certified copies of Form No. 6 of the record of rights, 7/12 extract Form No. 8 of the record of rights as well as the extract of page 22 in the record of rights dated 21.3.1958 in respect of the agricultural property at village Bara. The Plaintiff has also produced the extract of the Registrar of...
To continue reading
Request your trial