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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1774 OF 2008
IN
SUIT NO.1551 OF 1979
GUNMALA GHENDMAL JHAVERI ..PLAINTIFF
VS.
SUSHILA KANAKMAL GANDHI & ORS. ..DEFENDANTS
Ms. Sau mya Shrikrish n a with Mr. Vivek Shar m a for the
Defenda nt s
Mr. Kishore Jain i/b Harilal Thakore & Co. for the Plaintiff
CORAM: Smt. ROSHAN DALVI, J.
DATED: 25 th March, 2009
Oral Order:
1. This Chamber Summon s has taken exception to the report of
the Commissioner, High Court, Bombay dated 24.10.2008
made upon the preliminary decree being passed in the suit.
2. The suit is for partition. The Plaintiff claims 1 / 3 rd share in
the suit property (the suit was filed by the original Plaintiff.
The present plaintiffs are her heirs brought on record
pending the suit. They shall be referred to as the Plaintiff).
The suit property is a tenan ted building which has seven
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residential flats, one show room, one shop and one hoarding.
The Plaintiff inter alia alleged in paragrap h (13) of the plaint
that the Defendan t s in collusion and without knowledge and
consent of the Plaintiffs have transferred the tenancy of the
ground floor premises (which consists of show room and the
shop). The Plaintiffs alleged in paragrap h (14) of the plaint
that the Defenda nt s una u t horisedly and wrongfully created
tenancy in respect of the third party for the ground floor
premises. The Plaintiff claims that tenancy is una u t horised
and illegal and not binding upon the Plaintiff. The Plaintiff
also averred that she apprehe n ded that the Defendant s
would create further rights in other parts of the suit
property. The Plaintiffs averred in paragrap h (16) of the
Plaint that the alterations were made in the premises for
attempting to create further rights and hence she applied for
partition and separate possession of the suit property. The
Plaintiff also averred in paragraph (18) of the Plaint that
Defenda nt s committed act of waste and would diminish the
value of the suit property which would tanta mo u n t to
creating an encum br a n ce thereon.
3. The Plaintiff has sued for the declaration of her 1 / 3 rd share,
partition of the suit property by metes and bounds, inquiries
to be made for partition in the property and directions to be
given for appoint me n t of Commissioner for effecting partition
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for perpet u al order of injunction restraining transfer,
creation of third party rights or disposing of any part of the
premises and for making all inquiries and taking account s in
respect of the rents and profits recovered by Defenda nt s No.1
to 4 and Defendan t s No.5 & 6 (they shall be referred to as
the Defenda nt s).
4. The three shares in the building are stated to be of the
Plaintiffs, Defendan t s No.2, 3 & 4 and of Defenda nt s No.5 &
6. This suit is concerned with the Plaintiff’s 1 / 3 rd share, the
other Defendant s have neither claimed nor disputed their
rights in the suit premises.
5. The evidence was led to determine the declarative relief
prayed for by the Plaintiffs. By Judgme nt upon evidence
dated 16.07.200 2 / 24.07.2002 of this court the suit came to
be decreed in favour of the Plaintiffs in terms of prayer (a),
(b) & (d). Hence the declaration of the Plaintiff’s 1/ 3 rd share
in the suit property, order for partition the property by metes
and bounds and the order of injunction came to be passed.
Further Commissioner came to be appointed under prayer (c)
and in terms of prayer (g). This related to inquiries to be
made and account s to be taken in respect of rents and
profits recovered by the Defenda nt s.
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6. The parties have led evidence before the Commissioner for
taking account s (Commission). The Commissioner has made
inquiries and taken accou nt s in respect of rents and profits
recovered by the Defenda nt s from the tenan ts in the suit
building.
7. The rents and profits recovered from the seven residential
flats is accepted by the Plaintiffs. The rent receipt book has
been produced by the Defendant s. The rent receipt book
shows the basic rent, property tax, repairs, water charge,
electricity and land tax separately collected from all the
tenan t s througho ut. The Plaintiff has claimed only basic rent
collected, other collection being expenses which must
necess arily have been expended by the Defenda nt s whilst in
the managemen t of the suit property. The Commissioner has
considered the total net basic rent collected by the
Defenda nt s and not paid to the Plaintiff which the Plaintiff
would be entitled to.
8. The real dispute between the parties is with regard to the
commercial premises and the hoarding. The Defenda nt s have
led evidence only of Defenda nt No.2. He has been examined
and cross- examined upon the receipts of monies in respect
of the tenanted premises. His evidence shows that though he
was chosen as a witness from amongst the Defenda nt s and
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his Advocate called upon him to depose, he has feigned
ignorance of the various matters. He has not produced any
evidence with regard to the rents being collected except the
rent receipt book out of which three rent receipts are marked
Exhibit A, B & F. Certain assess me n t bills and property tax
bills marked as Exhibit C & D, which are not material to
consider in view of the aforesaid rent receipts, and a
registered Deed of Lease as Exhibit E.
9. The Plaintiff has led evidence of a reputed Architect. He has
sub mitted his report of valuation of the suit property. That is
the precise purpose of the inquiry contemplated under the
preliminary decree. His report dated 19.06.2003. It has been
proved by him by direct evidence and marked Exhibit G. His
report shows the market value ascertained from four distinct
trans actions in the locality at the relevant time. This report
has been challenged on the ground that these four
trans actions are in respect of Sale Deeds and not Lease
Deeds. It is contended on behalf of Defenda nt s No.2 to 4 who
have taken out this Chamber Sum mon s that since the suit
property is entirely tenanted, Lease Deeds alone should have
been considered. That is not the reason to reject the report.
Witness was available for cross- examination. Defenda nt s
were allowed to lead evidence. In fact I am told that after
initial inquiry was made by the Commissioner further
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evidence was also allowed to be led. The Defenda nt s could
have cross- examined the expert witness who was the
Architect to determine to what extent the valuation put on
account of the trans actions being in respect of outright sales
could be different from that of Lease. No such cross-
examination is made. Witness therefore, who was available
for cross- examination and who was an expert witness could
show the court the difference, if any, in the transactions of
sale and Lease. The Defenda nt s have not even fairly
challenged the valuation ig of the Architect to state what
according to them would have been the fair market value for
Lease Deeds, upon the sale value shown in the four
trans actions. The Defendant s have not led any evidence of
any other expert witness also. In view thereof and for total
lack of any evidence on this score his report cannot be
challenged, rejected or amended.
10. Further challenge is on the ground that the four
trans actions upon which the valuation is considered is in
buildings built in 1960 and 1976. The suit building has been
constr ucted in 1937. It is a heritage building. It is a stone
struct u re. It is aptly called Stone Building. It is on the sea-
face at Chowpatty, Mumbai. The stone building is
necess arily of a far better architectur al quality than
concrete buildings built few decades thereafter. It is not the
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case of the Defenda nt s that the building is old or dilapidated
or that it requires repairs. The Architect has considered the
depreciation with regard to the period of constr uction, the
age of the building and its life. Since it is a stone
constr uction the total life of 80 years is given. The building
has not run out its course of life. Hence upon allowing
depreciation the valuation of the building would be correct
and cannot be challenged.
11. Further exception is taken to the fact that the Architect was
not told about the pendency of the litigations. It is submitted
that the valuation of the property would greatly diminish if it
is the subject matter of litigation. That argume n t is also
incorrect. That may hold good qua third parties. The dispute
between the owners inter se cannot devalue the property in
partition suit or any suit for accou nt s. The market rent of
the tenement s in the property would not change because a
co- owner sues for partition.
12. Yet further reason for rejection of the report is on the
ground that the purch a ser s would consider parking spaces
in the building which would increase the value of the
trans actions as also the rental of the premises. The Architect
has deposed that no parking space was available in the
premises in question and hence that aspect not been
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considered in the said report. There is no evidence led by the
Defenda nt s to show the number of car parking spaces
available which could have been considered. Since the report
goes on the footing that there are no car parking spaces
available, no enha nce me n t in the value is made and hence
the objection does not sust ain.
13. The Witness has been asked about the type of the
showroom now exhibiting vehicles. The witness has not been
aware that the shop premises was closed for 25 years prior
to November 2000. These aspects do not matter. The inquiry
which is contemplated is only with regard to the price that
would be obtainable upon transfer of the tenancy. The
Architects evidence of the present costs of constr uction has
been made on the basis of Central Public Works Depart me nt
Manual, showing the costs of index in the city. That aspect
has not been challenged. Based upon this valuation report
the trans actions of transfer that took place with regard to
the commercial premises have been considered by the
Commissioner.
14. The Defenda nt s No.2 to 4 claim that only the rents actually
received by them is required to be accounted for and divided
to give the Plaintiff’s 1 / 3 rd share. That contention is wholly
incorrect. The Plaintiff has alleged collusion, apprehen sion of
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creation of third party rights and acts of waste by the
Defenda nt s. Hence the inquiries as well as account s are
ordered in the preliminary decree in respect of rents and
profits recovered by the Defenda nt s. The counsel on behalf of
the Defendant s No.2 to 4 argued that willful default is not
alleged in the plaint and hence the determination of the
valuation of the premises in the suit property cannot be
made and rents and compens a tion which could be recovered
but is not shown to be recovered cannot be directed to be
accounted for or disbur sed. That argumen t is also wholly
incorrect. The very purpose of partition suit is upon the
premise that the co- owner no longer desires to contin ue as
such and has applied for his or her share. Upon collusion,
acts of waste etc. inquiries directed to be held is therefore,
to determine the trut h of the trans action s in the face of the
case of collusion by the Defendan t s in manageme nt. Hence
these inquiries are required to be made and must be
considered, since the court is interested only in the
ascertain me n t and determination of the trut h of the
trans actions of the parties. In any event the preliminary
decree passed which was challenged in appeal, has been
confirmed. The appeal has been dismissed. The inquiries
made must therefore be heeded.
15. The report has been proved in evidence. It is not shattered
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in cross- examination. The report deserves accepta nce.
16. There is a hoarding on the suit building leased to Selvel.
The inquiry was to be made with regard to the rents
collected, in respect of the hoarding. It was for the
Defenda nt s to produce account s in respect of rents for the
hoarding. The Defenda nt s failed to produce accou nt s. Hence
the Plaintiff examined the officer of Selvel. The officer has
produced docume nt s with regard to the payment of rent /
compens ation in respect of the hoarding on the suit building
in two separate files. These files show the original letters
written by Selvel to various Defendant s annexing the cheque
in respect of the compens a tion as Selvel was directed to pay.
The original letters have been receipted and acknowledged by
several Defenda nt s. It is admittedly received by the
Defenda nt s whose signat u res are taken on the original
docume nt s. Each of these letters, kept in the normal course
of the business of the Selvel, has been produced to show the
trans actions in the normal course of conduct of that party in
respect of the payment of rents.
17. From the file witness has produced a letter dated
08.09.2003 addressed by Defendant No.4 to Selvel. It
requires Selvel to issue cheques in the names of the heirs of
one Motilal Zaveri as stated in his Will. The extent of the
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shares of several of the Defendan t s, which include the
children who are not Defenda nt s on record and not yet co-
owners of the suit property, are shown co- owners in the
letter to be paid the proportionate compens a tion. Defenda nt
No.4 has signed a letter as executor of the Will of Motilal
Zaveri showing the children of the Defenda nt s as co- owners.
The Will is not probated. The directions contained in the Will
could not have been effected. Defenda nt No.4 has acted as
Executor de son tort. He is liable as such. He has misused
his position as Executor of the Will, without
ig having it
probated. He has accordingly committed mis- appropriation
of the estate of the deceased and breach of trust. It is under
his letter that the directions have been given for payment of
compens ation to parties who were not otherwise entitled for
want of probate of the Will. He is liable and responsible to
account for the compens a tion that he has sought to collect
in the individual names of the children of the Defenda nt s
before their rights in law were determined by the competent
court.
18. The officer of Selvel shows the extent of the rent /
compens ation paid by Selvel through the years for the
hoarding on the suit building. The Plaintiff is entitled to
1/3 rd Share in the total amou nt of rent / compens a tion
collected from Selvel. The Commissioner has made necessary
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inquiry under the aforesaid evidence. The Commissioner has
taken account s and ascertained the exact amou nt s of rents /
compens ation received from the suit hoarding. The Plaintiff
is entitled to 1 / 3 rd share in such rent / compens ation.
Impertinently Defenda n t No.4 has stated in his evidence that
he is not liable to account for and cannot state the rents
received by others from Selvel. Those others are the family
members of the Defenda nt s. They are the children who are
not yet entitled to legal rights, their predecessors- in- title
being yet alive. They are not entitled also under the Will of
the deceased, since the Will remained unprobated,
Defenda nt No.4 alone is liable to accou nt for and bring back
the amount of compens a tion he directed Selvel to pay those
others.
19. Counsel on behalf of Defenda nt s No.2 to 4 who have taken
out this Chamber Sum mon s has herself relied upon the case
of Peary Mohan Mookerjee Vs. Manohar Mookerjee, AIR
19 2 4 Calcutta 16 0 , in which in fact it has been held that if
a person by mistake or otherwise assu m e s the character of
trustee when it does not belong to him and accordingly
becomes the trustee de son tort, he may be called upon to
account by the cestui que trust for moneys received by him
under such trust and he cannot say and he would not be
heard to say that he had no right to act as trustee.
Defenda nt No.4 is shown to have acted as such. He must
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account for what he received.
20. Defendant No.2 in his Affidavit in Examination- in- chief has
stated that when rent receipts are challenged in the name of
new persons only the nominal increase in the rent receipts is
shown. He has given an illustration of another building of
the Plaintiff which shows the same practice. That stateme n t
may be correct. However, it proceeds on two footings (1) that
there is a transfer of tena ncy and (2) that consideration has
passed upon transfer which is not reflected in the rent
receipt — it is taken at one time from the new tenant which
is inducted in the premises. If that consideration, which is
now legally obtainable, is not accounted for, as in this case,
there is no question of nominal rent being only reflected as
correct rent in the rent receipts. Hence if the rent in the new
rent receipts is to be accepted, the amou nt paid as
consideration for transfer of the tenancy, which would
constitute the market value of the premises, would be the
amou nt shown to be taken by the landlord in manageme nt.
The extent of the consideration received upon the transfer is
reflected in the Architect’s report showing the market value
of the premises upon transfer. That amou nt has been
accounted for by the Commissioner as directed.
21. The report of the Commissioner, therefore, shows the total
rent / compen s a tion received by Defendant s No.2 to 4 and
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Defenda nt s No.5 & 6 and their family members from Selvel
from April 1983 to March 2008 correctly. The report also
shows market rent of the two commercial premises shown as
per the evidence of the Architect which cannot be faulted.
22. The report further shows the share in the net basic rents of
the tenanted premises which excludes expenses incurred by
way of property tax, repairs, water charges and land tax
separately collected. The calculation of the Commissioner
must be accepted as no errors are otherwise shown therein.
23.Counsel on behalf of Defenda nt No.2 to 4 has relied upon
the case of Jaiswal Coal Co. Vs. Fatehganj Co-operative
Marketing Societ y Ltd, AIR 197 5 Calcutta 303, in which
it is held that in the suit for account s upon concealing the
true nature of the trans actions, an order u / s 75(c) of the
CPC can be passed for issuing the Commission to examine
or adjust account s. Such power may be subject to conditions
and limitations as may be prescribed.
24. Under Order 26 Rules 11 & 12 of the CPC the Commissions
to examine account s must be under directions of the court to
make such examination or adjust me n t s. Specific
instr uction s are to be passed whether the Commissioner is
merely to trans mit the proceedings or also report his own
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opinion on the point referred for his examination.
Upon the preliminary decree of partition being passed the
Commissioner was appointed not only to trans mit any
proceedings; he was appointed to make ”all inquiries” and
”take all account s” in respect of rents and profits recovered
by the Defenda nt s. This includes the power to make report.
25. The provisions of Order 26 Rules 13 to 18 relate to the
appoint me nt of Commissioners.
ig Under Rule 13 a
Commission can be issued to make partition of the property
in a partition suit. Under Rule 14, the Commissioner has
powers to divide the property into the requisite shares and
allot them and upon such allotment to prepare a report
which, upon confirmation by the Court, the court is required
to pass a decree thereon. Under Rule 16 the Commissioner
appointed under Order 26 has stat utory powers to examine
parties and witnesses’ and call persons to give evidence,
examine docume nt s and other things relevant to the inquiry
and enter upon the suit premises. Under Rule 18 the parties
are enjoined to appear before the such Commissioner.
26. It is clear that the Commissioner appointed in this case had
to proceed to execute the commission under the provisions of
Order 26 Rules 13 to 18 as much as u / s 75(c) of the CPC.
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The Commissioner’s jurisdiction cannot be faulted.
27. The report of the Commissioner is in accorda nce with the
directions. It has considered, the rents recovered not only by
the parties to the suit but wrongfully recovered in the
names and by their children without any legal right thereto
in respect of the hoarding, the basic net rent in respect of
the tena nted premises and the rent as per market value
which is accepted to be recovered upon premises being
valued at the market value and account s being taken in
respect of the commercial premises.
28. The Commissioners Report dated 24.10.2008 is accepted.
29. The challenge to the report lacks bonafides. Cham ber
Sum mo ns is dismissed. The Defenda n t s, more specially
Defenda nt No.4 who has acted as trustee / executor de son
tort, shall make payment of the amou nt s representing 1 / 3 rd
share to the Plaintiff in the suit forthwith.
30. The suit property has been partitioned. The actual partition
by metes and bounds is required to be effected. The suit
building has, as aforesaid, seven residential tenant s, two
commercial premises and one hoarding. Advocate on behalf
of the Defendant s No.2 to 4 states that the three divisions
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may be effected giving two tenancies of similar nat ure to
each of the branc hes. That would leave out two commercial
premises and the hoarding as well as one residential
premises. The parties apply for time to work out the most
equitable way of the distribution of the last mentioned
premises in three almost equal parts. Suit is kept on board
for passing final decree of partition on 15.06.2009.
ig (Smt. Roshan Dalvi, J)
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