{"id":220876,"date":"2009-03-25T00:00:00","date_gmt":"2009-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gunmala-ghendmal-jhaveri-vs-sushila-kanakmal-gandhi-ors-on-25-march-2009"},"modified":"2018-10-24T01:46:27","modified_gmt":"2018-10-23T20:16:27","slug":"gunmala-ghendmal-jhaveri-vs-sushila-kanakmal-gandhi-ors-on-25-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gunmala-ghendmal-jhaveri-vs-sushila-kanakmal-gandhi-ors-on-25-march-2009","title":{"rendered":"Gunmala Ghendmal Jhaveri vs Sushila Kanakmal Gandhi & Ors on 25 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Gunmala Ghendmal Jhaveri vs Sushila Kanakmal Gandhi & Ors on 25 March, 2009<\/div>\n
Bench: R. S. Dalvi<\/div>\n
                                     1\n\n         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n             ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                           \n              CHAMBER SUMMONS NO. 1774 OF 2008\n                              IN\n\n\n\n\n                                                   \n                     SUIT NO.1551 OF 1979\n\n    GUNMALA GHENDMAL JHAVERI                          ..PLAINTIFF\n\n\n\n\n                                                  \n             VS.\n\n    SUSHILA KANAKMAL GANDHI & ORS.                    ..DEFENDANTS\n\n\n\n\n                                        \n    Ms. Sau mya Shrikrish n a with Mr. Vivek Shar m a for the\n    Defenda nt s           \n    Mr. Kishore Jain i\/b Harilal Thakore & Co. for the Plaintiff\n                          \n                                 CORAM: Smt. ROSHAN DALVI, J.\n<\/pre>\n
                                 DATED: 25 th March, 2009<\/p>\n
    Oral Order:\n<\/p>\n
    1. This Chamber Summon s has taken exception to the report of
\n      the Commissioner, High Court, Bombay dated 24.10.2008<\/p>\n
      made upon the preliminary decree being passed in the suit.\n<\/p>\n
    2. The suit is for partition. The Plaintiff claims 1 \/ 3 rd share in<\/p>\n
      the suit property (the suit was filed by the original Plaintiff.
\n      The present    plaintiffs are her heirs     brought         on record
\n      pending the suit. They shall be referred to as the Plaintiff).
\n      The suit property is a tenan ted building which has seven<\/p>\n
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\n                                       2<\/span><\/p>\n
      residential flats, one show room, one shop and one hoarding.\n<\/p>\n
      The Plaintiff inter alia alleged in paragrap h (13) of the plaint
\n      that the Defendan t s in collusion and without knowledge and<\/p>\n
      consent of the Plaintiffs have transferred the tenancy of the
\n      ground floor premises (which consists of show room and the
\n      shop). The Plaintiffs alleged in paragrap h (14) of the plaint<\/p>\n
      that the Defenda nt s una u t horisedly and wrongfully created
\n      tenancy in respect of the third party for the ground floor<\/p>\n
      premises. The Plaintiff claims that tenancy is una u t horised
\n      and illegal and not binding upon the Plaintiff. The Plaintiff<\/p>\n
      also averred that she apprehe n ded        that the Defendant s<\/p>\n
      would   create   further   rights   in other   parts       of the suit
\n      property. The Plaintiffs averred in paragrap h              (16) of the
\n      Plaint that the alterations were made in the premises for<\/p>\n
      attempting to create further rights and hence she applied for<\/p>\n
      partition and separate possession of the suit property. The
\n      Plaintiff also averred in paragraph (18) of the Plaint that
\n      Defenda nt s committed act of waste and would diminish the<\/p>\n
      value of the suit property which          would tanta mo u n t              to
\n      creating an encum br a n ce thereon.\n<\/p>\n
    3. The Plaintiff has sued for the declaration of her 1 \/ 3 rd share,
\n      partition of the suit property by metes and bounds, inquiries
\n      to be made for partition in the property and directions to be
\n      given for appoint me n t of Commissioner for effecting partition<\/p>\n
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\n                                         3<\/span><\/p>\n
     for   perpet u al    order   of   injunction   restraining        transfer,<\/p>\n
     creation of third party rights or disposing of any part of the
\n     premises and for making all inquiries and taking account s in<\/p>\n
     respect of the rents and profits recovered by Defenda nt s No.1
\n     to 4 and Defendan t s No.5 & 6 (they shall be referred to as
\n     the Defenda nt s).\n<\/p>\n
    4. The three shares in the building are stated to be of the<\/p>\n
     Plaintiffs, Defendan t s No.2, 3 & 4 and of Defenda nt s No.5 &\n<\/p>\n
     6. This suit is concerned with the Plaintiff’s 1 \/ 3 rd share, the<\/p>\n
     other Defendant s have neither claimed nor disputed their<\/p>\n
     rights in the suit premises.\n<\/p>\n
    5. The evidence was led to determine the declarative relief<\/p>\n
     prayed for by the Plaintiffs. By Judgme nt upon evidence<\/p>\n
     dated 16.07.200 2 \/ 24.07.2002 of this court the suit came to
\n     be decreed in favour of the Plaintiffs in terms of prayer (a),\n<\/p>\n
     (b) & (d). Hence the declaration of the Plaintiff’s 1\/ 3 rd share<\/p>\n
     in the suit property, order for partition the property by metes
\n     and bounds and the order of injunction came to be passed.
\n     Further Commissioner came to be appointed under prayer (c)<\/p>\n
     and in terms of prayer (g). This related to inquiries to be
\n     made and account s to be taken in respect of rents and
\n     profits recovered by the Defenda nt s.\n<\/p>\n
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\n                                          4<\/span><\/p>\n
    6. The parties have led evidence before the Commissioner for<\/p>\n
      taking account s (Commission). The Commissioner has made
\n      inquiries and taken accou nt s in respect of rents and profits<\/p>\n
      recovered by the Defenda nt s from the tenan ts in the suit
\n      building.\n<\/p>\n
    7. The rents and profits recovered from the seven residential
\n      flats is accepted by the Plaintiffs. The rent receipt book has<\/p>\n
      been produced by the Defendant s. The rent receipt book
\n      shows the basic rent, property tax, repairs, water charge,<\/p>\n
      electricity and land tax separately collected from all the<\/p>\n
      tenan t s througho ut. The Plaintiff has claimed only basic rent
\n      collected,   other   collection    being   expenses         which          must
\n      necess arily have been expended by the Defenda nt s whilst in<\/p>\n
      the managemen t of the suit property. The Commissioner has<\/p>\n
      considered    the    total   net   basic   rent     collected         by     the
\n      Defenda nt s and not paid to the Plaintiff which the Plaintiff
\n      would be entitled to.\n<\/p>\n
    8. The real dispute between the parties is with regard to the
\n      commercial premises and the hoarding. The Defenda nt s have<\/p>\n
      led evidence only of Defenda nt No.2. He has been examined
\n      and cross- examined upon the receipts of monies in respect
\n      of the tenanted premises. His evidence shows that though he
\n      was chosen as a witness from amongst the Defenda nt s and<\/p>\n
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\n                                       5<\/span><\/p>\n
      his Advocate called upon him to depose, he has feigned<\/p>\n
      ignorance of the various matters. He has not produced any
\n      evidence with regard to the rents being collected except the<\/p>\n
      rent receipt book out of which three rent receipts are marked
\n      Exhibit A, B & F. Certain assess me n t bills and property tax
\n      bills marked as Exhibit C & D, which are not material to<\/p>\n
      consider     in view of the aforesaid    rent      receipts,        and      a
\n      registered Deed of Lease as Exhibit E.\n<\/p>\n
    9. The Plaintiff has led evidence of a reputed Architect. He has<\/p>\n
      sub mitted his report of valuation of the suit property. That is<\/p>\n
      the precise purpose of the inquiry contemplated under the
\n      preliminary decree. His report dated 19.06.2003. It has been
\n      proved by him by direct evidence and marked Exhibit G. His<\/p>\n
      report shows the market value ascertained from four distinct<\/p>\n
      trans actions in the locality at the relevant time. This report
\n      has   been    challenged   on   the   ground      that      these       four
\n      trans actions are in respect of Sale Deeds and not Lease<\/p>\n
      Deeds. It is contended on behalf of Defenda nt s No.2 to 4 who
\n      have taken out this Chamber Sum mon s that since the suit
\n      property is entirely tenanted, Lease Deeds alone should have<\/p>\n
      been considered. That is not the reason to reject the report.
\n      Witness was available for cross- examination. Defenda nt s
\n      were allowed to lead evidence. In fact I am told that after
\n      initial inquiry   was   made    by the   Commissioner               further<\/p>\n
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\n                                               6<\/span><\/p>\n
      evidence was also allowed to be led. The Defenda nt s could<\/p>\n
      have    cross- examined          the    expert     witness       who      was       the
\n      Architect to determine to what extent the valuation put on<\/p>\n
      account of the trans actions being in respect of outright sales
\n      could be different         from that          of Lease. No such                 cross-
\n      examination is made. Witness therefore, who was available<\/p>\n
      for cross- examination and who was an expert witness could
\n      show the court the difference, if any, in the transactions of<\/p>\n
      sale    and    Lease.   The       Defenda nt s        have    not     even       fairly
\n      challenged the valuation    ig         of the Architect to state what
\n      according to them would have been the fair market value for<\/p>\n
      Lease    Deeds,    upon     the        sale   value     shown       in the         four
\n      trans actions. The Defendant s have not led any evidence of
\n      any other expert witness also. In view thereof and for total<\/p>\n
      lack of any evidence on this score his report cannot be<\/p>\n
      challenged, rejected or amended.\n<\/p>\n
    10. Further      challenge    is     on       the   ground       that       the     four<\/p>\n
      trans actions upon which the valuation is considered is in
\n      buildings built in 1960 and 1976. The suit building has been
\n      constr ucted in 1937. It is a heritage building. It is a stone<\/p>\n
      struct u re. It is aptly called Stone Building. It is on the sea-
\n      face    at    Chowpatty,         Mumbai.          The   stone        building          is
\n      necess arily    of a far          better      architectur al        quality       than
\n      concrete buildings built few decades thereafter. It is not the<\/p>\n
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\n                                       7<\/span><\/p>\n
      case of the Defenda nt s that the building is old or dilapidated<\/p>\n
      or that it requires repairs. The Architect has considered the
\n      depreciation with regard to the period of constr uction, the<\/p>\n
      age of the    building   and    its    life. Since        it is a stone
\n      constr uction the total life of 80 years is given. The building
\n      has not run out its course of life. Hence upon allowing<\/p>\n
      depreciation the valuation of the building would be correct
\n      and cannot be challenged.\n<\/p>\n
    11. Further exception is taken to the fact that the Architect was<\/p>\n
      not told about the pendency of the litigations. It is submitted<\/p>\n
      that the valuation of the property would greatly diminish if it
\n      is the subject matter of litigation. That argume n t is also
\n      incorrect. That may hold good qua third parties. The dispute<\/p>\n
      between the owners inter se cannot devalue the property in<\/p>\n
      partition suit or any suit for accou nt s. The market rent of
\n      the tenement s in the property would not change because a
\n      co- owner sues for partition.\n<\/p>\n
    12. Yet further reason for rejection of the report is on the
\n      ground that the purch a ser s would consider parking spaces<\/p>\n
      in the building which would increase                 the value of the
\n      trans actions as also the rental of the premises. The Architect
\n      has deposed that no parking space was available in the
\n      premises   in question    and       hence   that      aspect       not      been<\/p>\n
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\n                                         8<\/span><\/p>\n
      considered in the said report. There is no evidence led by the<\/p>\n
      Defenda nt s   to show the number           of car parking spaces
\n      available which could have been considered. Since the report<\/p>\n
      goes on the footing that there are no car parking spaces
\n      available, no enha nce me n t in the value is made and hence
\n      the objection does not sust ain.\n<\/p>\n
    13. The    Witness     has   been   asked    about     the      type      of the<\/p>\n
      showroom now exhibiting vehicles. The witness has not been
\n      aware that the shop premises was closed for 25 years prior<\/p>\n
      to November 2000. These aspects do not matter. The inquiry<\/p>\n
      which is contemplated is only with regard to the price that
\n      would be obtainable upon              transfer of the tenancy. The
\n      Architects evidence of the present costs of constr uction has<\/p>\n
      been made on the basis of Central Public Works Depart me nt<\/p>\n
      Manual, showing the costs of index in the city. That aspect
\n      has not been challenged. Based upon this valuation report
\n      the trans actions of transfer that took place with regard to<\/p>\n
      the     commercial    premises    have been        considered          by the
\n      Commissioner.\n<\/p>\n
    14. The Defenda nt s No.2 to 4 claim that only the rents actually
\n      received by them is required to be accounted for and divided
\n      to give the Plaintiff’s 1 \/ 3 rd share. That contention is wholly
\n      incorrect. The Plaintiff has alleged collusion, apprehen sion of<\/p>\n
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\n                                          9<\/span><\/p>\n
      creation of third party rights and acts of waste by the<\/p>\n
      Defenda nt s. Hence the inquiries as well as account s are
\n      ordered in the preliminary decree in respect of rents and<\/p>\n
      profits recovered by the Defenda nt s. The counsel on behalf of
\n      the Defendant s No.2 to 4 argued that willful default is not
\n      alleged in the plaint and hence the determination of the<\/p>\n
      valuation of the premises in the suit property cannot be
\n      made and rents and compens a tion which could be recovered<\/p>\n
      but is not shown to be recovered cannot be directed to be
\n      accounted for or disbur sed. That argumen t is also wholly<\/p>\n
      incorrect. The very purpose of partition suit is upon the<\/p>\n
      premise that the co- owner no longer desires to contin ue as
\n      such and has applied for his or her share. Upon collusion,
\n      acts of waste etc. inquiries directed to be held is therefore,<\/p>\n
      to determine the trut h of the trans action s in the face of the<\/p>\n
      case of collusion by the Defendan t s in manageme nt. Hence
\n      these   inquiries   are required        to be made        and       must       be
\n      considered,    since      the   court   is   interested     only       in    the<\/p>\n
      ascertain me n t    and    determination      of the       trut h      of the
\n      trans actions of the parties. In any event the preliminary
\n      decree passed which was challenged in appeal, has been<\/p>\n
      confirmed. The appeal has been dismissed. The inquiries
\n      made must therefore be heeded.\n<\/p>\n
    15. The report has been proved in evidence. It is not shattered<\/p>\n
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\n                                                  10<\/span><\/p>\n
      in cross- examination. The report deserves accepta nce.\n<\/p>\n
    16. There is a hoarding on the suit building leased to Selvel.\n<\/p>\n
      The inquiry was to be made with regard                                 to the rents
\n      collected,     in     respect    of the           hoarding.      It was          for    the
\n      Defenda nt s to produce account s in respect of rents for the<\/p>\n
      hoarding. The Defenda nt s failed to produce accou nt s. Hence
\n      the Plaintiff       examined the officer of Selvel. The officer has<\/p>\n
      produced docume nt s with regard to the payment of rent \/
\n      compens ation in respect of the hoarding on the suit building<\/p>\n
      in two separate files. These files show the original letters<\/p>\n
      written by Selvel to various Defendant s annexing the cheque
\n      in respect of the compens a tion as Selvel was directed to pay.
\n      The original letters have been receipted and acknowledged by<\/p>\n
      several      Defenda nt s.      It    is        admittedly     received          by     the<\/p>\n
      Defenda nt s        whose signat u res            are taken       on the original
\n      docume nt s. Each of these letters, kept in the normal course
\n      of the business of the Selvel, has been produced to show the<\/p>\n
      trans actions in the normal course of conduct of that party in
\n      respect of the payment of rents.\n<\/p>\n
    17. From    the       file   witness     has         produced       a     letter      dated
\n      08.09.2003          addressed        by Defendant            No.4      to Selvel. It
\n      requires Selvel to issue cheques in the names of the heirs of
\n      one Motilal Zaveri as stated in his Will. The extent of the<\/p>\n
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\n                                      11<\/span><\/p>\n
     shares      of several of the Defendan t s,   which include the<\/p>\n
     children who are not Defenda nt s on record and not yet co-
\n     owners of the suit property, are shown co- owners in the<\/p>\n
     letter to be paid the proportionate compens a tion. Defenda nt
\n     No.4 has signed a letter as executor of the Will of Motilal
\n     Zaveri showing the children of the Defenda nt s as co- owners.\n<\/p>\n
     The Will is not probated. The directions contained in the Will
\n     could not have been effected. Defenda nt No.4 has acted as<\/p>\n
     Executor de son tort. He is liable as such. He has misused
\n     his position as Executor of the Will, without
\n                             ig                                    having it
\n     probated. He has accordingly committed mis- appropriation<\/p>\n
     of the estate of the deceased and breach of trust. It is under
\n     his letter that the directions have been given for payment of
\n     compens ation to parties who were not otherwise entitled for<\/p>\n
     want of probate of the Will. He is liable and responsible to<\/p>\n
     account for the compens a tion that he has sought to collect
\n     in the individual names of the children of the Defenda nt s
\n     before their rights in law were determined by the competent<\/p>\n
     court.\n<\/p>\n
    18. The officer of Selvel shows       the   extent    of the        rent     \/<\/p>\n
     compens ation      paid by Selvel through      the years for the
\n     hoarding on the suit building. The Plaintiff is entitled to
\n     1\/3   rd   Share in the total amou nt of rent \/ compens a tion
\n     collected from Selvel. The Commissioner has made necessary<\/p>\n
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\n                                         12<\/span><\/p>\n
      inquiry under the aforesaid evidence. The Commissioner has<\/p>\n
      taken account s and ascertained the exact amou nt s of rents \/
\n      compens ation received from the suit hoarding. The Plaintiff<\/p>\n
      is entitled to 1 \/ 3 rd share in such rent \/ compens ation.
\n      Impertinently Defenda n t No.4 has stated in his evidence that
\n      he is not liable to account for and cannot state the rents<\/p>\n
      received by others from Selvel. Those others are the family
\n      members of the Defenda nt s. They are the children who are<\/p>\n
      not yet entitled to legal rights, their predecessors- in- title
\n      being yet alive. They are not entitled also under the Will of<\/p>\n
      the     deceased,   since   the        Will    remained         unprobated,<\/p>\n
      Defenda nt No.4 alone is liable to accou nt for and bring back
\n      the amount of compens a tion he directed Selvel to pay those
\n      others.\n<\/p>\n
    19. Counsel on behalf of Defenda nt s No.2 to 4 who have taken<\/p>\n
      out this Chamber Sum mon s has herself relied upon the case
\n      of Peary Mohan Mookerjee Vs. Manohar Mookerjee, AIR
\n      19 2 4 Calcutta 16 0 , in which in fact it has been held that if<\/p>\n
      a person by mistake or otherwise              assu m e s the character of
\n      trustee when it does not belong to him and accordingly
\n      becomes the trustee de son tort, he may be called upon to<\/p>\n
      account by the cestui que trust for moneys received by him
\n      under such     trust and he cannot say and he would not be
\n      heard     to say that   he had         no right to act as trustee.
\n      Defenda nt No.4 is shown to have acted as such. He must<\/p>\n
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\n                                         13<\/span><\/p>\n
      account for what he received.\n<\/p>\n
    20. Defendant No.2 in his Affidavit in Examination- in- chief has
\n      stated that when rent receipts are challenged in the name of<\/p>\n
      new persons only the nominal increase in the rent receipts is
\n      shown. He has      given   an illustration of another building of
\n      the Plaintiff which shows the same practice. That stateme n t<\/p>\n
      may be correct. However, it proceeds on two footings (1) that
\n      there is a transfer of tena ncy and (2) that consideration has<\/p>\n
      passed upon transfer which is not reflected in the rent
\n      receipt — it is taken at one time from the new tenant which<\/p>\n
      is inducted in the premises. If that consideration, which is<\/p>\n
      now legally obtainable, is not accounted for, as in this case,
\n      there is no question of nominal rent being only reflected as
\n      correct rent in the rent receipts. Hence if the rent in the new<\/p>\n
      rent   receipts   is to be       accepted,   the     amou nt         paid       as<\/p>\n
      consideration     for transfer     of the tenancy,          which        would
\n      constitute the market value of the premises, would be the
\n      amou nt shown to be taken by the landlord in manageme nt.\n<\/p>\n
      The extent of the consideration received upon the transfer is
\n      reflected in the Architect’s report showing the market value
\n      of the premises upon         transfer. That         amou nt has been<\/p>\n
      accounted for by the Commissioner as directed.\n<\/p>\n
    21. The report of the Commissioner, therefore, shows the total
\n      rent \/ compen s a tion received by Defendant s No.2 to 4 and<\/p>\n
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\n                                      14<\/span><\/p>\n
      Defenda nt s No.5 & 6 and their family members              from Selvel<\/p>\n
      from April 1983 to March 2008 correctly.            The report also
\n      shows market rent of the two commercial premises shown as<\/p>\n
      per the evidence of the Architect which cannot be faulted.\n<\/p>\n
    22. The report further shows the share in the net basic rents of<\/p>\n
      the tenanted premises which excludes expenses incurred by
\n      way of property tax,     repairs, water charges and land tax<\/p>\n
      separately collected. The calculation of the Commissioner
\n      must be accepted as no errors are otherwise shown therein.\n<\/p>\n
    23.Counsel on behalf of Defenda nt No.2 to 4 has relied upon<\/p>\n
      the case of Jaiswal Coal Co. Vs. Fatehganj Co-operative
\n      Marketing Societ y Ltd, AIR 197 5 Calcutta 303, in which<\/p>\n
      it is held that in the suit for account s upon        concealing the<\/p>\n
      true nature of the trans actions, an order u \/ s 75(c) of the
\n      CPC can be passed for issuing the Commission to examine
\n      or adjust account s. Such power may be subject to conditions<\/p>\n
      and limitations as may be prescribed.\n<\/p>\n
    24. Under Order 26 Rules 11 & 12 of the CPC the Commissions<\/p>\n
      to examine account s must be under directions of the court to
\n      make    such     examination        or   adjust me n t s.         Specific
\n      instr uction s are to be passed whether the Commissioner is
\n      merely to trans mit    the proceedings or also report his own<\/p>\n
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\n                                     15<\/span><\/p>\n
      opinion on the point referred for his examination.\n<\/p>\n
      Upon the preliminary decree of partition being passed the<\/p>\n
      Commissioner    was appointed      not only to trans mit              any
\n      proceedings; he was appointed to make ”all inquiries” and
\n      ”take all account s” in respect of rents and profits recovered<\/p>\n
      by the Defenda nt s. This includes the power to make report.\n<\/p>\n
    25. The provisions of Order 26 Rules 13 to 18 relate to the
\n      appoint me nt   of   Commissioners.\n<\/p>\n
                            ig                Under       Rule         13      a
\n      Commission can be issued to make partition of the property<\/p>\n
      in a partition suit. Under Rule 14, the Commissioner has
\n      powers to divide the property into the requisite shares and
\n      allot them and upon such allotment to prepare a report<\/p>\n
      which, upon confirmation by the Court, the court is required<\/p>\n
      to pass a decree thereon. Under Rule 16 the Commissioner
\n      appointed under Order 26 has stat utory powers to examine
\n      parties and witnesses’ and call persons to give evidence,<\/p>\n
      examine docume nt s and other things relevant to the inquiry
\n      and enter upon the suit premises. Under Rule 18 the parties
\n      are enjoined to appear before the such Commissioner.\n<\/p>\n
    26. It is clear that the Commissioner appointed in this case had
\n      to proceed to execute the commission under the provisions of
\n      Order 26 Rules 13 to 18 as much as u \/ s 75(c) of the CPC.\n<\/p>\n
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\n                                      16<\/span><\/p>\n
      The Commissioner’s jurisdiction cannot be faulted.\n<\/p>\n
    27. The report of the Commissioner is in accorda nce with the<\/p>\n
      directions. It has considered, the rents recovered not only by
\n      the parties to the suit but wrongfully             recovered in the
\n      names and by their children without any legal right thereto<\/p>\n
      in respect of the hoarding, the basic net rent in respect of
\n      the   tena nted premises and the rent       as per market value<\/p>\n
      which is accepted to be recovered upon premises being
\n      valued at the market value and account s being taken in<\/p>\n
      respect of the commercial premises.\n<\/p>\n
    28. The Commissioners Report dated 24.10.2008 is accepted.\n<\/p>\n
    29. The challenge to the report       lacks   bonafides.           Cham ber<\/p>\n
      Sum mo ns is     dismissed. The Defenda n t s, more specially
\n      Defenda nt No.4 who has acted as trustee \/ executor de son
\n      tort, shall make payment of the     amou nt s representing 1 \/ 3 rd<\/p>\n
      share to the Plaintiff in the suit forthwith.\n<\/p>\n
    30. The suit property has been partitioned. The actual partition<\/p>\n
      by metes and bounds is required to be effected. The suit
\n      building has, as aforesaid, seven residential tenant s, two
\n      commercial premises and one hoarding. Advocate on behalf
\n      of the Defendant s No.2 to 4 states that the three divisions<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:27:29 :::<\/span>
\n                                   17<\/span><\/p>\n
    may be effected giving     two tenancies of similar nat ure to<\/p>\n
    each of the branc hes. That would leave out two commercial
\n    premises   and   the   hoarding    as    well as     one      residential<\/p>\n
    premises. The parties apply for time to work out the most
\n    equitable way of the distribution         of the last mentioned
\n    premises in three almost equal parts. Suit is kept on board<\/p>\n
    for passing final decree of partition on 15.06.2009.\n<\/p>\n
                            ig              (Smt. Roshan Dalvi, J)\n                          \n        \n     \n\n\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:27:29 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Gunmala Ghendmal Jhaveri vs Sushila Kanakmal Gandhi & Ors on 25 March, 2009 Bench: R. S. Dalvi 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-220876","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGunmala Ghendmal Jhaveri vs Sushila Kanakmal Gandhi & Ors on 25 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gunmala-ghendmal-jhaveri-vs-sushila-kanakmal-gandhi-ors-on-25-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gunmala Ghendmal Jhaveri vs Sushila Kanakmal Gandhi & Ors on 25 March, 2009 - 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