RAMNIKLAL AMRITLAL SHAH Vs. BHUPENDRA IMPEX PRIVATE LIMITED

JUDGEMENT

(1.) APPEAL admitted. By consent, notice made returnable forthwith. Respondents waive service through Counsel Mr. Doctor.

(2.) BY consent, appeal is called out for final hearing and heard.

(3.) THIS appeal is directed against an order of the learned Single Judge dated 11th February, 2000 dismissing the Notice of Motion. Since this is an appeal against an interlocutory order, we indicate the bare essential facts requisite to dispose of the appeal. Those facts are:--- The appellant is the brother of one Madhuben @ Mridulaben Amritlal Shah who had filed the suit before this Court. The suit was filed invoking section 44 of the Transfer of Property Act and section 4 of the Partition Act, 1893. The case was that the suit property was a dwelling house in the occupation of an undivided family, that the original defendants 1 to 7, outsiders to the family, had purchased the undivided share of one Mrs. Sadguna Shah, a member of the family, and on the strength of the said fact they had entered into occupation of the second floor of the suit property. This, according to the original plaintiff, was illegal as the purchaser not being a member of the undivided family could get no right of joint occupation by virtue of the second paragraph of section 44 of the Transfer of Property Act, unless he sues for partition and obtains a partition by metes and bounds. Pending the suit, the Notice of Motion was taken out by the original-plaintiff in which certain preventive reliefs were sought against the original defendants (present respondents ). While this Notice of Motion was pending, the original plaintiff died and the appellant brought himself on the record claiming to be the legal representative of the deceased-original plaintiff. The appellant claims that he represents the estate of the deceased plaintiff as the named executor under a Will left by the deceased plaintiff. He has also filed a petition, being Probate Petition No. 313 of 1998, in this Court for grant of probate of the Will dated 4th May, 1997 said to have been made by the deceased-original plaintiff. This Notice of Motion was heard and the learned Single Judge dismissed the Notice of Motion by taking the view that the plaintiff could not be said to have a prima facie case in his favour in view of section 213 of the Indian Succession Act. He also took the view that the plaintiff being brother of the original plaintiff, who was unmarried, the question whether he was a member of the family of the unmarried sister could only be decided on the basis of documentary and oral evidence; consequently, at the interlocutory stage it could not be said that the appellant had a prima facie case in his favour. In this view of the matter, the learned Judge was pleased to dismiss the Notice of Motion. Being aggrieved, the appellant is before this Court.