MINAKSHI MAHENDRA PITRODA Vs. KUSUMBEN DEVCHAND RATHOD

JUDGEMENT

(1.) On the request of the Learned Counsel of all the contesting parties, the appeal has been taken up for hearing and final disposal. The Learned Counsel have been heard.

(2.) The Appellant is the Plaintiff in a suit instituted before this Court in which the relief that is sought is: (i) A declaration that the order dated 4th August, 1992 passed by this Court in Suit 931 of 1971 permitting the withdrawal of the suit as settled out of Court is fraudulent, collusive, void and illegal and would not bind the Plaintiff and the Fourteenth Defendant; (ii) A declaration that Defendant Nos. 1 to 6 have no right to deal with or dispose of the half share of the Plaintiff and the Fourteenth Defendant in favour of Defendant Nos.7 tolO and the agreement for sale dated 20th January, 1994 does not create any right, title and interest in favour of Defendant Nos.7 to 10; (iii) The property which forms the subject of the suit be partitioned by metes and bounds; and (iv) Alternatively, the Plaintiff should be allowed a sum of Rs.75 lakhs towards the claim of a one fourth share in the suit property.

(3.) The dispute in the present case relates to a plot of land bearing Survey No.47, Hissa No.2 (part) corresponding to CTS 479/1 to 17 admeasuring 4199 sq. yards and situated at Andheri. A partnership firm by the name of Govind Moti & Co. owned the suit property. On 19th July, 1960, four partners of the firm who had been described as investing partners valued the property at Andheri at Rs.2,07,904/ - and provided that it should be divided between two partners, Mansukh Govind Rathod and Virjee Mohan Rathod. The Plaintiff is the daughter of Mansukh. The Fourteenth Defendant is the son of Mansukh. The Branch of Virjee Mohan Rathod was to pay an amount of Rs. 1.25 lakhs to Mansukh which, according to the Plaintiff was not paid. Virjee died on 20th October, 1961 and his heirs, original Defendant Nos.l to 6 became partners of the partnership firm. On 12th January 1962, the firm was agreed to be dissolved by the surviving partners. The property at Andheri had come to the share of Mansukh and Virjee in equal shares. The case of the Appellant, the Plaintiff, is that in July, 1960, the partners had agreed to pay to the Plaintiffs father a sum of Rs.1.25 lakhs representing his half share in the property. Since the amount was not paid, a suit was instituted by the Plaintiffs father seeking a declaration that he had an undivided half share in the property.