KHAIRUNISSAMOHD HASSAN MOMIN Vs. HAJIRA

JUDGEMENT

(1.) HEARD Second Appeal as well as Civil Application.

(2.) THE trial Court partly decreed a suit for declaration about plaintiffs, entitlement to certain shares together with a preliminary decree for partition and a direction for administration of the property by the Court Commissioner. The relief was claimed in respect of several properties but was granted only in respect of House No. 49 in the town of Bhiwandi, District thane. Defendants appealed. Plaintiffs filed cross-objections. The cross-objections were dismissed. Appeal was allowed and the relief was also granted in respect of other properties. The original defendants have filed this Second Appeal. The plaintiffs have filed Civil Application No. 4748 of 1993 for amendment of Plaint.

(3.) I have heard Shri Dhakephalkar, learned Counsel for the appellants, shri Dalvi, learned Counsel for the respondents and perused the record with their assistance. The only grievance put forth on behalf of the appellant is that the case made out and accepted by the Appellate court was not specifically pleaded. The First Appellate Court has taken a view that the property acquired by deceased Mohd. Hasan after the death of his grand father Karamat Munshi was also required to be administered by the Court Commissioner since the property was purchased with the help of business and the income left behind by Karamat Munshi plaintiff Nos. 1 and 2 were minors and thus the property was held by Mohd. Hasan in a fiduciary capacity as a co-owner. By Civil Application No. 4748 of 1993, the plaintiffs are seeking to amend the plaint by way of abundant precaution incorporating the aforesaid findings as a part of their pleadings so that even untenable grievance about the Appellate court granting relief on that basis does not survive. The plaintiffs also invited my attention to application made in the trial Court under Order XIV, Rule 5, C. P. C. for framing the following additional issues.