VAMAN GANPATRAO TRILOKEKAR Vs. MALTI RAMCHANDRA RAUT

JUDGEMENT

(1.) This appeal assails the order dated 10th September, 1985 passed in a partition suit. The learned Single Judge thereby directed that a valuation of the share of plaintiffs in the two immovable properties in suit should be made as of July 1972 and suit was adjourned for the purpose.

(2.) On 16th April, 1985 Dr. Sakharam Arjun Raut died leaving property at Khotachi Wadi, which is one of the two immovable properties in suit. He left behind him a widow, Jayantibai, and three sons, Vasantrao, Yeshwantrao and Raghunathrao. On 10th January, 1904 Jayantibai died leaving a Will whereunder she bequeathed the property at French Bridge, which is the other immovable property in suit, to the three sons. On 4th Nov., 1904 probate of her will was obtained. On 12th Oct., 1936 Yeshwantrao died leaving a Will whereby he bequeathed his estate to his widow Rewabai. Rewabai died intestate on 28th Oct, 1939 leaving Narayan (the original 1st plaintiff) as her only heir. On 24th December, 1972 Narayan died leaving a Will dated 21st Dec, 1972. Probate was obtained on 7th August 1975 in respect of the Will and the executors thereunder were brought on record as plaintiffs 1 (a) to 1 (d). On 26th Feb. 1974 plaintiff 1 (a) died and his name was deleted. On 25th March, 1957 Raghunathrao died leaving a Will whereby he bequeathed his estate to his widow Ramabai and his children Madhav (the original 2nd plaintiff) and Kamala (the original 3rd plaintiff). Ramabai died intestate in Oct. 1967 leaving Madhav and Kamala as her only heirs. Madhav died intestate on 26th Feb, 1974 and left Kamala as her only heir. Letters of administration in respect of his estate were obtained by Kamala on 5th Sept, 1975. Kamala died on 3rd Jan. 1980. Probate in respect of her will was obtained on 11th Jan, 1982 and her executors were brought on record as plaintiffs 3(a), (b) and (c). Vasantrao died leaving a Will wherein he bequeathed his estate to his children Ramchandra, Keshav, Sumant, Sunderabai and Indira ( the original 1st to 5th defendants). Ramchandra died on 3rd Dec, 1980 and his widow Malati and sons Anand and Pramod were brought on record as defendants 1(a) to (c). Keshav (the original 2nd defendant died leaving a Will dated 27th July, 1971. Probate in respect thereof was obtained by his executors on 11th Dec. 1974. The executors were brought on record as defendants 2(a) to (c). Sundarabai (the original 4th defendant) died leaving a Will dated 23rd Aug, 1974. Her executor was brought on record as defendant 4-A. Defendant 4-A died on 13th June, 1983 and the heirs of Sunderabai were then brought on record as defendants 1(a) and (b). On 23rd Dec, 1978 Indira (the original 5th defendant) died leaving a Will dated 19th Nov., 1975 and her sole executor was brought on record as defendant No. 5(a). Subsequent to the passing of the order under appeal probate was obtained in respect of the Will of Indira.

(3.) On 17th May, 1972 the suit was filed for partition. It was stated in the plaint that the original 1st plaintiff had a 1/3rd share, that the original 2nd and 3rd plaintiffs had a 1/3rd share and that the defendants had the remaining 1/3rd share in the properties sought to be partitioned, which were held as tenants-in-common. The plaint sought partition according to the respective rights, shares and interests of the co-shares in the properties but averred that division of the properties could not reasonably or conveniently be made and that the sale of the properties and the distribution of the sale proceeds thereof would be more beneficial. The plaintiffs, therefore, asked the Court to direct that the properties be sold by and under its direction and that the sale proceeds be distributed in accordance with the respective rights, shares and interests of the co-shares. On 26th June, 1972 the plaintiffs took out a notice of motion for the appointment of a receiver and an injunction. In the affidavit in reply to the notice of motion the original defendants stated that they were prepared to buy at a valuation the respective shares of the plaintiffs and requested the Court to give necessary directions in that behalf. On the notice of motion an order was taken by consent, in terms signed by Counsel, where under the plaintiffs and the defendants undertook to Court not to dispose of, encumber or part with possession of the properties. On 9th Oct., 1972 the original defendants tendered their written-statement. The written-statement noted that the plaintiffs had a 1/3rd share in the properties and had prayed that the properties be sold and the sale proceeds distributed between the plaintiffs and the defendants. The original defendants submitted that they had become entitled to apply to Court under section 3 of the Partition Act, 1893 (hereinafter called "the Act") and, accordingly, applied for leave to buy at a valuation the share of the plaintiffs in the properties. The original defendants asked the Court to order a valuation of the share of the plaintiffs in the properties and to offer to sell the same to the original defendants at the price so ascertained. Upon the demise of the several defendants their legal representatives put in written-statements in which the Court was asked to have the share of the plaintiffs valued and to sell it to all the defendants at the valuation that was made.