BAI RABIABAI WIDOW OF EBRAHIM MIA MOHAMED HAJI JANMAHOMED CHOTANI AND ORS Vs. OFFICIAL ASSIGNEE OF BOMBAY

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) This chamber summons is taken out by a third party applicant, who claims to have interest in the subject matter of the present suit.

(3.) The suit is for partition of property. The property was initially owned by one Mia Mahomed Chotani. The Plaintiffs claim to be legal heirs of Mia Mahomed. The suit was originally filed against one Usman Chotani, who is the only other legal heir and representative of the deceased Mia Mahomed. A preliminary decree was passed in the suit determining the respective shares of the parties. Since Usman was declared insolvent during the pendency of the suit, the Official Liquidator was brought on record in place and stead of Usman. Mia Mahomed had during his lifetime entrusted the property to one Krishnadas Gordhandas Madiwale to manage the same, but on or after his death, his heirs (collectively described hereinafter as 'Madiwale family') claimed to hold the property in lieu of certain debts claimed as due by the deceased Mia Mohamed. The Court Receiver appointed in the suit in respect of the property filed a suit for possession against Madiwale family, who claimed to have interest in the suit property as transferee from Mia Mahomed and Usman. By a consent decree passed in that suit, 1/4th share of Madiwale family in the entire suit property was recognized. The share was made up of 1/5th share of Usman in the suit property and the other part coming from Mia Mahomed. Pursuant to the preliminary decree, there was a physical partition of the suit property, by which Plot Nos. 13 to 16, forming part of the suit property, were inter alia allotted to Madiwale family as their share in the suit property. Apart from the property, which was divided physically, there is one particular portion of the suit property, which could not be divided inter alia by reason of reservation under the relevant development control regulations. Presently, the surviving contest in the suit herein pertains to this plot of land having an area of 25422.10 sq. ft., which is under reservation. (There is a contest between the parties as to the correct area of this plot of land, the Plaintiffs claiming the area to be 25422.10 sq. ft., whilst, according to the Applicant, it is 45978 sq. ft. We are, however, not concerned with this dispute in this chamber summons.)