PRAKASH R MEHTA Vs. VEENA D CHHABLANI

JUDGEMENT

(1.) LEAVE to amend the appeal by adding grounds granted.

(2.) THE order passed in Notice of Motion No. 2833 of 1994 dated 19. 9. 1997 by the learned Single Judge is sought to be challenged by filing this appeal on the grounds of its incorrectness and propriety.

(3.) THE factual position is that the suit property is admittedly a dwelling house but however belongs to the mother of the plaintiff and mother of Ramchand Chandulal Mehta. The original defendants in the suit are the heirs of said Ramchand Chandulal Mehta. The mother of the plaintiff Smt. Kaiserbao admittedly died on 12th June, 1990 while the father of the defendants died on 2-4-1990. The suit property is a flat standing in the name of mother of the plaintiff. Since she died intestate half share was claimed, but however, defendants have relied upon the deeds of relinquishments annexed to the affidavit in reply which shows that the plaintiff has relinquished her share. The learned trial Judge while passing the impugned order has not accepted the said relinquishments but held that the plaintiff has made out a strong prima facie case with reference to 50% share in the suit property. However, it is common case that the suit flat is occupied by the defendants nos. 1 and 3. According to the learned Counsel Shri Tulzapurkar, as shown in his affidavit the plaintiff and other parties to the proceedings who are long prior to the filing of the suit and the notice of motion were living away from the suit flat. It is in this context the relief of partition was asked for in the suit and the notice of motion was moved.