Entrance to a religious order, is tantamount to civil death so as to cause a complete severence of his connection with his relations, as well as with his property.

 It is a recognized principle of Hindu Law  as noted by Mulla  on Hindu  

Law (Paragraph 111 of Seventeenth Edition) that when a person enters into a 
religious order renouncing all worldly affairs, his action is tantamount to civil 
death, and  it excludes him/her  altogether from inheritance and from a share 
on partition.     The Hon'ble Supreme Court has in the case of  Shri Krishna  
Singh  vs. Mathura Ahir and others 4   held that “one who enters into a religious  
order   severs   his   connection   with   the   members   of   his   natural   family.     He   is  
accordingly   excluded   from   inheritance.   Entrance   to   a   religious   order,   is  
tantamount to civil death so as to cause a complete severence  of his connection  
with his relations, as well as with his property...”
4 (1981) 3SCC 689

In view thereof, I am satisfied that the said Shobha Jain has no  right title and 
interest  in the estate  of the Deceased and is therefore not a necessary party 
to the Suit. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION 
  

NOTICE OF MOTION NO. 1213 OF 2013
IN
SUIT NO. 629 OF 2013

Man Chandak Developers Pvt. Ltd.  
               Vs.
Dilip Mangilal Jain 
                     


     
 CORAM:  S.J. KATHAWALLA, J.
            
 Citation; 2014(1) ALLMR497 BOM

       Order pronounced on  : 11   November,2013

     

  The present Suit is filed by the Plaintiffs   against the Defendant for 
specific performance of an oral agreement entered into between the Plaintiffs 
and   late   Shri   Mangilal   Gulabchand   Narsingji,   father   of   the   Defendant,   in 
respect of the share inherited by the Defendant from the estate of late Shri 
Mangilal Gulabchand Narsingji,  who was holding 1/3 rd share out of 5 Annas 
share in the immovable property­II, more particularly described in Exhibit­B 

(page 36 of the Plaint), at the time of his death.  The oral agreement was also 
with     the   two   brothers   of     Mangilal   Gulabchand   Narsingji   viz.   Madanlal 
Gulabchand   Narsingji   and   Ranjeetmal       Gulabchand   Narsingji.   These   two 
brothers   have   already   performed   their   part   of   the   oral   agreement   and 
conveyed their right, title and interest in the property to the Plaintiffs as set 
out hereinafter. 
The Plaintiffs have in Suit No. 629 of 2013 also taken out the above 

2.
Notice of Motion seeking the following interim reliefs:
“(a) this   Hon'ble   Court   may   be   pleased   to   permit     the  
Plaintiffs   to   carry   on   development   work   in   respect   of   the  
immovable   property   I   and   II   excluding   an   area   of   581.38  
square   metres   as   earmarked   by   the   Plaintiffs   on   the   Plan  
annexed as a part of Exhibit “J” hereto on such terms and  
conditions as this Hon'ble Court may deem fit and proper. 
(b)     That this Hon'ble Court be pleased to pass an order of  
permanent injunction restraining:
(i)   the Defendant   from creating any third party rights in  
respect of his undivided share in the immovable property II  
inherited   by  him  from   the  estate  of  his  deceased   Madanlal  
Gulabchand Narsingji;
(ii)         the Defendant, his agents, servants, heirs, executors,  
administrators   or   any   other   person   claiming   through   or  
under the Defendant from interfering with the development of  
the immovable property­I and II.” 

Briefly set out hereinafter, are the facts and the submissions made on 
3.


behalf of the Plaintiffs: 
In   or   around   May/June,   2011,   Mangilal   Gulabchand   Narsingji 
(father of  the Defendant), Madanlal Gulabchand Narsingji   and  Ranjeetmal 
Gulabchand Narsingji agreed to sell and transfer all their 1/3 rd share each out 
of   5   Annas   share   in   the   immovable   property­II   to   the   Plaintiffs   for   a 
ig
consideration of Rs. 11,50,00,000/­ each (the “Suit Agreement”), subject to 
“Society”).

the   rights   of   the   Indira   Rashtriya   Kamgar   Sahakari   Society   Limited   (   the 
In terms of the Suit Agreement arrived at between the Plaintiffs and 
the said  Mangilal Gulabchand Narsingji, Madanlal Gulabchand Narsingji  and 
Ranjeetmal   Gulabchand Narsingji, the said   Madanlal Gulabchand Narsingji 
and   Ranjeetmal     Gulabchand   Narsingji,   under   separate   Indentures   of 
Conveyance both dated 2nd July, 2011, sold, transferred and conveyed  all their 
undivided share, right, title and interest to the extent  of 1/3 rd share  each out 
of 5 Annas share   in the said immovable property­II to the Plaintiffs for the  
consideration and on the covenants as recorded therein, subject to the rights of 
the Society.  The said Indenture of Conveyance both dated  2 nd July,2011, are 
duly registered with the Sub­Registrar of Assurances at Mulund, under Sr. Nos. 
BDR/13­5501/2011 and BDR/13­549/2011.
3.3
According to the Plaintiffs, when the Conveyances were executed, 

Mangilal Gulabchand Narsingji (father of Defendant)   was ill, and therefore 
the conveyance of his share was not executed at that time but kept pending. 
Mangilal   Gulabchand Narsingji died in or around 20 th  July, 2011 and could 
not execute the conveyance in terms of the Suit Agreement as executed by the 
said Madanlal Gulabchand Narsingji  and Ranjeetmal     Gulabchand Narsingji 
in favour of the Plaintiffs. 
According to the Plaintiffs, after the demise of late Shri   Mangilal 

Gulabchand   Narsingji,   the   Plaintiffs   called   upon   the   heirs   and   legal 
representatives   of   the   said   deceased   namely   Mrs.   Badami   Mangilal   Jain 
(widow of Shri Mangilal), Mr. Abhay Mangilal Jain, Mr. Bharat Mangilal Jain 
and Mr. Jitendra Mangilal Jain  and the Defendant (the sons of Shri Mangilal) 
to convey their respective undivided right, title and interest in  respect of the 
1/3rd  share  of   their  deceased   father  (i.e.   2906.92   sq.mtrs.)   out  of   5   Annas 
share   (i.e.   8720.76   sq.mtrs.)     in   the   said   immovable   property   ­II,   more 
particularly described in Exhibit “B” to the Plaint. 

According   to   the   Plaintiffs,   under     the   prior   registered   Deed   of 
Partition   dated   23rd  March,   1973   (Exhibit­E   to   the   Plaint   at   page   56),   the 
father Gulabchand Narsingji and his three sons viz. Mangilal, Madanlal and 
Ranjeetmal   had accepted and admitted the position that shares coming to 
them on partition were held by them separately in their own individual right 
and in severalty and that the joint status had been severed. Thus the share of 
Mangilal  was in his own individual and separate right  and capacity. It was not 

The legal heirs  and representatives  of  the Deceased  Mangilal  viz. 

at all held by him as HUF property.  
Mrs. Badami Mangilal Jain, Mr. Abhay Mangilal Jain, Mr. Bharat Mangilal Jain 
and Mr. Jitendra Mangilal Jain, represented to the Plaintiffs that one Shobha 
Mangilal Jain, daughter of the Deceased Mangilal, has renounced the world 
and has taken “DIKSHA”   and therefore does not have any right, title and/or 
interest in the assets of her father.  This declaration was also recorded in the 
According to the Plaintiffs, after various meetings and discussions, 

Conveyance dated 14th June, 2012. 
on 14th  June, 2012, the said Mrs. Badami Mangilal Jain, Mr. Abhay Mangilal 
Jain, Mr. Bharat Mangilal Jain and Mr. Jitendra Mangilal Jain, being the heirs 
and   legal   representatives   of   the   Deceased   Mangilal   sold,   transferred   and 
conveyed all their undivided right, title and interest in the said immovable 
property­II     to   the   Plaintiffs   for   the   consideration   and   on   the   terms   and 
conditions  as set out therein which was duly registered with the Sub­Registrar 
of Assurances at Nahur, Mumbai. The said Indenture of Conveyance  (without 
Annexure) is at page 88 of the Plaint  and the same is marked as Exhibit­I. 

According to the Plaintiffs, as the Deceased Mangilal had expressly 
agreed   to   convey   and   transfer   all   his   undivided   right,   title   and   interest   in 
respect of his 1/3rd  share (i.e. 2906.92 sq.mtrs.) out of 5 Annas share (i.e. 
8720.76 sq.mtrs.)  in the said  immovable property­II, the Defendant being one 
of the legal heirs of Mangilal   Gulabchand Narsingji  is bound  and liable to 

perform all the obligations of his Deceased father  under the said Agreement 
(by which the Defendant is bound) in respect of the share inherited by him 
from   his   Deceased   father,   by   executing   an   Indenture   of   Conveyance   in 
accordance   with   the  Suit   Agreement   as  executed   by   the  other  heirs  of   the 
Deceased Mangilal Gulabchand Narsingji  i.e.  Mrs. Badami Mangilal Jain, Mr. 
Abha Mangilal Jain, Mr. Bharat Mangilal Jain and Mr. Jitendra Mangilal Jain. 
The fact that the oral agreement was arrived at is supported by the conduct of 

Mangilal Gulabchand Narsingji's brothers viz. Madanlal  and Ranjeetmal  and 
of   Mangilal's   widow   and   three   sons,   who   have   conveyed   their   share   and 
interest to the Plaintiffs in accordance with the Suit Agreement. 

The   Plaintiffs   by   their   Advocate's   letter   dated   7 th  June,2012, 
recorded   some   of   the   aforesaid   facts     and   called   upon   the   Defendant   to 
execute the  Indenture of Conveyance as executed by the other legal heirs and 
legal representatives of his Deceased father in favour of the Plaintiffs in respect 
of the share inherited by him from the estate of the Deceased in respect of the 
said   immovable   property­II.       By   the   said   letter,   without   prejudice   to   the 
Plaintiffs'   right   to   seek   specific   performance   of   the     Suit   Agreement,   the 
Plaintiffs   informed   the   Defendant     that   the   Deceased   Mangilal   Gulabchand 
Narsingji   was entitled to 1/3rd  share (i.e. 2906.92 sq.mtrs. ) out of 5 Annas 
share     (i.e.   8720.76   sq/mtrs.)     in   the   said   immovable   property­II   and   the 
Defendant   being   one   of   the   heirs   and   legal   representatives   had   inherited 
581.38 sq.mtrs. which is approximately 2.01 per cent in the said immovable 

property­II.  The Plaintiffs also informed the Defendant that the area of 581.38 
sq.mtrs. being the share inherited by the Defendant is earmarked on the Plan 
attached to the letter on the best location and called upon the Defendant to 
accept  the earmarked area as shown on the plan attached to the said letter as 
his share.   By the said letter, in the alternative, the Plaintiffs called upon the 
Defendant   to   choose   a   location     on   any   one   side   of   the   said   immovable 
property­I and II   which will be carved out by the Plaintiffs being its share, 

within a period of 7 days   from the date of the said letter, failing which the  
Plaintiffs informed the Defendant that the Plaintiffs shall be left with no other 
alternative but to take steps to secure and safeguard their rights and interest.  

Since the Defendant failed to favourably respond  to the offer made 
by the Plaintiffs, the Plaintiffs filed the above Suit on 2 nd July, 2013 and moved 
for ad­interim reliefs on 5 th July, 2013.  Since none appeared for the Defendant 
on   that   day,   ad­interim   relief   was   granted   in   terms   of   prayer   clause   b­i 
(wrongly recorded as prayer clause (b) in the said order dated 5 th July, 2013). 
The said ad­interim relief granted on 5 th July, 2013, continues to be in force till 
date.  The Notice of Motion is now taken up for hearing and final disposal. 

It is submitted  on behalf of the Plaintiffs that the Defendant being 
the   legal   heir   and   representative   of   the   Deceased     Mangilal   Gulabchand 
Narsingji is bound and liable to perform   the obligation undertaken by the 
Deceased     Mangilal   Gulabchand   Narsingji   under   the   said   oral   agreement 
entered in the month of May/June, 2011 with the Plaintiffs.   The Defendant 

inherited   his   share   from     Mangilal   Gulabchand   Narsingji   in   the   said 
immovable property­II   but the Defendant's right   is subject to the obligation 
incurred by   Mangilal Gulabchand Narsingji under the Suit Agreement.   This 
obligation being annexed to the ownership of the immovable property­II, binds 
the Defendant who is bound to perform the  Suit Agreement in favour of the 
Plaintiffs. 
It is further submitted  by the Plaintiffs that the Defendant is acting 

contrary to the interest of the Plaintiffs with the result that the Plaintiffs are 
unable to develop the said immovable property­I and immovable property­II 
aggregating to 57,601.43   sq. mtrs. which are inter connected to each other 
and hence the entire project of the Plaintiffs is being frustrated.  This, despite 
the Plaintiffs being the admitted owner of 98.99 per cent share therein.  The 
Defendant is aware of the same  and the Defendant is further aware that  the 
development     of   immovable   property­I     is   not   possible     without   the 
development   of the immovable properties­I and II together.   The Plaintiffs 
apprehend that the  Defendant may dispose of and/or create third party rights 
in   respect   of   his   share   to   prevent   development   of   the   said   immovable 
properties­I and II together by the Plaintiffs.  The Plaintiffs submit  that grave 
harm,   injury,     loss   and   prejudice   would   be   caused   to   the   Plaintiffs     if   the 
interim reliefs are not granted.   No harm, injury,   loss or prejudice would be 
caused to the Defendant if the interim  reliefs  are granted to the Plaintiffs.  It  
is submitted on behalf of the Plaintiffs that they have made out  a strong prima 

facie case and are entitled to interlocutory reliefs as prayed for   both in law 
and   equity.     It   is   submitted   that   the   Plaintiffs   are   entitled   to   interlocutory 
reliefs to the effect that this Court may be pleased to permit the Plaintiffs to 
carry on development work in respect of the suit property excluding an area of 
581.38 sq.mtrs. as earmarked by the Plaintiffs on the plan annexed  as a part 
of Exhibit­J to the Plaint, on such terms and conditions as this Court may deem 
fit and proper and restrain the Defendant by an order and injunction from 

creating any third party rights in respect of his share.  It is submitted that  in  
law     the   Defendant   is   bound   by   the   Agreement   entered   into   by     Mangilal 
Gulabchand   Narsingji   with   the   Plaintiffs.   That   the   Agreement   was   in   fact 
concluded,   is strongly supported   by the conduct of   Mangilal Gulabchand 
Narsingji's two brothers   and other heirs.     In equity, the Plaintiffs who own 
98.99 per cent share cannot be  thwarted or their rights  set at naught  by the  
Defendant who holds only 2.01 per cent.  

The   Plaintiffs   have,   without   prejudice   to   the   aforestated 
submissions, submitted that this Court may mould the reliefs as prayed for in 
the   Notice   of   Motion   as   the   Plaintiffs   are   ready   and   willing   to   secure   and 
safeguard  the interest of the Defendant in the following manner by submitting 
the below mentioned options to the Defendant, pending the hearing and final 
disposal of the Suit. 
(i)
The Plaintiffs are ready   to pay an amount of Rs. 2.70 crores   to the 
Defendant being the value   of the undivided share of the Defendant as per 

The Plaintiffs are ready to pay to the Defendant Rs. 7.25 crores  as paid 
(ii)
Ready Reckoner; or
by the Plaintiffs to each of the legal heirs of   Mangilal Gulabchand Narsingji; 
or
(iii)
The Plaintiffs are ready and willing to furnish a Bank Guarantee of Rs. 
7.25   crores   in   favour   of   the   Prothonotary   and   Senior   Master,   High   Court, 
The Plaintiffs are ready and willing to carve out an area being the share 

(iv)
Bombay; or. 
of the Defendant inherited from the Deceased  Mangilal Gulabchand Narsingji 
who was entitled to 1/3rd  share (i.e. 2906.92 sq.mtrs.) out of 5 Annas share 
(i.e. 8720.76 sq.mtr.) in the said immovable properties ­I and/or II, as per the 
choice of the Defendant; or 
(v)
The Plaintiffs are ready and willing to construct and earmark for the 
Defendant, flats (having an area) equivalent to 581.38 sq.mtrs., free of charge 
in the project being developed by he Plaintiffs on the immovable properties ­I 
and II; or 
(vi)
The Plaintiffs are ready and willing to furnish Bank Guarantee to the 
tune of Rs. 10.70 crores in favour of the Prothonotary and Sr. Master being the 
Ready Reckoner value for the area accruing  to the Defendant's share of 581.38 
sq.mtrs. plus 581.38 sq. mtrs. in lieu of TDR equivalent to 1162.76 sq.mtrs. 
(12516 sq.ft.) at the rate of Rs. 8529/­ per sq.ft. 

4.
sought in the Notice of Motion be granted to the Plaintiffs. 
It is therefore submitted   on behalf of the Plaintiffs that the interim relief as 
The   Learned   Senior   Advocate   appearing   for   the   Defendant   has   on 
instructions submitted as follows:
(i)
that no oral agreement as alleged was entered into between the father 
of the Defendant and the Plaintiffs.  Although it may be correct that the Deed 

of   Conveyance was executed by the mother and brothers of the Defendant in 
favour of the Plaintiffs on 14 th June,2012, it however does not mean that there 
was an oral agreement between the father     of the Defendant   and that the 
Plaintiffs are put to strict proof thereof;
that assuming for the sake of argument that the father of the Defendant 
(ii)
had   entered   into     an   oral   agreement   with   the   Plaintiffs,   the   father   of   the 
Defendant   being   the  Karta  of   the  Hindu   Undivided   Family  had   no   right  to 
alienate the share of the Defendant without the consent of the Defendant;
(iii)
that assuming for the sake of argument that the father of the Defendant 
had alienated  the suit property, the same was not for legal necessity.   In any 
event, the burden to prove that the property was alienated for legal necessity 
is upon the Plaintiff.  This being a matter of proof, evidence will have to be led 
and no reliefs  can be granted at the interim stage;
(iv)   that it is incorrect to say that the Defendant   has only 581.38 square 
metres of  share in the immovable property­II;

that the Suit as filed is bad for non­joinder of necessary parties, since 
(v)

the other legal heirs of deceased Mangilal  are not joined as party Defendants 
to the Suit; 
(vi)
that the immovable property­II belongs to   Hindu Joint Family (HUF). 
The present Plaintiffs are purchasers who have acquired interest  in the joint 
property.       The Purchaser does not become a tenant in common with other 
members of the joint family.   He is not entitled to joint possession with them. 

A consistent view has been taken by the Hon'ble Supreme Court in the case of 
M.V.S. Manikayala Rao vs. M. Narasimhaswami1 and in the case of Hardeo Rai  
vs. Sakuntala Devi and others 2  that a person who has purchased a share in the 
joint family property cannot be said to be in possession   of the joint family 
property.   He being the outsider can have only right to sue for partition.  Upon 
partition being granted  pursuant to the decree of the court, the outsider can 
be put in possession of the suit  property;  
(vii)
that pursuant to the ratio laid down by the Hon'ble Supreme Court in 
Budh Ram and others vs. Bansi and others 3,  the Defendant has a right to be in 
possession and enjoyment of each and every part of the  property, equal to that 
of   other   co­owners.   Therefore,   the   Defendant   has   an   interest   in   every 
infinitesimal   portion   of   the   immovable   property­II.   Thus   unless   and   until 
partition takes place, the Plaintiffs cannot say that they are in possession of 
1 AIR 1966 SC 470
2 2008 (7) SCC 46
3 (2010) 11 SCC 476

any particular portion; 
(viii)  that although after the Deed of  Partition in 1973 between Gulabchand 
and his sons, there was a severance of the joint family status  qua Mangilal's 
branch, post the demise of Mangilal,  the property in the hands of the heirs of 
Mangilal was undoubtedly jointly owned.  In other words,  Mangilal's wife and 
4   sons   including   the   Defendant   herein   were   co­owners/co­sharers   of   the 
that   the   attempt   on   the   part   of   the   Plaintiffs   to   distinguish   the 

(ix)
property; 
judgments cited by the Defendant by saying that there was no HUF and the 
heirs   of   Mangilal   including   the   Defendant   succeeded   to   the   property   by 
succession and not survivorship will be of no consequence.   Even if all the 
heirs of Mangilal get the property by succession,   their status as co­owner or 
joint owners does not cease;    
(x)
5.
that therefore no interim relief be granted in favour of the Plaintiff. 
Mr.   Tulzapurkar,   the   Learned   Senior   Counsel   appearing   for   the 
Plaintiffs, in rejoinder has repeated and reiterated his submissions recorded 
earlier and has denied and disputed the submissions advanced on behalf of the 
Defendant.   He has also taken me through the Affidavit­in­Rejoinder filed by 
the Plaintiffs. He has submitted that the Notice of Motion be therefore made 
absolute with costs. 

I   have   considered   the   submissions   as   well   as   the   case   law   cited   on 
6.
behalf of the parties.   The Defendant has contended that the Suit is bad for 
non­joinder of necessary parties i.e. for non­joinder of his sister Shobha and all 
the   other   legal   heirs   of   Mangilal   as   party   Defendants   to   the   Suit.   The 
Defendant has not disputed that his sister Smt. Shobha has renounced   the 
world   and   taken   DIKSHA.     In   fact   in   the   recitals   of   the   Indenture   of 
Conveyance dated 14th  June, 2012 executed by the other legal heirs of the 
ig
Deceased   Mangilal  in  favour  of  the  Plaintiffs it  is clearly  set  out  that  Smt. 
Shobha  has no right, title and interest in the estate of Deceased Mangilal. 
 It is a recognized principle of Hindu Law  as noted by Mulla  on Hindu  
7.
Law (Paragraph 111 of Seventeenth Edition) that when a person enters into a 
religious order renouncing all worldly affairs, his action is tantamount to civil 
death, and  it excludes him/her  altogether from inheritance and from a share 
on partition.     The Hon'ble Supreme Court has in the case of  Shri Krishna  
Singh  vs. Mathura Ahir and others 4   held that “one who enters into a religious  
order   severs   his   connection   with   the   members   of   his   natural   family.     He   is  
accordingly   excluded   from   inheritance.   Entrance   to   a   religious   order,   is  
tantamount to civil death so as to cause a complete severence  of his connection  
with his relations, as well as with his property...”
4 (1981) 3SCC 689

In view thereof, I am satisfied that the said Shobha Jain has no  right title and 
interest  in the estate  of the Deceased and is therefore not a necessary party 
to the Suit.  In any event, as submitted by the Plaintiffs, the  Defendant cannot 
espouse Shobha's case or claim any right on the basis of her alleged share. 
Further, if Shobha has a share, the Defendant's share will decrease to below 
2.01%.  As regards the contention of the Defendant that all the legal heirs of 
Mangilal   are   necessary   parties   to   the   Suit,   as   correctly   submitted   by   the 

Plaintiff, the Defendant himself admits in paragraph 4 of his reply that the 
other legal heirs of Deceased Mangilal had  executed a  Deed of Conveyance 
in favour of the Plaintiffs and therefore by virtue of the Deed of Conveyance 
the Plaintiffs became owners of shares of all other legal heirs of Mangilal in 
the   suit   immovable   property   save   and   except   the   undivided   share   of   the 
Defendant admeasuring 581.38 sq.mtrs.   In   this view of the matter, all the 
other legal heirs of Deceased Mangilal are also not necessary parties to the 
present Suit and the objection taken up   by the Defendant is devoid of any 
merit and is rejected.
8.
It is contended by the Plaintiffs that the Deceased Mangilal Gulabchand 
Narsingji along with his brothers Madanlal and Ranjeetmal had orally entered 
into  an agreement to sell the immovable property­II to the Plaintiffs.  The said 
oral agreement had taken place in May/June, 2004  when the three brothers 
agreed to sell and transfer all their 1/3 rd share each out of 5 Annas share in the 

immovable property­II for a consideration of Rs. 11.50 crores each, subject to 
the   rights   of   the   Society.   In   terms   of   the   said   oral   agreement   arrived   at 
between the Plaintiffs and the said Madanlal, Ranjeetmal and Mangilal, the 
said Madanlal and Ranjeetmal under separate Indentures of Conveyance both 
dated 2nd July, 2011, sold, transferred and conveyed all their undivided share, 
right, title and interest to the extent of 1/3rd share  each  out of 5 Annas shares 
in the said immovable property­II  to the Plaintiffs for the consideration and on 

the covenants recorded therein, subject to the rights of the Society. The said 
Indentures of Conveyance both dated 2 nd July,2 011  are duly registered with 
the Sub­Registrar of Assurances at Mumbai.   It is submitted on behalf of the 
Plaintiffs that when   these conveyances were executed, Mangilal was ill and 
hence the conveyance of  his share  was not  executed   at that  time but kept 
pending.  However, Mangilal died in or around 20 th July, 2011. Thereafter the 
Defendant's mother and brothers have also   executed a conveyance on 14 th 
June, 2012 in favour of the Plaintiffs on the basis of the oral agreement.  I am 
in agreement with the submission of the Plaintiffs that these are prima facie 
strong factors to show that there exists an oral agreement as pleaded by the  
Plaintiffs.   Except   for   the   bare   denial   of   the   Defendant,   there   is   nothing   to 
establish otherwise.  I have therefore prima facie come to a conclusion that the 
father of the Defendant and his uncles did enter into an oral agreement in 
respect of their share in the immovable property­II in favour of the Plaintiffs.  I 
am therefore also of the view that  the Plaintiffs will be severely prejudiced if 

pending the hearing and final disposal of the Suit, the Defendant is allowed to 
dispose of his shares in the property of his father in favour of any third party. 
In view thereof, the Plaintiffs are entitled to interim relief in terms of prayer 
clause (b) (i) of the Notice  of Motion. 
  However, the Plaintiffs have submitted that they are entitled to carry 
9.
out the development work   in respect of the immovable properties ­I and II 

excluding an area of 581.38 sq.mtrs. as earmarked by the Plaintiffs on the plan 
annexed as   part of Exhibit­J to the Plaint and to an order   of   injunction 
restraining the Defendant, his agents, servants, heirs, executors, administrators 
or any other person claiming through or under the Defendant from interfering 
with   the   development   of   the   immovable   properties­I   and   II   since     the   suit 
property­II is not   Joint Hindu Property or HUF property.   
10.
It is true that under the Deed of Partition dated 23 rd March, 1973,  duly 
registered vide Registration No. 15 of 1973, executed between Gulabchand, 
Mangilal   and   Madanlal,   the   property   in   Suit   was   partitioned   and   Shri 
Gulabchand     Narsingji,   Mangilal   Gulabchand,   Madanlal   Gulabchand   and 
Ranjeetmal Gulabchand became entitled to   as tenants in common in equal 
specific 1/4th share in the following immovable property. 
Survey No.  A.G.A.s Square Meters

It is also true that in the said Deed of Partition, it was expressly mentioned and 

agreed between the parties that the said property is no longer family property. 
It  was   further  expressly   stated   that  from  the  date  of   execution   of   the  said 
Deed of Partition, the parties have divided the said joint family property and 
put an end to and severed their joint status in respect of the said property and 
acquired a new status of separate owners.   By virtue of the aforesaid express 
understanding, the parties to the said Deed of Partition agreed that the said 
property shall henceforth be held and enjoyed by the parties as co­owners in 
severalty as tenants in common in equal 1   1⁄4 anna share therein to each of 
them.    
11.
As   submitted   by   the   Plaintiffs,   the     undivided   share   of   5   Annas   of 
Gulabchand   Narsingji   Jain   (8490.86   sq.mtrs.)   from   the   aforesaid   27170.74 
sq.mtrs. which he held in   his personal and individual right (not jointly with 
any one much less as HUF property) was devolved upon the following legal 
heirs in their personal and individual right. 

Madanlal Gulabchand 


Ranjitmal Gulabchand 
2830.29 sq.mtrs.
2830.29 sq.mtrs.
Mangilal Gulabchand 

2830.29 sq.mtrs. 
The right, title and interest of Madanlal and Ranjeetmal as stated  in the Plaint 
and hereinabove is already acquired by the Plaintiffs under separate registered 
conveyance.  It is submitted that the share of the Mangilal was inherited by the 
 2830.29
1/5 566.06 (Acquired)
1/5 566.06 (Acquired)
Mr. Bharat Mangilal Jain  1/5 566.06 (Acquired)
Mr. Jitendra Mangilal Jain  1/5 566.06 (Acquired)
Mr. Dilip Mangilal Jain  1/5 566.06
Mrs. Badami Mangilal Jain  Mr.Abhay Mangilal Jain  
Share of Mangilal Gulabchand

Plaintiffs, save and except the Defendant:
following   legal   heirs   who   have   executed   the   conveyance   in   favour   of   the 
12.
The  Plaintiffs submit that the Mitakshara School (to which the parties 
belong), recognizes two modes of devolution of property viz. survivorship and 
succession. The rule of survivorship applies to joint family property and the 
rule of succession applies to property held in absolute severalty by the last 
owner (Mulla Hindu Law 20th Edition Volume 1 page 100).  It is submitted that 
in the instant case, in view of the Deed of Partition, it cannot be disputed  that 
the Deceased Mangilal Gulabchand Jain (the last owner, before the Defendant, 

his mother and brothers) became the owner of his share in the said immovable 
property­II     in   severity   and   in   his   personal   individual   right,   and   after   his 
demise the same devolved upon the aforesaid legal heirs as per the provisions 
of the Hindu Succession Act and did not devolve by survivorship.     In view 
thereof, the suit property is not property held as  HUF property.  
Though I am prima facie not satisfied that the said immovable property­
13.

II is the property belonging to the Hindu Undivided Family, the fact remains 
that the Defendant is the co­owner of the property with the Plaintiffs.     The 
Hon'ble Supreme Court has in the case of   Budh Ram and others vs. Bansi and  
others (supra)  held as follows:
“18...... Every co­owner has a right to possession and enjoyment  
of each and every part of the property equal to that of other co­
owners. Therefore, in theory, every co­owner has an interest in  
every infinitesimal portion of the subject matter, each has a right  
14.
irrespective of the quantity of its interest, to be in possession of  
every part and parcel of the property jointly with others. A co­
owner of a property owns every part of the composite property  
along   with   others   and   he   cannot   be   held   to   b   e   a   fractional  
owner of the property unless partition takes place.”
The Plaintiffs therefore  cannot be permitted  to develop  the property 
unless the property  of which the Plaintiffs and the Defendant are co­owners, is 
partitioned.     In   the   circumstances     though   I   see   much   substance   in   the 

submission advanced on behalf of the Plaintiffs that in view of the stand taken 
by the Defendant,  the Plaintiffs who hold 98.99 per cent share in the property  
are not in a position to develop its property admeasuring 57,601.43 sq. mtrs., 
thereby   frustrating   the   entire   project   of   the   Plaintiffs   and   is   causing   grave 
hardship     to   the   Plaintiffs,   in   view   of   the   law   laid   down   by   the   Hon'ble 
Supreme Court in    Budh Ram and others vs. Bansi and others (supra) interim 
reliefs cannot be granted in favour of the Plaintiffs in terms of prayer clauses 
Ad­interim relief in terms of prayer clause (b) (i)  granted in favour of 
(i)
ig
(a) and (b) (ii) of the Notice of Motion. Hence, the following  order:
the Plaintiffs  by an order dated 5th July, 2013, shall continue until  the hearing 
and final disposal of the Suit. 
Hearing of the Suit is expedited.
(iii) The Defendant is directed to file his written statement on or before 25 th 
(ii) 
November, 2013.  
(iv)
Place the Suit for framing of issues on 27th November, 2013. 
                  
15.
The above Notice of Motion is accordingly disposed of with no order as 
to costs.

 (S. J. KATHAWALLA, J.)        

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