M/s. Mohini Resorts Pvt. Ltd. v. Shankar Godaji Gore

6.10. Accordingly Vasudeo (son), Ms. Sushama Bapat (daughter) and children of Shashikala Patanakar namely Asha, Veena and Amar through their Guardian Sadashiv Patankar (her husband) submitted Application determining their respective shares in the estate of late Dinkar Balkrishna Vaidya to the District Court. In the said Application which was filed, daughter Sushama Bapat sought relief that all movables / ornaments in the custody of the Nazir of the District Court, Pune be delivered to her in lieu of her share in the entire estate; on 6 of 18 behalf of Shashikala Patankar namely Asha, Veena and Amar through their father and natural Guardian namely Sadashiv Patankar (husband of Shashikala) prayed for certain immovable properties as and by way of their share in the estate of the grandfather. Vasudeo’s application was for the balance immovable properties. After considering the Application filed Vasudeo Sushama and children of Shashikala, the learned District Court passed an appropriate order allowing the joint Application and granting the estate to Sushama Bapat, legal heirs of Sashikala Patnakar and Vasudeo. It is seen that Vasudeo expired on 01.04.1981 before possession of the balance estate was delivered to him. Since Sushama Bapat was the only legal heir and representative of late Dinkar Balkrishna Vaidya. Record shows that pursuant to the Agreement arrived at between the parties earlier the Nazir of the District Court, Pune acted upon the order and delivered the shares in the properties to the three branches. It is further seen that three years prior to the demise of Vasudeo, Vasudeo by Visar Pavati dated 12.07.1978 had agreed to sell some part and portion of the said estate which was in his possession and which was allotted to him as his share for a price of Rs.1,00,000/- and pursuant to the same executed Agreement for Sale dated 09.03.1981 just prior to his demise.

6.11. It is seen that said Vasudeo Dinkar Vaidya died intestate on 01.04.1981 leaving behind him his sister Sushama Bapat as his only legal heir. Petitioner represented by Mr. Kanhaiyalal Motilal Talera, 7 of 18 the purchaser of the said premises reminded Sushama Bapat about the Agreement for Sale and called upon her to apply for necessary permission for transfer the Suit premises and execute the conveyance of the said premises to him. However Sushama Bapat did not take any steps forcing Mr. Kanhaiyalal Motilal Talera to file a suit for specific performance of the Agreement for Sale dated 09.03.1981 in the Court of Civil Judge, Pune against Smt. Sushama Bapat (Daughter of Dinkar Balkrishna Vaidya) and the Nazir of the District Court, Pune (Manager of the estate of Dinkar Balkrishna Vaidya).

6.12. Record shows that the said Civil Suit No.487 of 1981 was compromised and Defendant No.1 in the said Suit namely Sushama Bapat entered into a registered sale deed with M/s. Mohini Resorts Private Limited (Petitioner herein been the nominee of Shri Kanhaiyalal Motilal Talera) and Sale Deed was executed between the parties with Mr. Kanhaiyalal Motilal Talera being the consenting party. By virtue of the Sale Deed, right to file execution proceedings and continuing the execution proceedings against the sub-tenants of the said property with respect to enforcing the decree passed by the Small Causes Court in Suit Nos.1139 of 1965 and 1142 of 1965 which was upheld by this Court was given to the Petitioner. Copy of the Sale Deed dated 07.02.1991 is appended at Exhibit-A to the Petition. 8 of 18

6.13. In the Application which is filed by Respondent No.2 before Executing Court it is alleged that when Special Civil Suit No.487 of 1981 was compromised by Respondent No.2’s aunt Sushama Bapat and Nazir of the District Court, Pune at that time, in view of the family arrangement which was arrived at between Vasudeo Vaidya, Sushama Bapat and children of Shashikala Patankar (including the Petitioner herein) through their father and natural Guardian Sadashiv Patankar, the Nazir of the District Court, Pune made an Application seeking deletion of the names of Asha Nagarkar, Veena Patankar and Amar Patankar from the Darkhast proceedings.

6.14. It is stated that this Application filed by Nazir of the District Court, Pune below Exhibit-22 in Darkhast proceeding was allowed by the District Court on 15.09.1982 and accordingly the names of the legal heirs of Shashikala Patankar were deleted. This order is still in subsistence and not challenged by any party.

6.15. Accordingly in view of the above proceedings, Petitioner namely M/s. Mohini Resorts Private Limited filed Application below Exhibit-6 in Darkhast proceeding namely No.1032 of 1980 in the Small Causes Court seeking appropriate relief and then took steps to execute the decrees and file further Application below Exhibit-87 wherein common order in the aforesaid two Applications below Exhibits-6 and 87 directing impleadment of the Decree Holder and issuance of 9 of 18 possession warrant under Order XXI Rule 35 of the Code of Civil Procedure, 1908 (for short ‘CPC’).

7. Mr. Thorat would submit that the Suit property is still occupied by several occupants unauthorisedly who repeatedly filed various proceedings to stall execution and the possession warrant. In the above background, Respondent No.2 (Asha Patankar) through her CA being daughter of Shashikala Patankar filed Application below Exhibit-295 in the aforesaid pending Darkhast proceedings being prosecuted by the Petitioner. Mr. Thorat would submit that if the aforesaid timeline and events are seen by the Court, Respondent No.2 has no independent right whatsoever in the suit property of which execution is sought. He would submit that the strongest ground being that on behalf of Respondent No.2, her father and natural guardian Sadashiv Patankar legally and duly represented the interest of the children of Shashikala Patankar and has accordingly 2 immovable properties received under the arrangement by virtue of the order passed by District Court.

7.1. He would submit in so far as the right of the Petitioner is concerned, it is qua the property which was agreed to be sold by Vasudeo Vaidya to Kanhaiyalal Motilal Talera and both daughters of Dinkar Bhaskar Vaidya namely Sushama Bapat and legal heirs of Shashikala Patankar did not have any right, title and interest therein. 10 of 18 He would submit that Petitioner – Asha Nagarkar (alias Asha Patankar) was a minor at that time and duly represented by her father Sadashiv Patankar and in the Court settlement which transpired had received possession of plot admeasuring 5500 sq.ft built up area situated at CTS No.934 / 935 out of final plot No.318-319 of village Bhamburda (Shivaji Nagar) alongwith possession of another plot admeasuring 260 sq.mtr. situated at CTS No.74A New Municipal No.103A Shukarwar Peth, Pune which is specifically mentioned in her own third party Application filed below Exhibit-295 by Respondent No.2 herself. Hence, Mr. Thorat would submit that if this is the position, Respondent No.2 would have no locus standi whatsoever to maintain the Application below Exhibit-295 and intervene in the property which came to the share of Vasudeo.

7.2. He would submit that the learned Judge of the Executing Court has passed the impugned order on the misconceived and misplaced premise that Asha Patankar is daughter of Shashikala Patankar and she is one of the legal heir having right in the suit property of which execution has been sought without adhering to the aforesaid facts and the order passed by the District Court distributing the properties tot he 3 branches as per their joint Application. He would submit that in view of the aforesaid fact, Respondent No.2 would have no legal right whatsoever to contest the execution proceedings and her impleadment on the grounds returned in the 11 of 18 impugned order are completely unwarranted for as she cannot be held to be a Decree Holder in the Execution proceedings at all. Hence he would seek setting aside of the impugned order.

8. PER CONTRA, Mr. Patil, learned Advocate appearing on behalf of Respondent No.2, the main contesting Respondent would submit that the names of the Respondent No.2 and her brother and sister were added as decree holder after the death of Dinkar in the said Execution Proceedings bearing No.1032 of 1980. He would submit that their names came to be deleted on the Application made by the Nazir of the Civil Court by order dated 15.09.1982 on the say of the Nazir that in pursuance of the joint family settlement arrived at between the parties under Court's order dated 27.05.1982. He would submit that the said Application was allowed by a one word order "Allowed" on 15.09.1982 without assigning any reasons and without issuing notice to the Respondent No.2 and her brother and sister and without ascertaining as to whether the family settlement has been fully acted upon by the parties.

8.1. He would submit that that the record of the Court clearly indicates that the family settlement/partition has not been fully acted upon and possession of only one property was received by the Respondent No.2 and her brother and sister from the Nazir. He would submit that the Executing Court has allowed the application on the 12 of 18 basis that it prima facie appears that the family partition/settlement has not been fully acted upon and partition had not taken place by metes and bound and the controversy will have to be decided by the Executing Court.

8.2. He would submit that the fact that the family partition has not been fully acted upon and the actual partition by metes and bounds has not been done is admitted by second Respondent's Aunts Vidya alias Sushama Bapat in paragraph No.3 of the Sale Deed dated 23.10.1986, which is annexed at Page No.26 of the written submissions of the Petitioner.

8.3. He would submit that that by virtue of provisions of Section 47 and more particularly sub-Section 3 of Section 47 the question as to whether any person is or is not the representative of a party shall be determined by the Executing Court. He would submit that similarly, by virtue of proviso to Order XXI Rule 16 of the CPC the Application has to be decided by the executing Court after conducting an inquiry.

8.4. He would submit that in the instant case, the Executing Court has not finally determined as to whether the Respondent No.2 and her brother and sister have any interest in the Decree or whether they are representative of the original Decree Holder and this question is clearly kept open by the Executing Court for final adjudication. He would submit that in these circumstances the interference by this 13 of 18 Court against mere impleadment is not warranted.

8.5. He would submit that the Executing Court while conducting inquiry under Section 47 and Order XXI Rule 16 of the CPC shall decide the dispute between the persons who claim interest in the Decree either by virtue of assignment of decree or as a representative of the original decree holder. He would submit that in such inquiry, the Executing Court does not go beyond the decree and/or does not decide any issues between the original parties in the suit in which decree is passed by the Court.

8.6. In support of his aforesaid submissions, he would refer to and rely upon the judgement of the Supreme Court in the case of Gangabai Gopaldas Mohata vs. Fulchand and Others[1] and more particularly paragraph Nos. 7 to 9 thereof.

8.7. On the basis of the above he would submit that Respondent No.2 is a proper and necessary party to the execution proceedings.

9. I have heard Mr. Thorat, learned Senior Advocate for Petitioner and Mr. Patil, learned Advocate for Respondent No.2 and with their able assistance perused the record of the case. Submissions made by the learned Advocates have received due consideration of this Court.

10. On the face of record there are three things which prima facie come to the fore. Firstly, admittedly in the Application filed by Respondent No.2 below Exhibit-295 she herself has fairly stated that she has been recipient of two plots of land under the family arrangement before the District Court, but it is argued before me that her branch has received only one property from the Nazir of the District Court. This will however be a separate cause of action. Secondly, it is seen that the Decree which has been executed by Petitioner before the Executing Court is obtained by virtue of transaction with Vasudeo Vaidya and therefore there is no direct nexus whatsoever of Shashikala Patankar (mother of Respondent No.2) or any other branch with respect to the same. Thirdly it is seen that right, title and interest of Respondent No.2 was duly represented by her father Sadashiv Patankar before the District Court when the joint family arrangement was worked out and allowed by order dated 27.05.1982 and the Suit property came to the share of Vasudeo.

11. Therefore in view of the aforesaid three prima facie issues which are undisputed nexus of the Respondent No.2 with the Suit property in Execution proceedings and Suit filed by Petitioner is not established at all. It is prima facie seen that the joint family arrangement is not disputed by Respondent No.2 as also by the learned Trial Court. It is seen that right, title and interest of Sushama Bapat and Shashikala Patankar both daughters of Dinkar Balkrishan Vaidya 15 of 18 who were duly represented were determined before the District Court and in so far as right of the Petitioner is concerned, it flows from the transactional Agreement with Vasudeo Vaidya only which was decreed.

12. Though it is vaguely submitted that partition by metes and bounds did not take place, the family arrangement which was agreed to by the three surviving branches of Dinkar Balkrishna Vaidya have been duly fructified as per their wishes and Application and appropriate order has been passed by the learned Trial Court. Once this is the position, the Executing Court cannot go beyond that decree which is settled law.

13. The locus standi of Asha Patankar who is the daughter of Shashikala Patankar to claim right, title and entitlement in the property which was allotted to the branch of Vasudeo Vaidya is not established at all. Once segregation of rights has taken place in the presence of the Court and with mutual consent under the orders of the Court, it is the will of the parties which prevails and therefore the submission advanced on behalf of Asha Patankar that partition did not take place by metes and bounds cannot be accepted by the Court as a ground for Respondent No.2’s intervention in the lis between Petitioner and legal heirs of Vasudeo.

14. The parties have enjoyed the properties and share in the estate coming to their share for a long period of time during which the 16 of 18 parties namely Respondent No.2 did not take objection whatsoever. It is seen that judgement and decree which has been passed in favour of Dinkar Balkrishna Vaidya has been confirmed right upto the Supreme Court pursuant to which in Execution proceedings, the three branches namely Vasudeo Vaidya, Sushama Bapat and Shashikala Patankar were duly represented before the Court and in the said Execution proceedings, the three branches themselves on their own volition accepted the properties according to their applications coming to their respective shares accordingly.

15. In fact this is a case where both the daughters namely Sushama Bapat and Shashikala Patankar (represented by her husband and natural Guardian of children) on their own volition and Application made before the District Court accepted the properties according to their choice and after receiving and enjoying the said properties for over a period of more than four decades, now an Application filed below Exhibit-295 is filed by Asha Patankar to add her as a Decree Holder in the lis between Petitioner and Vasudeo cannot be permitted. The right in the subject property which is the subject matter of Execution belongs to the branch of Vasudeo Vaidya who is the brother of Shashikala Patankar and therefore Respondent No.2 has no right, title or interest therein. 17 of 18

16. In view of the above observations and findings, the impugned order dated 07.06.2017 passed by the learned Judge, Small Causes Court, Pune below Exhibit-295 in Darkhast No.1032 of 1980 is clearly unsustainable in law. The same is therefore quashed and set aside.

17. Writ Petition stands allowed in terms of prayer clause (a).

18. No costs.

19. Writ Petition is allowed and disposed.

H. H. SAWANT [ MILIND N. JADHAV, J. ]

20. After this judgment is pronounced in the Court, Mr. Patil, learned Advocate for Respondent No.2 would persuade the Court to stay the judgement to test its validity and legality before the Supreme Court. However, in view of the strong reasons which have been stated in the aforesaid judgement, the request made by Mr. Patil stands declined.

H. H. SAWANT [ MILIND N. JADHAV, J. ]