Don: the Supreme Court

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2012 Thomson Reuters (Legal) Limited

Bina Murlidhar Hemdev and Others v Kanhaiyalal Lokram Hemdev and Others Supreme Court of India

14 May 1999
Appeal (civil) 3141 of 1999
The Judgment was delivered by : M. Jagannadha Rao, J.
1. Leave granted.
2. This appeal is filed by the four plaintiffs, the widow and children of late Murlidhar Lokram Hemdev who died intestate on or about 8.5.1976. The appeal is directed against the order of the High Court of Bombay in Appeal No. 1019 of 1997 dated 12.9.97 confirming the order of the learned Single Judge dated M.7.1997 in an application under Order 39 Rule 1 C.P.C[->0] in Special Suit No. 83 of 1997. 3. The facts of the case are as follows :

4. There was an unregistered partnership w.e.f, 27.7.1964 (to which, of course late Murlidhar was not party) under a deed dated 4.9.1964 between five persons who were in two groups, the sankhala group having 668 share and the Jains having 346 share. The said firm purchased land admeasuring 31,075 Sq. feet in Thane, with the intention of developing and selling the same. This firm is called the 'main firm' in these proceedings before us. 5. The Jain group entered into a sub-partnership, a registered firm dated 29.7.1964 with Lokram group consisting of 4 partners : (i) Kanhaiyalal Lpkram Hemdev,

(ii) Murlidhar Lokram Hemdev (deceased) (father of plaintiffs-appellants), (iii) Kanhaiyalal Sewaram and
(iv) Srichand Dharamdass.
In this sub-partnership, the Jain group and the Lokram group share in the ratio of 1:1 (i.e. 17%: 17% overall). In the Lokram group Murlidhar (the predecessor-in-interest of plaintiffs) had a 38% share out of 17% (i.e. 6.46%), the 1st defendant (Rl) held 44% of 17%, the 2nd defendant held 12% out of 17% and balance by the 3rd defendant. It is stated in the deed of the sub-firm dated 29.7.64 in clause 10 that Rajendra K.Jaia of the Jain group was entitled to deal with the entirety of the 34% share of Jain-Lokram group. This firm is called the 'sub-firm' in these proceedings. 6. The unregistered main firm applied in February 1975 to the Thane Municipal corporation for sanction of a lay-out plan. The corporation sanctioned the same and divided the land into 12 plots tearing No. 1 to 12 and an internal road subject to certain other conditions namely that open space in plot No. 2 shall be kept permanently open to sky and shall be handed over to Municipal Corporation and shall not admeasure less than 15% of the P.P. No. 325 after demarcation. 7. Initially, the Sankhalas and Jains divided the property of the main firm, there was a MOU dated 4:2.76 between the partners of the main firm. It refers to the sub-contract dated 29.7.64 by the Jain Group with their sub- partner (para vi). It refers to a dissolution of the main firm between the Sankhala group and the Jain Group w.e.f. 30.1.76 and states that put of the lay-out, Jain group got plots 8, 9, 10, 11 and 12 comprising 5774.78 sq, met. and the Sankhala got plots 1,3,4,5,6, and 7 comprising 11,189.37 sq. met., that plot 2 of the final plot 325 (IPSI) admeasuring 3209 sq. met was reserved for garden and for providing access road to the above plots, and that the access road covers 1200 sq. met. The two groups would be entitled to the benefits derived from the concerned authorities either by way of compensation/F.S.I./in the ratio of 34% (group Jain) and 66% (Group Sankhala) besides common use of access road (Para (i) (viii). The MOU says in para 3 that the sankhala Group "Is not concerned with sub-partners of Jain group and that they carry out their own obligation with their sub- partners individually. "On 26.12.91, a registered partition deed (called the main partition...
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