FURHAN SULTAN HAFESJEE vs GOLAM HOSSAIN MOHAMMED AMOLIA & ORS

The appeal and the steps taken by the present appellant may be good for the profession but may not be in the interest of the parties to this old partition suit.

The suit was filed in 1954 by the widow of the original owner of a property at what is now 79, Rafi Ahmed Kidwai Road. The original owner died childless and was survived by his widow, mother, four brothers and four sisters. The widow was the plaintiff in the partition and administration suit and the nine other heirs were the defendants.

In course of time, a receiver or special officer came to be appointed with the responsibility of ascertaining whether the property could be divided between the parties. It is not in dispute that roughly about half of the property is let out to commercial tenants and the other half was in the possession of the parties at the time that the suit was instituted. By the mid- 1960s, the special officer or partition commissioner rendered a report that the property was impartible. By such time, a preliminary decree had been passed declaring the shares of the original parties to the suit.

Nothing appears to have happened for some time thereafter and no meaningful steps were taken in the suit save for the appointment of receivers or special officers for the next two or three decades. By now, most of the original parties, if not all, have died and only some of the heirs of the original parties have been brought on record. During the lifetime of the plaintiff, who was the widow of the original owner of the property, she cited her failing health and advanced age to be discharged as a joint party receiver; whereupon, the carriage of proceedings was given to the appellant herein and the appellant was appointed as a joint party receiver with the first respondent herein. There are several allegations and counter-allegations as to how the party receivers acted in derogation of the subsisting orders or acted singly without reference to the other to apparently cause prejudice to the estate. This is one aspect of the matter that has to be looked into.

The other, more important aspect of the matter is to bring all the present heirs of the original parties on record. In such regard, the appellant herein appears to have been singularly at fault for not ensuring the substitution to take place all round despite being furnished the details by Advocate for the first respondent herein. It appears that such consideration weighed with the interlocutory Court in taking away the carriage of proceedings from the appellant herein and parking the same with the first respondent and others.

The order impugned is not interfered with at the moment, but the same is not affirmed; so that it will be open to the appellant herein to seek the reconsideration thereof in course of the immediate future proceedings in the interlocutory Court. The first and foremost task that should be undertaken by the interlocutory Court is to ensure that substitution is effected and a fresh preliminary decree passed. The interlocutory Court must then ensure the sanctity of the processes by which the new tenants have been inducted into the property by the parties or the erstwhile joint receivers or the present receiver. If, indeed, the property is incapable of being divided by metes and bounds and the same has to be sold, the interlocutory Court should take expeditious steps to conclude the same so that the partition suit of 1954 can come to an end.

APO No. 393 of 2017 and GA No. 2825 of 2017 are disposed of on the basis of the observations as above.

There will be no order as to costs.