Hemalbhai Chimanlal Makadia and 1 Another vs Chimanlal Gokalbhai Makadia and Others

G.R. Udhwani, J.—This revision application is directed against the order dated 12.07.2012 passed below Exh. 11 in Special Civil Suit No. 33 of 2012 instituted for partition of the properties and other reliefs. During pendency of the suit, the parties settled the matter and defined their shares, reduced it into writing and the plaintiffs and all the four defendants subscribed to the said writing and urged before the trial court to pass a decree in terms of the settlement. This did not find favour with the trial court primarily on the ground that the grant in pursuance to which the properties was received by the parties, predecessor had outlived its tenure and no relinquishment deed executed by original defendants No. 1 and 3 and shares were not equal. The trial court, therefore, felt that decree if any passed on such compromise would be illegal. Learned counsel for the applicants has taken this Court through the relevant part of impugned order and other documents and submitted that it was not ''factually correct to say that the grant had expired and the fact that the original defendants No. 1 and 3 had signed and subscribed to the compromise purshis showing that they were not to receive any share was sufficient relinquishment of the rights, and if at all any further formal procedure like registration of a decree u/s 25 of the Registration Act was necessary, the parties under the law were bound to do that. It was also contended that the parties are free to decide the amount of share that may go to each of them, and in absence of any legal mandate and in absence of a bar as to the amount of the share to be succeeded by the heirs of a deceased person, there was no question of settlement being illegal.

Learned counsel for the respondents would also submit that the compromise was arrived at by the parties with free will and consent and it was not illegal and the court below was required to pass a decree in terms thereof.

Considering the grant dated 18.5.1955 in favour of deceased Gokaldas Laghabhai, the predecessor of the parties, it appears from para 4(a) that the grant was permanent in nature and the revenue payable by the grantee was fixed for a period of 50 years at the rate stipulated and then the revenue was to be revised from time to time. Clause 2(a) also indicates the rights of a grantee to make a construction, and if it is not made the consequence are spelt out in Clause 2(b) and it is contemplated that on violation of the conditions of the grant the Government will be entitled to repurchase the grant and also recover 10% of the sale price. It is, however, stated by both the learned counsel that unfortunately the grant was not produced before the court below. In view of the fact that the parties have settled the matter, it will be appropriate that if the trial court re-examine the matter on the basis of documents already produced and that may be produced by the parties.

Furthermore, learned counsel for the parties are right in contending that for partition the property and relinquishment of the shares, no relinquishment deed was required and such a deed may be necessary at the time of registration of the decree that may be passed by the court. Further the learned counsel are also right in submitting that it was not for the Court to see as to whether equal shares are prescribed in absence of the grievance to the contrary. The respondents No. 1 and 3-original defendants No. 1 and 3 who were represented by learned advocate had consciously signed the purshis of settlement. In above view of the matter it is deemed appropriate to remand the matter to the trial court for rendering decision afresh in the light of the observations made hereinabove and also on the basis of the documents which have been produced and also those which may be produced before the trial court. Accordingly the impugned order is quashed and set aside and the matter is remanded to the trial court to decide the same afresh. If the learned advocates cooperate, the matter shall be disposed of by the trial court within a period of 15 days from the date of receipt of this order. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.