NILKANTH KRISHNARAO APTE Vs. RAMCHANDRA KRISHNARAO APTE AND VIRAJ RAMCHANDRA APTE

JUDGEMENT

(1.) THESE are cross-suits for partition and separate possession pertaining to the immovable and movable property set out with sufficient precision in Ex. D annexed to the plaints in the two suits.

(2.) N. K. Apte and R. K. Apte being full brothers are the sons of the late Krishnarao and Krishnabai respectively. Krishnarao was practising and residing at Baroda. He died leaving behind his widow and two sons who succeeded to his estate comprising two houses, shares and cash. The houses were disposed off by the trio. N. K. Apte had come to Bombay and after completing his M. B. B. S. and M. S. , started practising here. After the passing away of Krishnarao in 1951, Krishnabai and R. K. Apte also migrated to Bombay. With the assets inherited from Krishnarao, a plot of land was purchased at Chembur. The first storey comprising six rooms was constructed and the cost of this structure plus the plot came to about Rs. 49,000/ -. There was a vertical expansion in later years with additions on the 1st and 2nd floors-- the latter comprising a terrace room. In relation to these additions and a garage, Krishnabai and R. K. Apte passed a document in favour of N. K. Apte. This document dt. 20. 6. 1968 was in triplicate and a photo copy thereof is at Ex. P. 1. It recites an acknowledgement by Krishnabai and R. K. Apte that the additions are of N. K. Aptes ownership, that he had orally gifted the same to his wife Mrs. Saroj Apte and that they would not have any objection to the done letting it out to any person of her choice. In return Mrs. Apte was to pay the taxes and as soon as there was a letting out her husband would make over one room on the ground floor to R. K. Apte and also discontinue paying Rs. 50/- per month to Krishnabai. This document was acted upon. In 1974 or thereabouts, relations between N. K. Apte and R. K. Apte took a turn for the worse. On 12-12-1974 the formers Solicitors addressed Ex. P-9 to R. K. Apte giving him three options. The notice not having had any effect, N. K. Apte instituted Suit No. 155 of 1976. To this suit the persons impleaded were R. K. Apte and Mrs. Saroj Apte. An attempt was made by the formers children to get themselves impleaded to the suit. N. K. Apte resisted the move and the chamber summons for joinder came to be dismissed. Down, but not out, one of the children viz. , son Viraj, filed the 1979 suit. The two brothers, their spouses and children are all impleaded to this suit.

(3.) N. K. Apte claims a partition of the plot, the ground floor married thereto, such F. S. I. as remains and the movable listed in Ex. D (common to the both suits ). As to the upper floors, these were constructed by him with his money and R. K. Apte and Krishnabai had acknowledged the non-existence of any right or interest therein. For that reason the said floors could not be included in the divisible hotchpot. For items II to IV of Ex. D. , R. K. Apte has disposed of quite a few. This entitles N. K. Apte to half the sale proceeds i. e. Rs. 15,222/ -. As to the division of the house,it is incapable of a metes and bounds partition. The only alternative is to sell the same and distribute the sale proceeds between him, R. K. Apte and Saroj Apte. The reliefs claimed are a declaration that R. K. Apte and he have equal shares in land and ground floor, Item V of Ex. D, sale of house with the proceeds divisible between him, his wife and brother and a division of the entire property in proportion of their shares. This stand is supported by his wife and children.