Prince Shahmath Ali Khan v. Nawab Mir Barkat Ali Khan And 4 ORS. And Himayat Ali Mirza (Applicant)

Ashwini

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION NO. 424 OF 2019 IN SUIT NO. 636 OF 2018 Himayat Ali Mirza ... Applicant In the matter between Prince Shahmath Ali Khan ...Plaintif

Versus

Nawab Mir Barkat Ali Khan & Ors ...Defendant Ms Madhavi Ayyappan, i/b Talekar and Associates, for the Plaintiff Mr Mutahhar Khan, i/b Rajesh Gupta, for the Applicantf Ms Apurva Thipsay, i/b Khan Shaba Parveen, for Defendant Nof 3f CORAM: G.S. PATEL, J DATED:

PC:- 1.

This is a partition Suit relating to some properties of the royal family of the Nizam of Hyderabad and Berar. The Plaintif claimed a 24% share in the properties. He is the brother of Defendant No. 3, Atul G.

Kulkarni who was said to have a 12% share. Defendants Nos. 1 and 2 are supposed to have a 20% share each, while Defendants Nos. 4 and 5 by Atul G.

Kulkarni Date:

2021.03.18 11:10:26 +0530 are supposed to have a 12% share each.

2.

It seems that by an oral gift or hiba, the Plaintif gifted his 24% share to his sister Fatima. This was recorded in an deed of acknowledgment of past oral gift of property rights executed on 19th October 2019. A copy is at 'Exhibit A' to the Interim Application.

3.

Defendant No. 3, represented by Ms Thipsay, thus acquire a 36% interest in the properties. In turn, she made an oral gift or hiba of her entire share in favour of son Himayat, the present Applicant. She acknowledged this by another deed also dated 19th October 2019. A copy is at 'Exhibit B'.

4.

Now the document at 'Exhibit A' as between the Plaintif and Defendant No. 3 has the photograph and the signature of the Plaintif. It matches the signature on the plaint. The document is attested before a Notary. I have no reason to disbelieve this. 5.

The application is frst for the substitution of the Applicant Himayat as the Plaintif, the deletion of the original Plaintif and the deletion of Defendant No. 3. Defendant No. 3 does not of course dispute or oppose the application. As to the original Plaintif, I refuse to permit the matter to be delayed because the Advocate now appearing says she has limited instructions. The reason is that there is an Afdavit of Reply dated 29th November 2019 fled by the Plaintif himself in which he accepts the correctness of the assertions made in the Interim Application. In paragraph 3 he says that he is amenable to the reliefs being granted, and specifcally says that he consents to an order on this Interim Application. In paragraphs 5 to 8 he sets out his own narrative about these oral gifts.

In paragraph 9 he accepts that the Applicant has a 36% undivided share in the properties. In paragraph 11 he says specifcally that he has no objection to the Applicant being impleaded as the Plaintif in the Suit in his place. This is a properly sworn Afdavit that is part of the Court records.

6.

Accordingly, the Interim Application is made absolute in terms of prayer clauses (a) and (b).

7.

Amendments are to be carried out in Court without need of re-verifcation.

8.

The Interim Application is disposed of accordingly. 9.

Personal Assistant of this Court. All concerned will act on (G. S. PATEL, J)