Halima Ibrahim Lokhandwala v. Sabir Ibrahim Lokhandwala

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION LEAVE PETITION NO. 8 OF 2024 Halima Ibrahim Lokhandwala & Ors.

...Petitioners

V/s.

Sabir Ibrahim Lokhandwala & Ors.

...Respondents

Ms. Simran Wagle i/b Ms. Uma K. Wagle, Advocate for the Petitioners. None for the Respondents.

CORAM

:

ABHAY AHUJA, J.

DATE :

3rd JULY, 2024 P.C. :

1.

This Petition seeks leave under Clause 12 of the Letters Patent to institute suit against the Defendants in respect of the movable and immovable properties that are located outside the jurisdiction of this Court.

2.

Ms. Wagle, learned Counsel appears for the Petitioners and Digitally signed by NIKITA YOGESH GADGIL Date:

2024.07.03 19:25:32 +0530 NIKITA YOGESH GADGIL submits that the Plaintiff No. 1, who has the Power of Attorney for the other Plaintiffs and who are the children of one wife of the deceased father are desirous of filing the suit for their share in the estate of the deceased against the two Defendants, who are the children of the other wife of the deceased in respect of the movable and immovable properties of the deceased. Learned Counsel submits that although the 1/4

Defendants are residing in Mumbai, however, some of the immovable properties in respect of which the suit is proposed to be filed are located outside the jurisdiction of this Court in Gujarat and therefore, in view of the decision of this Court in the case of Dipika Hitendra Shah and Anr. Vs. Jitendra Jayantilal Shah1 with leave under Clause 12 of the Letters Patent, granted by this Court, this Court would have jurisdiction to entertain, try and dispose the suit. Learned Counsel draws the attention of this Court to paragraphs 3 and 4 of the Petition and paragraph 34 of the Plaint in support of her contentions. 3.

In the case of Jaspal Sawhney Vs. Joginder Sawhney and Anr.2 after considering the decision of Full Bench of this Court in the case of Hatimbhai Hassanally Vs. Framroz Eduljee Dinshaw3 as well as decision of the Privy Council in the case of Benode Bihari Bose Vs. Nistarini Dassi,4 this Court has observed that where adjudication of the title has not been prayed for, the suit would not be a suit for land as although it may relate to land, yet if its primary object is to administer the estate of the deceased, this Court would have jurisdiction to entertain the suit, although the land or any part of it may be outside LPETNL 11286/24 dated 19th April, 2024.

2014 SCC Online Bom 1183 AIR 1927 Bom 278 (1904-05) 9 CWN 961 2/4

the jurisdiction. In paragraph No.33 of the said decision, this Court observed that therefore Clause XII of the Letters Patent would squarely be applicable, even though some properties of the estate of the deceased were situate outside Greater Mumbai and could be adjudicated by this Court upon leave being granted. Learned Counsel for the Petitioner has relied upon the decision of this Court in the case of Dipika Hitendra Shah and Anr. Vs. Jitendra Jayantilal Shah (supra) where Clause 12 leave was granted in an administration suit seeking administration and partition of the estate of the deceased parents who had died intestate and where some of the properties were located within the jurisdiction of this Court and some in Gujarat, outside the jurisdiction of this Court. This Court has passed the said order granting the Clause 12 leave relying upon the aforesaid decision of this Court in the case of Jaspal Sawhney Vs. Joginder Sawhney and Anr (supra). 4.

In the facts of the present case, the suit is proposed to be filed in respect of the properties within Mumbai as well as some immovable properties outside Mumbai, in the State of Gujarat as set out in paragraph 3 of the Petition. In view of the above discussion, the suit would not be a suit for land but for share in the estate of the deceased. 3/4

5.

Therefore, having heard the learned Counsel and having considered the submissions in the light of the averments in the Plaint and in the Petition and for reasons stated therein and also submitted before this Court, this Court is of the view that leave under Clause 12 of the Letters Patent be granted.

6.

Leave under Clause 12 of the Letters Patent is hereby granted in terms of prayer Clause (a), which reads thus:- "a. Leave be granted to the Petitioners under Clause XII of the Letters Patent to file the suit in this Hon'ble Court also pertaining to the properties which are situated outside the territorial jurisdiction of this Hon'ble Court." 7.

The Petition accordingly stands disposed. Liberty to act on an authenticated copy of the order.

(ABHAY AHUJA, J.) 4/4