AZEEZ SAIT 'DEAD' BY L.RS. AND ORS. versus AMAN BAI AND ORS.

Citation: [2003] SUPP. 4 S.C.R. 638 · Decided: 13-10-2003 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed

Judgment (excerpt)

A 
AZEEZ SAIT 'DEAD' BY L.RS. AND ORS. 
v. 
AMAN BAI AND ORS. 
OCTOBER 13, 2003 
B 
[ASHOK BHAN AND DR. AR. LAKSHMANAN, JJ.] 
Partition-Partition deed executed between two brothers-Challenged 
as being sham, nominal and never acted upon by one brother after 58 years 
after death of other brother-Brothers continuing business jointly and 
C staying together even after partition-Parties in exclusive possession and 
occupation of their respective shares and properties under the partition 
deed and dealing with them as independent owners and not as joint 
owners-Held, partition deed is complete, valid and effective and there is 
valid Partition. 
D 
E 
Practice and procedure-Jmpleadment-Death of appellant pending 
appeal-Legal heirs impleaded-F ailure of one of the legal heirs to engage 
counsel-Effect-Held, judgment binding on all parties including al/ legal 
heirs of deceased appellant. 
M and S were brothers who executed a partition deed, Ex.D-2, 
in the year 1914. Thereafter S, fathc:r of appellants, filed a suit for 
partition and possession in respect of Item Nos. 1, 2, 3 and 4 of plaint 
schedule properties after the death of M against his legal heirs alleging 
that the partition deed was sham, nominal and never acted upon. 
F Defendants filed written statement alleging that partition deed was 
acted upon and there was already a partition in the year 1914 in which 
Item No. 1 of plaint schedule property was allotted to their father, M, 
and that M and S dealt with properties allotted to them as independent 
owner and not as joint owners. Trial court decreed suit in respect of 
G Item Nos. 2, 3 and 4 but dismissed suit in respect of Item No. 1 of plaint 
schedule property. Appellants filed appeal against finding of Trial 
Court in respect of Item No. 1 property which was dismissed by the 
High Court. Hence, this appeal by the legal representatives of S. 
During the pendency of appeal, appellant No. 1 expired and his legal 
H heirs were brought on record. 
638 
AZEEZ SAIT v. AMAN BAI 
639 
Appellants contended that partition in the year 1914 is sham and A 
nominal and properties continued to be joint properties belonging to 
the two brothers; that Hig~ Court failed to consider many crucial 
documents and without considering evidence that all the properties 
were mortgaged, purchased and sold jointly by both the brothers even 
though they entered into partition deed in 1914; that parties are B 
governed by Cutchi Menons Act, 1938 and the Courts below have not 
rightly applied the principles of law in the matter of succession and 
inheritance; and that notice of appeal may also be issued to one of the 
legal heirs of appellant No.I who has not engaged any counsel. 
Respondents contended that concurrent finding of Courts below C 
on facts does not call for interference by this Court. 
Dismissing the appeal, the Court 
HELD: 1. The plaintiff, in fact; has accepted the rights under the D 
partition deed and has acted upon its recitals. He has on his own 
account sold the Bungalow that was allotted to him. The original 
plaintiff has utilised the sale proceeds for himself and he has also 
disposed of the site which was allotted to him under the said partition 
deed. Therefore, the plaintiff/appellants are estopped from alleging E 
that the partition deed was a nominal one and not intended to be acted 
upon. The original plaintiff and M have dealt with the properties as 
independent owners and never as joint owners. (641-E, F] 
2. The partition deed was executed in 1914. The suit was filed in 
1972. Thus, the documents stood for 58 years till the suit was filed in F 
1972 and accepted by all the parties including the late plaintiff himself. 
A reading of the plaint would show that the plaintiff had never asked 
for a share in Item No.1 during the life time of M and, the suit was 
filed only after the death of M in 1967. It is also admitted by the 
plaintiff that suit Item No. 1 was in possession of M during his life time. G 
When the partition of 1914 has been accepted and acted upon by the 
brother for all these years and had brought about an equitable 
settlement of the distribution of the properties between them, the 
plaintiff/appellants c~nnot now come round and say that the document 
is sham and nominal. [642-A, B, D-EJ 
H 
640 
SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R. 
A 
3. The fact that the plaintiff and M even after the partition continued 
the business jointly, stayed together under the same roof for some time

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