Once Segregation Of Rights Has Taken Place & With Mutual Consent Before Court, Will Of Parties Shall Prevail: Bombay High Court

The Bombay High Court observed that once segregation of rights has taken place in the presence of the Court and with mutual consent under the Orders of the Court, it is the will of the parties which prevails.

The Court observed thus in a Writ Petition challenging the Judgment of the Judge, Small Causes Court.

A Single Bench of Justice Milind N. Jadhav explained, “The locus standi of Asha Patankar who is the daughter of Shashikala Patankar to claim right, title and entitlement in the property which was allotted to the branch of Vasudeo Vaidya is not established at all. Once segregation of rights has taken place in the presence of the Court and with mutual consent under the orders of the Court, it is the will of the parties which prevails and therefore the submission advanced on behalf of Asha Patankar that partition did not take place by metes and bounds cannot be accepted by the Court as a ground for Respondent No.2’s intervention in the lis between Petitioner and legal heirs of Vasudeo.”

Senior Advocate Ranjit Thorat appeared for the Petitioner, while Advocate Pramod N. Patil appeared for the Respondents.

Factual Background

From the year 2017, the Writ Petition was pending for admission. The Petitioner was the Decree Holder and the Respondent was the Original Judgement Debtor. The Petitioner had filed Darkhast seeking execution of the Decrees of the year 1968. The case arose from Decrees of possession and rent recovery passed against the tenants/sub-tenants of mortgaged property. The property was originally owned by Trimbak Hari Awate, which was later mortgaged to Dinkar Balkrishna Vaidya. The Respondent No.2 was the granddaughter of Dinkar.

Court’s Observations

The High Court in view of the facts and circumstances of the case, said, “Though it is vaguely submitted that partition by metes and bounds did not take place, the family arrangement which was agreed to by the three surviving branches of Dinkar Balkrishna Vaidya have been duly fructified as per their wishes and Application and appropriate order has been passed by the learned Trial Court. Once this is the position, the Executing Court cannot go beyond that decree which is settled law.”

The Court noted that the parties have enjoyed the properties and share in the estate coming to their share for a long period of time during which the parties namely Respondent No.2 did not take objection whatsoever.

“It is seen that judgement and decree which has been passed in favour of Dinkar Balkrishna Vaidya has been confirmed right upto the Supreme Court pursuant to which in Execution proceedings, the three branches namely Vasudeo Vaidya, Sushama Bapat and Shashikala Patankar were duly represented before the Court and in the said Execution proceedings, the three branches themselves on their own volition accepted the properties according to their applications coming to their respective shares accordingly”, it added.

The Court remarked that this is a case where both the daughters (represented by her husband and natural Guardian of children) on their own volition and Application made before the District Court accepted the properties according to their choice and after receiving and enjoying the said properties for over a period of more than four decades, now an Application is filed by Respondent No.2 to add her as a Decree Holder in the lis between Petitioner and Vasudeo cannot be permitted.

“The right in the subject property which is the subject matter of Execution belongs to the branch of Vasudeo Vaidya who is the brother of Shashikala Patankar and therefore Respondent No.2 has no right, title or interest therein”, it concluded.

Accordingly, the High Court allowed the Writ Petition and quashed the impugned Order.

Cause Title- M/s. Mohini Resorts Pvt. Ltd. v. Shankar Godaji Gore and Anr. (Neutral Citation: 2026:BHC-AS:14)

Appearance:

Petitioner: Senior Advocate Ranjit Thorat and Advocate Rohan P. Surve.

Respondents: Advocates Pramod N. Patil, Shyam Solanke, Mamta Pandey, and Atharva Deshmukh.

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