Authority: High Court of Judicature at Bombay (Civil Appellate Jurisdiction)

Order Date: 14 Oct 2026

Case Overview

  • Parties: Applicant – Devki Jagdish Thakkar (housewife, sister of respondent), residing at 21/1, Rikhav Building, Flat C, 2nd Floor, R.A. Kidwai Road, Wadala (W), Mumbai – 400031. Respondent No. 1 – Tulsidas Kanji Bhanushali (businessman), residing at Flat 401, 4th Floor, Building No. 32, Fam Co‑operative Housing Society Ltd., Plot Nos. 19 & 19A, Sector 11, Koparkhairane, Navi Mumbai – 400709. Additional respondents: Fam Co‑operative Housing Society Ltd., M/s. Godrej Project Development One (Phirosha Nagar, Eastern Express Highway, Vikhroli (E), Mumbai – 400079), and Azad Nagar Co‑operative Housing Society Ltd.
  • Nature of Proceedings: The applicant filed a transfer application under Section 24 of the Code of Civil Procedure, 1908 seeking to move a partition suit (originally filed in the Bombay High Court as Suit No. 2174 of 2023, later transferred to the Bombay City Civil Court and re‑numbered as Suit No. 6934 of 2024) back to the High Court and to have it heard together with two pending testamentary petitions (Petition No. 2647 of 2024 and Petition No. 5014 of 2024) concerning the deceased father’s will.
  • Background: The partition suit concerns the estate of the deceased father. The applicant also filed a testamentary petition under Section 218 seeking letters of administration; the brother (respondent No. 1) filed a caveat, which was later dismissed. Respondent No. 1 subsequently filed his own testamentary petition (Petition No. 5014 of 2024), which was converted into a testamentary suit (Suit No. 337 of 2025) after a caveat was filed.
  • Procedural Status: No issues have been framed in any of the three proceedings; an interim application for condonation of delay in filing a written statement is pending before the City Civil Court.
  • Property Details: Four properties are listed across the suits:

1. Room No. 1 in Chawl No. 12, Azad Nagar, Rafiq Kidwai Rd., Wadala West, Mumbai – 400031.

2. Flat No. 401 (or 402) in Fam Co‑operative Housing Society, Plot 19/19A, Sector 11, Koparkhairane, Navi Mumbai – 400709 (identification of the exact flat is disputed).

3. Room No. 4/16 and adjoining Plot No. 133 in Vill. Modkuba, Post Vindh, Tal. Mandvi, Dist. Kutch, Gujarat (house ≈ 4500 sq ft and plot ≈ 36 × 40 sq ft).

4. Agricultural land (≈ 3 acre) in the same village (Survey No. 17/P3, “Changlai”).

Three of these properties (Nos. 1, 3, 4) are common to all three suits; the flat (property 2) is contested as to whether it is Flat 401 or Flat 402 and whether it was transferred by gift deed.

  • Legal Precedents Cited: The judgment heavily relies on the Supreme Court’s decision in Shamita Singha & Another v. Rashmi Ahluwalia (2020 SCC 152), which held that probate courts have primacy and that, for the ends of justice, the High Court hearing the testamentary petition should also decide the partition suit to avoid inconsistent outcomes. Other cases cited and distinguished include Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon (2007 SCC 357), Markand Balabhai Desai v. Dhimant Balabhai Desai (2018 Bom 13468), Shanta Chatterjee v. A. Chatterjee (2018 Bom 15503), Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust (2008 SCC 659), Pashupatinath Das (2008), Sunil Waman Bhide v. Chandrahas Laxman Kanhere (CRA No. 351 of 2023), and Markand Desai (transfer under Section 24). The court finds most of these precedents not directly applicable except for Shamita Singha and Markand Desai, which support transfer and clubbing.
  • Reasoning: The court notes that the same parties are involved, the majority of assets are common, and separate adjudication would likely lead to duplication of evidence and contradictory findings. The Supreme Court’s guidance that probate matters should be decided in the same forum as related partition suits is applied. The court also observes that the evidence in all three proceedings has not yet commenced, making a transfer convenient for the parties and the judiciary.

Final Outcome

  • The transfer application (MCA No. 39 of 2026) is allowed.
  • Suit No. 6934 of 2024 (partition suit) pending before the Bombay City Civil Court is transferred back to the High Court of Bombay.
  • The transferred suit is to be clubbed and heard together with Testamentary Petition No. 2647 of 2024 and Testamentary Petition No. 5014 of 2024.
  • The single judge handling the testamentary petitions shall also adjudicate the partition suit, or appropriate roster assignment shall be made to ensure joint hearing.

Topics: Probate, Partition Suit