Sister’s Partition Suit Returns to Bombay High Court for Joint Hearing With Testamentary Cases as Court Cites Overlapping Properties and Risk of Conflicting Findings
Bombay High Court Transfers Siblings’ Property Partition Dispute From City Civil Court to Hear Alongside Two Testamentary Proceedings, Applying Supreme Court’s Guidance Against Inconsistent Decisions
Facts
Devki Jagdish Thakkar and her brother, Tulsidas Kanji Bhanushali, are disputing their deceased father’s estate. Thakkar instituted a partition suit in the Bombay High Court as Suit No. 2174 of 2023. Following a January 2024 notification changing pecuniary jurisdiction, it was transferred to the Bombay City Civil Court and renumbered Suit No. 6934 of 2024. Meanwhile, both siblings instituted testamentary proceedings in the High Court concerning the father’s Will and estate; the brother’s Testamentary Petition No. 5014 of 2024 became Testamentary Suit No. 337 of 2025 upon a caveat being filed. The proceedings concern substantially overlapping assets in Wadala, Navi Mumbai and Kutch, Gujarat. Three properties are common to all three cases, while the description and entitlement concerning Flat Nos. 401/402 in FAM Co-operative Housing Society are disputed, including a claimed gift. No issues had been framed or evidence commenced in any proceeding. Thakkar sought transfer of the partition suit back to the High Court.
Issues
Whether the Bombay High Court should exercise its power under Section 24 of the Code of Civil Procedure, 1908, to withdraw a partition suit from the City Civil Court and hear it with two pending testamentary proceedings; whether common parties and estate properties create a substantial risk of inconsistent findings; and whether differences between probate jurisdiction and adjudication of title prevent coordinated hearings.
Petitioner’s Arguments
The applicant sought a common forum because the partition suit and testamentary proceedings arose from the same family dispute and concerned substantially the same estate. A determination on the genuineness and operation of the Will could materially affect which assets remained available for partition and the parties’ shares. Separate trials would duplicate evidence and could produce inconsistent outcomes. Relying principally on Shamita Singha v. Rashmi Ahluwalia, (2020) 7 SCC 152, and the Bombay High Court decision in Markand Balabhai Desai v. Dhimant Balabhai Desai, she contended that transfer and joint hearing would further the ends of justice.
Respondent’s Arguments
The brother opposed transfer and relied on Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357; Pasupati Nath Das v. Chanchal Kumar Das, (2018) 18 SCC 547; and Sunil Waman Bhide v. Chandrahas Laxman Kanhere. Those authorities concern, among other matters, the limited scope of probate proceedings, civil adjudication of title, and jurisdictional questions. The judgment identifies these precedents but does not set out a more extensive independent account of the respondent’s factual objections. The Court also considered the principles governing reasoned transfers under Section 24 CPC.
Analysis of the Law
Section 24 CPC permits the High Court, in an appropriate case, to withdraw and transfer proceedings to secure the ends of justice. The fact that a partition suit and testamentary proceedings have different legal functions does not itself require disconnected trials. A probate or letters-of-administration determination concerns the Will; it does not, merely by its grant, establish the testator’s title to every scheduled property. Yet the Will’s validity and operation may substantially affect the estate susceptible to partition. Where closely related litigants dispute substantially common assets and proceedings remain at an early stage, coordinated hearing can avoid duplicated evidence, procedural inconvenience and inconsistent findings without prejudging title or shares.
Precedent Analysis
In Shamita Singha v. Rashmi Ahluwalia, (2020) 7 SCC 152, the Supreme Court favoured hearing connected partition and testamentary proceedings before the Bombay High Court because overlapping assets and issues made separate adjudication undesirable; the Court treated that ruling as controlling. Markand Balabhai Desai v. Dhimant Balabhai Desai, 2018 SCC OnLine Bom 13468, provided a close Bombay High Court parallel. Kanwarjit Singh Dhillon was distinguished: probate does not extinguish the civil court’s jurisdiction to determine title, but that proposition does not bar transfer. Pasupati Nath Das addressed proof of a Will, while Sunil Waman Bhide concerned a different revisional jurisdictional issue. Kulwinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659, requiring a reasoned Section 24 exercise, did not assist the objector; Shanta Chatterjee was distinguishable because its trial was effectively concluded.
Court’s Reasoning
Justice Rajesh S. Patil observed that the applicant and principal respondent are siblings, the properties in dispute substantially overlap, and identification of the Navi Mumbai flat is itself contested. The separate testamentary cases and partition suit thus involve matters capable of bearing directly on one another. The Court emphasised that no evidence had yet commenced in any of the three proceedings. If one testamentary petition established an operative Will, its effect on the divisible estate could create inconsistent results if the partition case proceeded independently. Applying Shamita Singha and considering the convenience of both parties, the Court found a joint hearing in the Bombay High Court appropriate. It did not decide the authenticity of any Will, the validity of the asserted gift, ownership, or the eventual partition shares.
Conclusion
Miscellaneous Civil Application No. 39 of 2026 was allowed. The Bombay High Court directed that Partition Suit No. 6934 of 2024 be transferred from the Bombay City Civil Court and clubbed for hearing with Testamentary Petition Nos. 2647 of 2024 and 5014 of 2024 pending before the High Court. The ruling is procedural: it consolidates the forum for connected litigation and leaves all substantive succession, title and partition disputes to be determined in the proceedings.
Case: Devki Jagdish Thakkar v. Tulsidas Kanji Bhanushali & Ors.
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Number: Miscellaneous Civil Application No. 39 of 2026
Judge: Justice Rajesh S. Patil
Date: 14 October 2026 (reserved on 8 May 2026)
Result: Application allowed; partition suit transferred and clubbed with two testamentary petitions for joint hearing.
