Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.191/2020
MHCC010004782020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 191 OF 2020
IN
S.C. SUIT NO. 3302 OF 2019
Mr. Ajit Ramesh Bhavsar … Plaintiff
V/s.
1. Smt. Kanta wd/o late Ramesh
Bhavsar& Ors. … Defendants
Appearance
Learned Adv. Mr. Sachin Choudhary i/b Dharam & Co. for the plaintiff
Learned Adv. M/s. S. Kothari & Co. for defendants No. 1, 2 and 4
Learned Adv. Mr. N. R. Gandhi for defendants No. 3
CORAM : HHJ V. R. Jagdale
(C.R.NO. 62)
Date : 21st March, 2025
O R D E R
The present notice of motion is taken out by the plaintiff
seeking relief of appointment of Court Receiver and for restraining
defendants No. 1 and 2 from alienating the suit property and relief
against defendant No. 3 in respect of share certificate.
2. The defendant No.1 and 2 has filed affidavit in reply and
denied all adverse contents and prayed that NM be dismissed. The
defendant No. 3 has filed reply Dtd. 24.01.2020 contending that it is
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ready to abide by the order of the Court. The defendant No. 4 has filed
reply contending that it is merely a licensee who has entered into an
agreement with defendant No. 1 and 2 and has no concern with the
dispute inter-se between plaintiff and defendant No. 1 and 2.
3. I have gone through the affidavit in support of the notice of
motion filed by plaintiff and heard both the sides at length.
4. The following points arise for consideration and my
findings thereon with the reasons as follows:
Sr.No. POINTS FINDINGS
1. Whether plaintiff haa made out a prima-
facie case ?
-No-
2. Whether balance of convenience lies in
plaintiff’s favour?
-No-
3. Whether plaintiff will suffer irreparable
loss if injunction as sought for is
refused?
-No-
4. Whether the plaintiff is entitled for relief
appointment of Court Receiver ?
-No-
5. What order? Notice of motion is
dismissed
REASONS
As to points No. 1 to 4 :-
5. The Learned advocate for the plaintiff has submitted that
plaintiff and defendant No. 2 are brothers and defendant No.1 is their
mother. The father of plaintiff and defendant No. 2 and husband of
defendant No.1 was the owner of the suit premises who expired on
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18.05.2012 leaving behind them as legal heirs. After demise of father of
plaintiff and defendant No. 2, the defendant No. 1 was totally shattered
and in order to give support and inspire a feeling of security document
should be executed about suit premises in favour of defendant No. 1.
Accordingly a joint declaration cum indemnity was executed by plaintiff
and defendant No. 2 and their sisters in favour of defendant No.1.
Thereafter the shares of suit premises were transferred in the name of
defendant No.1.
6. But the plaintiff never intended to relinquish his undivided
share in favour of defendant No.1. The defendant No.1 is holding the
suit premises on behalf of all the legal heirs. But in the mean time the
defendant No.1 executed a Gift Deed in favour of defendant No.2 on
16.04.2014. But the plaintiff never intended to relinquish his right and
the defendant No.2 played fraud upon him and got executed the joint
declaration and indemnity which will not divest the plaintiff of his right
in the suit premises. After execution of declaration the gift deed was
executed within 3 months and nobody was informed about it. The
plaintiff had written letter to the Society and came to know that society
had transferred the share certificate in the name of defendant No. 1.
Now, the defendant No. 2 is inducing defendant No. 1 to transfer share
certificate in his name. But plaintiff has absolute right in respect of suit
premises. Hence, prayed NM be made absolute.
7. On the contrary learned Advocate for defendant No. 2 has
submitted that during his life time their father had executed a Will in
favour of their mother. After demise of father the suit premises devolved
upon the mother by virtue of Will 14.11,1987 which is not disputed.
Thereafter, the mother had executed Gift Deed in his favour on
16.04.2014 and plaintiff had knowledge of above fact from the society.
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But he did not object for the same and has filed suit in the year 2019
which is barred in view of Section 58 of Limitation Act.
8. So also the plaintiff has not made sister party to the suit
and they are also entitled for share in the suit premises. So also the
plaintiff has not sought relief of partition and has sought simplicitor
relief of declaration due to which suit is not maintainable. Therefore,
the plaintiff is not entitled for any sort of equitable relief on account of
delay and latches. Hence, NM be dismissed.
9. It is the contention of the plaintiff that he is having
undivided right, title and interest in the suit premises. The suit premises
originally belonged to his father who expired on 18.05.2012 leaving
behind plaintiff and defendant No. 1 and 2 as legal heirs. But on
account of breakdown of mental condition of defendant No. 1 and to
inspire sense of security they executed and joint declaration cum
indemnity in respect of suit premises in favour of defendant No. 2. But
the plaintiff never intended to relinquish his share in the suit premises.
Thereafter, the defendant No.1 has executed a gift deed in favour of
defendant No.2 and plaintiff had no knowledge of the above fact. The
gift deed was executed with the intention to deprive the plaintiff of his
right in the suit premises. Accordingly he has taken objection with the
society and now he has an apprehension that defendant No.2 may
transfer the suit premises. Hence he has sought relief of injunction and
appointment of Court Commissioner.
10. But it is the contention of defendant No. 1 and 2 that after
demise of husband of defendant No. 1 who had executed Will and
bequeathed the suit premises to her and during her life time she stayed
with defendant No.2 who took her care. On account of wish of her
husband the plaintiff and other defendants executed a joint declaration
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and indemnity in favour of defendant No.2 whereby they had
relinquished their right in the suit premises. In pursuant to declaration
her name was recorded as nominee to the record of society. As plaintiff
and defendant has agreed according to the wishes of her husband she
has executed a Gift Deed 16.04.2014 in favour of defendant No. 2.
Thereafter, leave and license agreement is executed in favour of
defendant No.4 and Society has tendered no objection for leave and
license. The plaintiff is aware of the above fact and now he cannot claim
any, right, title and interest in the suit premises. Hence, NM be
dismissed.
11. The plaintiff has filed on record various documents
alongwith plaint which include declaration cum indemnity bond Dtd.
7.12.02013. On perusal of the above indemnity bond it appears that
plaintiff alongwith other heirs had agreed to transfer the share and the
suit premises in favour of their mother i.e. defendant No.2. On perusal
of letter Dtd. 26.05.2014 it appears that subsequently plaintiff has taken
objection for transferring the premises to any other third party. But
Society had already informed the plaintiff that in view of joint
declaration Dtd. 7.12.2013 which was sent by him and other heirs the
share certificate has already been transferred in the name of his mother.
12. On the contrary on perusal of documents adduced by the
defendants it appears that the suit premises was self acquired property
of father of plaintiff, defendant NO.2 and husband of defendant No.1. It
appears that accordingly he has executed a Will and bequeathed the suit
premises in favour of defendant No.2 who is his wife. It appears that
thereafter defendant No.1 has executed a gift deed in favour of
defendant No.2 on account of the fact that it is the defendant No. 2 who
was looking after her after demise of her husband. Accordingly, the
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defendant No. 2 was put in exclusive possession of the suit premises
and thereafter leave and license agreement appears to be executed in
favour of defendant No.4 who now appears to be in possession of the
suit premises.
13. Therefore, it appears that plaintiff has knowledge of
execution of Will, declaration cum indemnity bond and gift deed. If
plaintiff had no intention to relinquish his right in the suit premises on
the basis of declaration cum indemnity bond then he would have
immediately taken objection. But it appears that from 2013 till filing of
the suit the plaintiff has kept reticent and had not raised any objection.
Therefore on account of delay and latches the plaintiff is not entitled for
relief sought by him. In such a contingency it is clear plaintiff has failed
to make out prima facie case and balance of convenience does not lie in
his favour and if injunction is refused no irreparable would be caused to
him. Hence point No.1 to 4 in negative so in the result following order
is passed;
ORDER
Notice of Motion No. 191 of 2020 is dismissed and accordingly
disposed of.
Date : 21.03.2025 (V. R. Jagdale)
Judge,
City Civil Court,
Dictated on : 21/03/2025 Mumbai
Transcribed on : 26/03/2025
Signed on : 26/03/202
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.03.2025 at 5.15 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI R. S. Aradhye
(C.R.No.62)
Date of pronouncement of Order 21.03.2025
Order signed by P.O. on 26.03.2025
Order uploaded on 26.03.2025
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