Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1..
MHCC010009122019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 167 OF 2019
IN
SUIT NO.7623 OF 1985
(HIGH COURT SUIT NO.788 OF 1985)
Sadhubella Foundation, a trust
Through its Trustees
1. Acharya Swami Ganesh Dasji
2. Mr. Ramesh Makhija
3. Mr. Nandlal Chawla
4. Sudhama Bhavnani. ...Applicants.
In the matter between.
Ms. Sheila Malaney. ...Plaintiff.
Versus.
Bombay Builders Company Pvt. Ltd. and other.. … Defendants.
Appearance :
Adv. Shrey Fatterpekar for applicant.
Adv. Bhagyshree Parab for plaintiff.
Adv. Thorat for defendant no.1.
Adv. Ramlakhiyani for defendant no.2.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 17th November, 2022.
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ORDER ..2..
ORAL ORDER
Perused pleadings and heard advocate for both parties. This
chamber summons is taken out by proposed plaintiff for adding
Sadhubella Foundation, trust as a party plaintiff in the suit. The present
suit is filed for decree of Specific Performance of Contract. The suit was
filed by Acharya Swami Ganesh Dasji against defendants claiming
execution of agreement to sale by the defendants. From the record it is
seen that after death of original plaintiff Sheila Malaney, one of the
executor of will was brought on record as a party plaintiff in the suit. It
is further seen that the aforesaid Sheila expired on 28.07.2018. It is the
case of applicant that Acharya Swami Ganesh Dasji expired leaving
behind will and testament dated 21.03.2006 alongwith Codicil dated
22.03.2006. The alleged will and Codicil is brought on record. The
documents on record shows that one Sheila Malaney and Ramesh
Makhija were executors of the will. Admittedly the will executed by
Acharya Swami Ganesh Dasji came to be probated. The documentary
evidence on record shows that applicant trust is beneficially.
2. The learned advocate appearing for defendant relied on the case
of
Crystal Developers and Ors. Vs. Asha Lata Ghosh (Dead) through LRs.
and Ors. reported in AIR 2004 SC 4980, wherein it is observed that,
‘
section 332 indicates that the property vests in the executor under
the will from the date of demise of the testator; that the executor can
dispose of the property and that on the assent of the executor, the
title of the legatee under the will is completed.’
3. Admittedly will in question came to be probated. The facts of the
present case are not identical with the facts in the case law cited supra.
The question for consideration is whether trust can be added as a party
plaintiff. There is sufficient documentary evidence on record to suggest
that trust is having interest in the suit property. Hence, following order is
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ORDER ..3..
passed.
ORDER
1. Chamber Summons No.167 of 2019 is hereby allowed in terms
of schedule to chamber summons with no order as to costs.
2. Plaintiff to comply within 14 days.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 17.11.2022
Typed on : 17.11.2022
HHJ signed on : 17.11.2022
Note: The learned advocate for plaintiff and defendant no.2 pointed out that name of
original plaintiff is wrongly recorded as Acharya Swami Gaurishankar Dasji in the order
passed in C.S. No.167/2019 and further pointed out that name of original plaintiff was
Acharya Swami Ganesh Dasji. I have perused the record. The name of original plaintiff is
wrongly recorded as Acharya Swami Gaurishankar Dasji instead of Acharya Swami
Ganesh Dasji. Hence necessary correction are made in the order passed in C.S.
No.167/2019.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
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ORDER ..4..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 17.11.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.11.2022
JUDGMENT/ORDER signed by P.O.
on
17.11.2022
JUDGMENT/ORDER uploaded on 17.11.2022
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