Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 429/19 in S.C.Suit No. 1830/15. 1 Order.
MHCC010010982019
Presented on : 29-01-2019
Registered on : 29-01-2019
Decided on : 27-07-2022
Duration : 3 years, 5 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 429 OF 2019
IN
S. C. SUIT NO. 1830 OF 2015
Smt. Asha Amin )...Plaintiff
Versus
Shri Devendra Kotian and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 27th JULY, 2022.
Miss Prajakta Angre, Advocate for defendants no.1 and 2.
Shri Kalpesh Joshi, Advocate for the plaintiff.
None for defendant no.3.
ORDER
1. Defendants no.1 and 2 have taken out the notice of motion
for rejection of the plaint under Order VII Rule 11(a) and 11(b) of the
CPC. Perused notice of motion and affidavit in reply filed by the
plaintiff. I have gone through the suit proceeding. Heard learned
counsel Miss Prajakta Angre for defendants no.1 and 2 and learned
counsel Shri Kalpesh Joshi for the plaintiff.
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N/m No. 429/19 in S.C.Suit No. 1830/15. 2 Order.
2. Learned counsel Prajakta Angre for defendants no.1 and 2
referred contents in the plaint, affidavit in support and affidavit in reply
in the course of her arguments. She submitted that the plaintiff is sister
of defendant no.1. Defendant no.2 is wife of defendant no.1. Defendant
no.3 is the cooperative housing society in which the suit flat is situated.
Late P.D.Karkera (father of the plaintiff and defendant no.1) was
member of defendant no.3 society having Share Certificate No.37 dated
05/11/1964 and Share Certificate No.91 dated 31/01/1965. After
death of P.D.Karkera on 25/07/1990, defendant no.3 society
transferred said shares in the name of Chandravati Karkera on
19/01/1992. Smt. Chandravati Karkera expired on 05/02/1995 and
she had nominated defendant no.1 alone as nominee to the said shares
on 13/11/1991. Accordingly, defendant no.3 society transferred the
said shares in the name of defendant no.1 on or about 27/07/1997.
Later on, defendant no.3 society issued fresh share certificates to all
members on 15/11/2001. Defendant no.1 executed Gift Deed dated
01/12/2011 in favour of his wife i.e. defendant no.2. Defendant no.3
society has given 'NOC' for the same.
3. After putting forth case of defendants no.1 and 2, learned
counsel Prajakta Angre further submitted that the plaintiff is claiming
rights in the suit flat being legal heir of her father Late P.D.Karkera who
expired on 25/07/1990, but the plaintiff did not initiate any action in
the year 1990. Therefore, claim of ownership made by the plaintiff is
grossly timebarred and the plaint is liable to be rejected as per Section
3 of the Limitation Act, 1963. Shares of the cooperative housing
society were transferred in the name of mother of the plaintiff namely
Smt. Chandravati Karkera being nominee of Late P.D.Karkera. Even
then, the plaintiff did not take any action. The plaintiff has claimed
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N/m No. 429/19 in S.C.Suit No. 1830/15. 3 Order.
that she was nominated by Smt. Chandravati, but there are no details of
such nomination. She further submitted that the plaintiff filed Dispute
No. 27/2014 in the Cooperative Court against the defendants under
Section 91 and 96 of the Maharashtra Cooperative Societies Act, 1960
and she has applied for various similar interim reliefs. The Cooperative
Court has not granted any interim relief to the plaintiff. The plaintiff
has not issued statutory notice under Section 164 of the Maharashtra
Cooperative Societies Act, 1960 and therefore, there is a bar against
institution of the suit. She further submitted that the plaintiff has not
obtained heirship certificate. By pointing out all these details, learned
counsel Prajakta Angre prayed for rejection of the plaint by allowing
notice of motion.
4. On the contrary, learned counsel Shri Kalpesh Joshi for the
plaintiff submitted that the suit flat belonged to her father and share
certificates are transferred in the name of her mother as a nominee.
Similarly, defendant no.1 became member of the society by virtue of his
nomination. He further submitted that defendant no.1 is only nominee
of the share certificates and he has not become owner of the suit flat.
Nominee is trustee of the property and rights of the plaintiff in the suit
flat are unaffected even after transfer of share certificates in the name
of defendant no.1. Therefore, the plaintiff has sought declaration
regarding her 50% share in the suit flat as a coowner. He further
submitted that defendant no.1 executed Gift Deed dated 01/12/2011 in
favour of defendant no.2 in respect of the suit flat and the plaintiff has
sought declaration that the said Gift Deed is void ab initio, illegal, bad
inlaw and not binding on the plaintiff. The plaintiff further prayed for
the cancellation of the said Gift Deed. According to him, the plaintiff
has pleaded in para 20 of the plaint that the plaintiff came to know
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N/m No. 429/19 in S.C.Suit No. 1830/15. 4 Order.
about absolute transfer of the said flat in the year 2014 and the suit is
filed in July2015. He further submitted that limitation has to be
reckoned from the date of knowledge of the disputed transaction.
Defendant no.3 is formal party to the suit proceeding. He prayed for
dismissal of the notice of motion.
5. Considering rival submissions on record, it is explicit that
the suit flat was originally owned by father of the plaintiff and
defendant no.1. The suit flat came to the share of the plaintiff's mother
as a nominee. Similarly, share certificates of the suit flat came to be
transferred in the name of defendant no.1 as per nomination. Now, it is
moot question for consideration whether nomination of share
certificates of the flat confers absolute rights of ownership of the flat
upon the nominee after demise of the owner of the flat. It is further
question of law whether provisions of the Sections 6, 7 and 8 of the
Hindu Succession Act, 1956 will come into operation in absence of Will
executed by the owner of the flat. It is also a question worth
consideration whether nomination can be treated as Will of the owner
of the flat for conferring absolute right of ownership upon the nominee.
Furthermore, the plaintiff has explained cause of action and limitation
in para 20 of the plaint. Limitation is mixed question of fact and law in
the case in hand and it requires adjudication after both sides have
adduced evidence. So far as aspect of serving notice under Section 164
of the Maharashtra Cooperative Societies Act is concerned, the plaintiff
has not sought any relief against defendant no.3. Defendant no.3 is a
proper party to the present suit proceeding. Therefore, the suit is not
expressly barred by law. At the most, necessary issue regarding
requirement of such notice to defendant no.3 can be framed for
adjudication purpose. In short, grounds for rejection of the plaint are
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N/m No. 429/19 in S.C.Suit No. 1830/15. 5 Order.
not made out from contents in the plaint. Hence, I pass the following
order :
ORDER
1. Notice of Motion No. 429 of 2019 is dismissed.
2. Proceeding of N/m No. 429/19 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 27/07/2022. Mumbai.
1. Dictated online on : 27/07/2022.
2. Signed on : 28/07/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/07/2022. 1.41 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 27/07/2022.
Judgment/Order signed by P.O. on 28/07/2022.
Judgment/Order uploaded on 28/07/2022.
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