Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.480/2018 ..1.. In S.C. Suit No.2092/2017
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 480 OF 2018
IN
S.C. SUIT NO. 2092/2017
CNR NO :- MHCC01-001904-2018
1. Nandabai Pandharinath Shinde,
Age : 55 Years, Occu. : Housewife,
2. Santosh Pandharinath Shinde,
Age : 30 Years, Occu. : Business,
Residing At : Flat No.701, G Wing,
Pushpa Vally CHS Ltd., Plot No.175/176,
Vichumbe Village, Taluka Panvel,
Dist.-Raigad. ...Plaintiffs
Versus
1. Hirabai Pandharinath Shinde,
Age : 55 Years, Occu. : Housewife,
2. Pushapa Pandharinath Shinde
Age : 30 Years, Occu. : Service,
Residing At : Flat No.201,
Sir J. J. Smruti C.H.S.Ltd., Plot No.51,
Sector-18, Kamothe, Taluka-Panvel,
Dist.-Raigad. ...Defendants
Appearance :-
Mr. Mangesh D. Chavan, Advocate for the Plaintiff.
Ms. Swati Sawant, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 26TH FEBRUARY, 2021.
ORAL ORDER
The plaintiff has sought temporary injunction to restrain
defendants from selling and or creating third party interest in any man-
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Notice of Motion No.480/2018 ..2.. In S.C. Suit No.2092/2017
ner or from further parting with possession either on leave and license
basis or rental basis to anyone. Direction for appointment of Court Re-
ceiver is also sought.
2. The facts necessary to decide present notice of motion are
as under.
3. In brief, the plaintiffs’ case is that, one Pandharianth Chi-
maji Shinde was owner of Room No. 44, ½ , Prakash Galli, Pestom,
Sagar Lokhane Road, Chembur, Mumbai - 400 089, (hereafter referred
as, “The Suit Premises”). He died leaving behind him the plaintiffs and
the defendants as his legal heirs. Plaintiff No. 2 is the only son of late
Pandharinath. Plaintiff No. 2 only is entitled to the suit premises, since
late Pandharinath has executed a ‘Will’ dated 24.11.2014 in favour of
plaintiff No. 2 and bequeathed the suit premises to him. Plaintiff No. 2
is in process of filing Caveat Petition. The defendants have no right, ti-
tle and interest in the suit premises as during the lifetime of the late
Pandharinath, he had given share to defendant No. 1 by way of money
and also by paying reasonable amount to defendant No. 2 to purchase a
house after her marriage. Late Pandharinath has directed the defen-
dants not to claim the suit premises as an oral partition as taken place
during his lifetime. Defendants however are residing in the suit
premises and are trying to dispose it of or let it out. If they succeed in
their such efforts, plaintiffs legal rights will be in
Jeopardy and hence
the injunction is sought.
4. Defendants have come with the case that, plaintiff No. 1 is
not a legally wedded wife of late Pandharinath. Late Pandharinath has
purchased a flat at Panvel wherein plaintiff No. 2 is residing. Late Pand-
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Notice of Motion No.480/2018 ..3.. In S.C. Suit No.2092/2017
harinath had let out the suit premises in his lifetime. He has executed a
registered ‘Will’ dated 20.09.2011. The plaintiffs are aware of said
‘Will’. The ‘Will’ propounded by the plaintiffs is suspicious as it reveals
that, it is executed just 90 days prior to the death of late Padharinath.
The ‘Will’ sought to be relied upon by the plaintiffs cannot be acted
upon still without probate. A licensee is inducted in the suit premises
since the year 2009 and she is in continuation in the suit premises time
to time. The defendants never tried to alienate the suit premises.
5. Perused. Heard.
6. The plaintiffs has heavily relied upon ‘Will’ dated
24.11.2014 produced at Exh.B to the plaint. Perusal of said ‘Will’ re-
veals that the suit premises is bequeathed to plaintiff No. 2. Late Pad-
harinath has bequeathed other two movable properties also in favour of
plaintiff No. 2. Said ‘Will’ is unregistered.
7. On the other hand, the defendants have relied upon a ‘Will’
dated 20.09.2011 executed by Late Pandharinath which is duly regis-
tered before Sub-Registrar, Kurla. By virtue of said ‘Will’ the suit
premises is bequeathed to defendant No. 1.
8. Thus, this is the case in which an unregistered ‘Will’ is
sought to be countered by a registered ‘Will’.
9. The suit premises is situated within the local limits of the
ordinary Original Civil Jurisdiction of the Hon’ble Bombay High Court.
Thus, the provisions of Clause (b) of Section 57 of the Indian Succes-
sion Act 1975 will be attracted in present case. In view of this the pro-
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Notice of Motion No.480/2018 ..4.. In S.C. Suit No.2092/2017
visions of part (iv) of the Act of 1975 will be attracted in respect of the
‘Will’ sought to be relied upon by the plaintiff. The plaintiffs have come
with a case that, Plaintiff No. 2 is in a process of obtaining probate of
the ‘Will’ dated 20.09.2011. This itself indicates that, at present the
‘Will’ is not probated. Meaning thereby that the validity of the ‘Will’ is
not yet established. In such circumstances, when the plaintiff has not
obtained the probate of the ‘Will’ he cannot claim any right on the basis
of such ‘Will’. It also needs to be mentioned that, the plaintiffs has not
produced on record the affidavits of attesting witnesses of the ‘Will’ to
prima-facie indicate that, the ‘Will’ was properly attested as required by
Section 63 of the Indian Succession Act or Section 68 of the Indian Evi-
dence Act. In view of aforesaid position, therefore, the ‘Will’ cannot be
relied upon to prima-facie consider that only plaintiff No.2 has rights in
the suit premises as owner thereof.
10. Once the very basis for the plaintiffs claim to exclusive
rights in the suit premises is prima-facie not established, the plaintiff
cannot claim existence of prima-facie case in his favour.
11. The defendants have come with a case that, defendant No.
1 is legally wedded wife of Late Pandharinath. They have also claimed
that, plaintiff No. 1 is not a legally wedded wife of Late Pandharinath.
This aspect is not seriously disputed by the plaintiffs. No rejoinder is
filed denying said aspect. In such circumstances, the rights of plaintiffs
in the suit premises, in the light of their relationship with Late Pandhari-
nath, is on lower pedestal than the rights of defendants in the suit
premises as the legitimate heirs of Late Pandharinath. In view of this,
no prima-facie case is made out by the plaintiffs.
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Notice of Motion No.480/2018 ..5.. In S.C. Suit No.2092/2017
12. Considering the discussion above, therefore, when admit-
tedly the suit premises is let out by the defendants since the year 2009
continuously, the balance of convenience lies in their favour. This is
also so, as their rights in the suit premises would be more than the right
of plaintiffs in the suit premises. The defendants have stated in their re-
ply that, they have never tried to sell the suit premises, but have let it
out constantly. This also indicates that, the defendants are not intend-
ing to sell the suit premises. It is also not the plaintiffs case that, the
suit premises is transferred in the name of defendants on the basis of
which they can sell the suit premises. Therefore, the apprehension as
expressed does not appear reasonable.
13. Considering the facts and circumstances, I hold that, the
plaintiffs are not entitled to the relief sought. Hence, following order :-
ORDER
1. Notice of Motion No. 480/2018 is dismissed.
2. Costs in cause.
(AJIT N. MARE)
Judge,
Date : 26.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 26.02.2021
Transcribed on : 01.03.2021
HHJ Signed on : 02.03.2021
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Notice of Motion No.480/2018 ..6.. In S.C. Suit No.2092/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
03.03.2021 11.25 a.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 26.02.2021
Order signed by P. O. on 02.03.2021
Order uploaded on 03.03.2021
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