Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.904/2019 ..1.. Suit No.3146/2011
CNR No.MHCC010024112019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.904 OF 2019
IN
SUIT NO. 3146 OF 2011
Zhingubai Haribhau Galande & Anr. .. Applicants
In the matter between
Daryus Soley Panthakey ..Plaintiff
Versus
Zhingubai Haribhau Galande and Anr. .. Defendant
Mr. Vishal Thakar, advocate for plaintiff.
Mr. Mhaske, advocate for defendants.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 13th March, 2019.
ORAL ORDER
Notice of Motion is taken out by defendants with prayer that
plaintiff be directed to produce photocopy of signed Will dtd.
26.06.2001 executed by Mrs. Roshan S. Dastoor.
2. It is the contention of defendants that plaintiff has contended in
plaint that he has become owner of suit property by virtue of Will in
question. The copy of probated Will which is filed on record is typed
copy so defendants are unable to identify signature on it. On
11.02.2019 they have taken out certified copy of registered agreement
dtd. 04.02.1971 executed by MR. Firoz Moss and others in favour of
Sam Dastoor and Mrs. Roshan Dastoor. Said Agreement bears signature
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of Roshan Dastoor also. Aforesaid Will dtd. 26.06.2001 of Mrs. Roshan
Dastoor is a crucial evidence which has to be verified with respect to
signature bearing on it, since no such Will was executed by Mrs. Roshan
Dastoor as per their knowledge and plaintiff appears to have fabricated
and forged the said Will in order to grab suit property unlawfully and
has obtained probate by playing fraud on Court. Therefore, the
signatures on the said Will needs to be verified with signature on
aforesaid registered agreement through handwriting expert and for that
purpose atleast photocopy of signed Will needs to be produced before
this Court. Accordingly, these defendants have made prayer in above
terms.
3. Advocate for plaintiff submitted that his oral submission be
treated as reply to the Notice of Motion.
4. Read Notice of Motion, Affidavit in support of Notice of Motion,
documents filed along with it and Record and Proceeding of above
referred suit.
5. Advocate for defendants/applicants advanced his submission in
accordance with contention made in Notice of Motion. Advocate for
plaintiff argued that Will dtd. 26.06.2001 of Mrs. Roshan Dastoor is
probated so question of due execution of said Will by Testator cannot be
challenged in this proceeding and present suit being that under Section
6 of Specific Relief Act which is not based on title of the plaintiff so
there is no need of production of copy of Will. Accordingly, he urged to
dismiss Notice of Motion.
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6. On perusal of plaint in present suit, it is clear that suit has been
filed for possession of suit premises by plaintiff from defendants under
Section 6 of the Specific Relief Act. As per Section 6 (1) of the Specific
Relief Act, if any person is dispossess without his consent of immovable
property other wise than in due course of law, he or any person through
whom he has been in possession or any person claiming through him
may, by suit, recover possession thereof, notwithstanding any other
title that may be set up in such suit. Thus, it is clear that in suit under
Section 6 of The Specific Relief Act question of title of immovable
property is foreign to such suit and is not relevant. I have gone through
issues framed by my Ld. Predecessor vide Exh. 5 which shows that
issues have been framed casting burden upon plaintiff to prove whether
he was in possession of suit property on 27.03.2010 and whether he
had been forcibly dispossessed from the suit premises by defendants on
27.03.2010. There is no issue relating to title of suit premises. So even
if plaintiff has allegedly averred about his title over suit premises on the
basis of said Will dtd. 26.06.2001 executed by Mrs. Roshan S. Dastoor,
question of adjudication title over suit premises does not arise in
present suit which has been filed under Section 6 of the Specific Relief
Act. Therefore, production of photocopy of signed Will dated
26.06.2001 of Mrs. Roshan Dastoor is not necessary for deciding issues
which have arisen in present suit. It is pertinent to note that aforesaid
Will is probated. It is settled law that Probate Court only decide
question of genuineness and validity of Will and not enter into question
of title. The subject matter in respect of title of the suit premises has to
be raised before appropriate forum. It cannot be agitated in the suit
under Section 6 of the Specific Relief Act. In above circumstances also
copy of production of signed Will dtd. 26.06.2001 of Mrs. Roshan
Dastoor is not required for determination of controversy in present suit.
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That being so Notice of Motion taken out by defendants deserve to be
dismissed. Hence, pass following order.
ORDER
1. Notice of Motion No.904 of 2019 stands dismissed with costs.
2. Costs will be caused in the Suit.
3. Accordingly Notice of Motion is disposed off.
(M. T. Asim)
Judge
Date : 13.03.2019 Gr. Bombay
Typed on : 13.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14.03.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. Aparna Lele
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
13.03.2019
JUDGMENT/ORDER signed by P.O.
on
14.03.2019
JUDGMENT/ORDER uploaded on 14.03.2019
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