Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1502-19 in SU 714-19
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1502 OF 2019
(CNR No.MHCC01-003979-2019)
IN
SUIT NO.714 OF 2019.
(CNR No.MHCC01-001821-2019)
Anuj Kirti Shah and Ors. }...PLAINTIFFS.
Versus
Kirti Mohanlal Shah and Anr. }...DEFENDANTS.
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Shri.Redekar, learned advocate for the plaintiffs.
Shri.Bhole, learned advocate for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 12/10/2021)
1. By filing this Notice of Motion, plaintiffs have claimed the
reliefs as under;
a. That this Hon’ble Court be pleased to pass an order of
injunction, permanent and mandatory, restraining the defendants
from evicting the plaintiffs from the suit premises i.e. Flat
No.158, C Wing, 6th floor, Samrat Ashok Co-operative Housing
Society Ltd., R.T.Marg, Malabar Hill, Walkeshwar, Mumbai-
400006 in any manner whatsoever.
b. That the Hon’ble Court be pleased to pass as order of
injunction, permanent and mandatory, restraining the defendants
from selling the suit premises i.e., Flat No.158, C Wing, 6th floor,
Samrat Ashok Co-operative Housing Society Ltd., R. T. Marg,
Malabar Hill, Walkeshwar, Mumbai-400006 in any manner
whatsoever.
c. That the Hon’ble Court be pleased to pass an order of
injunction permanent and mandatory, restraining the defendants
from dispossessing the plaintiffs from the suit premises, since birth.
d. That the Hon’ble Court be pleased to pass an order to
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safeguard the rights of plaintiff No.2 as the suit premises is her
matrimonial home.
e. That the Hon’ble Court be pleased to pass an order
safeguarding the interest of plaintiff No.3 being a minor of aged 6
years and also having his domicile of the present suit premises.
2. Read the affidavits and additional affidavits filed by both
the parties in support of their respective contentions. Heard learned
Shri.Redekar advocate for the plaintiffs and learned Shri.Bhole advocate
for the defendants. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiffs? ...No.
ii) Whether balance of convenience lies in their
favour? ...No.
iii) Whether irreparable loss will cause to the
plaintiffs if temporary injunction as prayed are
not granted? ...No.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that there was no partition of the
property of grandfather Mohanlal of plaintiff No.1 amongst his heirs,
said property was joint family property at the hands of Mohanlal, it has
been sold by defendant No.1 and other legal heirs of Mohanlal, sale
proceeds have been divided amongst defendant No.1 and other legal
heirs of Mohanlal and thereafter, defendant No.1 has purchased the suit
premises from the amount fallen to his share due to which, suit
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premises is joint family property of plaintiff No.1 & defendant No.1. He
argued that plaintiff No.1 and son of plaintiff No.1 have acquired rights
by birth in the suit premises as it is purchased by defendant No.1 by
selling the joint family property. He argued that defendant No.1 and
other legal heirs of Mohanlal have deliberately made a false contention
in the Deed of Transfer of said property that it was self-acquired
property of Mohanlal. He argued that plaintiff No.2 is the wife of
plaintiff No.1 and she is residing in the suit premises since after she got
married to plaintiff No.1 and as such, suit premises is matrimonial
home for plaintiff No.2 as per provisions of Domestic Violence Act. He
argued that after marriage of second son of defendants, at the behest of
said second son and his wife, defendants are denying the lawful rights
of plaintiffs in the suit premises, defendants are making attempts to
oust the plaintiffs from the suit premises at the behest of younger son
Viraj the defendants and if they succeed in doing so, it will cause an
irreparable loss to the plaintiffs due to which, Notice of Motion may be
made absolute. In support of his argument, learned advocate for the
plaintiffs has placed reliance on the law laid down by Hon'ble Apex
Court in a case of
Satish Chander Ahuja Vs. Sneha Ahuja reported in
(2021)1 Supreme Court Cases 414. I have gone through said authority.
5. As against this, learned advocate for the defendants argued
that suit premises is self-acquired property of defendant No.1, plaintiffs
are falsely claiming it to be joint family property, there is no material to
show that suit premises is purchased by defendant No.1 by selling the
joint family property of grandfather Mohanlal of plaintiff No.1, Deed of
Transfer produced by plaintiffs shows that said property was not HUF
property but it was self-acquired property of Mohanlal hence, even if
contention of the plaintiffs is accepted that suit premises is purchased
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from the share received by defendant No.1 on sale of the property of
Mohanlal, it is not sufficient for holding that suit premises is joint family
property because, according to him, Mohanlal expired in year 1975
whereas, plaintiff No.1 is born in year 1983 and devolution took place
under Section 8 of Hindu Succession Act. He argued that defendants are
old aged parents of plaintiff No.1 and they have every right to enjoy
their own property, in the manner they want, without any trouble at the
hands of anybody including the plaintiffs. He argued that there are no
differences between plaintiff Nos.1 & 2 due to which, it cannot be
accepted that plaintiff No.2 is victim of domestic violence. He argued
that plaintiff No.2 has no respect for her in-laws as can be seen from the
hard copy of
Whatsapp chat between her and another daughter-in-law
of the defendants. He argued that the lives of the defendants have been
made miserable by the plaintiffs, plaintiffs have no right to stay in the
suit premises due to which, Notice of Motion is liable to be dismissed. In
support of his argument, learned advocate for the defendants has
placed reliance on the following authorities.
i)
Arshnoor Singh Vs. Harpal Kaur
reported in
(2020)14 Supreme Court Cases 436,
ii)
Satish Chander Ahuja Vs. Sneha Ahuja
reported in
(2021)1 Supreme Court Cases 414,
iii)
Aarti Sharma Vs. Ganga Saran
reported in
2021 SCC OnLine Del 4110.
I have gone through those authorities.
6. Admittedly, defendant No.1 is the father and defendant
No.2 is the mother of plaintiff No.1. Admittedly, defendants have one
more son by name is Viraj. Admittedly, date of birth of the plaintiff No.1
is 15/4/1983. Admittedly, plaintiff No.1 got married to plaintiff No.2
on 27/02/2009 and plaintiff No.3 is their minor son.
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7. Defendants have contended that suit premises is purchased
by defendant No.1 from his own funds and it is his self-acquired
property. Plaintiffs have contended that grandfather Mohanlal of
plaintiff No.1 had received his share in the family partition taken place
between him and his brother and thereafter, Mohanlal had purchased a
premises in Chandanbala Society (said premises is here-in-after referred
to as Chandanbala property), entire family of Mohanlal was residing as
joint Hindu family in the Chandanbala property, defendant No.1 & other
heirs of Mohanlal mutually decided to subdivide said family property
and accordingly, they jointly executed a Transfer Deed dtd.06/10/2005
whereby, Chandanbala property of Mohanlal was sold. Plaintiffs have
further contended that defendant No.1 has purchased the suit premises
from the share received by on sell of Chandanbala property and as such,
suit premises is joint family property wherein, plaintiff Nos.1 and 2 have
acquired rights by birth.
8. Defendants have placed on record copy of registered Deed
of Transfer dtd.10/11/2005 which shows that defendant No.1 has
purchased the suit premises for Rs.70,00,000/-. Said title document in
respect of the suit premises is in the name of defendant No.1 alone.
Plaintiffs have placed on record copy of Deed of Transfer in respect of
sale of Chandanbala property. By taking me through the said copy,
learned advocate for the plaintiffs argued that it is crystal clear from the
contents of said document that Chandanbala property was, in fact, HUF
property yet, defendant No.1 and other legal heirs of Mohanlal have
deliberately and falsely mentioned in the said Deed that Chandanbala
property is wrongly shown as HUF property in the Share Certificate. He
argued that said recital shows malafides on the part of defendant No.1
& other heirs of Mohanlal and it is sufficient for concluding that
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Chandanbala property was HUF property due to which, plaintiff No.1
and his son i.e. plaintiff No.3 have acquired a rights by birth in the said
property as per the provisions of Hindu Succession Act.
9. It is mentioned in the copy of Deed of Transfer of
Chandanbala property as;
“Although the said premises were purchased by the said
Mohanlal Vandravan Shah in his individual name, the Share
Certificate was erroneously issued in the name of Shri Mohanlal
Vandravan Shah (HUF). The said premises was shown as his self
acquired property in his income tax and wealth tax returns.’’
10. Those recitals are in the document placed on record by the
plaintiffs themselves. It does not appear that plaintiffs have ever
challenged the said document. Plaintiff No.1 himself is not party to said
document and there is no other supporting material for accepting the
contention of plaintiffs that the above mentioned recitals have been
made in the Deed of Transfer with any ulterior motive by defendant
No.1 and other heirs of Mohanlal due to which, said contention of
plaintiffs cannot be accepted especially because, plaintiffs have not
challenged said document till date. Admittedly, genuineness of said
Deed of Transfer in respect of Chandanbala property is not questioned
or challenged by the plaintiffs in this suit. Besides it, plaintiffs have also
not challenged the title document standing in the name of defendant
No.1 in respect of the suit premises.
11. In a case of
Aarti Sharma Vs. Ganga Saran cited above on
which reliance is placed by learned advocate for the defendants, same
was the fact situation. Title document in respect of the suit property in
the said matter was standing in the name of the father and said
document was never challenged by the son and daughter-in-law. In the
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matter in hands also, title document in respect of the suit premises is
standing in the name of defendant No.1 alone and plaintiffs have not
challenged said document till date, not even in the present suit. Having
regards to those aspects, this court is of the opinion that the material
available on record is
prima facie sufficient for accepting that suit
premises is self-acquired property of defendant No.1.
12. Though there is no material for accepting the contention of
the plaintiffs that defendant No.1 has purchased the suit premises from
the share received by him on sale of Chandanbala property, even if said
contention of plaintiffs is accepted, it will have to be seen whether the
suit premises purchased by defendant No.1 from his share would
thereby become ancestral property or co-parcenery property or joint
family property for claiming rights by birth therein by plaintiff No.1 and
his son i.e. by plaintiff No.3?
13. As mentioned above, Deed of Transfer in respect of
Chandanbala property is not challenged by the plaintiffs hence, this
court is of the opinion that said document is
prima facie sufficient for
accepting that Chandanbala property was self-acquired property of
grandfather Mohanlal of plaintiff No.1. It does no appear to be in
dispute that Mohanlal expired in year 1975 i.e. after coming into force
of Hindu Succession Act, 1956. Admittedly, plaintiff Nos.1 & 3 were not
born when Mohanlal expired. In any case, succession opened in the
year 1975 on death of Mohanlal. As Chandanbala property was self-
acquired property of Mohanlal and as admittedly Mohanlal died
intestate, the devolution of his property would be governed by Section 8
of Hindu Succession Act. As such, Chandanbala property had devolved
on his heirs in Schedule-I. His those heirs in Schedule-I were his widow,
three sons and two daughters. Besides the fact that plaintiff No.1 was
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not born on the day when the succession opened, there was no question
of his acquiring any interest by birth in the property of his grandfather
Mohanlal especially because his father i.e. defendant No.1 was alive
when succession opened.
14. In a case of
Arshnoor Vs. Harpal cited above, Hon'ble Apex
Court has laid down the Law as;
“7.5 After the Hindu Succession Act, 1956 came into
force, this position has undergone a change. Post 1956, if a person
inherits a self-acquired property from his parental ancestors, the
said property becomes his self-acquired property, and does not
remain coparcenary property.”
15. In view of said legal position, even if it is accepted that
defendant No.1 has purchased the suit premises from the share received
by him on sale of Chandanbala property of grandfather of plaintiff No.1,
suit premises cannot thereby be said to be either ancestral property or
coparcenary property or joint family property especially because,
material available on record shows that Chandanbala property was self-
acquired property of father of defendant No.1. For these reasons, this
court is of the opinion that plaintiffs have failed to make out a
prima-
facie case that suit premises is joint family property and plaintiff Nos.1
and 2 have acquired rights by birth in the suit premises.
16. Plaintiff No.2 is the wife of plaintiff No.1 and as such, she
is the daughter-in-law of the defendants. Plaintiffs are claiming that suit
premises is matrimonial home of plaintiff No.2 as per provisions of
Domestic Violence Act and she has every right to use and occupy the
suit premises. Learned advocate for plaintiffs argued that plaintiff No.2
is residing in the suit premises since after she got married to plaintiff
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No.1 and this court will have to consider and decide the rival
contentions by framing appropriate issues and by giving opportunities
of adducing evidence to both the parties as is laid down by Hon’ble
Apex Court in a case of
Satish Chander Ahuja Vs. Sneha Ahuja cited
above on which reliance is placed by learned advocate for both parties
yet, defendants are trying to evict plaintiff No.2 from the suit premises
hence, plaintiffs are entitled for interim reliefs as claimed.
17. It may be stated here that in a case of
Aarti Sharma Vs.
Ganga Saran cited above on which reliance is placed by learned
advocate for the defendants, Hon’ble Delhi High Court has considered
the law laid down by Hon’ble Apex Court in a case of
Satish Chander
Ahuja Vs. Sneha Ahuja cited above for holding that the facts in a case of
Aarti Sharma Vs. Ganga Saran are clearly distinguishable from the facts
of
Satish Chandra Ahuja and
Smt.Vanitha. Hon'ble Delhi High Court has
observed as under;
“46. At this stage, it is trite to mention that the reliance by the
Trial Court as well as the first Appellate Court on the judgment in
S.R.Batra v. Smt.Taruna Batra, (2007)1 SLT 1 was, in fact,
completely misplaced in the facts of this case. The present is a
civil suit filed by the father against his son and daughter-in-law,
between whom there is no marital discord or estrangement. The
father is merely seeking to evict both his son and daughter-in-law,
on the strength of his ownership of the suit property.
47. The submissions based on S.Vanitha (supra) and Satish
Chandra Ahuja (supra) would, therefore, have no applicability in
the present case, as this is not a suit where the daughter-in-law
pleads and claims the right of residence, against the father-in-law,
independent of her claims against her own husband. In fact,
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there are no claims against the husband whatsoever. The
husband is a co-Appellant in this appeal, and was a co-Defendant
before the Trial Court, whom the Plaintiff wanted to evict.
48. In any case, the submission of the defendants, relying on S.
Vanitha (supra), is that specific proceedings under the DV Act
need not be initiated. While there is no doubt about this
proposition, in the opinion of this Court, all cases of family
disputes cannot be characterised as cases under the DV Act. In
S.Vanitha (supra), there were various proceedings which were
pending both between the husband and wife, and the wife and
the in-laws, under various legislations. Divorce proceedings had
been initiated, dowry harassment proceedings were initiated
against the mother-in-law and spouse, maintenance proceedings
had been initiated and even proceedings under the Senior
Citizens Act were filed. Although, the settled position of law is
that proceedings under the DV Act are not required and the same
can also be raised as defence in the suit, the basic requirements
of the said Act ought to be satisfied. The present is not a case
where the case set up is one under the DV Act, involving
domestic violence.
49. While the DV Act is a social welfare legislation granting
protection to women who are victims of domestic violence, every
dispute amongst family members cannot be converted into a
dispute under the DV Act. The same ought not to be allowed to
happen, as it may cause unintended misuse of the provisions of
the said Act creating turmoil within families, especially when
there is no matrimonial dispute whatsoever between husband
and the wife, i.e. son and daughter-in-law. The provisions of the
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DV Act cannot be used as a ploy by the son, to either claim a
right in his father’s property or continue to retain possession of
the father’s property, on the strength of his wife’s right of
residence. A civil dispute relating to ownership of property
cannot be converted, in this manner, into a case under the DV
Act, as the same would amount to be an abuse of the beneficial
provisions of the DV Act, by stretching it over and beyond its
purpose and ambit”.
18. In the matter in hands also, there is no matrimonial dispute
of whatsoever nature between plaintiff Nos.1 and 2 who are husband
and wife
interse i.e. son and daughter-in-law respectively of the
defendants and hence, as is observed by Hon'ble Delhi High Court, the
provisions of the Domestic Violence Act cannot be used as a ploy by
plaintiff No.1, to either claim a right in his father’s property or continue
to retain possession thereof on the strength of his wife’s right of
residence. As was the fact situation in the matter before Hon'ble Delhi
High Court, plaintiff No.2 in the present suit is not claiming right of
residence in the suit premises against the father-in-law, independent of
her claims against her own husband and in fact, plaintiff No.2 has no
claim against plaintiff No.1 who is her husband. On the other hand,
they have jointly filed this suit. Facts of present case and facts in a case
of
Aarti Sharma Vs. Ganga Saran are identical and by placing reliance
on the observations in the said authority, this court is of the opinion that
plaintiff No.2 is not entitled to claim any protection by raising a plea
that suit premises is her matrimonial home as per the provisions of
Domestic Violence Act and she has a right to stay in the suit premises
against the wish of the defendants who are her parents-in-law.
19. Both parties have made various allegations against each
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other. Plaintiffs have come with a case that defendants were troubling
the plaintiffs, defendant No.2 was not allowing the plaintiff No.2 to
cook food because of which plaintiff No.2 was constrained to work
outside, defendants had not taken care of plaintiff No.2 even during the
period of her pregnancy, defendants have temporarily and voluntarily
shifted to the premises of their younger son Viraj in June-2015 by
keeping their possession and all rights of egress and ingress in the suit
premises without any interruption and/or any restriction, obstruction or
objection of the plaintiffs, defendants are regularly visiting the suit
premises which can be seen in the CCTV footage, plaintiff No.2 was
being treated as a maid-servant and she was being harassed by
defendant No.2, plaintiff No.3 was also being treated in rude manner by
the defendants by shouting at him, defendants are on regular visits to
the suit premises, plaintiffs have never obstructed the entry of
defendants in the suit premises, defendants were making discrimination
amongst their two sons, defendants have started harassing more to the
plaintiffs at the instance of their younger son Viraj after the marriage of
Viraj with an intention to oust the plaintiffs from the suit premises and
they are trying to evict the plaintiffs from the suit premises hence,
plaintiffs are entitled for the interim reliefs as claimed.
20. Defendants have denied the contentions of the plaintiffs
and contended that plaintiffs have no respect for the defendants,
plaintiff No.2 was not assisting ailing defendant No.2 in household
chores, she used to raise fight daily with defendant No.2, plaintiff No.2
is having arrogant and quarrelsome attitude, she has a tendency of
provoking and instigating plaintiff No.1 against the defendants, plaintiff
No.1 had raised a wooden stool to hit defendant No.1 on the issue
relating to parking space, defendant No.1 had given Rs.13,58,000/- by
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cheques to plaintiff No.1 for purchasing new flat but plaintiff No.1
booked flat in joint names of the plaintiff Nos.1 & 2 though there was
understanding that it will be in the joint names of plaintiff No.1 and
defendant No.2, plaintiffs have not moved out of the house even though
there was space constraint after marriage of Viraj hence, Viraj started
residing separately with his wife, plaintiffs have threatened of lodging a
police report by leveling false allegations that defendants had touched/
tampered with their properties and valuables, plaintiffs are not allowing
the defendants to use, occupy and enjoy the suit premises peacefully.
21. Contention of plaintiffs that defendants are acting at the
behest of their younger son Viraj with an intention to oust the plaintiffs
from the suit premises is not acceptable because, material available on
record shows that Viraj has started residing separately after he got
married in year 2015. Plaintiffs have produced copies of receipts and
medical papers but those copies are not sufficient for accepting that
plaintiff No.2 was required to take said treatment due to the harassment
allegedly meted out to her by the defendants. On the other hand,
plaintiffs have produced hard copy of
Whatsapp chat between plaintiff
No.2 and another daughter-in-law of the defendants which prima facie
supports the contention of the defendants that plaintiff No.2 has no
respect/regards for her in-laws.
22. As mentioned earlier, material available on record is
prima
facie sufficient for accepting that suit premises is exclusively owned by
the defendant No.1. Once it is found that suit premises is the absolute
property of defendant No.1, his son i.e. plaintiff No.1 and his grandson
i.e. plaintiff No.3 cannot claim any rights, title or interest therein during
lifetime of defendant No.1. Plaintiff Nos.1 and 3 are residing in the suit
premises since their birth in itself is not sufficient for holding that they
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have thereby acquired any legal rights in the suit premises. On the other
hand, it can be said that plaintiff No.1 is residing in the suit premises
just at the mercy of defendant No.1. Likewise, plaintiff No.2 is also not
entitled to stay in the suit premises against the wish of defendants.
Admittedly, defendants have filed a suit against the plaintiffs in respect
of the suit premises from which, it is clear that defendants have resorted
to legal process and they have not taken the law in their hands. Since
plaintiffs have failed to
prima facie show that they have any legal rights
in the suit premises, this court is of the opinion that neither
prima facie
case nor balance of convenience do lie in favour of the plaintiffs. In the
result, there is no question of causing any irreparable loss to the
plaintiffs if temporary injunctions as prayed are not granted in their
favour. For these reasons, by answering point Nos.(i) to (iii) accordingly,
I pass the following order.
O R D E R
Notice of Motion No.1502 of 2019 is dismissed.
Date : 12/10/2021. (P.P.RAJVAIDYA)
Dictated on : 12/10/2021. Judge, C.R.No.62,
Checked on : 14/10/2021. City Civil Court,
Signed on : 14/10/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
20.10.2021 at 3.45 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 12.10.2021.
Order signed by P.O. on 14.10.2021.
Order uploaded on 20.10.2021.
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