Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1386/18
MHCC010043762018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1386 OF 2018
IN
SUIT NO. 680 OF 2018
Smt. Vijaya R. Kamath ...Plaintiff
Vs.
Kiran Ratnakar Kamath ...Defendant
Appearance
Mr. Suneet Gupta, learned Advocate for the plaintiff.
Mr. S.A. Bhagwat, learned Advocate for the defendant.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 09th January, 2023
O R D E R
By filing this Notice of Motion original plaintiff No.1 has
prayed for following relief.
a) That Hon'ble Court be pleased to grant a permanent and
mandatory order and injunction in favour of the plaintiff,
ordering and directing the defendant by himself, his family, his
servants and agents or any other person by through or under
him or any other person claiming under him whatsoever:
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i) To immediately vacate the suit flat and further
ii) Be restrained from entering the said flat.
b) That Hon'ble Court be pleased to grant a permanent and
mandatory order and injunction to the plaintiff, restraining
the defendant by himself or any other person by through or
under him or any other person claiming under him
whatsoever, from in any manner harassing the plaintiff and
disturbing the peace of the plaintiff and her mentally
challenged daughter or from causing any hindrance
/interference in the egress and ingress of the plaintiff, from
entering upon the said flat and from removing or bringing in
any goods and belongings of the plaintiff.
c) That pending the hearing and final disposal of the present suit
the Hon'ble Court be pleased to grant interim reliefs in terms
of prayer clauses 'a' and 'b',
d) That the Hon'ble Court grant adinterim relief in terms of
prayer clause 'c' above;
e) That the Hon'ble Court provide for the costs of the notice of
motion;
f) That the Hon'ble Court pass other orders at may deem fit in
the facts and circumstances of the case.
2. This motion is opposed by the defendant by his affidavit in
reply.
3. It is a matter of record that the plaintiff No.1 has executed
a gift deed dated 19.04.2019 transferring the ownership of suit flat in
the name of her daughter plaintiff No.2. Plaintiff No.2 has filed affidavit
and plaintiff No.1 has filed additional in support of this motion.
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Thereafter, the defendant also filed additional affidavit in reply.
4. Heard the learned advocate for the plaintiffs and the
learned advocate for the defendant. Read the affidavit in support of the
motion and additional affidavit in support of the motion, affidavit in
reply and additional affidavit in reply. Read the plaintiffs' written notes
of arguments. Points for determination along with my findings thereon
are as follows :
POINTS FINDINGS
1 Whether the plaintiffs have prima facie
case ?
No
2 Whether the balance of convenience lies in
favour of the plaintiffs ? No
3 Whether the plaintiffs would suffer
irreparable loss, if injunction is not granted? No
4 What order ? Notice of motion is
dismissed.
AS TO POINT Nos. 1 TO 3 :
5. All these points are interlinked with each other hence, to
avoid repetition of finding they are taken together for consideration. It
is the case of the plaintiffs that plaintiff No.1 and defendant are mother
and son. They are residing at Flat No.B/43, Shefalee Building, 5th Floor,
Makarand Cooperative Housing Society Ltd., Veer Savarkar Marg,
Mahim, Mumbai 400 016. Said flat is the suit premises. Suit premises
was originally purchased by plaintiff No.1 through her own resources.
She is the owner thereof. The first plaintiff’s husband Mr. Ratnakar
Kamath died on 27.02.2017 leaving behind his Will dated 23.02.1998
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in which he has excluded the suit premises. Plaintiff No.1 has one son
and three daughters, out of which defendant is her son and plaintiff
No.2 is one of her daughters. The elder daughter of the plaintiff No.1 is
66 years old and is mentally challenged. She is staying with plaintiff
No.1 in the suit premises. The defendant has a wife and two children
who are also staying in the suit premises. After the death of the first
plaintiff's husband, defendant started misbehaving with the plaintiff
No.1 and he is continuously harassing plaintiff No.1 and her mentally
challenged daughter. The defendant is mentally torturing first plaintiff
for the purpose to grab the properties owned by her. It is alleged that
the defendant has stolen several financial documents of the first
plaintiff and fraudulently encashed fixed deposits. He forced the first
plaintiff to keep the rest of the financial documents in the safe custody
of plaintiff No.2. The defendant has even locked the first plaintiff in the
bedroom. He refused to provide medical facilities to first plaintiff and
her mentally challenged daughter. He also refused to arrange meal for
them. The first plaintiff is 86 years old. The defendant has no love and
affection towards plaintiff No.1. With these contentions the plaintiff
No.1 has requested for aforesaid interim reliefs.
6. The defendant has denied the plaintiffs’ case contending
that suit is filed at the instance and instigation of husband of plaintiff
No.2. It is his further contention that suit property is acquired by his
father Ratnakar. There was no contribution from the plaintiff No.1. She
is an illiterate lady. She had or has no means of earning. The plaintiff
No.1 has not purchased any property from her own source. Only
defendant was looking after and helping his father in his business with
the help of his wife. According to him husband of the second plaintiff is
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taking disadvantage of illiteracy of plaintiff No.1. Purchasing of suit
premises by father in the name of plaintiff No.1 does not disentitle the
defendant to claim right or share in the suit premises. The defendant is
the only son of plaintiff No.1. He is looking after plaintiff No.1 and his
mentally challenged sister Ms.Geeta. He is providing them meal and
medicines regularly since last 35 years. There are three maid servants
engaged to look after plaintiff No.1 and defendant's mentally
challenged sister. The defendant and his wife are looking after the
business of medical and general stores. Most of the part of the day,
they are engaged in the said store. The defendant denied that his father
had executed any Will. He denied that he has stolen and mis
appropriated the certain fixed deposit. With these contentions, the
defendant prays to dismiss the motion.
7. Relationship between the plaintiffs and the defendant is
not disputed. Plaintiff No.1 is the mother of plaintiff No.2 and
defendant. Admittedly, the defendant is residing with plaintiff No.1 in
the suit premises. By interim relief of injunction plaintiff No.1 wants to
restrain the defendant's entry into the suit premises and to remove him
from the suit premises. The learned advocate for the plaintiffs urged
that the suit premises is exclusively owned by plaintiff No.1, it is her self
acquired propert and the defendant is harassing her therefore, by
interim injunction he shall be restrained from entering into the suit
premises and he shall be directed to vacate the premises. The plaintiff
relied on following citations in support of his argument.
1. Ashish Vinod Dalal & Ors. V/s. Vinod Ramanlal Dalal &
Ors., (Hon’ble Bombay High Court Writ Petition No.2400
of 2021).
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2. Shefali Sanjiv Patel & Anr. V/s. Jyotiben Manubhai Patel
& Anr. (Hon’ble Bombay High Court Writ Petition
No.2441 of 2021).
3. Pruthvirajsing Nodhubha Jadeja (D) by Lrs. V/s.
Jayeshkumar Chhakadas Shah & Ors., (Hon’ble Supreme
Court Civil Appeal No.10521 of 2013)
4. V. Tulasamma & Ors. V/s. V. Sesha Reddi, (1977 SCR (3)
261).
5. Smt. Gulwant Kaur & Another V/s. Mohinder Singh &
Ors., (1987 SCR (3) 576).
6. Nand Kishore Mehra V/s. Sushila Mehra, (1995 SCC (4)
572).
7. Binapani Paul V/s. Pratima Ghosh & Ors., ( Honb’le
Supreme Court, Appeal (Civil) 8098 of 2004).
8. Omprakash Sharma @ O.P.Joshi V/s. Rajendra Prasad
Shewda & Ors., Honb’le Supreme Court Civil Appeal Nos.
86098610 of 2009.
9. Mangathai Ammal (Died) Through Legal Representative
& Ors. V/s. Rajeshwaari & Others,(Honble Supreme
Court Civil Appeal No. 4805 of 2019).
8. The learned advocate for the defendant urged that the suit
premises is purchased by his father and therefore, he is also having
right, title and interest therein. According to him therefore, defendant
cannot be directed to remove himself from the suit premises.
9. The Judgment in Ashish Vinod Dalal's case supra is under
the provisions of Maintenance and Welfare of Parents and Senior
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Citizens Act, 2007 (in short the Senior Citizens Act), wherein
respondents were directed to vacate the flat. In the said case, it was not
disputed that flat in question is originally belonged to the father who
gifted the same to two daughters. It was observed that father had taken
such conscious decision on the backdrop of the mother moving a
complaint under the D.V. Act. In the proceeding under the D.V.Act, the
Magistrate has observed that the mother alongwith her husband were
staying in terror and suffering at the hands of petitioner. On this
background, the order directing respondent to vacate the flat and to
handover the possession to the applicants was upheld.
10. Shefali Sanjiv Patel Case was also under the Senior Citizens
Act. There was complaint of mother before the Tribunal about her
extreme harassment by her daughter and soninlaw. During the
hearing mother was personally heard. It was observed that flat in
question was acquired by late Manubhai Patel jointly with his mother.
Both of them had equal share in the said flat. During the life time of
father, daughter with her husband were called upon to stay with the
parents in the said flat. The daughter entered in the premises purely as
a gratituous licensee and not by any independent right, whereas son in
law has no legal right to remain in the premises. It was observed that
after death of the father, the daughter and her husband have taken
advantage of mother's old age and got executed gift deed. With these
observations, the Hon'ble High Court directed the petitioners to remove
themselves from the premises.
11. The Judgment in Pruthvirajsinh Jadeja's case supra is in
respect of non mentioning of an incorrect provisions and its effect to the
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merit of the matter. The judgment in V. Tulasama & Others case supra
is in respect of properties acquired under the terms in lieu of
satisfaction of right of maintenance. The judgment in Smt. Gulwant
Kaur & Another case supra is in respect of land received by female in
lieu of maintenance. The judgment in Nandkishore Mehra's case supra
is in respect of benami transaction. The judgment in Binapani Paul's
case supra is in respect of burden of proof of benami transaction. The
judgment in Omprakash Sharma's case supra is in respect of Hindu
Womens Right to Property Act, 1937. It is also discussed therein that
the burden of proving that a particular sale is benami and the apparent
purchaser is not the real owner, always rests on the person asserting it
to be so. The judgment in Mangathai Ammal's case supra is in respect of
benami transaction.
12. In case before me, the suit premises was purchased in the
name of plaintiff No.1. It is the contention of plaintiff No.1 that she has
purchased it from her own sources but nowhere she has provided the
details of the source from which she has purchased it. In absence of
specific pleading and in absence of prima facie proof in that regard, it is
to be considered that her husband has purchased the suit premises in
her name. Therefore, it appears that the suit premises is originally
acquired by Ratnakar Kamath the husband of plaintiff No.1 and father
of defendant. It is the contention of the plaintiffs that by virtue of
Section 14 of the Hindu Succession Act, she became absolute owner of
the suit premises. As aforesaid, the suit premises has been acquired by
husband of plaintiff No.1 in her name. Ratnakar Kamath acquired it and
started residing with his family with defendant therein. Though the suit
premises is acquired in the name of plaintiff No.1, it appears that it was
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for the joint family of plaintiff No.1, defendant and the daughters. No
doubt it would a debatable question for deciding the rights of plaintiff
No.1 under the Hindu Succession Act, 1956, the fact remains that
whether at this interim stage she will succeed in establishing her rights
under Section 14 of the Hindu Succession Act, and whether she will be
entitled to ask defendant to vacate the suit premises. This takes me to
consider what are the final reliefs sought in the suit.
13. In the prayer clause 40 (a) the plaintiff is seeking decree
with following reliefs:
a) That the Hon'ble Court be pleased to grant a permanent and
mandatory order and injunction in favour of the plaintiff, ordering
and directing the defendant by himself, his family, his servants and
agents or any other person by through or under him or any other
person claiming under him whatsoever:
i) To immediately vacate the said flat, and further
ii) Be restrained from entering the said flat.
14. By comparing the final reliefs with the interim relief it can
be noticed that there is no difference in the reliefs sought at interim
stage. It is settled principle of law that no final relief can be granted by
way of interim relief. If the interim relief as prayed granted in this
motion, nothing will survive further to be decided at the final stage.
Hence, at this stage rights and liabilities cannot be decided and any
order at the interim stage cannot be granted by awarding the final
relief. Hence, in my view, the interim relief in terms of final relief
cannot be granted. Moreover, it is required to be considered that in the
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present motion of interim relief, the plaintiff in both the prayer clauses
(a) and (b) has used the word ‘permanent and mandatory order’.
Therefore, by this motion plaintiff No.1 wants permanent relief and not
interim relief therefore, even by reading prayer clauses in the motion,
such relief cannot be granted at the interim stage.
15. Initially the plaintiff No.1 has filed this suit contending that
the defendant her son is harassing her and therefore, she wants decree
of permanent injunction restraining the defendant from entering in the
suit premises and directing him to vacate the suit premises. Later on,
her daughter is joined in the suit as plaintiff No.2. It is contended that
plaintiff No.1 has gifted the suit premises to plaintiff No.2 and the
plaintiff No.1 continued her possession in the suit premises. Considering
this fact, now the plaintiff No.1 is not the owner of the suit premises. At
the most, according to her own case, her possession in suit premises is
now a gratuitous. Now, she is not claiming any her right, title in the suit
premises. For this reason, notice of motion initially filed by her will now
turn into the motion without any support as to title or right after the
execution of gift deed in favour of the plaintiff No.2. Now there will be
no right, title or interest of plaintiff No.1 in the suit premises. On the
basis of gratuitous possession she cannot claim injunction against
defendant No.1. No independent case is pleaded by the plaintiff No.2.
She is not residing in the suit premises and therefore, she is also not
entitled for interim relief.
16. It is required to be noted that though plaintiff No.1 came
with the case that defendant is harassing her, however, in the statement
recorded by police in the police complaint she has stated that the
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defendant is maintaining her and incurring all her expenses. He is also
looking after her and she has no complaint against him. She also stated
that she is residing at her son's house. From the said statement it
appears that, she has no grievance against the defendant. The
defendant has also filed affidavit of Satish Juvekar and Gautam Chitnis
who are the occupants of the same building where the suit premises is
situated. Mr. Satish Juvekar is neighbour of the plaintiff No.1.Both
these persons support the defendant's case that there is no harassment
of the plaintiff. Therefore, prima facie it appears that there is no
substance in the allegations as to harassment of plaintiff No.1. It is
alleged that the defendant is harassing plaintiff No.1 and apprehension
is also raised that he will grab the properties of plaintiff No.1, the fact is
that gift deed of suit premises has been executed in favour of the first
plaintiff's daughter. Therefore, the apprehension does not survive that
defendant wants to grab property of plaintiff No.1.
17. The entire motion is based on the grievance that the
defendant is harassing his mother plaintiff No.1. The reliefs of
injunction are claimed on the basis of right, title and interest of plaintiff
No.1. Initially, the suit was filed by plaintiff No.1. Later on by execution
of gift deed in favour of plaintiff No.2, the plaintiff No.1 has transferred
her right, title and interest in the suit premises in favour of plaintiff
No.2. Even though she continued to be in possession of the suit
premises, said possession now is not supported by title, it is only
gratuitous possession. Admittedly, plaintiff No.1 and defendant are
residing in the suit premises as members of their family. Considering
their relationship, it appears that they are jointly residing in the suit
premises. It is not the case that there are two kitchens, one for the
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plaintiff No.1 and another for the defendant. The plaintiff's own case is
that defendant was providing her food. It is also not the case that
plaintiff No.1 is required to arrange her food from outside therefore, it
appears that plaintiff No.1 and defendant are joint in food and
residence. Since beginning, the defendant is residing with plaintiff No.1.
Plaintiff No.1 has transferred the suit premises in favour of plantiff
No.2. Now, she has no legal claim in respect of the suit premises
thereby she cannot claim injunction against the defendant. The
defendant since beginning is residing in the suit premises and therefore,
his settled possession therein cannot be taken back suddenly without
following due process of law hence, at least, till then the defendant
cannot be directed to remove himself from the suit premises. Moreover
in her statement before police the plaintiff No.1 admits that she has no
grivence against the defendant.
18. On the background as stated above, the cited judgments in
respect of eviction in cases of Senior Citizen Act are not helpful to the
plaintiff. The cited judgment in respect of Section 14 of the Hindu
Succession Act, supports the first plaintiff's claim however, plaintiff
No.1 has disposed of the suit premises by gift deed in favour of plaintiff
No.2 therefore, these judgments will not be helpful for her to claim
injunction. In the result, I am of the view that there is no prima facie
case in favour of the plaintiff. No final reliefs which are claimed can be
granted at this interim stage. Considering the statement of plaintiff No.1
made in police complaint there is no substance that the defendant is
harassing plaintiff No.1. The defendant is in joint occupation of the suit
premises since long. Summarily by notice of motion, he cannot be
evicted without due inquiry hence, balance of convenience lies in favour
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of defendant. For the same reasons, if injunction is granted, it will cause
irreparable loss to the defendant. In the result, I answer point Nos.1 to
3 accordingly.
As To Point No. 4:
19. In view of my aforesaid findings, notice of motion is
required to be dismissed. In the result in answer to point No.4, I pass
the following order :
ORDER
1. The Notice of Motion No. 1386 of 2018 is dismissed
2. Costs shall follow the event.
Date : 09.01.2023 (Rajesh A. Sasne)
Dictated on : 09/01/2023. Judge, C.R.No.62,
transcribed on : 13/01/2023. City Civil Court,
Signed on : 16/01/2023. Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.01.2023 at 11.50 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 01/01/2023
Order signed by P.O. on 16/01/2023
Order uploaded on 16/01/2023
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