Order 1

Order Details: Notice of Motion
Pdf Text: NM 3773/18 in SU 1330/18 .. 1 .. Order
CNR No. MHCC010127532018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3773 OF 2018
IN
SUIT NO. 1330 OF 2018
Smt. Omvati Liladhar Garg. ...Plaintiff.
V/s.
Smt. Lata Hemant Garg & Anr. ...Defendants.
Appearances:
Learned Adv. Mr. S.R. Patel for plaintiff.
Learned Adv. Mr. Ravindra Singh I/b Ld. Adv. Mr. Ashok Saraogi for
defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 30th March, 2019.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief pending the hearing and disposal of the
suit. The interim relief sought for is to grant temporary injunction,
restraining the defendants from dispossessing the plaintiff of the suit
property, from selling, transferring, creating third party right, and/or
disposing the suit property. The plaintiff has also requested to grant
interim relief directing the defendants to vacate the suit premises and
to hand over vacant possession thereon to the plaintiff.
2. The plaintiff's case may be stated as under :
The suit property is the premises being Flat/Room No.3454 in
Building No.99 as described in prayer clause (a) of the plaint. According
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to plaintiff, her deceased husband Liladhar Kishanchand Garg was
having various tenanted/allotted premises and those premises were in
his name till his demise. After the death of the plaintiff's husband,
those premises, including the suit premises, have been transferred in the
name of the plaintiff with full consent and permission of the other heirs
of her deceased husband Liladhar Kishanchand Garg. The suit premises
was allotted in the name of plaintiff's husband in the year 1970. After
death of her husband, the suit property was allotted in the name of the
plaintiff and subsequently, the tenancy rights of the suit property were
converted into ownership in the year 2009 and therefore, now the
plaintiff is owner of the suit property. The plaintiff is relying on the rent
receipts issued by the Estate Manager and records of registers of
MHADA in respect of the suit property. The rent receipt is in the name
of the plaintiff and it is produced with the plaint. AFter execution of
conveyance deed in respect of land, on which the suit premises is
situated , in favour of the society, the members of the society, including
the plaintiff, have become owners of their respective premises. The
maintenance bills and payment of maintenance charges are in the name
of the plaintiff in respect of the suit property. These bills are produced
by the plaintiff with the plaint.
The defendant No.1 got married with a son of deceased Liladhar
Kishanchand Garg in the year 1995 and thus she become the member of
the family of Liladhar Kishanchand Garg and started living alongwith
family members of Liladhar Kishanchand Garg. Ultimately on
03.05.1998 Liladhar Kishanchand Garg has expired living behind him,
the plaintiff as widow and 3 sons and 1 daughter as is heirs. The
defendant No.2 is husband of defendant No.1 and son of the plaintiff
Liladhar Kishanchand Garg.
After death of Liladhar Kishanchand Garg the defendant No.1
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filed probate petition No.722/1998 before the Hon'ble Bombay High
Court for obtaining probate in respect of the alleged will allegedly
executed by deceased Liladhar Kishanchandd Garg. As per the said will
allegedly Liladhar bequeathed his entire movable and immovable
property in favour of the defendant No.1. It is submitted by plaintiff
that this probate petition was filed through advocate Mr. Ashok Saraogi.
It is also submitted by the plaintiff that advocate Mr. Ashok Saraogi was
family advocate of the family of deceased Liladhar Kishanchand Garg
and the plaintiff. He was dealing with the legal matters of the family.
The defendant No.1 told to the heirs of deceased Liladhar Kishanchand
Garg, after the death of Liladhar Kishanchand Garg that the said
advocate Ashok Saraogi called the heirs of Liladhar Kishanchand Garg,
to sign on blank papers for submitting the application before MHADA
Authorities for transfer of the suit property in the name of plaintiff
being widow of deceased Liladhar Kishanchand Garg. Hence, all the
heirs under bonafide impression visited the house of advocate Ashok
Saraogi his house is situated in front of the maternal house of the
defendant No.1. At the instructions of the said advocate the heirs of
Liladhar Kishanchand Garg to put their signature signatures on various
bank papers as they had been having utmost faith on him. However, the
plaintiff realised that the defendant No.1 in connivance with the said
advocate Ashok Saraogi, used the said signatures on the blank papers,
for preparing consent documents of the heirs and filed the same
alongwith probate petition No.722/1998 on 22.05.1998 though at that
time the entire family was under shock of sudden death of head of the
family Liladhar Kishanchand Garg which occurred on 03.05.1998. The
said probate petition was prosecuted by Ashok Saraogi from the year
1998 upto granting alleged probate in the year 2015. The defendant
No.1 and said advocate Ashok Saraogi misled the registry of the Hon'ble
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High Court while removing the office objections raised by the registry.
In the will it is mentioned that the suit property i.e. Flat No.99/3454 is
a hire purchase property whereas the said property was allotted by
MHADA and deceased Liladhar was paying compensation to MHADA in
that respect.
According to the, plaintiff after demise of deceased Liladhar the
suit property was transferred, in the name of plaintiff with consent of all
the other heirs of Liladhar. On 10.11.98 MHADA has issued rent receipt
of Rs.478/ in the name of the plaintiff. According to plaintiff, the said
will is suspicious though the probate about it has been granted in the
year 2015, after a long period from 1998. On the basis of said probate,
the defendant No.1 has filed several suits in the Small Causes Court as
well as in the City Civil Court for declaration of her tenancy rights in
respect of the tenanted premises own by deceased Liladhar Kishanchand
Garg and also for declaration of ownership of the property. Defendant
No.1 has filed suit No.2990/13. It is pending before the Court Room
No.4. Suit No.2219/15 is pending before the Court Room No.4 of City
Civil Court, Mumbai. On the basis of the said probate of the alleged will
dated 23.02.1996, the defendants are faced harassing and asking the
plaintiff to vacate the suit property and they are threatening to disposes
the plaintiff forcibly. The plaintiff has been making complaints to the
police but no action has been taken by the police against the
defendants. The plaintiff has also filed complaint before the Magisterial
Court of Vikhroli vide domestic violence compliant No.26/13 and the
court has directed the defendants to pay the interim maintenance of
Rs.2500/ per month to the plaintiff. Thus the plaintiff has
apprehension of being dispossessed from the suit property at the hands
of the defendants. Therefore, plaintiff has got cause of action to file the
instant suit for declaration that of her title and also for declaration that
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the suit property does not come in the purview of the alleged will and
the probate granted thereof. The plaintiff has also requested in the suit
to grant injunction restraining the defendants from dispossessing the
plaintiff from the suit premises, and to direct the defendants to vacate
the suit premises and hand over possession of the suit property to the
plaintiff. By way of Notice of Motion the plaintiff is seeking the
aforesaid interim reliefs. In support of Notice of Motion affidavit of the
plaintiff has been filed.
3. The defendants have filed Written Statement at Exhibit3 and
have submitted that Written Statement be treated as their reply to the
Notice of Motion. Thereby the defendants have opposed the Notice of
Motion. They have not denied that the suit property was belonging to
deceased Liladhar Kishanchand Garg who is husband of the plaintiff
and father of defendant No.2. They have also admitted that defendant
No.1 is wife of defendant No.2. However, according to the defendant
No.1 the plaintiff has suppressed various material facts including the
orders passed by the Hon'ble Bombay High Court in various
proceedings. According to the defendants, the deceased Liladhar has
executed will deed dated 23.02.1996 and thereby he has bequeathed
the suit property in favour of the defendant No.1. By the said will the
defendant No.1 was declared to be beneficiary in respect of all the
property of deceased Liladhar Kishanchand Garg. The said property
include the fixed deposits receipts. Therefore the defendant No.2 filed
suit No.599/04 in which ultimately the consent terms came to be filed
on 28.12.2004 and accordingly the suit came to be disposed in terms of
the consent terms. At the time of the filing of the consent terms, the
plaintiff alongwith all other heirs of Liladhar Kishanchand Garg were
very much present before the Hon'ble Court and their presence has been
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recorded by the Court. The said consent terms have been acted upon by
all the parties. The defendants have produced the said consent terms
with the Written Statement. By consent of all the heirs of Liladhar
Kishanchand Garg the defendant No.2 filed petition before the Hon'ble
Bombay High Court for granting probate in respect of the aforesaid will
dated 23.02.1996. The Hon'ble High Court has granted probate in
favour of the defendant No.2 and accordingly, the defendants are
relying on that probate and have produced the same with the Written
Statement. Meanwhile the present plaintiff and others have made an
attempt to dispute the consent terms filed before the Court in the earlier
suit No.599/04. In view of these circumstances the defendant No.2 filed
suit No.2990/13 and also took out Notice of Motion No.2772/13 in that
suit. As a counter blast to that suit, the plaintiff herein filed another suit
No.3918/19 in which she had claimed that the said consent terms filed
in the earlier suit No.599/04 be set aside. According to the defendants
in view of the probate issued by the Hon'ble Bombay High Court, the
plaintiff and others have preferred to file Misc Petition No.35/16 for
setting aside the probate. However the said Misc Petition came to be
dismissed by order dated 20.08.2016 of the Hon'ble Bombay High
Court. Thereafter the plaintiffs have file an appeal No.668/16 against
the said dismissal of misc petition. However the said appeal is also
dismissed by the order dated 08.12.2016 passed by the Hon'ble Bombay
High Court. According to the defendants, knowingly the plaintiff has
suppressed all these facts in respect of various proceedings and orders
passed by various courts including the Hon'ble Bombay High Court.
Again by pursuing her said claims, after the aforesaid orders having
been passed, the plaintiff is trying to commit contempt of Hon'ble
Bombay High Court.
According to the defendants, it seems that the plaintiff has
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succeeded in getting Share Certificates approval in respect of the
premises in her name from the society. It appears that the said Share
Certificates in the name of the plaintiff on the basis of the alleged
nomination form of deceased Liladhar in respect of the suit premises.
According to the defendants, it is well settled law that the premises
which are being transferred on the basis of the nomination form does
not create any right in favour of the transferee as the same is
transferred in the name of transferee, only in the capacity of trustee and
on behalf of actual beneficiaries. Therefore, even if the premises in
question has been transferred by the society in the name of the present
plaintiff, She cannot take its advantage. Right from the beginning, the
defendant No.2 (it appears wrongly defendants have mentioned
defendant No.2 instead of defendant No.1) and her children including
the minors have been harassed by the plaintiff. The plaintiff was not
living with her own husband and accordingly they deserted each other
during the lifetime of deceased Liladhar. In such circumstances, the
question of plaintiff being continuously in possession of the suit
property, does not arise. According to the defendants, the plaintiff is
residing in the suit premises along with defendants and other children
purely in the capacity of defendant's mother and being the family
member having no independent rights in the suit property. The present
plaintiff therefore can not be said to be in possession of the premises
save and except residing therein. The correspondence made by the
plaintiff show that the terms between the plaintiff and defendants are
not good. From time to time, the plaintiff had been creating
unnecessary record by filing applications and police complaints against
the defendants. In view of these circumstances, the question of
permitting the parties to reside together, does not arise. The plaintiff is
creating problems for these defendants and their minor children. The
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defendants apprehend that the plaintiff is capable to grab the property.
Considering these circumstances, the question of passing order in favour
of the plaintiff does not arise. The defendant have denied, that the
plaintiff is the owner in respect of the property. The defendants have
submitted that the suit premises comprises of 2 rooms and kitchen. On
majority of the occasions plaintiff has been residing with her daughter
in Delhi and with other son Devendra Garg. In view of these facts,
plaintiff getting suit premises independently does not arise. The plaintiff
has no right title or interest in respect of the suit premises. The
contention of the plaintiff that she is paying the outgoings in respect of
the suit property are false. According to defendants possibly the plaintiff
has got certain documents in respect of the premises in collusion with
the authorities of MHADA and the Housing Society. However these
receipts relied upon by the plaintiff are not in respect of any
maintenance charges paid by the plaintiff but are in respect of the bills
issued by the authorities concerned. Even if any such rent receipt or
maintenance bill is being issued or there were certain approval in the
name of the plaintiff, the same does not mean that the plaintiff becomes
owner of the suit property. The defendants admit that the plaintiff has
been making complaints to the police and she also filed compliant
under Domestic Violence Act but the same does not prove any right in
favour of the plaintiff.
For all the aforesaid reasons the defendants, have submitted that
the Notice of Motion is liable to be dismissed.
4. I have heard arguments advanced by learned Advocate of the
plaintiff as well as learned Advocate of the defendants. On examination
of the submissions of the parties and on going through pleadings and
documents of the parties, following points arise for determination on
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which I record my findings as under for the reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In Affirmative, to the extent
of plaintiff's right to stay in
the suit premises until
removed by following due
process of law.
2. Whether the plaintiff has balance of
convenience in his favour ?
In Affirmative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
She would suffer irreparable
loss, if temporary injunction
restraining defendants from
dispossessing the plaintiff,
without following due
process of law is not granted.
4. What order? The Notice of Motion is
allowed in terms of the
operative order being
passed herein below.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
5. Admittedly, the suit property was in occupation of the deceased
Liladhar, who was admittedly husband of the plaintiff and father of
defendant No.2 and fatherinlaw of defendant No.1. The said Liladhar
has died in the year 1998. According to the plaintiff, after death of her
husband, housing society, in which the premises is situated, transferred
the suit premises in the name of the plaintiff in record of the society.
Whereas, the defendants have come with the case that the deceased
Liladhar has executed Will deed and, thereby, bequeathed the suit
premises in favour of the defendant No.1 i.e. daughterinlaw of
deceased Liladhar and the plaintiff. Admittedly, the defendants have
filed Probate Petition in respect of the said Will and the Hon'ble Bombay
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High Court has granted probate in respect that Will. The said probate
was granted on 16.04.2015 in the Probate Petition No.722/1998.
Thereafter, the plaintiff's application for revocation of that probate was
also dismissed by the Hon'ble High Court by order dated 28.08.2016.
Then, the plaintiff's appeal challenging the said probate before the
Hon'ble Division Bench of the Hon'ble Bombay High Court was also
dismissed. Thus, the probate granted by the Hon'ble High Court, in
respect of the said Will of deceased Liladhar is in favour of the
defendant No.1. The Hon'ble Division Bench of the Hon'ble Bombay
High Court has observed in paragraph No.4 of its judgment in the said
appeal No.668/2016 that paragraph No.16 of the impugned order in
respect the probate protects the interest of the parties and the
petitioners are entitled to adopt any such proceedings, which are
permissible in law, with regard to any immovable property said to be
property of the deceased Liladhar. Observing as such, the said appeal
has been dismissed by the Hon'ble Division Bench of the Hon'ble
Bombay High Court and it confirmed the probate granted in favour of
the defendant No.1. It appears that there are other proceedings or suits
filed by the plaintiff, pending as is mentioned in the plaint as well as in
the written statement of the defendants, in respect of the suit premises.
The plaintiff has also relied on the documents produced with the plaint,
which show that the plaintiff has been residing in the suit premises. The
plaintiff is relying on the share certificate and the electricity bills and
allotment letter etc., in respect of the suit premises to contend that the
suit premises has been alloted to her and to contend that the Will
executed by the deceased Liladhar does not convey any right in respect
of the suit premises to the defendant No.1. However, the probate has
been granted by the Hon'ble High Court in respect of the said Will and,
therefore, prima facie, the aforesaid stand of the plaintiff cannot be
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accepted to hold that the plaintiff is the exclusive owner and is entitled
to possess the suit premises exclusively. The defendants have pleaded
that the plaintiff is also residing in the suit premises as member of their
family. The defendants cannot be allowed to dispossess the plaintiff,
without following due process of law. Therefore, to this extent only, the
plaintiff can be said to have prima facie case and balance of
convenience in her favour. The relations between the parties, appear to
be strained and, therefore, plaintiff's apprehension that she would be
removed from the suit premises by the defendants can be said to be
genuine. Therefore, if temporary injunction, restraining the defendants
from removing the plaintiff from the suit premises, without following
due process of law, is not granted, the plaintiff would suffer irreparable
loss. Hence, I have recorded affirmative findings on points No.1 & 2 to
the extent of aforesaid aspects only that the plaintiff is residing in the
suit premises admittedly alongwith the defendants and to that extent,
the plaintiff has balance of convenience in her favour. Therefore, I have
recorded affirmative findings on points No.1 & 2, to the said extent.
6. In respect of the other claims and reliefs, the plaintiff has neither
prima facie case nor balance of convenience nor she would suffer
irreparable loss, if other interim reliefs about putting her in independent
possession, and alienation of property etc., is not granted, pending the
instant suit. Therefore, with regard to point No.3, I hold that the
defendants may be prohibited by way of temporary injunction from
dispossessing the plaintiff from the suit premises, without following due
process of law. Accordingly, I have answered point No.3 in affirmative.
In the aforesaid terms, the Notice of Motion will have to be allowed and
hence, I have answered point No.4 accordingly. Hence, I proceed to
pass the following order.
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: O R D E R :
1. The Notice of Motion No.3773 of 2018 is hereby allowed in
following terms.
(i) By way of interim relief, pending the hearing and
disposal of the suit, the defendants are hereby restrained from
removing the plaintiff from the suit premises without following
due process of law.
(ii) Rest of the reliefs asked for in the Notice of Motion, are
rejected.
2. In these terms, the Notice of Motion stands disposed of
accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 30.03.2019. City Civil Court, Gr. Mumbai
Dictated on : 30.03.2019.
Transcribed on : 01.04.2019.
Signed on : 03.04.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.04.2019, at 12.35 p.m.
UPLOAD DATE AND TIME
Harshal D. Jagtap
[CourtTypist]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 30.03.2019.
Judgment/order signed by P.O. on 03.04.2019.
Judgment/order uploaded on 03.04.2019.
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