Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010051922019
Presented on : 23-05-2019
Registered on : 23-05-2019
Decided on : 27-07-2023
Duration : 4 years, 2 months, 4 days
IN THE COURT OF CIVIL FOR GREATER BOMBAY AT BOMBAY
( Court No.17 )
(Presided Over by SHRI S.N.PATIL)
NOTICE OF MOTION NO.1844 OF 2019
IN
S.C. SUIT NO.2650 OF 2019
Mr.Najir Raosaheb Nadaf,
Aged-28 years, Occu: labour
An adult, Indian Inhabitant,
Residing at, Nigadi Khurd,
Taluka – Jat, District-Sangli ..Plaintiff
Versus
1. Smt. Lailabi Raosaheb Nadaf,
Aged 43 years, Occupation-Housewife
2. Dastgir Raosaheb Nadaf,
Aged 25 years,
3. Miss Asama Raosaheb Nadaf
Aged 23 years,
commonly residing at
Room No. 112, Pandit Dindayal
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Rahivashi Sangh, SMD Road,
Near Sai Hospital Antop Hill
Wadala, Mumbai-400 037.
4. Bombay Electric Supply and
Transport Undertaking
Having its office at:
BEST Bhavan,
BEST Marg,
(Colaba), Mumbai-01.
5. Slum Rahabilitation Authority
Administrative Building,
Anant Kanekar Marg,
Bandra(E), Mumbai
Maharashtra 400 051
6. The BEST Employees
Co-operative Credit Society Limited,
Having its office at:
BEST Bhavan, BEST Marg,
(Colaba), Mumbai-01
7. The Commissioner,
Employees Provident Fund Organization, India
Zonal Office Bandra (Mumbai-I)
341, Bhavishya Nidhi Bhavan Bandra East
Mumbai-I, Bandra-400 051.
8. Mr.Daval Balu Nadaf,
Aged 73 years
Occupation: Agriculturist
Residing at Nigadi Khurd,
Taluka-Jat, District-Sangli
9. Mrs.Sakina Ayub Mujawar
Aged 27 years,
Occupation: Housewife
Residing at LIG IB-42, 1st floor
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Sector-2, Kalamboli, Navi Mumbai
410218 ..Defendants
________________________________________________________
Appearance:-
Ld. advocate Sujit Nikam for plaintiff
Ld. advocate Nooman h/f adv. Jafri for defendant Nos.1 to 3
Ld. advocate Mr.Tiwari for defendant No.5
Ld. advocate Mr.Prafulla Sawant for defendant No.6
________________________________________________________
CORAM: HIS HONOUR JUDGE SHRI S.N.PATIL
DATE: 27.07.2023
ORAL ORDER
1. Plaintiff has filed this notice of motion for following
reliefs:-
a- for a direction to defendant Nos.4,6 and 7 to
deposit the amount of legal dues of late Raosaheb in this Court;
b- Court receiver, High Court, Bombay be appointed as
a receiver of the suit property i.e. Room No.112, Pandit Dindayal
Rahivashi Sangh, Near Sai hospital, SMD road, Antop Hill,
Wadala, Mumbai-400 037
c- Defendant Nos.4, 6 and 7 be restrained by a
temporary order of injunction from transferring an amount of
legal dues of late Raosaheb in the name of defendant Nos.1 to 3
without following due process of law;
d- Defendant Nos.1 to 3 be restrained by a temporary
order of injunction from in any manner alienating, selling,
transferring , encumbering, disposing off and/or dealing with
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the same or creating any third party right or any other rights or
license in respect of suit property.
Plaintiff’s case
2. It is the case of the plaintiff that plaintiff is the son
of late Raosaheb Nadaf (hereinafter referred to as deceased)
who expired in the year 2019. Defendant No.1 is the step
mother of the plaintiff and defendant No.8 is the father of
deceased. Defendant Nos.2 and 3 are the step brother and step
sister respectively of the plaintiff. Other defendants are the
Government Authorities. Plaintiff, defendant No.1,2,3,8 and 9
are the legal heirs of deceased. Deceased was working in BEST
undertaking as a Senior driver. He was supposed to retire on
01/07/2025. However due to heart attack, he died in the year
2019 and therefore his legal heirs are entitled to claim the legal
dues. At the time of death of Raosaheb, he was residing at the
suit property. Suit property was purchased by the deceased from
his self earned income. Plaintiff alone has performed last rites
of deceased. Defendant Nos.1 to 3 stated to the plaintiff that
they will not give any share of deceased to plaintiff and he
should claim it from the Court of law. Hence, plaintiff has filed
this suit alongwith this notice of motion.
Defendant’s reply
3. Defendant Nos.1 to 3 filed their reply and resisted
the notice of motion. It is contended that this notice of motion
is false and devoid of merits. The plaintiff has suppressed the
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material facts from the Court. The plaintiff had filed Civil Misc
application No.48 of 2019 under section 372 of the Indian
Succession Act for granting the succession certificate in respect
of the estate of the deceased. In this petition, in para No.2, the
plaintiff has mentioned that except plaintiff and defendant
No.8,9 there are no other legal heirs of deceased. Vide order
dated 03/01/2020 the Ld. Civil Judge allowed the application.
4. When defendants came to know about this order,
defendants have filed civil misc. Application 15 of 2021 u/s. 383
of the Indian Succession Act, 1925 to cancel and set aside the
succession certificate dated 03/01/2020. The same is pending.
Defendants contended that after the demise of late Raosaheb
Nadaf, defendant No.1 being a widow is solely entitled for the
legal dues and other defendants are not entitled for all these
benefits.
5. The plaintiff never resided in the suit property. The
defendants are residing in the suit property till today. Late
Raosaheb Nadaf during his lifetime on 20th January 2008 had
nominated defendant No.1 as his nominee for the provident
fund and gratuity for 100% share. The said nomination is on
record of the BEST undertaking. Late Raosaheb Nadaf is having
agriculture land at the native place and about 1.5 acres land
stands in the name of plaintiff which he is having the separate
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possession. The land revenue record also stands in the name of
plaintiff. All other allegations are denied by the defendants.
6. Heard both the sides.
7. Considered the rival submissions. Following points
arise for determination, I have recorded findings thereon, for
the reasons to follow, as under:-
Sr.No Points findings
1. Whether the plaintiff has made out prima
facie case against the defendants?
Partly
2. Whether the plaintiff would suffer
irreparable loss if injunction as prayed for
is not granted?
Partly
3. Whether the balance of convenience lies
in favour of plaintiff?
Partly
4. What order? Notice of motion
is partly allowed
REASONS
Points No.1 to 3
8. It is contended by the plaintiff that deceased was
his father. The plaintiff was born from the first marriage of
deceased with Mrs.Malanbi Raosaheb Nadaf. His mother
Mrs.Malanbi expired in the year 1995, deceased Raosaheb Nadaf
performed second marriage with defendant No.1. Defendant
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Nos.2 and 3 are the children born out of wedlock between
deceased and defendant No.1.
9. It is further the contention of the plaintiff that
plaintiff and defendant Nos.1 to 3 and defendant Nos.8 and 9
are only the legal heirs of deceased.
10. The plaintiff had filed Civil Misc application No.48
of 2019 under section 372 of the Indian Succession Act for
granting the succession certificate in respect of the estate of the
deceased. In this petition, in para No.2, the plaintiff has
mentioned that except plaintiff and defendant No.8,9, there are
no other legal heirs of deceased. Vide order dated 03/01/2020
the Ld. Civil Judge allowed the application. When defendants
Nos. 1 to 3 came to know about it, they filed the application
before Ld. Civil Judge, Sr. Division, Jat for setting aside
succession certificate dated 03/01/2020. Wherein it is admitted
by defendant Nos.1 to 3 that plaintiff, defendant No.2,
defendant No.3,8 and 9 are the legal heirs of deceased. This
fact is also admitted by both the parties.
11. It is contended by the defendants that for legal dues
of deceased i.e. Provident fund, Gratuity and other allowances,
defendant No.1 is entitled for the same as the widow of late
Raosaheb Nadaf and during the lifetime of late Raosaheb Nadaf,
on 20th January 2008 he had nominated defendant No.1 as his
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nominee for the provident fund and gratuity for 100% share.
The said nomination is on record of the BEST undertaking.
This fact is also not disputed by the plaintiff. Concerned
authority is entitled to take proper decision regarding the
provident fund and gratuity and matter is subjudiced before the
concerned authority. The concerned authority will take legal
action against issuing provident fund and gratuity. At this
juncture, it will not be just and proper to decide the relief
claimed in prayer clause (a) to (c) of notice of motion. Hence,
the prayers (a) to (c) of Notice of motion No. 1844 of 2019
became infructous.
12. In so far as prayer (d) is concerned, it is for
restraining defendant Nos.1 to 3 by a temporary order of
injunction from in any manner alienating, selling, transferring ,
encumbering, disposing off and/or dealing with the same or
creating any third party right or any other rights or license in
respect of suit property. Admittedly there is a dispute between
the plaintiff and defendants in respect of the suit property which
is pending. The litigation in respect of succession certificate is
also pending before the Ld. Civil Judge, Sr. Division, Jat. The
plaintiff is in fear that defendant Nos.1 to 3 will sell out or
alienate or create any third party interest in the suit property.
13. Considering the dispute in between the plaintiff and
defendants, to protect the right of both the parties and to avoid
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the multiplicity of proceedings, it will just and proper to grant
relief claimed in prayer clause(d) of this notice of motion. If the
injunction in respect of prayer clause (d) is granted in favour of
plaintiff, it will cause no harm to the defendants also. Hence to
protect the right of the parties, prayer (d) can be granted of the
notice of motion. In view of the above discussion, I answered
Point Nos.1 to 3 accordingly and proceed to pass the following
order:-
ORDER
1. Notice of Motion No.1844 of 2019 is made absolute
in terms of prayer clause (d) only.
2. Other prayers are rejected.
3. No order as to costs.
4. Notice of Motion No.1844 of 2019 is disposed of
accordingly.
( S.N.PATIL )
27/07/2023 Judge
City Civil Court,
Gr.Bombay
Dictated on : 27/07/2023
Transcribed on : 03/08/2023
Signed on : 03/08/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
03/08/23 at 05.20 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SN Patil
Date of Pronouncement of
judgment/order
27/07/2023
Judgment and order signed by
P.O.
03/08/2023
Judgment/order uploaded on 03/08/2023
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