Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010074762019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2724 OF 2019
IN
S.C. SUIT NO.1952 OF 2019
Varsha Jayprakash Mandangadkar …Plaintiffs
Versus.
Uttara Umesh Khanolkar & Ors. … Defendants.
Appearance
Adv. S.D.Shinde for plaintiff.
Adv. Ashish Dubey for Defendant no.1 & 2
Adv. D.S. Rajapurkar for Defendant no.4
Adv. Devdatta Dalvi for Defendant no.5
CORAM : HIS HONOUR JUDGE
SHRI R.R. PATARE
COURT ROOM NO.2
DATED : 26th July, 2022.
ORAL ORDER
This notice of motion is taken out by plaintiff seeking order
restraining the defendants from creating third party interest in Room
No.5, admeasuring approximately 220 sq.ft. on the ground of
Contractor Building of Dayabhai Contractor, CHS, Taikalwadi Road, Opp
Lady Jamshedji Road, Mahim, Mumbai, specifically described in plaint
paragraph 1 (hereinafter referred as “suit premises” in short).
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ORDER ..2..
2. Brief facts of plaintiff’s case are as under :-
The father of plaintiff Prabhakar was owner of suit premises.
The share certificate of suit premises was transferred in the name of
mother of plaintiff and mother of defendant nos.1 to 3 with the consent
of their father Prabhakar. The mother of plaintiff expired and thereafter
share certificate of suit premises was transferred in the name of father
of plaintiff. It is alleged that defendant nos.1 and 2 behind the back of
their father Prabhakar got transferred share certificate of the suit
premises in their name. It is alleged that will dated 25/11/2010
executed by mother of plaintiff and mother of defendant nos.1 and 2
was never probated. It is alleged that defendant nos.1 and 2 in collusion
with defendant no.5 played fraud upon the father of plaintiff and
plaintiff got entered suit premises in their name. It is further alleged
that defendant nos.1 and 2 further transferred title of suit premises in
favour of defendant no.4. It is stated that plaintiff is having equal share
in the suit premises alongwith defendant nos.1 and 2. The plaintiff has
challenged the sale deed executed by defendants in favour of defendant
no.4 and also claimed partition of her share.
3. Defendant nos.1, 2, 4 and 5 appeared and filed their written
statement at Exh.4, 5, 6 and 9 respectively and denied the claim of
plaintiff. The defence statement of defendants is of total denial. They
have filed separate written statements by taking common defence. It is
contended that mother of plaintiff and defendant nos.1 to 3 executed
will deed in favour of defendant nos.1 and 2 in respect of suit premises.
The execution of will deed and transfer of suit premises in the name of
defendant nos.1 and 2 was within the knowledge of plaintiff. It is
further contended that plaintiff has challenged sale transaction by way
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ORDER ..3..
of suit. The suit of plaintiff is barred by limitation. A public notice was
issued before execution of sale deed by defendant nos.1 and 2 in favour
of defendant no.4.
4. It is further contended that mother of plaintiff and defendant
nos.1 to 3 was owner of suit premises. She died on 16/07/2012. As per
the will dated 25/11/2010, defendant nos.1 and 2 were nominated as
beneficiaries of suit premises. The mother of defendant nos.1 to 3 made
nomination of her husband in respect of suit premises. It is further
contended that name of defendant nos.1 and 2 was entered in the
record of suit premises on the basis of will. The defendant nos.1 and 2
sold the suit premises with the consent of their father in favour of
defendant no.4 for valuable consideration. It is alleged that plaintiff has
filed suit with intention to grab the amount from defendants. The
defendants have requested to dismiss the notice of motion.
5. From the above facts and circumstances following points arise
for my consideration and I have recorded my findings against each of
them for the following reasons.
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case ? In the affirmative
2. Whether balance of convenience lies in
favour of plaintiff ? In the affirmative
3. Whether plaintiff will suffer irreparable
loss ? In the affirmative
4. What order and decree? As per final order.
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ORDER ..4..
R E A S O N S
AS TO POINTS NO.1 TO 3:-
6. The suit of plaintiff is for relief of declaration and for partition.
The plaintiff has challenged sale deed executed between defendant
nos.1, 2 & 4 dated 10/05/2013. The plaintiff claims her right alongwith
defendants in the suit premises. On the other hand, defendants claim
that the mother of plaintiff and mother of defendant nos.1 to 3
executed will in respect of suit premises and bequeath the same in
favour of defendant no.1 and 2. It is further contended that defendant
nos.1 and 2 sold the suit premises in favour of defendant no.4 with the
consent of their father.
7. Heard learned advocate for plaintiff. Learned advocate for
defendants did not argue the matter despite sufficient opportunity.
Hence notice of motion proceeded further without arguments of
defendants.
8. From the pleadings following are the admitted facts in the
present case :-
Shaila Prabhakar Sardar i.e. mother of plaintiff and mother of
defendant nos.1 to 3 was owner of suit premises. The relationship
between plaintiff and defendants no.1 to 3 is not in dispute. Defendant
no.1 and 2 did not obtain probate or letter of administration of the will.
The nature of suit premises is also not in dispute.
9. The plaintiff has produced on record share certificate issued by
Dayabhai Contractor Co-op Housing Society Limited. The share
certificate shows that mother of plaintiff and mother of defendant nos.1
to 3 Shaila Prabhakar Sardar was the registered holder of five fully paid
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ORDER ..5..
shares bearing nos.56 to 60. The copy of nomination form is brought on
record, it shows that the mother of plaintiff and defendant nos.1 to 3
nominated Prabhakar i.e. her husband in respect of suit premises.
Plaintiff has challenged the will executed by her mother in favour of
defendant nos.1 and 2. It has come on record that defendant nos.1 and
2 executed sale deed of suit premises in favour of defendant no.4
claiming to be owner on the basis of will deed. It is settled law that, the
party claiming right has to obtain probate or letter of administration of
the will. The plaintiff has produced on record prima facie evidence to
show her right in the suit premises. In a suit of present nature it is just
and necessary to maintain the status quo regarding title of property in
dispute to avoid further multiplication of litigation. In case of refusal of
order of injunction there is possibility of further transfer of suit
premises. In such circumstances, the plaintiff will suffer irreparable loss.
Hence balance of convenience lies in favour of plaintiff. The plaintiff has
made out ground for grant of order of injunction. In the result, point
nos.1 to 3 are answered in favour of plaintiff and following order is
passed.
ORDER
1. Notice of motion no.2724 of 2019 is hereby allowed.
2. Defendants are hereby restrained from creating third party
interest in the suit premises by way of sale, mortgage etc., till
decision of suit.
3. Notice of motion no. 2724 of 2019 stands disposed of with no
order as to costs.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date of dictation : 26.07.2022
Transcribed on : 27.07.2022
HHJ signed on : 27.07.2022
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ORDER ..6..
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 27.07.2022 , 3.15 p.m.
UPLOAD DATE AND TIME Mrs. M. S. Putta
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
26.07.2022
JUDGMENT/ORDER signed by P.O.
on
27.07.2022
JUDGMENT/ORDER uploaded on 27.07.2022
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