Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2036 OF 2019
IN
S.C.SUIT NO.1178 OF 2019
1. Mr.Sanjay Satish Kamdar,
2. Mr.Neelay Satish Kamdar ... Plaintiffs
Versus
Satish Fatehchand Kamdar ... Defendant
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 8th DECEMBER, 2020
Mr.Onkar Warange, ld. adv. for plaintiffs.
Mr.Edenwala, ld adv. for defendant.
O R D E R
1. This notice of motion is taken out by defendant for
rejection of the plaint Under Order7 Rule11(a) of Code of Civil
Procedure for want of cause of action and for dismissal of the suit for
abuse of process of law of the Court.
2. Defendant Satish Fatehchand Kamdar has filed his affidavit
in support of notice of motion contending that plaintiffs have instituted
this suit, the foundation whereof is based upon erroneous, false and
dishonest claim of the alleged suit properties having been transferred to
them by defendant by way of Oral Gift Deed which defendant has
vehemently denied in his written statement. It is contended that
defendant is advised that very concept of Oral Gift Deed of properties
more particularly immovable properties without any documentation
whatsoever is not only illegal and void, but is also alien to law. Such a
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transfer if any therefore, is void and nonest in law as a result plaintiffs'
suit is devoid of cause of action. Accordingly, plaint is liable to be
rejected under Order7 Rule11(a) r/w. Rule11(d) of CPC and suit is
liable to be dismissed.
3. It is contended that a plain reading of plaint would make
the false and frivolous nature of the suit obvious in that its fraudulent
and dishonest intent is an untenable attempt to wrongfully usurp all
properties of defendant and to leave defendant in the lurch at the flag
end of his life. It is contended that defendant has already set out in his
written statement that suit is not only fraudulent but also lacks a
sustainable foundation and as such the suit is a clear abuse of due
process of law and therefore, is liable to be dismissed with
compensatory cost.
4. Defendant has contended that he is intending to rely upon
the contentions raised in his written statement which is at Exh.3. In
written statement defendant has contended that plaintiffs' claim is
thoroughly misconceived as the concept of Oral Gift of properties
without any documentation whatsoever particularly, immovable
properties is alien to law. It is contended that plaintiffs' claim is fraud
upon the court and it is abuse of process of law with pervasive
concoction and distortion of facts to suit plaintiffs' convenience in the
course of perpetration of their fraudulent interest. It is alleged that
plaintiffs and their wives are harassing the aged defendant physically
and mentally after death of his wife Naina without providing proper
food to the liking of the defendant and at the same time plaintiffs are
distorting the true facts against him before his close relatives with view
to create a schism and alienate him from the relatives. The severity of
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said mental harassment has gone to such an extent, that wife of plaintiff
no.2 instituted a case against defendant under Domestic Violence Act
wherein she has even sought to project the aged and sickly defendant as
a sexual pervert. All the aforesaid facts and circumstances, had
instinctively driven defendant towards seeking a plutonic relationship
companion at the flag end of his life, that has also been sought to be
dishonestly and tortuously projected as lewd characteristic of
defendant. The crux of the matter is the dishonest intent on the part of
the plaintiffs and their respective families to extort and usurp
everything that defendant materially possesses and leave him high and
dry to fend for himself at the flag end of his life. Therefore, defendant
is advised to take out appropriate proceedings under the Maharashtra
Maintenance and Welfare of parents and senior Citizens Act, 2007 with
a view to bring peace to him at least before his death. Defendant is
constrained to place all above facts on record with a view to expose the
plaintiffs' abuse of due process of law as well as the process of this
Court. According to defendants for all above reasons, plaintiffs' claim is
liable to be dismissed. It is denied that plaintiffs and defendant
constitution of a joint family and defendant has allowed plaintiffs with
their families in as much because of economic necessity, the father
allows his children and their respective families to reside with him in
the same household by way accommodation, it does not tantamount to
the constitute joint family as defendant is still the exclusive owner of
the household i.e. exclusive property. It is contended that suit properties
are selfacquired and selfearned assets of defendant. It is contended
that plaintiffs have no right of interest in said property. Hence, plaintiffs
claim is devoid of cause of action. It is contended that defendant was
gravely obsessed and brooding for loss of companionship after the death
of his late wife. To crown it all, he was being slighted and isolated in
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his own home by his own children, whom he has accommodated
therein. As a result, defendant was craving for some sort of a plutonic
relationship with whom he could confide and share his mind and get
out of his lonliness. Hence, he decided to look for suitable match for
remarriage and found one case of a deserving abandoned aged woman
by the name of Sarala Shah through a marriage bureau. It is denied
that defendant requested plaintiffs for permission to get remarriage as
neither in law nor in equity taking into the facts and circumstances of
his case of isolation and neglect at the hands of the plaintiffs and their
respective wives in his own house, such a permission is called for. It is
denied that defendant disclosed to plaintiffs in June,2018 or at any
other time about his having acquainted himself with the lady by name
Sarala Shah or anyone else. Defendant has denied alleged incident of
19/04/2017 about which plaintiffs have contended that after prior
meeting at around 8.00 p.m. defendant had either made any
declaration of his intent of transferring all his assets including suit
properties to plaintiffs or distributing the clothes and jewelry of his late
wife to his daughter in law and grandchildren in alleged deference to
his late wife's wishes. Defendant has denied about having executed any
documents. It is contended that defendant is physically weak on
account of his age and ailment but he is mentally sound. It is alleged
that plaintiffs and their wives have committed offences of cheating,
criminal breach of trust, forgery etc. for causing wrongful loss to
defendant. Hence, defendant had filed report with Matunga Police
Station. It is contended that plaintiffs' claim is misconceived and not
maintainable as the concept of oral gift is unlawful. Hence, according
to defendant, no question arises of granting the relief claimed by
plaintiff.
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5. Plaintiff no.1 has filed his affidavit of reply to resist the
notice of motion. It is contended that plaintiffs have filed suit for
declaration and injunction in respect of the suit properties which are in
their lawful possession and they have demonstrated in the plaint as to
their rights and entitlement to the suit properties. It is contended that
defendant is suffering from his old age and acute medical condition and
defendant is residing with plaintiff in joint properties and defendant is
looked after by plaintiffs for his all necessary day today needs including
food and medicines. It is contended that defendant has also filed police
complaint against plaintiffs and their wives and FIR is registered against
plaintiffs for offences U/s.380 of IPC. Plaintiffs had obtained
anticipatory bail from Sessions Court. It is contended that defendant has
also filed complaint against plaintiffs in Senior Citizen Forum and
defendant has also filed complaint against the investigating officer at
Police Tribunal. It is alleged that defendant is prone to make the false
and frivolous complaint against the authorities and the present notice of
motion is part of said tactics. It is contended that plaintiffs have made
out their case and cause of action to file present suit as plaintiffs have
right, title and interest in suit property. Lastly, it is contended that
notice of motion is liable to be dismissed.
6. Arguments of defendant's advocate are heard and he has
referred Section 23 of Maintenance and Welfare of Parents and Senior
Citizens Act, 2007. Defendant's advocate argued that in view of said
section plaintiffs' claim is not maintainable and plaint is necessary to be
rejected. Defendant's advocate submitted that plaintiffs have pleaded
that defendant is suffering from mental and physical condition because
of which he is unable to understand what he is doing at present, hence
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according to defendant's advocate, plaintiffs have certified their father
as a person of weak person, mental and physical condition and
therefore according to defendant’s advocate plaintiffs’ claim which is
based on Oral Gift of movable and immovable properties is not
maintainable against alleged mentally and physically weak person.
Hence, defendant’s advocate prayed to make absolute the Notice of
Motion.
7. Plaintiffs’ advocate had filed written notes of arguments
and he has submitted that plaintiffs’ claim is of civil nature and unless
jurisdiction of Civil Court is expressly barred, plaint cannot be rejected.
In written notes of argument, plaintiffs’ advocate has submitted that
plaintiffs have filed this suit against defendant who is father of plaintiff
Nos.1 and 2. It is pointed out that plaintiffs have sought several reliefs
including relief of declaration and injunction for restraining defendants
from disturbing plaintiffs’ possession over suit properties. Plaintiffs have
filed suit claiming ownership right either by inheritance or by Oral Gift
as per the averments from the plaint. It is submitted that suit property
comprises of flat premises, office premises, bank accounts, fixed deposit
etc. Plaintiffs have pleaded the manner by which residential as well as
office properties were purchased. It is argued that it is plaintiffs’ specific
case that the suit properties for all the purposes are owned by the
plaintiffs as joint family properties. Plaintiffs have pleaded about the
income generated by plaintiffs with defendant by which residential flat
premises at Matunga was purchased. Plaintiffs have pleaded that suit
properties were generated through income earned from joint family
while residing together. Plaintiffs have further made out case for the
Gift i.e. the manner in which the defendant transferred and delivered
possession of movable properties to the plaintiffs. According to
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plaintiffs’ advocate, it is not alien to the law that possession of movable
properties is often transferred by way of Oral Gift and the possession is
essential ingredient of the manner in which movable properties are
transferred or delivered. According to plaintiffs’ advocate, issue raised
by plaintiffs cannot be decided summarily and requires a trial. It is
argued that the cause of action to file this suit after the death of
defendant’s wife more particularly when defendant was pressurized to
get married by a lady namely Sarla Shah. It is argued that plaintiffs
have pleaded that plaintiffs have apprehension that under fear of said
lady Sarla Shah and out of depression due to weak medical condition,
defendant is in process of transferring suit property which is already
entrusted with plaintiffs as owners thereof. Defendant is intending to
transfer said property in favour of said Sarala Shah. Therefore, plaintiffs
have filed this suit for declaration of ownership and for injunction for
restraining defendants from dealing with suit property in any manner. It
is argued that plaintiffs have disclosed cause of action for filing present
suit and plaintiffs have expressed their apprehension that defendant is
in process of disposing suit property in favour of third person.
According to plaintiffs’ advocate, plaint complies with the requirements
of Order7 Rule11 of CPC since the cause of action is sufficiently
disclosed and hence notice of motion is necessary to be dismissed. It is
argued that in respect of immovable properties, plaintiffs have claimed
the right by inheritance and plaintiffs have sought relief of injunction
for restraining defendant from disturbing plaintiffs’ possession over suit
property. It is argued by plaintiffs’ advocate that it is admitted position
that plaintiffs are residing at suit properties along with defendants and
according to plaintiffs’ advocate it is admitted fact that suit flat is
matrimonial property of plaintiffs’ mother and plaintiffs are residing
with their entire family in it, therefore, according to plaintiffs’ advocate
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the injunction as prayed by plaintiff can be granted by the Court. It is
submitted that the suit property is tenanted property acquired on
Pagadi system from money generated by joint family business. It is
argued that Section9 of CPC provides that Civil Courts shall have
jurisdiction to try all suits of Civil nature and there is no bar of statute
on the issue raised by the plaintiff therefore, according to plaintiffs’
advocate this Court has jurisdiction to try and decide present suit and
hence notice of motion filed by defendant is liable to be dismissed.
8. I have given serious consideration to the arguments
advanced on behalf of parties and I have carefully perused the plaint
Prayer clause(a) from the plaint shows that plaintiffs have prayed for
declaration that plaintiffs are absolute owners of suit properties
consisting of residential flat, office premises, bank amounts, fixed
deposit etc. Plaintiffs have further prayed for the declaration that
defendant by virtue of Oral Gift dated 18/04/2017 has relinquished all
his right, title and interest in suit property and plaintiffs have prayed for
perpetual injunction restraining defendants from disturbing plaintiffs’
possession over suit properties and they have also prayed for permanent
injunction restraining defendant and Sarla Shah from forcibly entering
into suit flat without following due process of law. Thus, from the plain
reading of plaint and particularly prayer clauses, it becomes clear that
plaintiffs are claiming ownership of immovable properties i.e. suit flat
and office premises on the basis of alleged Oral Gift Deed dated
18/04/2017 of defendant. It is settled principal law that no property
having value more than Rs.100/ can be transferred by any mode
without registered conveyance gift deed or such kind of registered
document. Thus, plaintiffs' claim about declaration of ownership on the
basis of Oral Gift Deed is not maintainable and the date of said Oral Gift
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Deed cannot be the date of cause of action for filing this suit for
declaration. Plaintiffs have claimed that they have claimed ownership
over suit properties on the basis of inheritance also, however on the
plain reading of prayer clauses, it becomes cleat that plaintiffs have
sought declaration of ownership only on the basis of Oral Gift Deed
allegedly executed by defendant on 18/04/2017. Admittedly, plaintiffs
are sons of defendant who is having of 77 years. The copy of share
certificate of suit flat filed by plaintiffs along with the plaint at page
no.100 shows that on 17/12/1989 in share certificate of suit flat names
of Naina Satish Kamdar, late wife of defendant, and the name of
defendant were noted by transfer No.166 and name of defendant is
noted in said share certificate on 09/11/2017 by transfer no.115. It is
admitted fact that Naina Satish Kamdar died on 17/04/2017. Thus,
after the death of Naina Satish Kamdar, her name is deleted from the
share certificate and name of defendant only is appearing in said
certificate as the registered holder of the shares of suit flat. Thus, from
the share certificate it becomes clear that defendant is exclusive owner
of suit flat. Defendant has contended that he has allowed plaintiffs and
their wives to accommodate suit premises but he has contended that he
has allowed plaintiffs to accommodate it merely because of economic
necessity. From careful perusal of the plaint, it becomes clear that
plaintiffs have nowhere pleaded that how they are entitled to inherit
suit properties and from the prayer clauses from the plaint it becomes
clear that plaintiffs’ claim is totally based on Oral Gift Deed dated
18/04/2017 of defendant. At this stage, Section23 of maintenance and
Welfare of Parents and Senior Citizens Act, 2007 is necessary to be
referred. Said section provides that...
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“Where any senior citizen who, after the commencement of
this Act, has transferred by way of gift or otherwise, his
property, subject to the condition that the transferee shall
provide the basic amenities and physical needs to the
transferor and such transferee refuses or fails to provide such
amenities and physical needs, said transfer of property shall
be deemed to have been made by fraud or coercion or under
undue influence and shall at the option of the transferor be
declared void by the Tribunal.”
This is interesting suit in which plaintiffs are intending to have benefit
of alleged Oral Gift of defendant and alleged transfer of suit properties
by defendant and at the same time they are claiming perpetual
injunction restraining defendant from entering into suit premises along
with Sarla Shah. Thus, from the prayer clauses of the plaint it becomes
clear that plaintiffs are refusing to provide the defendant the basic
amenities like residence and further allegations about fulfillment of
basic needs of defendant are denied. Thus, plaintiffs’ claim cannot be
considered. I have already observed that plaintiffs’ have claimed cause
of action for declaration of ownership on the basis of alleged Oral Gift
Deed dated 18/04/2017 of defendant and hence I find that plaint does
not disclose a cause of action for filing this suit by plaintiffs. At this
juncture, it becomes necessary to point out that Order7 Rule11(a) of
CPC provides that plaint shall be rejected where it does not disclose a
cause of action and Order7 Rule11(d) of CPC provides that plaint shall
be rejected where the suit appears from the statement in the plaint to be
barred by any law. As contended by defendant, plaintiffs claim is
fraudulent and I have already come to the conclusion that plaintiffs
cannot have the cause of action on the basis of Oral Gift of defendant
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dated 18/04/2017, hence, plaint does not disclose cause of action.
Therefore, I am unable to accept arguments advanced on behalf of
plaintiffs and I find that notice of motion is necessary to be made
absolute. Hence, I proceed to pass following order.
O R D E R
Notice of Motion No.2036/2019 is made absolute in terms of
prayer clause(a) of the Notice of Motion and plaint stands
rejected under Order7 Rule11(a) of CPC.
Sd/
(K.P.NANDEDKAR)
08/12/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 08/12/2020
Transcribed on : 18/12/2020
Signed by HHJ on : 18/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19/12/2020 11.30AM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 08/12/2020
Judgment/order signed by P.O on 18/12/2020
Judgment/order uploaded on 19/12/2020
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