Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010063832019
Presented on : 25/06/2019.
Registered on : 04/07/2019.
Decided on : 03/10/2023.
Duration : 4 Y : 3 M : 8 D.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO.1916 OF 2019
1. Smt. Pooja Anil Patankar, ]
Wd/o. Anil Shivaji Patankar, ]
Age : 49 years, Occ. : Service, ]
2. Ms. Radha Anil Patankar, ]
Age : 25 years, Occ. : Student, ]
Both residing at : 20, Swarupanand ]
C.H.S. Ltd., Jai Hind Colony, ]
G. Gupte Road, Dombivli (West), ]
Dist. Thane – 421 202. ] … Plaintiffs
Vs.
1. Smt. Anjali Shivaji Patankar, ]
Age : 75 years, Occ. : Housewife, ]
2. Triveni Vijay Chavan, ]
Age : 51 years, Occ. : Housewife, ]
Both are residing at : Flat No.16, ]
4th Floor, Blue Nile Premises C.H.S. Ltd., ]
Mahatma Phule Road, Opp. Hindustan ]
Bank, Dombivli (West), ]
Dist. Thane – 421 202. ]
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Judgment - 2 - S.C. Suit No.1916 of 2019
3. Chairman / Secretary, ]
Priyadarshani Housing Society Ltd. ]
Present Address : B 103, 1st Floor, ]
Kaka Saheb Gadgil Marg, Prabhadevi, ]
Mumbai – 400 025. ] … Defendants
Appearance
Learned Advocate Mr. Suresh Barne a/w. Mr. Ravindra Munagekar for
the plaintiffs.
None for the defendant Nos.1 and 2.
Ex-parte against the defendant No.3.
CORAM : HHJ V. M. Pathade,
(C.R.NO.62).
Date : 3rd October, 2023.
J U D G M E N T
This is a suit for declaration that the plaintiffs are entitled
for 1/3rd share in the suit property for residence and for possession of
their share in the flat which is allotted to defendant No.1 and/or
defendant No.2 in lieu of old flat No.9/229, Lokmanya Nagar, K. G.
Marg, Prabhadevi, Dadar, Mumbai – 400 025. The plaintiffs would also
seek direction to the defendant Nos.1 and 2 to pay rent/compensation
of Rs.3,20,000/- to the plaintiffs as their share in the rent for alternate
accommodation paid by the developer out of Rs.9,60,000/-. The
plaintiffs would also seek permanent injunction against the defendants
restraining them from creating third party interest in the suit property.
2. The case of the plaintiffs, in brief, is that, the plaintiff No.1
is a widow of late Mr. Anil Shivaji Patankar with whom she was married
on 22/12/1992 as per the Hindu Rites and Rituals. Out of the said
wedlock, the said couple is blessed with a daughter who is plaintiff No.2
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Ms. Radha who was born on 11/09/1993. After the wedlock, the
plaintiff No.1 started residing with her husband Mr. Anil Shivaji
Patankar at her matrimonial house at 9/229, Lokmanya Nagar, K. G.
Marg, Prabhadevi, Dadar, Mumbai – 400 025, and she gave birth to
plaintiff No.2 in the said matrimonial house. It is stated that the
defendant No.1 is the mother of said Anil Shivaji Patankar and
defendant No.2, his sister. Thus, the defendant No.1 is the mother-in-
law and defendant No.2 is the sister-in-law of plaintiff No.1 Smt. Pooja
and grandmother and paternal aunt respectively of plaintiff No.2 Ms.
Radha. It is further stated that Mr. Shivaji Kashiram Patankar, the
father-in-law of plaintiff No.1 and grandfather of plaintiff No.2 was
doing business in the transport of goods, but the same was not enough
to meet the expenses of the family. Said Shivaji Patankar and defendant
No.1 Anjali Patankar had three children, two sons and one daughter
and they all were staying together. The said matrimonial house of
plaintiff No.1 was consisted of one room kitchen having an area below
200 square feet.
3. The plaintiffs would further aver that said Anil Shivaji
Patankar i.e. the husband of plaintiff No.1 and father of plaintiff No.2
committed suicide within one year of his marriage with plaintiff No.1
due to the continuous quarrels between his parents. Said Shivaji
Patankar, the father of said Anil and father-in-law of the plaintiff No.1,
had lodged a police complaint against said Anil Patankar which resulted
in committing suicide by said Anil on 01/11/1993. The defendant No.2
having got married after running away from her parental home, she was
not allowed to stay in the said house i.e. 9/229, Lokmanya Nagar, K. G.
Marg, Prabhadevi, Dadar, Mumbai – 400 025. Another son of said
Shivaji Patankar and defendant Anjali after his marriage, died of H.I.V.
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and subsequently, his wife also died of the same disease leaving no
child.
4. It is further the case of the plaintiffs that since said Shivaji
Patankar could not maintain the family from his own income, he
arranged a job for plaintiff No.1, when the plaintiff No.2 was just 10
months old. Since there were frequent quarrels between said Shivaji
Patankar and his wife i.e. defendant Anjali, it was very difficult for the
plaintiff No.1 to maintain her small baby (plaintiff Radha) in the said
matrimonial home and to do her job, she was forced to approach to her
maternal home. Due to her transfer from one place to another, the
plaintiff No.1 started staying separately from her maternal home. It is,
however, claimed that the plaintiffs were regularly visiting matrimonial
home of the plaintiff No.1 on weekends and holidays and residing with
her in-laws. She (plaintiff No.1) was to take care of her in-laws and to
extend monetary assistance for their welfare. Said Shivaji Patankar was
the owner of the said matrimonial home of plaintiff No.1 and he was a
member of defendant No.3, Society. It is stated that said Shivaji
Patankar died intestate on 18/06/2017 leaving behind the said house
property and his legal heirs i.e. the plaintiffs and defendant Nos.1 and
2. The said defendant No.3 Society had undertaken redevelopment of
the building (of which said house property was a part) by engaging a
developer and the developer paid a sum of Rs.9,60,000/- to defendant
No.1 on account of rent for two years for procuring alternate
accommodation. The defendant No.1 after receipt of the said amount
from the developer started residing with defendant No.2 and she did
not pay any amount out of said rent amount of Rs.9,60,000/- to the
plaintiffs as their legitimate share in the said matrimonial house.
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5. The plaintiffs would further plead that the plaintiffs are not
aware about the exact flat allotted to the defendants in the new
reconstructed building in lieu of the old flat No.9/229. The plaintiffs
had requested the defendant No.3 Society to provide necessary
information as regards to share certificate, nomination papers,
redevelopment agreement, etc. by issuing letter dated 27/12/2018. But,
the said defendant Society did not comply the said letter as a result of
which the plaintiffs issued a notice through their Advocate to the
defendants on 30/04/2019. The defendants, however, did not act upon
the said notice. Hence, the suit.
6. The defendant No.1 and 2 after service of the writ of
summons appeared in the suit and resisted the claim in the suit by
presenting their written statement which is Exh.3. It is their contention
that the suit is filed only to extort money from and to cause harassment
to the defendants. It is further pleaded that since the plaintiffs did not
issue notice under Section 164 of the Maharashtra Co-Operative
Societies Act to the defendant No.3 Society, the suit is not maintainable.
It is also their contention that the plaintiffs never resided in the said
house bearing flat No.9/229. The marriage between Anil Patankar and
plaintiff No.1 was a love marriage and it was against the wishes of the
family of said Shivaji Patankar. After marriage, said Anil and plaintiff
Pooja started residing separately and they never resided in the house
property where the family of Shivaji Patankar was living.
7. It is further pleaded by the defendant No.1 and 2 that
during his lifetime, said Shivaji Patankar has executed a Will which was
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Judgment - 6 - S.C. Suit No.1916 of 2019
duly registered on 05/05/2016 and thereby, he bequeathed the said
house property in favour of defendant No.2, who after the death of said
Shivaji Patankar became the absolute owner of the said house property.
It is further stated that the said will provides that if the defendant No.2
sells the said house property, she shall pay Rs.15,00,000/- to plaintiff
No.2. The defendant No.2 has filed a Probate Petition before the
Hon’ble Bombay High Court in respect of the said will and until the
same is decided, no relief can be granted in this suit in favour of the
plaintiffs. Though the said will is executed in favour of defendant No.2,
it is agreed between defendant No.1 and 2 that the said suit premises
will stand in the name of defendant No.1 and if new premises is
constructed, its possession shall lie with defendant No.1 only. It is also
stated that when the said building went under redevelopment, the
defendant No.1 being in exclusive possession and occupation thereof,
the developer paid her monthly compensation, rent in order to have
alternate temporary accommodation. Accordingly, the defendant No.1
had shifted to Room No.109, First Floor, Building No.2, Swarajya Co-
Operative Housing Society, Senapati Bapat Marg, Elphistone Road,
Mumbai – 400 013 and subsequently to Room No.13, Blue Nile,
Mahatma Phule Road, Dombivli (West), Thane, which is nearby to the
residence of defendant No.2.
8. It is further the case of the defendants that the plaintiff
No.1 after marriage with Anil Patankar, has never shown any concern
for the defendant No.1 or her husband Shivaji Patankar till his death or
even thereafter. But, since the old premises went in redevelopment, the
plaintiffs with oblique motive to extort money from the defendants filed
the present suit without any right, title or interest in the said house
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property of which the defendant No.2 became the absolute owner in
view of the bequeath made by said Shivaji Patankar. It is also contended
that the defendant No.1 had called the plaintiffs to have a discussion,
but the plaintiffs neglected. The defendant Nos.1 and 2 would dispute
the plaintiffs’ contention that said Anil Patankar committed suicide due
to the continuous quarrels with his parents and Shivaji Patankar had
lodged any police complaint against said Anil. According to the said
defendants, said Anil might have committed suicide due to the marital
disputes with plaintiff No.1. The defendant No.1 and her husband
Shivaji Patankar were living happily and there was no support of any
kind from the plaintiff No.1 either during the lifetime of said Shivaji
Patankar or after his death. Thus, according to the defendant Nos.1 and
2, said Anil and his wife – the plaintiff No.1 after their marriage
abandoned said Shivaji Patankar and his family and the plaintiffs have
come forward only to seek share in the property left by said deceased
Shivaji Patankar.
9. It is also the case of the defendant No.1 and 2 that the
defendant No.3 Society after following due process of law and by valid
resolution, appointed the developer for redeveloping the building and
the defendant No.1 being in exclusive occupation and possession of the
said house property, paid her rent amount for temporary alternate
accommodation. The plaintiffs having not been in such actual
possession and occupation, they are not entitled to seek any rent for
alternate accommodation. For all these reasons therefore, the defendant
No.1 and 2 would seek dismissal of the suit with costs.
10. From the perusal of the record, it seems that the defendant
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Judgment - 8 - S.C. Suit No.1916 of 2019
No.3 Society despite the service of writ of summons, did not appear in
the matter and hence, vide roznama dated 20/09/2021, the suit has
been directed to proceed ex-parte against defendant No.3 and heard
accordingly.
11. In view of the rival pleadings of the parties, the following
issues have been framed vide Exh.5 and I have recorded my findings
thereon for the reasons to follow :-
SR.
NO.
ISSUES FINDINGS
1. Whether the plaintiffs proved that they have
1/3rd share in the old premises ?
Yes, but subject
to the outcome
of Testamentary
Petition No.56
of 2020.
2. Whether the plaintiffs are entitled for 1/3rd
share in the redeveloped premises allotted in
lieu of old premises ?
Yes, but subject
to the outcome
of Testamentary
Petition No.56
of 2020.
3. Whether the plaintiffs are entitled for
recovery of possession of their 1/3rd share,
as claimed ?
Yes, but subject
to the outcome
of Testamentary
Petition No.56
of 2020.
4. Whether they are entitled for the relief
claimed in terms of prayer clause “c” of the
plaint ?
No.
5. Whether they are entitled for the relief
claimed in terms of prayer clause “d” of the
plaint ?
Yes, but subject
to the outcome
of Testamentary
Petition No.56
of 2020.
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6. Whether they are entitled for the relief
claimed in terms of prayer clause “e” of the
plaint ?
Yes, but subject
to the outcome
of Testamentary
Petition No.56
of 2020.
7. What Order and Decree ? Suit is partly
decreed
conditionally.
R E A S O N S
12. AS TO ISSUE NOS.1 TO 6 :- The plaintiffs in order to
establish their claim adduced oral evidence of plaintiff Smt. Pooja by
way of affidavit of examination-in-chief vide Exh.6. None of the
defendants cross-examined the plaintiffs’ witness Pooja nor have they
adduced any evidence in support of their defence. The plaintiffs also
adduced documentary evidence which is marked Exhs.8 to 13.
13. Heard the learned counsel appearing for the plaintiffs. He
would also file on record his written notes of argument vide Exh.15.
According to the learned counsel appearing for the plaintiffs, the
defendant No.1 and 2 having not cross-examined PW-1 Smt. Pooja and
not having adduced any evidence in support of their defence, the
plaintiffs evidence needs to be accepted since it is not challenged by the
opposite party. As regards to the Probate Petition/Testamentary Petition
bearing No.56 of 2020 filed by the defendants, it is his contention that
the plaintiffs having filed Caveat in the said proceeding, the said
petition is converted as Testamentary Suit and the defendants herein
did not take any step in the said proceeding which was stand over to
08/04/2020 vide order dated 27/01/2020. The learned counsel for the
plaintiffs has annexed a printout of the said order dated 27/01/2020
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Judgment - 10 - S.C. Suit No.1916 of 2019
passed in said Testamentary proceeding. It is further stated that the
defendant No.1 and 2 have not sought any direction in the said
testamentary proceeding to stay the present suit and as such, this Court
can dispose of the present suit. Thus, according to the learned counsel
for the plaintiffs the suit deserves to be decreed.
14. From the perusal of the pleadings of the parties, it is an
admitted fact that the plaintiff No.1 Pooja and Anil Shivaji Patankar, a
son of Shivaji Patankar and the defendant No.1 Anjali Patankar got
married with each other as per the Hindu Rites and Rituals on
22/12/1992 and out of the said wedlock, plaintiff No.2 Radha born on
11/09/1993. It is also not in dispute that said Shivaji Patankar was the
absolute owner of the house property/flat at 9/229, Lokmanya Nagar,
K. G. Marg, Prabhadevi, Dadar, Mumbai – 400 025. It is also undisputed
fact that said Shivaji Patankar died on 18/06/2017 leaving behind the
plaintiffs and defendant No.1 and 2 as his legal heirs as contemplated
under the provisions of Hindu Succession Act and the Schedule annexed
therewith. In view of this admitted factual and legal position, the
plaintiffs in terms of provisions of Section 8, 9 and 10 Schedule of the
Hindu Succession Act, 1956 are prima facie entitled to the share in the
property left by said deceased Shivaji Patankar, if he had died intestate.
In the present case, however, it prima facie appears that said Shivaji
Patankar died leaving behind a Will which is the subject matter of said
Testamentary proceeding bearing No.56 of 2020 pending before the
Hon’ble Bombay High Court. Hence, if the said testamentary petition is
decided in favour of the defendants or particularly the defendant No.2,
the same would result in dis-entitlement of the plaintiffs to seek any
right, title or interest in the said property left by said deceased Shivaji
Patankar.
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15. As regards to the claim of the plaintiffs to recover a sum of
Rs.3,20,000/- as their share in the amount of rent compensation of
Rs.9,60,000/- paid to the defendant No.1 by the developer, since it is
not the case of the plaintiffs that on the date of taking possession of the
said old house property i.e. flat No.9/229, Lokmanya Nagar, K.G. Marg,
Prabhadevi, Dadar, Mumbai – 400 025 by the developer for carrying out
redevelopment of the building, the plaintiffs were in actual possession
and occupation of the said house property, in my view, they cannot be
held to be entitled for such compensation paid by the developer to the
defendant No.1, who being the actual occupier had to shift from the
said old premises to other temporary premises for residence till a
permanent accommodation in reconstructed/redeveloped building is
allotted to her. I would therefore, do not find force in the claim of the
plaintiffs for Rs.3,20,000/- from defendant No.1. Since the other reliefs
sought for in prayer clause (d) and (e) in the plaint, the same being
dependent upon the outcome of the said testamentary petition No.56 of
2020 pending before the Hon’ble Bombay High Court and the area of
the newly constructed flat allotted to the defendant Nos.1 and 2, in lieu
of the said old house property, the appropriate proceeding for
partitioning that property will have to be taken up in that regard. For all
these reasons therefore, I come to my considered conclusion that the
plaintiffs right, title and interest in the new accommodation allotted to
defendant No.1 and/or 2 in the newly constructed building of
defendant No.3 Society would be subject to the outcome of the said
testamentary proceeding pending before the Hon’ble Bombay High
Court. Hence, I record my findings on issue Nos.1 to 3, 5 and 6 in
affirmative subject to the outcome of the said testamentary petition
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Judgment - 12 - S.C. Suit No.1916 of 2019
pending before the Hon’ble Bombay High Court and issue No.4 in
negative.
16. ISSUE NO.7 :- In view of my above discussion, observations
and findings, the suit deserves to be partly allowed with a conditional
decree. Hence, I proceed to pass the following order :-
O R D E R
1. S.C. Suit No.1916 of 2019 stands partly decreed
conditionally.
2. The plaintiffs are declared to have undivided 1/3rd joint
share (1/6th each) along with 1/3rd share each of defendant No.1 and 2
and are entitled to have partition and separate possession of their said
share in redeveloped premises occupied by defendant No.1 and/or 2
from the reconstructed building of defendant No.3 Priyadarshani
Housing Society Ltd., B 103, 1st Floor, Kakasaheb Gadgil Marg,
Prabhadevi, Mumbai – 400 025, but subject to the outcome of
Testamentary Petition No.56 of 2020 pending before the Hon’ble
Bombay High Court.
3. The defendants are directed not to create third party
interest in the aforesaid property, but subject to the outcome of
Testamentary Petition No.56 of 2020 pending before the Hon’ble
Bombay High Court.
4. The decree shall remain in abeyance till the decision of
Testamentary Petition No.56 of 2020 pending before the Hon’ble
Bombay High Court.
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Judgment - 13 - S.C. Suit No.1916 of 2019
5. Claim for Rupees Three Lakhs Twenty Thousand stands
refused.
6. In the facts and circumstances of the matter, the parties
shall bear their costs, if any.
7. A decree be drawn up accordingly.
Date : 03/10/2023. ( V. M. Pathade )
Judge, C.R.No.62,
City Civil Court,
Mumbai.
Directly typed on Computer on : 03/10/2023.
Printed on : 05/10/2023.
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.10.2023 at 1.40 p.m. Bahushruta Y. Jambhale
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI V. M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 03/10/2023.
Order signed by P.O. on 06/10/2023.
Order uploaded on 07/10/2023.
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