Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Order in N/M no.2340/2019 in S.C.Suit 2150/2019
MHCC010064572019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2340 OF 2019
IN
S.C.SUIT NO. 2150 OF 2019
Mrs. Prachi @ Geeta w/o. Pradip
Khedeker. ...Plaintiff.
Versus
M/s. Concepts Infrastructure
Consultants Pvt. Ltd., & Ors. ...Defendants.
Appearance:
Adv. Amar Gharte for the Plaintiff.
Adv. Gauri Bhagwan for Defendant No.1.
Adv. Tejas Kunsavlikar @ Adv. Tanvi Dange for Defendant No.3(a) to 7.
CORAM : SMT. S.S.NAGUR
JUDGE, (C.R.NO.62)
DATE : 14.05.2026
ORAL ORDER
(Dictated in open Court)
1. The Notice of Motion is filed by plaintiff thereby
temporarily restraining defendant to enter into any agreement or
commencing development in respect of the suit property bearing Final
Plot No.688, TPS IV, Mahim Division admeasuring area of 196.49
Sq.Mtrs. Alongwith building (Ground + 2 floors) standing thereon
named as “Sita Niwas” situated at Shivaji Park, Dadar (W), Mumbai
(hereinafter referred to as "suit property") and to restrain defendant
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No.2 to 7 from creating third party interest of the suit property in any
manner.
2. The Notice of Motion is supported by affidavit of plaintiff.
The plaintiff adopted the contents of plaint. The deceased Sudha
Savalram Satardekar was one of the co-owner of the suit property with
deceased Mr. Jagnnath Satardekar, deceased Mr. Damodar Satardekar,
deceased Mr. Bhargav Satardekar, deceased Mr. Prabhakar Satardekar
and deceased Mr. Ramesh Satardekar. The plaintiff has 1/6th share. The
defendant No.1 is proposed developer of the suit property. The
defendant No.2 is the real brother of plaintiff. The defendant No.3a to
3f are legal heirs of deceased Mr. Jagnnath Satardekar, defendant No.4a
to 4e are legal heirs of deceased Mr. Damodar Satardekar, defendant
No.5a to 5c are legal heirs of deceased Mr. Bhargav Satardekar and
defendant No.6a & 6b are the legal heirs of deceased Mr. Prabhakar
Satardekar. The defendant No.7 is legal heir of deceased Mr. Ramesh
Satardekar.
3. The plaintiff stated that the suit property is in dilapidated
condition. The plaintiff alongwith defendant No.2 to 7 decided to re-
develop the said building. The defendant No.1 was to construct 8 storey
building in place of the suit property. It was initially agreed that
defendant No.1 shall provide each co-owner a flat and equal amount of
money as and by way of consideration/compensation. In the year 2016
the plaintiff received draft MOU from defendant No.1 which reflected
only 5 flats to 5 original owners being one flat to each branch. They did
not allot flat to plaintiff and her brother defendant No.2 being legal heir
of deceased Smt. Sudha d/o. Savalram Satardekar.
4. The plaintiff stated that the notice dated 20/04/2016 was
issued to defendant No.1 to give equal share to her in the proposed
developed property as she is one of the legal heirs of the original co-
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owner. The defendant No.1 replied the said notice by letter dated
01/04/2017. The defendant No.1 admitted plaintiffs co-ownership over
the suit property. Since the plaintiff was not in occupancy of the suit
property the defendant No.1 will provide only monetary consideration.
The plaintiff again issued notice dated 28/02/2019 to defendant No.1
and reiterated her right in the proposed building. During negotiation
the plaintiff agreed receive monetary consideration in lieu of flat in
proposed building which is 50% of the market value of proposed flat.
The plaintiff received reply dated 13/03/2019 and defendant No.1 not
inclined to provide any flat in the proposed building. The defendant
No.1 admitted that plaintiff is owner of 50% of 1/6th share in the
freehold land and offered only Rs.18,75,000/- in lieu of her entire
ownership rights.
5. The plaintiff stated that the defendant No.1 threatened the
plaintiff that the other co-owners shall proceed with the redevelopment
process and the above amount shall be deposited in Escrow account if
the plaintiff do not consent for the redevelopment. The plaintiff
received letter dated 11/04/2019 on 24/04/2019 from defendant No.1
and has given ultimatum to the plaintiff of 7 days to sign the Draft
Development Agreement or else defendant No.1 shall deposit the
plaintiff’s share of Rs.18,00,000/- in Escrow account. The defendant
No.1 stated that plaintiff did not contribute money towards the
maintenance of the building. The plaintiff has apprehension that the
defendant will not allot the flat to her after redevelopment which will
cause irreparable loss to her and she will be deprive of her share in the
suit property. Hence prayed to allow the notice of motion.
6. The defendant No.1 filed reply to the notice of motion
through affidavit of Rajesh R. Hirlekar. He denied the allegations of the
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plaint in toto. The defendant No.1 stated that the suit property is
extremely dilapidated condition. The structural audit of “Sita Niwas”
building by Vishwakarma Enterprises report of June 2019 stated that
‘Sita Niwas’ building falls under C1 category that is the existing RCC
composite load bearing structure needs to be evacuated and demolished
immediately.
7. The defendant No.1 stated that plaintiff is claiming
testamentary rights in respect of suit property for which plaintiff is
required to file Testamentary Petition before Hon’ble High Court. The
defendant No.1 never gave monetary consideration in lieu of flat in
proposed building. The defendant is ready and willing to pay monetary
consideration (i.e. Rs.18,75,000/- being 50% hare of 1/6th share of
land) to the plaintiff equivalent to that of other co-owners stated in
clause 3A of Development Agreement executed by other co-owners. The
monetary claim of plaintiff can be crystallised only at the time of final
determination of suit subject. The plaintiff has to prove her entitlement
to receive monetary consideration in lieu of flat. The plaintiff is not
occupying any area in said ‘Sita Niwas’ building nor have any valid
address proof of said ‘Sita Niwas’ building therefore defendant is not
liable to provide any alternate premises for non-existing area.
8. The defendant No.1 stated that they are not concerned
with mutual understanding between co-owners of the suit property i.e.
plaintiff and other defendants. In case notice of motion is allowed it will
obstruct the entire redevelopment process and put all occupants of suit
property in grave difficulty and inconvenience. Hence prayed to reject
the notice of motion.
9. The defendant No.3a to 3f, 4a, 4b, 4e, 5a, 6a, 6b and 7
filed reply to notice of motion and denied allegations in toto. There is
no cause of action against these defendants. The plaintiff filed the suit
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to cause patent risk of life to her own brothers, sisters and other tenants
who are actually residing in the suit property. The suit property is in
dilapidated condition as admitted by plaintiff. The plaintiff never
attended joint meeting with other co-owners inspite of repeated
requires by letter dated 01st April 2017 and 12th February 2019 issued
by defendant No.1 alongwith other co-owners. There was no mutual
understanding took place between plaintiff and defendant No.3(a) to 7.
The plaintiff never contributed towards the maintenance of the suit
premises. The suit property does not yield any returns save and except
some meager amount of rent from the tenants which does not meet
basic expenses of the property.
10. The defendants stated that they have already executed the
Development Agreement with defendant No.1 in respect of suit land. In
case notice of motion is allowed grave difficulty hardship and
inconvenience will cause to the defendants. It will obstruct the entire
redevelopment process and put all occupants of suit property in grave
difficulty and inconvenience. Hence prayed to reject the notice of
motion.
11. The plaintiff filed affidavit-in-rejoinder to the reply of
defendants and denied the allegations in the reply in toto.
12. In view of the above pleadings of the plaintiff, the following
points arise for my determination and the reasons with finding thereon
are as under:-
POINTS FINDINGS
1) Whether the plaintiff has made
out a prima facie case?
No.
2) In whose favour balance of
convenience lies?
Defendants.
3) Who will suffer irreparable Defendants.
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loss?
4) What order? Notice of motion is rejected.
R E A S O N S
13. The advocate for plaintiff and defendants filed joint pursis
at Exh.11 to pass the order in this notice of motion during court
vacations. Hence the order is passed in the notice of motion.
14. Heard Adv. Amar Gharte for the Plaintiff, Adv. Gauri
Bhagwan for Defendant No.1 and Adv. Tejas Kunsavlikar for Defendant
No.3(a) to 7. Perused contents of notice of motion, reply, rejoinder reply
supported with affidavits.
As to point No.1 to 3 :-
15. The Advocate Shri Amar Gharte for plaintiff argued that the
plaintiff has share in the suit property. The relationship between the
parties is admitted. The suit property is under redevelopment. The
plaintiff is denied share in the redevelopment agreement. She is also
entitled for one flat. In the suit property after redevelopment there will
be ground + 8 floors. The suit property is situated at Shivaji Park,
Dadar. The price of the one flat is more than 2.5 Crores. The interim
relief is sought not to create third party interest. In case injunction not
granted she will suffer irreparable loss as her share will be denied.
Hence prayed to allow the notice of motion.
16. Advocate Tejas Kunsavlikar for defendant no.3(a) to 7
argued that the plaintiff has not right in the suit property. The original
owner Savlaram expired in the year 1947 prior to commencement of
Hindu Succession Act. The plaintiffs and defendants are governed by
Dayabhaga Law. The plaintiff is not entitled for final decree therefore
interim relief cannot be granted. In the alternative the plaintiff has
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sought amount in lieu of the flat. Therefore at this stage the plaintiff is
not entitled for relief to halt the development project. The plaintiff has
not made out prima facie case. Hence prayed to reject the notice of
motion.
17. Advocate for defendants relied on ratio of authority
reported in Radhabai Balasaheb Shirke since (D) thr. her heirs & L.Rs.
vs. Keshav Ramchandra Jadhav & Ors., 2025(2) ALL MR 758. The facts of
the case is in respect of demolition of property u/s.6 of Hindu Succession Act. The
daughters have limited rights in the ancestor property. After amendment of 2005 the
daughters got equal rights in the ancestor property. The Hon'ble Apex Court held
that the daughter could not have any right, either limited or absolute by inheritance
prior to coming into force of the Act of 1956 in the property of deceased father died
prior to 1956.
18. Advocate for defendants has relied on Section 3 of Women's
Rights to Property Act No. XVIII of 1937 that when the Hindu governed by
the Dayabhag school of Hindu Law dies intestate his property, and when a Hindu
governed by any other school of Hindu Law or by customary law dies intestate
leaving separate property that separate property shall, subject to the provisions of
sub-section (3), devolve upon his widow alongwith his lineal descendants, if any, in
like manner as it devolves upon a son.
19. The Development Agreement filed by defendant No.1 with
written statement shows the date of death of Savlaram Ganpatrao
Satardekar on 29/10/1947. It is not disputed that the father of plaintiff
expired prior to commencement of Hindu Succession Act. The plaintiff
is claiming her right of share in the suit property. The defendant No.1
did not deny that she has right in the suit property. Their contention is
that she is entitled for 50% share which comes to Rs.18,00,000/-. The
defendants are ready to pay the said amount to the plaintiff. The
plaintiff has declined the same on the ground that she is entitled for
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more than the above amount considering the present market value of
the flat in the area where the suit property is situated.
20. The plaintiff in her affidavit rejoinder reply has stated that
"The Plaintiff states it is true that the Plaintiff has agreed to receive only monetary
compensation in lieu of flat. The plaintiff states that Defendant No.1 does not
understand the meaning of the word "in lieu of". The Plaintiff states that even today
she is ready to accept monetary compensation in lieu of flat which is 50% of the
market value of the flat which she is entitled to get as a legal heir."
21. Advocate for defendants has raised a legal issue of
entitlement of the plaintiff to get share in the suit property on the
ground that the father of the plaintiff expired prior to commencement
of Hindu Succession Act. The plaintiff is governed by Dayabhaga School
of Hindu Law. Therefore she is not entitled for the share in the suit
property. According to 'Mulla' in his book Hindu Law while discussing
the law prior to the Hindu Succession Act, 1956 says that there are two
systems of inheritance amongst the Hindus in India, namely, Mitakshara
system and Dayabhaga system. The Dayabhaga system prevails in
Bengal, while the Mitakshara system is applicable to other parts of
India. The difference between the two systems arises from the fact that,
while the doctrine of religious efficacy is the guiding principle under
Dayabhaga School, there is no such definite guiding principle under the
Mitakshara School.
22. The daughter has the right to inherit her father's self-
acquired property, even if he died intestate (without a will) before the
1956 Act, if she is the sole heir. However, under Mitakshara law for pre-
1956 deaths, the property generally devolves to sons, and a daughter
only inherits in the absence of male issues (sons, grandsons, great-
grandsons)
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23. The plaintiff in the affidavit in reply has admitted that she
is ready to accept the monetary compensation in view of flat but as per
the market value. The photographs filed on record by the defendant
No.1 of the suit property shows that it is in dilapidated condition and
requires redevelopment. The father of the plaintiff expired prior to
commencement of Hindu Succession Act, 1956. The Act has no
retrospective effect. Therefore I hold that plaintiff has not made out
prima facie case. Hence answer point no.1 in negative.
24. The plaintiff has not made out prima facie case. The
plaintiff has to prove her right in the suit property as the father of the
plaintiff has expired prior to commencement of Hindu Succession Act
1956. The balance of convenience is not in favour of plaintiff. She will
not suffer irreparable loss as if she proves her right in the suit property
she can be compensated with cost. On the contrary if the redevelopment
of the suit property is delayed it will cause serious prejudice/irreparable
loss to the defendants. The balance of convenience is in favour of
defendants. Accordingly answering point no.2 and 3 pass following
order :-
ORDER
1. Notice of Motion No.2340 of 2019 is rejected.
2. No order as to cost.
3. Accordingly, Notice of Motion is disposed of.
(Smt. S.S. Nagur)
Judge
City Civil Court,
Date : 14.05.2026 Gr. Mumbai.
Pronounced on : 14.05.2026
Directly dictated on PC : 13.05.2026 & 14.05.2026
Typed on : 13.05.2026 & 14.05.2026
Checked & Sign on : 14.05.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
Mrs. Manisha S. Putta	14.05.2026 12.15 PM
Name of the Judge (With C.R. No.) HHJ Smt.S.S.Nagur (C.R.No. 62)
Date of Pronouncement of
JUDGEMENT /ORDER
14.05.2026
JUDGEMENT /ORDER signed by P.O.
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JUDGEMENT /ORDER uploaded on 14.05.2026
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