Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.960/18 1 Suit No.2422/17
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.960/2018
(CNR No.MHCC010070912018)
IN
S.C SUIT NO. 2422/2017
Mrs. Savita Madhukar Arolkar @
Savita Sachin Zankar .. Applicant
(proposed Def.No.5)
In the matter between :
Shri Sudhakar Manohar Arolkar … Plaintiff.
V/s.
1. Smt. Meena Rajendra Gupta
2. Smt. Akansha Vinod Jamsandekar
3. Dilip Dwarkanath Kapde
4. Prashant Dilip Kapde ..Defendants
Appearance :
Ld. Adv. Mr Prashant Tikare for plaintiff.
Adv. Ms. Anita Singh for applicant and proposed defendant no.5.
Defendants no. 1 and 2 absent. Suit proceeded without WS against
them.
Defendants no.3 and 4 present in person. Their advocate absent.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 18.12.2019.
ORAL ORDER
1. Perused Chamber Summons(C/S) supported by an affidavit
of applicant Mrs.Savita Madhukar Arolkar @ Savita Sachin Zankar. The
C/S is strongly opposed by the plaintiff in the reply which is verified by
Sudharkar Arolkar. The applicant/ proposed defendant no.5 has filed
rejoinder to the reply along with documents as per list at Exhs.A and B.
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C/S No.960/18 2 Suit No.2422/17
I have perused the same.
2. Heard Ld. Counsel Ms.Anita Singh for the applicant/
proposed D5 and Adv. Mr. Prashant Tikare for the plaintiff. Defendants
no.1 and 2 and their Counsel absent. Suit has proceeded without WS
against them. Defendants no.3 and 4 are present in person. Their
advocate is absent.
3. Ld. Counsel for the applicant submitted that the plaintiff
has filed this Suit against defendants claiming 1/3rd share in the suit
flat which has been allotted as permanent alternative accommodation
under Slum Rehabilitation Scheme (SRA) to her son Kunal. It is
submitted that, the suit flat was allotted to Kunal after her husband
expired on 5.10.1994, leaving behind the applicant and her only son
Kunal as legal heirs and representatives having one half share each in
the suit flat as per provisions of Hindu Succession Act, 1956.
4. Ld. Counsel for the applicant submitted that, after death of
her son Kunal the applicant has become entitled to inherit 100% share
in the property left behind by her husband. Her 50% of the share had
already accrued to her during the lifetime of son Kunal. It is submitted
that, even after remarriage of the applicant it would make no difference
in the legal position so far as her right of inheritance is concerned. The
plaintiff has deliberately kept the applicant away from the suit
proceedings, which shows malafide intention of the plaintiff to grab the
suit flat.
5. On the above background, it is submitted that, the
applicant is a necessary party in the suit and therefore, the C/S deserves
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C/S No.960/18 3 Suit No.2422/17
to be allowed and the applicant may be joined as defendant no.5 in the
suit. Ld. Counsel for the applicant also referred to the documents filed
on record, along with rejoinder, to the reply vide Exhs.A and B, which
consist of death certificate of her son Kunal Arolkar showing name of
his mother as 'Savita Madhukar Arolkar' and photocopy of marriage
card of the applicant with Madhukar Arolkar dated 29.5.1991.
6. Ld Counsel for the plaintiff has strongly opposed the C/S in
the reply and contended that, the C/S, as framed and filed, itself is not
maintainable. The plaintiff has disputed that the applicant is real
mother of deceased Kunal Arolkar. Therefore, he submitted that, it is a
matter of trial and the C/S is liable to be dismissed with costs.
7. Ld. Counsel for the plaintiff further contended that, as per
averments made in paras 3 to 5 in the plaint, it is submitted that mother
of deceased Kunal by name Savita had left her husband Madhukar and
son Kunal, when Kunal was only two years old and after the death of
her husband, she has remarried. After her remarriage, said Savita
started residing separately from her husband and son Kunal. As such,
she has abandoned her son Kunal and has lost her right of inheritance
to claim the suit property. The plaintiff has submitted that, he has
taken care of the deceased Kunal from his early childhood when he was
two years old till his death. Under the above circumstances, the
applicant is not a necessary party in the suit.
8. Ld. Counsel for the plaintiff specifically argued that, the
applicant has not produced any document to show that she is a
biological/ real mother of the deceased Kunal and therefore, her bare
statement cannot be accepted.
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C/S No.960/18 4 Suit No.2422/17
9. I have gone through the documents filed along with the
plaint as per list at pg. 20 and also perused the C/S supported by
affidavit and reply filed by the plaintiff and also rejoinder along with
documents. I have also taken into consideration oral submissions made
by Ld Counsels for both sides. It can be seen from the documents filed
by the plaintiff along with plaint itself that, father of deceased Kunal –
Madhukar Arolkar – had died on 5.10.1994 as per death certificate
Ex.A, while Kunal had died on 17.6.2017 and name of his mother has
been stated in the death certificate at Ex.B as 'Savita Madhukar Arolkar'.
Above information is corroborated by the death report filed on record.
10. Considering the prima facie material on record, there is
sufficient proof to show that, the applicant/ proposed defendant no.5 is
a biological mother of deceased Kunal Arolkar and after his death, she is
the only ClassI legal heir to succeed to the property left behind by said
Kunal. Under the above circumstances, I am of the view that, the aspect
of remarriage of the applicant and legal consequences thereof as to her
right to inherit the property of deceased son Kunal can be considered at
the time of trial and it cannot be considered while deciding
maintainability of present C/S. Hence, I proceed to pass following
order:
ORDER
1. Chamber Summons No.960/2018 is hereby allowed
and made absolute.
2. The plaintiff is directed to join the applicant as
defendant no. 5 in the suit as well as in the Notice of
Motion no. 3971/17 as per details given in the CS, by
carrying out necessary amendment.
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C/S No.960/18 5 Suit No.2422/17
3. The plaintiff shall carry out the amendment within four
weeks from today and shall file on record amended
copy of the plaint as well as N/M No. 3971/17 and
supply the copy of the same to other side within two
weeks thereafter.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 18.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 18.12.2019
Typed on : 18.12.2019
Signed by HHJ on : 19.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :19.12.19
TIME: 3.05 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 18.12.19
Judgment/ order signed by P.O on 19.12.19
Judgment/ order uploaded on 19.12.19
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