Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.2639/2019
MHCC010072372019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2639 OF 2019
IN
S.C. SUIT No. 1078 OF 2019
Mrs. Leena D. Patel ...Plaintiff.
V/s.
1. Mrs. Bina Lalit Shah & Ors. … Defendants.
Appearance
Advocates Mr. Manoj Yadav & Mr. Ashutosh Shukla for the plaintiff.
Advocate Mr. Bipin Joshi for defendant No.1 & 3.
Advocate Ms. Prerna Sharma for defendant No.2.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 12th October, 2022
O R D E R
This notice of motion is taken out by the plaintiff for
interim relief of injunction restraining the defendants from alienating or
from parting with the possession of the suit flat or for disposing of it or
from creating encumbrance thereon and also for appointment of Court
Receiver.
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In brief the plaintiff's case is as follows:
2. The plaintiff and defendant Nos. 1 to 3 are sisters. Their
father late Mahendra Mehta during his lifetime purchased residential
flat No.302, Vishal Pant Nagar Cooperative Housing Society Limited,
Pump House No.1, Building No.122, Pant Nagar, Ghatkopar (E),
Mumbai 400 075. It is further contention of the plaintiff that the said
flat has gone into redevelopment and in lieu of the same new premises
has been allotted. The plaintiff's father Mahendra died intestate on or
about 26.08.2000, leaving behind him the plaintiff, defendant Nos. 1 to
3 and their mother late Indumati Mehta. By the passage of time, the
plaintiff and defendant Nos.1 to 3 got married and were residing at
their respective matrimonial homes. Their mother was residing in the
suit premises along with defendant No.1. After death of her husband,
defendant No.1 returned to maternal home and started residing with
late Indumati in the suit premises.
3. It is further contention of the plaintiff that by taking undue
advantage of the illhealth of Indumati and also in absence of rest of the
heirs, defendant No.1 had started dictating her terms upon Indumati.
She influenced and forced Indumati, to sign some papers for transfer of
the said flat in the name of Indumati from the name of late father.
Defendant No.4 (Society) had transferred said flat in the name of
deceased Indumati. Said transfer was based on allged will of plaintiff’s
deceased father. According to the plaintiff, her father Mahendra, had
died intestate.
4. It is further case of the plaintiff that defendant No.1 again
made an application to defendant No.4 for transfer of said flat from the
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name of Indumati to the name of defendant No.1. Said application
dated 01.07.2003 was submitted by enclosing certain documents and
Will of Indumati. The plaintiff alleges that defendant No.4 have
colluded with defendant No.1 and have transferred said flat in the name
of defendant No.1 illegally, arbitrarily.
5. The plaintiff had made correspondence with defendant
No.4 regarding her objection for the said illegal transfer. The plaintiff
initially filed suit before Hon’ble High Court but it was withdrawn on
the ground of pecuniary jurisdiction, with liberty to file fresh suit. With
these contentions, the plaintiff has sought relief for partition of the suit
premises between the plaintiff and defendant Nos. 1 to 3 and to declare
that transfer of suit premises in the name of defendant No.1 is illegal.
The plaintiff apprehends that the defendants may create third party
interest or may part with the possession of the suit premises. Therefore,
based on these facts, the plaintiff has sought aforesaid interim relief.
6. Defendant No.1 by her affidavit in reply opposed the
motion. It is the contention of defendant No.1 that the suit before the
Hon'ble High Court was withdrawn with liberty to adopt appropriate
proceeding. Filing of this suit is not appropriate proceeding. No liberty
was granted to file fresh suit on same cause of action. Cause of action
which was in the suit before the Hon'ble High Court and cause of action
of the present suit is not same. Suit is not properly valued. The court
has no pecuniary jurisdiction. After demise of the plaintiff's father, there
was family arrangement and suit premises was transferred in favour of
mother of plaintiff and defendant Nos.1 to 3. It was absolute property
of mother Indumati. In the year 2006 redevelopment agreement for
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permanent alternate accommodation was executed with Indumati.
Defendant No.1 admits that the suit premises was purchased by her
father who died on 26.08.2000. During the lifetime of Indumati, the
suit premises is transferred in favour of defendant No.1. Reference of
Will of plaintiff’s father and mother is without relevance. This defendant
denied that suit premises is liable for partition and the plaintiff has
1/4th share therein. With these contentions, defendant No.1 has
prayed to dismiss the motion.
7. Defendant No.2 by her affidavit in reply resisted the
motion. It is her contention that her mother Indumati has expired on
06.11.2015. Her father Mahendra had purchased the suit premises.
Her father executed Will. Her mother Indumati died intestate. She is
not aware of any Will executed by her mother. In the year 200506, she
became aware about the fact that the suit premises have been
transferred by her mother in favour of defendant No.1. It is her
contention that she is also one of the legal heirs of mother and father.
She requested to protect her right in the suit premises.
8. Defendant Nos.3 and 4 have not filed any reply.
9. The plaintiff by rejoinder denied the contentions made by
the defendants in their reply and prayed to allow the motion.
10. Heard the learned advocates for the plaintiff and defendant
No.1. No argument of the rest of the defendants. Points for
determination alongwith my findings thereon are as follows :
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POINTS FINDINGS
1 Whether the plaintiff has prima facie case ? Yes
2 Whether the balance of convenience lies in
favour of the plaintiff ?
Yes
3 Whether the plaintiff would suffer irreparable
loss, if injunction is not granted?
Yes
4 What order ? Notice of
motion is
partly allowed.
AS TO POINT Nos. 1 TO 3 :
11. All these points are interlinked with each other and hence
to avoid repetition of findings they are taken together for consideration.
The learned Advocate for the plaintiff urged that the suit premises is
self acquired property of the plaintiff’s father and as the plaintiff’s father
has died intestate, the plaintiff has right in respect of the suit premises.
He relied on following judgments;
1. Mohan Menghraj Shroff V/s. Deputy Registrar, CoOp. Society,
[2018(5)Mh.L.J 611]
2. Sajanbir Singh Anand & Ors. V/s. Ravindar Kaur Anand & Ors.,
[2018 (3) Mh.L.J.892].
3 M.C. Chinna Nagamma V/s. M.C. Gidamma & Anr., [(Andhra
High Court decided on 09.09.1999)].
4. Rajinder Kumar Kapur V/s. Madan Mohan Lal Kapur, [(Delhi
High Court C.S.(O.S.) 2015].
5. Sayyed Minhajul Hasan & Ors. V/s. Mst. Majhar Aara Begum,
First Appeal No.36/2007 [ (Madhya Pradesh High Court)].
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6. Khudi Rai V/s. Lalo Rai (Patna High Court decided on
12.07.1925)].
7. Shakti Yezdani & Anr. V/s. Jayanand Jayant Salgaonkar,
[LAWS (BOM) 2016 121].
12. The learned Advocate for defendant No.1 urged that there
was family arrangement and thereby suit premises was absolute
property of Indumati who later on transferred it to defendant No.1 and
therefore, the plaintiff has no right therein. He relied on following
judgments;
1. Vineeta Sharma V/s. Rakesh Sharma & Ors., [AIR 2020 SC
3717]
2. Delhi Development Authority V/s. Gaurav Kukreja, [AIR 2015
(Supp) 1066.]
3. Khudi Rai V/s. Lalo Rai (Patna High Court decided on
12.07.1925)].
4. Hari Basudev V/s. State of Orissa [LAWS (ORI) 200 3 4.
5. Parmanand V/s. Prescribed Authority (Munsif City,) Meerut,
[LAWS (ALL) 2001 7 84
6. M.C. Chinna Nagamma V/s. M.C. Gidamma & Anr., [(Andhra
High Court decided on 09.09.1999)].
7. Rajinder Kumar Kapur V/s. Madan Mohan Lal Kapur, [(Delhi
High Court C.S.(O.S.) 2015].
8. Sajanbir Singh Anand & Ors. V/s. Ravindar Kaur Anand & Ors.,
[2018 (3) Mh.L.J.892].
9. Maganbhai Balubhai V/s. Lilavatiben Naginbhai D/o Balubhai
Bhanabhai [LAWS (GJH) 20189309.
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13. I have gone through the aforesaid judgments. The
relationship between the plaintiff and defendant Nos.1 to 3 is not
disputed. They are the daughters of the late Mahendra Khushaldas
Mehta. It is also not disputed that the suit premises was originally
acquired by deceased Mahendra. It is also not disputed that defendant
No.1 was residing in the suit premises with her mother Smt. Indumati.
It is the case of the plaintiff that being the suit premises is selfacquired
property of her deceased father, she has undivided share therein. The
plaintiff has filed this suit for declaration and partition. In the prayer
clause of the plaint, the plaintiff has sought relief of partition claiming
her 1/4th share in the suit premises. She also sought relief to declare
that the transfer of the suit premises in the name of defendant No.1
from the name of her mother Indumati is illegal. It is the contention of
the plaintiff that defendant No.1 by taking undue advantage of the ill
health of Indumati, forced her to sign the papers for transfer of suit
premises in the name of Indumati from the name of her late father. It is
further contention of the plaintiff that for such transfer there was
reference of the alleged Will of the plaintiff's father but her father has
died intestate. It is further contention of the plaintiff that on 01.07.2003
defendant No.1 had again applied to defendant No.4 society for
transfer of said flat in her name. She joined the copy of Will of
Smt.Indumati with the transfer application. It is further contention of
the plaintiff that defendant No.4 Society without considering rights of
other heirs have transferred the suit premises in the name of defendant
No.1.
14. The copy of said application dated 01.07.2003 is at Exh.A
page 25 of the plaint, wherein, defendant No.1 had informed to
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defendant No.4 that her mother Indumati had transferred the suit
premises by executing power of attorney and affidavit in favour of
defendant No.1. She enclosed certain documents alongwith the said
application. The list of enclosure shows that there was general power of
attorney executed by Indumati alongwith her affidavit. It also includes
affidavit of defendant No.1, indemnity bond, undertaking, share
certificate, application for membership, Will of Indumati and
nomination form. The plaintiff has not clarified when her mother
expired. In say of defendant No.2 to this motion, it is mentioned that
Indumati has expired on 06.11.2015. Therefore, on the day of
aforesaid application dated 01.07.2003, Indumati was alive therefore,
reference of Will of Indumati alongwith the said application dated
01.07.2003 was of no use.
15. From the contents of this application, it appears that the
transfer of suit premises was requested on the basis of general power of
attorney executed by mother in favour of defendant No.1. In the copy of
general power of attorney at page 30 of the plaint, it is stated that due
to old age and unavoidable circumstances, it is necessary for Smt.
Indumati to appoint attorney and confer upon him the powers
mentioned in the power of attorney. It appears that by said power of
attorney Indumati appointed defendant No.1 as her attorney to manage,
to transact and to look after and to take care of the flat, to pay taxes, to
make correspondence with Society and other authorities, to make
application for getting said flat transferred in the name of Indumati or
any other person of her choice, to sale, mortgage or lease the said flat,
to appear before the Court and authority, to sign plaint, petition, to
defend any action, to compromise etc.. On the basis of such power of
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attorney, title of the suit premises cannot be passed from one person to
another. Admittedly, the suit premises was selfacquired property of
Mahendrafather of the plaintiff and defendant Nos.1 to 3. Defendant
No.1 in her reply to the motion has not referred any Will of Indumati.
On the other hand, it is her contention that after demise of her father
Mahendra, there was family arrangement and suit premises was
transferred in favour of mother. According to her, suit premises was
absolute property of her mother. In para No.11 and 12 of her reply, it is
her contention that during her lifetime Indumatiher mother has
transferred the suit premises in her favour. She has not described mode
of said transfer. She has not provided any details to establish her claim
of title in respect of the suit premises. If any, Will is there that is also
not referred by her. If there was any Will, it ought to have been
probated but no such facts are pleaded by defendant No.1. Therefore, it
appears that defendant No.1 simply relied on application dated
01.07.2003 and process of transfer of membership from the name of
Indumati to the name of defendant No.1. Only by the change of
membership to the record of Society there cannot be transfer of
ownership. Transfer of membership has to be followed by transfer of
title. In absence of any document for transfer of title, I am of the view
that there is no prima facie proof of exclusive title of suit premises in
favour of defendant No.1.
16. As aforesaid the suit premises was originally acquired by
father of the plaintiff and defendant Nos.1 to 3. Copy of share certificate
of Society at page 47 of the plaint was in the name of the plaintiff's
father. On 30.06.2000 said share certificate was transferred in the
name of Indumati. In the year 2004 it was transferred in the name of
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defendant No.1. It is the contention of the plaintiff that for the transfer
of suit premises in the name of Indumati, defendant No.1 referred about
the alleged Will of her father. Said Will was not produced by any of the
parties. However, in the letter dated 07.04.2014, page 79 Exh.J, the
contention of the plaintiff are as follows;
"My father's Will is very clear about the transfer of said flat. There is
no scope for wrong interpretation regarding the matter of Will and
apart from that no consent of other legal heirs was taken by the
Society while transferring the above said flat”.
17. There is no probate in respect of the said alleged Will of
Mahendra. In absence of probate or copy of Will, it is not safe to believe
that title in favour of Indumati was created in respect of the suit
premises. Therefore, from the facts and circumstances on record, it is
clear that the suit premises was selfacquired property of the plaintiff’s
late father Mr. Mahendra. After his death, his heirs i.e. plaintiff and
defendant Nos.1 to 3 and their mother Indumati are entitled for the
share in the suit premises. Except the pleadings of first defendant as to
alleged family arrangements, there is no prima facie proof to show that
by family arrangement the suit premises was transferred in the name of
Indumati. Even there is no document to show that Indumati has
transferred the suit premises to defendant No.1. Therefore, there is
substance in the plaintiff's contention that she has right, title, interest
and share in the suit premises.
18. The reference of Vineeta Sharma's judgment(supra) is in
respect of Section 6 of the Hindu Succession Act. In case before me,
according to the facts, it is a case of Section 8 of the Hindu Succession
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Act, therefore, said judgment of Vineeta Sharma is not helpful to the
defendant No.1.
19. It is the contention of defendant No.1 that the suit is not
within limitation and therefore, the plaintiff will not be entitled for any
relief. M.C. Chinna Nagamma's judgment supra was in respect of suit
for declaration injunction and alternatively for possession. Therefore,
observation therein with respect of limitation are not helpful for the
present case as the present suit is for partition. The judgment in respect
of Rajinder Kapur supra, the issue was, whether question of limitation
is mixed question of law and fact. In the said case the ownership of the
suit premises by grandfather was not disputed. The plaintiff and his
father during lifetime never enjoyed any right in the suit property, after
execution of general power of attorney and relinquish deed.
Considering these facts as not disputed, it was held that question of
limitation does not remain mix question of fact and law and therefore,
suit was held as barred by limitation. In case before me, it is the case of
the plaintiff that she came to know about the transfer of suit premises in
the year 2013 and therefore, she made correspondence with defendant
No.4 Society on 25.05.2013. As the present suit is for partition, in view
of Article 110 of the Limitation Act, the limitation for filing suit will be
12 years from the date when the exclusion becomes known to the
plaintiff. Prima facie, it appears that in or around 2013 the plaintiff
came to know about her exclusion from the suit premises and therefore,
she made correspondence by her letter dated 25.05.2013 to defendant
No.4. Therefore, it appears that cause of action for the suit for partition
has occurred in the year 2013. The suit is filed in the year 2019
therefore, it is within limitation.
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20. Judgment of Sajanbir Singh Anand supra relied on by the
first defendant on the point of limitation is in respect of administration
suit. The said dispute was related to seeking administration of the
estate of a deceased under the order of the Court. In the same
judgment, it is held that onus will be on the party claiming benefit of
shorter period of limitation to establish that the case fell within the
special rule limiting the period of a shorter time. In case before me,
first defendant is not able to prove that any shorter period of limitation
is applicable to the present case and therefore, this judgment is not
helpful to first defendant.
21. The judgment in Maganbhai Babubhai case is also in
respect of limitation. In this judgment the judgment of Sajanbir Singh
Anand is referred wherein, it is held that suit for legacy or for a share of
a residue bequeathed by a testator or for a distributive share of the
property of an intestate, for such suit Article 106 will be applicable. In
Sayyed Minhajul Hasan case supra, considering the Article 65 of the
Limitation Act, the plaintiff's suit therein for demand of share from his
brother is held as within limitation of 12 years. In Sajanbir Singh's case
supra, it is observed that relief to enforce a right to share in a joint
family property alleging that the plaintiff was excluded from the joint
family property, in such situation Article110 may become applicable. In
suit before me suit is filed within 12 years from date of such cause of
action therefore, it is within limitation.
22. Judgment in Mohan Shroff case and Shakti Yezdani case
supra are in respect of status of nominee. Nominee has no right based
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on the nomination form. The judgment in Delhi Development Authority
case supra is in respect of the issue that immovable properly can be
legally and lawfully transferred only by registered deed of conveyance.
As aforesaid in case before me, no document of title is produced and
relied upon by defendant No.1. Hence, in absence of the same, it infers
that still the property is the joint property.
23. It is the contention of the defendant that the plaintiff has
withdrawn the suit filed before the Hon'ble Bombay High Court and has
filed a fresh suit. It is urged that the present suit is not filed in
accordance with the order of withdrawal. It is further urged that said
withdrawal was with liberty to adopt appropriate proceeding and filing
of the suit is not appropriate proceeding. I have gone through the order
of withdrawal of suit passed by the Hon'ble High Court. Said order was
passed on 01.11.2018. It reads as follows:
“1. At the request of the plaintiff, the suit is dismissed as
withdrawn with liberty to adopt appropriate proceedings.
2. Refund of Court fees in accordance with the Rules.
3. The notice of motion does not survive and is disposed of as
infructuous. All interim orders stand vacated”.
24. In view of the above order, withdrawal of the suit before
the Hon'ble High Court was allowed with liberty to adopt appropriate
proceeding. It is the contention of defendant No.1 that there was no
liberty to file a fresh suit and filing of this suit is not within the meaning
of appropriate proceeding.
25. Learned Advocate for the plaintiff on this cause relied on
judgment in Khudi Rai's case supra. In the said case before the Hon'ble
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High Court, permission for withdrawal of the suit was granted but not
in terms of liberty to bring a fresh suit. In the Judicial Commissioner's
Court, it was observed that the order operated as a refusal of the
permission to file a fresh suit. It is observed by the Hon'ble High Court
that where the plaintiff applied for withdrawal of the suit with liberty to
bring a fresh suit and the order is passed giving the permission to
withdraw the suit although nothing is said in the order as to liberty to
institute the suit on the same cause of action that order ought to be
read along with the petition and construed as granting permission to
file a fresh suit.
26. Learned Advocate for the defendant relied on judgment of
Hari Basudev case supra, therein question for consideration was that in
absence of any specific order granting liberty to institute a fresh case,
whether fresh suit can lie?. It is observed that subrule 4 of Order 23
Rule 1, thereof interdicts by stating inter alia that where the plaintiff
withdraws from a suit or part of a claim without permission shall be
precluded form instituting any fresh suit in respect of such subject
matter or such part of the claim. It is further observed that the learned
Civil Judge having permitted to withdraw the said case, we are inclined
to hold that permission to institute a fresh case in the circumstances
was impliedly granted. In Parmanand's case supra, it is observed that
effect of withdrawal of the suit is that the parties are left in the same
position which they had occupied if no such suit had been instituted. In
case before me, the earlier suit before the Hon'ble High Court was
withdrawn with liberty to adopt appropriate proceeding therefore, the
plaintiff was not barred from filing the present suit.
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27. Along with the plaint, the plaintiff has produced the copy
of notice dated 13.12.2018 Exh.'S' issued by the plaintiff to the
Dy.Registrar, Cooperative Housing Society as per Section 164 of the
Maharashtra Cooperative Societies Act, 1960. The main relief in the
suit is in respect of the partition of the suit premises. Defendant No.4 is
the Cooperative Society, where the suit premises is situated. The suit is
for the main relief of partition. Defendant No.4 is the formal party
therein. The notice under Section 164 of the Maharashtra Cooperative
Societies Act, 1960 has been issued, therefore, the plaintiff has
complied with the requirement.
28. From the aforesaid facts and circumstances on record, it
appears that the suit premises was originally acquired by the father of
the plaintiff and defendant Nos.1 to 3. After death of father, it appears
that name of mother of defendant No.1 was recorded to the record of
defendant No.4Society, in respect of the suit premises. Later on, the
name of defendant No.1 has been recorded by defendant No.4 in
respect of the suit premises. Admittedly, there is no document of
transfer in favour of defendant No.1. There was reference of Will in her
favour. However, copy of Will is not produced on record by either of the
parties. There is no probate of such Will and in absence of copy of Will
or probate in this regard, it is not safe to believe that plaintiff's father
Mr. Mahendra bequeathed the suit premises to his wife Indumati.
Defendant No.1 except the power of attorney and affidavit at page
No.30 and 34 of the plaint, has no document to show in her favour
about title of the suit premises. Only on the basis of affidavit and power
of attorney, defendant No.1 prima facie has no exclusive title in the suit
premises. On this background the plaintiff and defendant Nos.1 to 3
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have equal right and share in the suit premises therefore, the plaintiff
has prima facie case in her favour.
29. The plaintiff apprehends that defendants may create third
party interest in the suit premises or they may part with the possession
thereof. Therefore, she prayed for interim injunction to restrain such
activities on the part of the defendants. On the background of the
aforesaid facts, status of subjectmatter is required to be maintained till
decision of dispute. Defendant No.1 is claiming exclusive right in the
suit premises, if she proceeds to create third party interest in the suit
premises, there will be multiplicity of the litigation. Moreover, such
attempt will affect not only plaintiff's right but the rights of defendant
Nos.2 and 3 also. Defendant No.1 without any title document has
attempted to enter her name to the record of Society in respect of the
suit premises therefore, it becomes necessary to restrain defendant No.1
from creating third party interest in the suit premises or from alienating
it or from parting with the possession thereof. The balance of
convenience to that regard is in plaintiff’s favour. If such injunction is
not granted there will be irreparable loss to the plaintiff and defendant
Nos.2 and 3. I answer point Nos. 1 to 3 accordingly.
As To Point No. 4:
30. In view of my aforesaid findings, the plaintiff is entitled for
relief of interim injunction. The plaintiff has also prayed for
appointment of Court Receiver. The circumstances on record do not
require appointment of Court Receiver. Therefore, in my view, the
plaintiff is not entitled for the said relief hence, notice of motion is
required to be partly allowed. In the result in answer to point No.4, I
pass the following order :
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ORDER
1. The Notice of Motion No. 2639/2019 is partly allowed.
2. By an order of interim injunction defendant No.1 is
restrained from creating third party interest, from alienating the
suit premises and from parting with the possession of the suit
premises in any manner till disposal of this suit.
3. Costs shall follow the event.
4. Notice of motion No.2639/2019 is disposed of
accordingly.
Date : 12.10.2022 (Rajesh A. Sasne)
Dictated on : 12/10/2022. Judge, C.R.No.62,
transcribed on : 14/10/2022. City Civil Court,
Signed on : 18/10/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18.10.2022 at 1.55 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 12/10/2022
Order signed by P.O. on 18/10/2022
Order uploaded on 18/10/2022
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