Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1003/18 1 Suit No.1289/15
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1003/2018
IN
S.C SUIT NO.1289/2015
Smt. Anusaya Arjun Gangawane .. Plaintiff
V/s.
1. Smt. Nirmala @ Asha Kersi Daruwala
2. Vasant Shrirang Kharat,
3. Jeevan Shrirang Kharat
4. Mrs. Lalita Shashikant Sonavane.
5. Mrs. Jayashri Mahendra Kamble.
6. M/s. Sheetal Sagar Builder & Developer
Pvt. Ltd.
7. Lokmanya Nagar Pradarshini CHS Ltd. ..Defendants
Appearance :
Adv. Mr. SK Jain for plaintiff.
Adv. Ms. Divya R. Trivedi for Def. no. 1.
Adv Mrs. Aanchal Jain for Defs.no. 2 to 5.
None appeared for Defts. no. 6 and 7.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 26.7.2019.
ORAL ORDER
1. This chamber summons(C/S) is taken out by the Counsel
for plaintiff for transposition of defendant no.4 as plaintiff in the suit
and to carry out necessary amendment in the plaint by deleting name of
the defendant no.4 from the array of parties and to grant permission to
carry out necessary amendments in the plaint, as per Schedule annexed
with the chamber summons. The chamber summons is supported by an
affidavit of defendant no.4 Mrs. Lalita Sonavane. Defendant no.1
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C/S No.1003/18 2 Suit No.1289/15
Nirmala Daruwala has filed an affidavit in reply to the chamber
summons and has opposed the same.
2. I have heard oral submissions of Ld. Counsels for both
sides.
3. By taking out this chamber summons, defendant no.4 is
seeking transposing her as plaintiff and deleting her name as defendant
no.4 from the array of parties to the suit. She is also seeking
consequential amendment in the plaint in view of above said
transposition. For the sake of convenience and ready reference, a
“family tree” of deceased Arjun Gangawane is reproduced as under :
Arjun Shivram
Gangawane
(died on
4.2.1992)
Wife
Draupadi Arjun
Gangawane
(died on not
known)
Wife
Anusaya Arjun
Gangawane
Wife
Shantabai
(died on
27.7.2014)
Daughter
Vimal Shrirang
Kharat
(died on
8.12.2002)
No issue Daughter
Smt. Asha Kersi
Daruwala
Nephew/ niece
Vasant Shrirang
Kharat
Jeevan Shrirang
Kharat
Lalita Shashikant
Sonawane
Jayshri Mahendra
Kamble
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C/S No.1003/18 3 Suit No.1289/15
4. Admittedly, the suit property was owned by late Arjun
Gangawane, who had three wives. He had married to his first wife
Draupadi and from their wedlock daughter Vimal Kharat was born and
defendant no.4 is the daughter of said Vimal Kharat, d/o. Arjun
Gangawane. Original plaintiff Anusaya Gangawane was second wife of
Arjun Gangawane and defendant no.1 was his stepdaughter born from
3rd wife of Arjun Gangawane i.e. Shantabai. Defendants no.2 to 5 are
children of Vimal Kharat, daughter of Arjun Gangawane and Draupadi
Gangawane. Vimal had died on 8.12.2002 and defendants no.2 to 5 are
claiming their right as her L.Rs. in the suit property. Late Arjun had no
issue from plaintiff Anusaya Gangawane. It is submitted that, during the
pendency of suit, plaintiff has died. But the cause of action of the suit
survives. There is no one to prosecute the suit after death of the
plaintiff. Under the above circumstances, it has become necessary to
permit the defendant no.4 to transpose her as plaintiff in the suit by
deleting her name as defendant no.4 in the array of parties. All the legal
representatives of late Arjun Gangawane and Anusaya Gangawane are
on record. Under the above circumstances, the chamber summons
deserves to be allowed.
5. Ld Counsel for the defendant no.1 has strongly opposed the
chamber summons on various grounds. Admittedly the suit claim is for
partition and possession of the suit premises. Original plaintiff and
defendants all are legal heirs of the immoveable property, left behind
by late Arjun Gangawane. It is contended on behalf of the defendant
no.1 that late Arjun Gangawane had left behind a Will dated 24.9.1990
and that he had not died intestate. By the said Will, original plaintiff
was given life time interest to reside in the suit premises being room
no.135, chawl no.5. Therefore, the original plaintiff had no exclusive
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C/S No.1003/18 4 Suit No.1289/15
right in respect of testamentary disposition of the property left behind
by late Arjun Gangawane. It is further submitted that, after Executive
Engineer, MBRR Board, a Unit of MHADA upon verification has held
mother of defendant no.1 i.e. Shantabai as lawful occupant of the room
no.135, chawl no.5 and to participate in the redevelopment scheme of
defendant no.7 and therefore, she had got alternate accommodation on
ownership basis in lieu of room no.135 chawl no.5, which were
tenanted premises.
6. It is further contended on behalf of the defendant no.1 that,
in view of above facts and circumstances, original plaintiff and
defendants no.2 to 5 had no right or share in the suit premises in view
of the Will executed by late Arjun Gangawane. It is further submitted
on behalf of the defendant no.1 that, late Shantabai had also made a
Will on 24.7.2014 and she died on 27.7.2014. A probate petition
bearing no. 556/2016 was filed before Hon'ble Bombay High Court in
respect of said Will and probate was granted by the High Court on
20.12.2016. Therefore, the Society has transferred the suit flat in the
name of defendant no.1.
7. Under the above circumstances, it is submitted that, the
suit, as framed and filed by the plaintiff, has become infructuous. The
original suit property was tenanted property governed under Rent Act
prior to its redevelopment. It is lastly contended that, plaintiff Anusaya,
being widow of deceased Arjun, was entitled for exemption of the court
fees at the time of filing of the suit, but, defendant no.4 cannot get
same benefit if she is transposed as plaintiff in the case. Defendant no.4
is a married daughter of Vimal Kharat and not a widow like original
plaintiff. It is submitted that, valuation of the suit premises as on today
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C/S No.1003/18 5 Suit No.1289/15
is over and above the pecuniary jurisdiction of this Court and therefore
this court will have no jurisdiction to try and decide the suit.
8. Considering the pleadings of the parties and prima facie
material on record and after taking in to consideration oral submissions
made on behalf of the Ld. Counsels for both sides, I find that, chamber
summons, as framed and filed, is itself is misconceived and not
maintainable in law. First of all, it can be seen that the chamber
summons is taken out by Ld Counsel for plaintiff for transposition of
defendant no.4 as plaintiff in the suit. After death of original plaintiff
Anusaya Gangawane, engagement of her counsel had automatically
come to an end and therefore, the advocate for the plaintiff is not
entitled to move the chamber summons through defendant no.4 on the
death of original plaintiff.
9. Apart from above technical aspect, the chamber summons
taken out on behalf of the defendant no.4 for her transposition is not
maintainable in law in view of various objections raised by the
defendant no.1 in affidavit in reply to the chamber summons.
Considering the facts and circumstances and objection raised by the
defendant no.1, I find that, the suit claim involves disputed questions of
facts. In view of contentions made by the defendant no.1 that, late
Arjun Gangawane had not died intestate but had left behind a Will
dated 24.9.1990 and subsequently, mother of the defendant no.1 late
Shantabai Gangawane had also died on 27.7.2014 after executing a
registered Will dated 24.7.2014 and probate of the said Will has been
granted by the Hon'ble High Court under Probate Petition no.556/2016
on 20.12.2016. The suit property came into existence after
redevelopment of the original room no.135, chawl no.5 under
Redevelopment scheme of Mhada. The original suit property was
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C/S No.1003/18 6 Suit No.1289/15
tenanted property governed by Rent Act prior to redevelopment. I find
that, the suit, as framed and filed by the original plaintiff, has become
infructous and therefore, will not survive for adjudication. Similarly,
there would be objection as to the pecuniary jurisdiction of this Court
considering prevailing valuation of the suit property and regarding
payment of court fees because the original plaintiff Anusaya being wife
of late Arjun Gangawane was exempted from payment of court fees at
the time of institution of suit, but now the defendant no.4 will not be
entitled for the same benefit, she being married daughter of late Vimal
Kharat. Under the above circumstances, I am of the opinion that, the
chamber summons, as framed and filed, suffers from various legal
defects and lacunae and cannot be entertained. Hence, I proceed to pass
following order:
ORDER
1. Chamber Summons No.1003/2018 is hereby
rejected as not maintainable in law and it is
disposed of accordingly.
2. In view of above observations and finding, the
suit may be kept for dismissal order.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 26.7.2019 Gr. Bombay (C.R. 03)
Dictated on : 26.7.2019
Typed on : 29.7.2019
Signed by HHJ on : 31.7.2019
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C/S No.1003/18 7 Suit No.1289/15
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 31.7.19
TIME: 3.30 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 26.7.19
Judgment/ order signed by P.O on 31.7.19
Judgment/ order uploaded on 31.7.19
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