Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2871/19 in S.C.Suit No. 2094/19. 1 Order.
MHCC010079252019
Presented on : 31-07-2019
Registered on : 31-07-2019
Decided on : 12-09-2022
Duration : 3 years, 1 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2871 OF 2019
IN
S. C. SUIT NO. 2094 OF 2019
Snehal Yatin Prabhavalkar )...Plaintiff
Versus
Yatin Shamrao Prabhavalkar and one )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 12th SEPTEMBER, 2022.
Shri Rajesh Devgharkar, Advocate for the plaintiff.
Shri R.M.Sawant, Advocate for defendant no.1.
Shri Rajendra Pai and Shri Akshay Pai, Advocates for defendant no.2.
ORDER
1. The plaintiff has taken out notice of motion for interim
reliefs in the form of temporary injunction restraining defendants no.1
and 2 from creating any third party right in respect of suit premises
no.1 and 2 as enumerated in para 4(g) and 4(h) of the plaint
respectively. Perused notice of motion, affidavit in reply filed by
defendants no.1 and 2 and rejoinder filed by the plaintiff. I have gone
through list of documents filed by defendant no.1 (Exh.11) and
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 2 Order.
compilation of documents filed by defendant no.2 (Exh.16). I have also
gone through the suit proceedings. Heard learned counsel Shri Rajesh
Devgharkar for the plaintiff, learned counsel Shri R.M.Sawant for
defendant no.1 and learned counsel Shri Rajendra Pai along with
Akshay Pai for defendant no.2.
2. Case of the plaintiff in brief, is as under :
The plaintiff is daughter of defendant no.1.
Defendant no.2 is second wife of defendant no.1 and stepmother of the
plaintiff. Defendant no.1 had divorced to mother of the plaintiff namely
Vidyalaxmi. The plaintiff went to New Zealand for further studies and
for seeking job opportunities. She has executed Power of Attorney dated
15/07/2015 in favour of defendant no.1 and it was registered.
Defendant no.1 had 50% ownership rights in Flat No.43, 4th Floor, area
1065 sq.ft. in the Solitare Cooperative Housing Society Ltd., City
Survey No. 782, Final Plot No.427 of T.P.S. III, Senapati Bapat Marg,
and Bhagoji Keer Marg, off. Johnson House, Mahim, Mumbai400016 as
mentioned in para 4(g) of the plaint (suit premises no.1). Defendant
no.1 had 100% ownership right over N.A. Land in Village Kune N.M.
bearing Survey No. 88, Hissa No.2, area 328 sq.mtrs. of southern side
out of Bungalow Plot No.8, (Seema Bungalow), Opposite Kalubai
Mandir, Dist. Pune as referred in para 4(h) of the plaint (suit premises
no.2).
3. Defendant no.1 gifted suit premises no.2 and 1 to the
plaintiff by virtue of Registered Gift Deeds dated 11/05/2017 and dated
15/05/2017 respectively. The plaintiff became absolute and exclusive
owner of suit premises no.1 and 2 by virtue of these two Gift Deeds.
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 3 Order.
4. In July, 2017 defendant no.1 told the plaintiff that due to
some incometax issue and accountancy requirement, he had been
advised to execute Deed of Cancellation in respect of suit premises no.1
and Gift Deed in respect of suit premises no.2 in his favour.
Accordingly, defendant no.1 had forwarded draft of Deed of
Cancellation for premises no.1 and draft of Gift Deed for premises no.2
to the plaintiff. The plaintiff had made it clear to defendant no.1 that
these documents are only for the incometax purpose and these should
not be registered before any Registration Authority. Power of Attorney
was executed to protect interest of the plaintiff. Accordingly, the
plaintiff signed Deed of Cancellation regarding Gift Deed dated
15/05/2017 in respect of suit premises no.1. The plaintiff further
signed Gift Deed dated 17/11/2017 in favour of defendant no.1 in
respect of suit premises no.2. Defendant no.1 got both these documents
registered.
5. Meanwhile, defendant no.1 executed Registered Gift Deeds
in respect of suit premises no.1 and 2 in favour of defendant no.2 on
18/08/2017 and 19/08/2017 respectively.
6. In the light of execution of these six documents, the
plaintiff has come up with the case that he has become absolute owner
of the suit premises no.1 and 2 by virtue of Gift Deeds dated
11/05/2017 and 15/05/2017. She has prayed for interim reliefs as
referred above.
7. Defendant no.1 has come up with the case that he had
gifted the suit premises no.2 and 1 to the plaintiff as per Gift Deeds
dated 11/05/2017 and 15/05/2017 respectively. As defendant no.2
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 4 Order.
had filed domestic violence case against him in ACMM, 9th Court,
Bandra in which several serious and defamatory allegations were made,
he was in depressed and traumatic situation. Defendant no.1 gifted the
suit premises no.1 and 2 to defendant no.2 under pressure tactics
adopted by defendant no.2.
8. Defendant no.2 had filed reply in which it is contended that
earlier Gift Deed dated 15/05/2017 is cancelled and the plaintiff also
gifted suit premises no.2 to defendant no.1 by virtue of Gift Deed dated
17/11/2017. If the value of the suit premises is considered, this Court
does not have pecuniary jurisdiction to deal with the matter. Suit
premises no.2 is situated outside the territorial jurisdiction of this Court.
Section 17 of the CPC applies only to immovable property and not to
several immovable properties. The plaint does not disclose the cause of
action. The plaintiff has sought declaration regarding Gift Deeds dated
18/08/2017 and 19/08/2017 to be illegal, null and void. The plaintiff
has no right to seek reliefs prayed in the plaint. Defendant no.2 has
given account of other properties of the plaintiff and defendant no.1 in
para 7 of affidavit in reply. It is further pleaded that the plaintiff has
another premises and two cars in New Zealand. Details of Domestic
Violence case are elaborated in para 8 to 11 of the affidavit in reply.
Absence of income to defendant no.2 is also enumerated. By raising all
these contentions, defendant no.2 prayed for dismissal of the notice of
motion.
9. My learned Brother Judge Shri A.H.Laddhad had already
decided the present notice of motion granting relief in terms of prayer
clause (a) and (b) as per order dated 01/08/2019. As defendant no.2
had not filed reply and he had short notice of notice of motion hearing,
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 5 Order.
he approached Hon'ble High Court by filing A.O.No. 209/2021 in which
Hon'ble High Court set aside the said order and directed to this Court to
decide the notice of motion afresh. Accordingly, present notice of
motion is being decided after taking affidavit in reply of defendant no.2
and rejoinder of the plaintiff on record.
10. Learned counsel Shri Rajesh Devgharkar for the plaintiff
reiterated his case and also referred all documents in the course of his
arguments. He further submitted that the plaintiff acquired right, title
and interest in the suit premises by execution of Gift Deeds dated
11/05/2017 and 15/05/2017. He prayed to allow the notice of motion.
11. On the contrary, learned counsel Shri R.M.Sawant for
defendant no.1 elaborated circumstances building pressure upon
defendant no.1 making him to execute subsequent Gift Deeds in favour
of defendant no.2. He supported to the case of the plaintiff and prayed
to allow the notice of motion.
12. Learned counsel Shri Rajendra Pai and Shri Akshay Pai
argued the matter for defendant no.2. They have admitted basic facts
relating to relationship between the parties, nature of the suit premises
and execution of six documents as elaborated in the plaint. They have
referred Section 48 of the Transfer of Property Act and submitted that
priority of rights is created by transfer. This priority of right has come
to an end by special act of Cancellation Deed dated 15/11/2017 and
Gift Deed 17/11/2017 and rights of the plaintiff have disappeared.
Now, only rights of defendant no.2 are in force. They also reiterated
their contentions regarding pecuniary jurisdiction, territorial jurisdiction
etc. as pleaded in affidavit in reply. They further stated that defendant
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 6 Order.
no.2 is a senior citizen and she is not having her own source of income.
Defendant no.1 and the plaintiff are in collusion with each other and
they are trying to frustrate rights of defendant no.2 in the suit premises.
They further narrated details of other properties owned by the plaintiff
and defendant no.1 by pointing out documents in compilation of
documents (Exh.16). They prayed for dismissal of the notice of motion.
13. After considering rival submissions and material on record,
basic factual aspect is admitted. Defendant no.1 had initially executed
Gift Deeds of the suit premises in favour of the plaintiff. Subsequently,
the plaintiff signed Cancellation Deed in respect of suit premises no.1
and it is registered on 15/11/2017. Similarly, the plaintiff has signed
Gift Deed dated 17/11/2017 in respect of suit premises no.2 gifting the
same to defendant no.1. It is pertinent to note that the plaintiff has
sought declaration only in respect of Gift Deeds dated 18/08/2017 and
19/08/2017 executed by defendant no.1 in favour of defendant no.2 in
respect of the suit premises. The plaintiff has skipped Deed of
Cancellation dated 15/11/2017 and Gift Deed dated 17/11/2017 while
seeking relief of declaration regarding null and void nature of Gift
Deeds executed in the month of August, 2017. When the plaintiff
herself has cancelled Gift Deed dated 15/05/2017 executed in respect
of the suit premises no.1 in her favour and also executed Gift Deed in
favour of defendant no.1 in respect of suit premises no.2, the plaintiff is
prevented from staking claim over the suit premises without seeking
relief of cancellation of these two documents executed in the month of
November, 2017. When the plaintiff is avoiding to seek material or
main reliefs in respect of documents executed by herself, she is not in a
position to state that she has existing rights in the suit premises by
virtue of Gift Deeds dated 11/05/2017 and 15/05/2017. There is no
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 7 Order.
scope to apply principle under Section 48 of the Transfer of Property
Act, 1882 to the case in hand.
14. Considering chronology of events in the matter and failure
of the plaintiff to seek exhaustive legal remedies, the plaintiff is seeking
relief without any material to show that she had right and interest in
the suit property on the date of filing of the present suit. As there is
absence of prima facie case, the plaintiff is not entitled to interim relief.
So far as aspect of greater hardship and balance of convenience is
concerned, the plaintiff and defendant no.1 are having better financial
position than that of defendant no.2. Documents placed on record are
demonstrating that the plaintiff and defendant no.1 are owners of
immovable properties and they have their own sources of income.
Therefore, principles of greater hardship and balance of convenience tilt
towards defendant no.2. For this reason, notice of motion is liable to be
dismissed. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 2871/2019 is dismissed.
2. Proceeding of N/m No. 2871/2019 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 12/09/2022. Mumbai.
1. Dictated on : 08 and 12/09/2022.
2. Transcribed on : 08 and 12/09/2022.
3. Signed on : 13/09/2022.
4. Delivered to Certified :
Copy Section on
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N/m No. 2871/19 in S.C.Suit No. 2094/19. 8 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/09/2022. 12.38 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 12/09/2022.
Judgment/Order signed by P.O. on 13/09/2022.
Judgment/Order uploaded on 13/09/2022.
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