Final Order 1

Order Details: Other
Pdf Text: 1 MA 73-19MH Petition
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
MISC. APPLICATION NO. 73 OF 2019
IN
MENTAL HEALTH PETITION NO. 351 OF 2018
Mr. Girish Chhotalal Joshi,
Hindu Age 72 years, Occ: Business
the brotherinlaw of the person with
Profound Permanent Disability
10% residing at 72 “Vijay”
Building, Jain Mandir Marg,
Mumbai 400 022. ...Petitioner
Appearance: Adv. MR. Taslania for the Petitioner.
Coram : Ashutosh N. Karmarkar,
Judge, (Court Room No. 54)
Dated : 30th November, 2019
ORDER
1. The applicant has sought permission of this Court to sell
Unit/Godown No. 1 of mentally ill person situated on Ground floor of
building known as “Upadhyaya Shriram Industrial Estate in Upadhyaya
Shriram Industrial Premises Cooperative Society Limited, Kale Marg,
Bail Bazar, Kurla (W), Mumbai, for Rs. 36 lakh to Shri Vardichand
Tejpal Jain.
2. According to the applicant, he is appointed alongwith his
wife Mrs. Devyani Girish Joshi, by this Court as a Guardian for Mrs.
Kashmira Kamalkant Joshi, the person with profound permanent
disability 100%. Mrs. Kashmira is born on 28.07.1939. The said
mentally ill lady and late Mr. Kamalkant Joshi, had three daughters in
their wedlock. The eldest daughter Mrs. Arti Chandaria died on
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23.01.2015 at Canada and another eldest daughter Mrs.Shilpa Zaveri,
was living at Vadodara, died on 19.06.2017. The mentally ill person's
husband Mr. Kamalkant died on 20.01.2017. Mrs. Meenakshi Raj
Chandaria, is the only surviving youngest daughter, who holds the
position of legal heirs falling in clause1 of Hindu Succession Act.
3. The mentally ill person is seized and possessed of and
otherwise well and sufficiently entitled to all right, title and interest in
Unit/Godown No. 1 admeasuring about 535 sq.ft. Carpet area on the
ground floor of the building known as Upadhyaya Shriram Industrial
Estate. The applicant and his wife are the total support guardian. None
of the children/grand children of mentally ill person residing in
Mumbai. The said godown is lying idle. The applicant after persistent
endeavors been able to arrive at an agreement for sale and transfer of
the mentally ill person's right, title and interest in Godown No. 1 to Shri
Vardichand Jain for Rs. 36 lakhs. The said amount is above the ready
reckoner rates. The applicant has arrived in the said agreement in
consultation with only surviving daughter Meenakshi Chandaria, of
mentally ill person.
4. I have heard the Ld. Advocate for the applicant.
5. It is submitted that the applicant is also at an advanced
stage. The proposed draft agreement is also filed. It is submitted that
the document showing ready reckoner rates are also filed and the
agreed consideration is more than the said value.
6. The applicant was also heard in respect of the query about
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sell of the mentally ill person's property and about the status and rights
of heirs of daughter of mentally ill person. In respect of the query, the
applicant has submitted that the society is the owner of the whole land
and individual person is the member of the Society. He has invited my
attention to the copy of IndexII and Conveyance Deed which is
pertaining to whole area of 1806.60 square meters. On that basis it is
submitted that the society's ownership is established by way of this
Deed. It is submitted that mentally ill person has purchased this
unit/Godown No. 1 from Anjana Janakkumr Upadhyaya. Further, he
has submitted that the proposed purchaser must have enquired
thoroughly. He has also submitted that the buyer has to be aware. It is
submitted that, at present, children of the daughters of the mentally
person have no right.
7. It appears from the order passed in Mental Health Petition
No. 351/2018 that the present applicant and his wife Mrs. Devyani
Joshi were jointly and severally appointed under Sec. 14 (1) proviso of
the Rights of Persons with Disabilities Act, as the total support
guardians for Mrs. Kashmira Kamalkant Joshi and for her properties.
The applicant was directed to get permission before alienating any of
the immovable properties of mentally ill person.
8. It is specifically contended that, the mentally ill person is
entitled to all right, title and interest in the Unit of Godown No. 1,
admeasuring 535 sq.ft. Copy of IndexII and the Conveyance Deed on
which the applicant is relying is not the document executed between
the mentally ill person and her husband to one side and the earlier
owner to the other side. The said Conveyance Deed is pertaining to
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whole premises of 1806.60 sq.meter in which this godown No.1 is
situated. The applicant has just filed copy of unregistered agreement to
sell between Mrs. Anjana Upadhyaya as vendor and the alleged
mentally ill person Kashmira and Kamalkant Josh as a purchaser. Copy
of share certificate is also produced by the applicant which shows that
the alleged mentally ill person is registered holder of the individual
share in the said society. This document cannot be said to be document
of title. There is also reference in the draft deed of transfer/sale in
agreement dated 21.03.1981, that Mrs. Kashmira Joshi and Kamalkant
Joshi were referred to as purchaser. It is also mentioned in that
agreement that it is sold and transferred to the purchaser. Even the bill
pertaining to the Municipal taxes, service charges which is issued by
Upadhyay Shriram Industrial Premises Coop. Soceity Ltd., for the year
201819 shows that the mentally ill lady Mrs. Kashmira Joshi and Mr.
Kamalkant Joshi, were unit holder. Considering these facts, it will be
difficult to accept the contention about the entitlement of the mentally
ill person only to all right and title in Godown No. 1.
9. Ld. Advocate for the applicant has invited my attention to
clause7 in unregistered agreement and submitted that Kamalkant Joshi
was joined as a purchaser for the sake of convenience and no
consideration was paid by him. It is necessary to the applicant to file
the registered sale deed to ascertain the right, title and interest of the
mentally ill person only. It is not stated that the said clause No. 7 was
also in existence in the sale deed. Therefore, it is difficult to accept the
contention about the sole interest of the mentally ill person in the
property. The documents on record prima facie shows about interest of
Kamalkant Joshi also in the said unit. It is contended in the application
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that two daughters of of Smt. Kashmira Joshi and Kamalkant Joshi are
no more. They were married. No other heirs of deceased daughters
are brought on record, nor their affidavits are placed on record.
Ld.Advocate for the applicant has also submitted that the permission
may be granted to the extent of share of mentally ill person. It is
already discussed that the applicant has not made clear about heir of
deceased daughters of mentally ill person and late Kamalkant Joshi. In
absence of it, even prima facie share of the applicant cannot be
ascertained. Considering these facts, the grant of permission as sought
will not be in the interest of mentally ill person.
10. Ld.Advocate for the applicant has also placed on record
documents of ready reckoner rates and two sale instances in the same
locality. The proposed agreed rate with the purchasers may be at the
higher side.
11. For the reasons stated above, it is already held in foregoing
paras that the grant of permission as sought is not in the interest of
mentally ill person. Thus, application deserves to be rejected.
Accordingly, I proceed to pass order in following terms.
ORDER
Misc. Application is rejected and disposed off accordingly.
( Ashutosh N. Karmarkar )
Judge,
Date : 30.11.2019 City Civil Court, Gr. Mumbai.
Dictated on : 30.11.2019
Transcribed on : 03.12.2019
Date of sign : 03.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 03.12.2019 2.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri A.N. KARMARKAR
(C.R.No.54)
Date of Pronouncement of
JUDGMENT /ORDER
30.11.2019
JUDGMENT /ORDER signed by P.O. on 03.12.2019
JUDGMENT /ORDER uploaded on 03.12.2019
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