Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-3182-19 & NM-670-22 in SU-2222-17
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.3182 OF 2019
(CNR No.MHCC01-008648-2019)
AND
NOTICE OF MOTION NO.670 OF 2022
(CNR No.MHCC01-001931-2022)
IN
SUIT NO.2222 OF 2017.
(CNR No.MHCC01-007268-2017)
Nanak Shatishchandra Ghatalia }...PLAINTIFF.
Versus
Devan Shatishchandra Ghatalia & Anr. }...DEFENDANTS.
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Plaintiff in person.
Shri.Mayur Shirke, learned advocate for defendant No.1.
Smt.Shraddha Ghag, learned advocate for defendant No.2.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 21/04/2022)
1. By filing Notice of Motion No.3182 of 2019, defendant
No.1 has claimed relief as under;
A) That the plaint be returned to the Plaintiff to be
presented to the proper Court.
2. By filing Notice of Motion No.670 of 2022, defendant No.1
has claimed relief as under;
A) That the plaint filed by the Plaintiff be rejected.
3. Read the affidavits filed by both the parties in support of
their respective contentions. Heard learned Shri.Mayur Shirke advocate
for defendant No.1. Heard the plaintiff in person. I have also gone
through the written arguments filed by the plaintiff and by learned
advocate for defendant No.2. Perused the entire record.
4. Learned advocate for the defendant No.1 argued that
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defendant No.1 is co-executor of the Will of Satishchandra Ghatalia,
said Will has been duly probated by Hon’ble High Court on filing a
Petition jointly by the plaintiff, defendant No.1 and Harshal Sheth but
Harshal Sheth expired on 25/06/2017 hence, plaintiff and defendant
No.1 are now joint executors of the estate of Satishchandra Ghatalia. He
argued that as per the provisions of Indian Succession Act, Probate
cannot be altered or modified by the executor of Will yet, without
consent of defendant No.1, plaintiff has filed this false suit after seven
years of grant of Probate for disinheriting the defendants from the
estate of deceased Statishchandra Ghatalia. He argued that defendant
No.1 has already filed Misc.Application No.26 of 2017 before Hon’ble
High Court for removing the plaintiff as executor of the estate of the
deceased so also, plaintiff has also filed Misc.Application No.70/2015
for removing defendant No.1 and Harshal Sheth as executors and both
those Misc.Applications are pending before Hon‘ble High Court due to
which, plaintiff has no locus to file this suit. He argued that plaintiff is
seeking declaration in this suit to disinherit the defendants to inherit a
legacy of approximately Rs.13 Crores under the probated Will because
of which, this court has no pecuniary jurisdiction to try & entertain the
suit hence, plaint is liable to be returned to the plaintiff under Order 7
Rule 10 of CPC for presentation in proper Court. He further argued that
averments of the plaint suggest that plaintiff is claiming himself to be
sole executor working in the interest of the estate, Probate is granted by
Hon’ble High Court and this court has no jurisdiction to try and
entertain the suit for the reliefs claimed and suit is barred by limitation
hence, plaint is liable to be rejected under Order 7 Rule 11 of CPC.
5. As against this, plaintiff argued that defendant No.1 is
abusing the process of Law by filing multiple applications. He argued
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that plaintiff had claimed similar relief of declaration in
Misc.Application No.70/2015 before Hon’ble High Court but advocate
for the defendant had raised an objection that Probate court has no
jurisdiction to grant the relief of declaration hence, plaintiff has deleted
said prayer from the Misc.Application and filed this suit as per the
liberty granted by Hon’ble High Court. He argued that application was
filed by defendants before Hon’ble High court for transfer of this suit
but said application has been rejected hence, this Notice of Motion for
return of plaint for presentation before Hon’ble High Court is not
maintainable. He argued that plaintiff has filed the present suit for
seeking interpretation only of clause-10 of the Will, no relief is claimed
in the suit either to change the Will or the Probate hence, the plaintiff
being one of the executor of the Will, he is entitled to proceed with the
suit. He argued that this suit is filed as per the liberty granted by
Hon’ble High Court hence, suit is well within limitations. He argued
that the relief claimed in the plaint is not susceptible to monitory
evaluation, plaintiff has properly valued the suit for the purposes of
payment of court frees hence, objection raised by defendant No.1 about
pecuniary jurisdiction of this court is not sustainable due to which, both
the Notice of Motion are liable to be dismissed with costs. In support of
his argument, plaintiff has placed reliance on the following authorities.
i)
Shankarlal Laxminarayan Rathi V/s. Gangabisen Maniklal Sikshi
reported in
AIR 1972 Bom 326,
ii)
Judgment dtd. 25/03/2008 of
Hon’ble Supreme Court in a case of
Anathula Sudhakar Vs. P.Buchi Reddy (Appeal Civil 6191 of 2001),
iii)
Judgment dt.05/5/2016 of
Hon’ble Supreme Court in
Civil Appeal
No.4816 of 2016 (Muddasani Venkata Vs. Muddasani Sarojana),
iv)
Judgment dtd.27/04/1998 of
Honble Supreme Court in a case of
Ashok Kumar Srivastav Vs. National Insurance Company,
v)
Judgment dtd.11/06/2020 of
Hon’ble Calcutta High Court in
G.A.
No.990 of 2018 with T.S.No. 7 of 2016 (Suresh Agarwal @Suresh
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Kumar Vs. Satyanaraian Agarwal),
vi)
Jadeja Pravinsinhji Anandsinhji Vs Jadeja Mangalsinhji Shivsinhji
reported in
AIR 1963 Guj. 32,
vii)
Vrindavan Borivali Vs Karmarkar
reported in
1983(2)BomCR 267,
viii)
Sulochana Amma Vs. Narayanan
reported in
AIR 1994 SC 152,
ix)
Chandi Charan Das Vs Sushilabala
reported in
AIR 1955 Cal 144,
x)
Forasol Vs. Oil & Natural Gas Commission
reported in
AIR 1984 SC 241,
xi)
Maharashtra State Financial Corporation Vs. Jaycee Drugs and
Pharmaceuticals Pvt. Ltd. reported in
1991 SCR (1) 480,
xii)
Meher Singh Vs. Deepak Sawhny
reported in
1998(3) Mh.L.J.940,
xiii)
Kiran Singh Vs. Chaman Paswan
reported in
AIR 1954 SC 340,
xiv)
Baba Dai Vs. Muneshwar Jha
reported in
AIR 1985 Pat 67,
xv)
Gosto Behari Pramanik Vs. Malati
reported in
AIR 1985 Cal 379.
I have gone through those authorities.
6. Learned advocate for the defendant No.2 submitted that
plaintiff and defendant No.1 are the executors of the Will, plaintiff and
both the defendants are beneficiaries under the Will and plaintiff has no
cause of action to disinherit the defendants as the plaintiff is not the
owner of the property. She submitted that this court has no pecuniary
jurisdiction to try the suit as the value of the two flats is around Rs.30
Crores. She submitted that Probate is granted in July 2010 due to
which, the suit filed in year 2017 is barred by Law of Limitation hence,
the plaint is liable to be rejected.
7. In order to properly understand the controversy, it would
be just to reproduce here the reliefs claimed in the plaint which read as;
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a) That this Hon’ble Court be pleased to declare that
defendant No.1 has acted adverse to the estate of the Late Mr.
Shatishchandra V. Ghatalia and is therefore dis-entitled and
debarred from taking any benefits under the Will of the late Mr.
Shatishchandra V. Ghatalia in accordance with clause 10 of the
Will of the Testator due to the acts adverse to the estate
committed by him;
b) That this Hon’ble Court be pleased to declare that
defendant No.2 has acted adverse to the estate of the late Mr.
Shatishchandra V. Ghatalia and therefore is dis-entitled and
debarred them from taking any benefits under the Will of the
Late Mr. Shatishchandra V. Ghatalia in accordance with clause 10
of the will of the Testator due to the acts adverse to the estate
committed by her;
8. Defendant No.1 has not mentioned the clause of Rule 11 of
Order 7 under which, he has claimed the relief of rejection of the plaint.
Having considered the averments of the affidavit filed in support of
Notice of Motion, it may be stated that defendant No.1 has claimed
relief of rejection of plaint under Order 7 Rule 11(a) and (d) of the
Code of Civil Procedure.
9. Learned advocates for the defendants argued that suit is
barred by limitation as Probate is granted in year 2010 whereas, suit is
filed in year 2017. It is not in dispute that plaintiff had claimed the
reliefs claimed in this Suit in Misc.Application No.70/2015 pending
before Hon’ble High Court. It is not in dispute that Hon’ble High Court
is pleased to direct the plaintiff to delete those prayers by granting
liberty to file appropriate proceedings before appropriate Court. Besides
raising a contention that no limitation is prescribed to file a suit of like
nature, plaintiff has contended in the plaint that suit is within time as it
is filed in view of the liberty granted by Hon’ble High Court vide Order
dtd.20/04/2017 passed in Misc.Application No.70/2015. Having
considered the averments made in para-36 of the plaint, this court is of
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the opinion that contention of the defendants is not acceptable at this
stage that suit is barred by Law of Limitation from the statements of
plaint, it cannot be said at this stage that suit is barred by Law of
Limitation hence, prayer made to reject the plaint on that ground
cannot be accepted.
10. It is an admitted fact that defendant No.1 has filed Misc.
Application before Hon’ble High Court for removal of the plaintiff as
executor of the estate of the deceased however, it is not sufficient to
hold that plaintiff has no cause of action to file this suit especially
because, said Misc.Application is still pending for consideration.
11. Learned advocates for the defendants submitted that
defendants are entitled to inherit a legacy of approximately Rs.13
Crores of movable and immovable assets under the Will and plaintiff is
seeking a relief to disinherit the defendants from their said legacy due
to which, this court has no pecuniary jurisdiction to try and entertain
the suit. Even if the contention of the defendants is accepted that
valuation of the properties which the defendants are entitled to inherit
under the Will, is more than One Crore Rupees, it is the contention of
the plaintiff that he is not seeking disinheritance of the defendants in
the present suit. His contention is that suit is for a declaration to
remove the clouds of uncertainty arisen out of legal necessity on
account of the adverse acts committed by the defendants to the estate of
the deceased.
12. Prayer clauses of the plaint reproduced here-in-above show
that plaintiff has claimed reliefs of declaration of dis-entitlement and
debarring the defendants to take benefits under the Will in accordance
with Clause-10 of the Will on the allegations that defendants have acted
adverse to the estate of the deceased. Clause-10 of the Will reads as;
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“10. I further direct that in the event, any of the beneficiaries
commit an act such as dispute or challenge my Will or challenge
my authority or power to dispose of my estate or any part thereof
by this Will or objects to the legacies or bequests herein contained
or in the event of his or her taking action adverse to my estate or
to this Will, such person will be precluded and debarred from
taking any benefit whatsoever out of my estate and all his right or
benefits under this Will will lapse.’’
13. Apparently, reliefs claimed in the plaint show that plaintiff
is seeking relief to declare that defendants have acted adverse to the
estate of the deceased and hence, they are not entitled or they are
debarred from taking any benefits under Clause-10 of the Will. Relief of
declaration in respect of dis-entitlement and debarring cannot be
separated from the relief of declaration that defendants have acted
adverse to the estate of the deceased. It being so, this court is of the
opinion that the reliefs of declaration claimed by the plaintiff are not
susceptible to monitory evaluation and hence, suit is properly valued for
the purposes of payment of court fees. For these reasons, contention of
the defendants is not acceptable that this court has no pecuniary
jurisdiction to try and entertain the suit.
14. Learned advocate for defendant No.1 argued that Probate
has been granted by Hon'ble High Court, averments of plaint suggest
that plaintiff is claiming that plaintiff alone is trying to protect the
estate of deceased father and reliefs claimed suggest that plaintiff is
trying to alter the terms of Will which is not permissible and hence, suit
is barred by law. It is not in dispute that under Section 3 of the Bombay
City Civil Courts Act, the testamentary and intestate jurisdiction is
specifically excluded from the jurisdiction of the City Civil Court. In the
matter in hands, averments of plaint suggest that reliefs claimed in the
plaint are revolving around clause-10 of the Will which is already
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Probated. It does not appear that plaintiff has claimed reliefs to change
the Will or the Probate granted by Hon'ble High Court.
15. Plaintiff has contended in the plaint that defendant Nos.1
and 2 do not want the property to be sold for which, they are placing
such conditions which are contrary to Clause-(4) of the Will and the
Consent Decree. It is alleged that defendant No.1 has placed certain
impossible conditions because of which, sale cannot take place. Plaintiff
has mentioned in para-30 of the plaint the conditions put by defendants
are impossible conditions. It is not in dispute that plaintiff and
defendant No.1 both are executors of the Will. It is not in dispute that
Probate of the Will has been granted by Hon’ble High Court. It is argued
on behalf of defendant No.1 that terms of the probate cannot be altered
or modified by an Executor with a
malafide intent of increasing his
stake and depriving the other beneficiaries of their fit and proper share
as envisaged by the Testator. Perusal of the plaint does not suggest that
plaintiff has claimed any relief to either alter or modify the terms of the
Probate. Suit is not filed to revoke the Probate. Relief claimed is in
terms of clause 10 of the probated Will due to which, the objection
raised in that regard is not acceptable.
16. Averments of the plaint show that plaintiff has claimed
reliefs in accordance with Clause 10 of the Will by giving the details of
the acts allegedly committed by the defendants adverse to the estate left
behind by the deceased. Whether plaintiff will succeed in proving those
allegations or not, will be a matter for consideration during trial of the
suit. While deciding the relief claimed under Order 7 Rule 11(a) of CPC,
said aspect is not necessary to be considered at this stage. Cause of
action is a bundle of facts and having gone through the averments of
the plaint and reliefs claimed, this court is of the opinion that cause of
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action is properly disclosed in the plaint.
For all the reasons mentioned above, this court is of the
opinion that defendant No.1 is not entitled for the reliefs claimed in
Notice of Motion No.3182/2019 for return of the plaint for presentation
in proper court and for the relief claimed in Notice of Motion
No.670/2022 for rejection of the plaint. Thus, an order.
O R D E R
Notice of Motion No.3182 of 2019 is dismissed.
Notice of Motion No.670 of 2022 is dismissed.
Costs in the main cause.
Date : 21/04/2022. (P.P.RAJVAIDYA)
Dictated on : 21/04/2022. Judge, C.R.No.62,
Checked on : 22/04/2022. City Civil Court,
Signed on : 22/04/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
25/04/2022 at 5.50 p.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 21/04/2022
Order signed by P.O. on 22/04/2022
Order uploaded on 25/04/2022
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