Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No. 3698 of 2019 1
MHCC010100662019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.3698 OF 2019
IN
S.C. SUIT NO. 2302 OF 2019
Hemang Pramod Tanna ...Plaintiff
Versus
1 Mrs. Ramila Kalubai Tanna (deleted since deceased)
2. Atul Tower CHS Ltd and another ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI C.S.Datir
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 14-10-2025
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Appearance:
Ld. Advocate Shri.Ashok Sarogi for the plaintiff.
Ld. Advocate Shri. Sahil Wagh for defendants.
ORDER
1. The plaintiff has taken out this Notice of Motion for restraining
the defendant nos.1 and 3 from acting by any manner upon alleged Gift
Deed dtd. 21-04-2016, alleged to have been signed by the defendant no. 1
in favour of defendant no.3 in respect of the suit flat. He also prays that,
the defendant no.2 be restrained from transferring the Share Certificate in
favour of defendant no.3 in respect of the Suit Flat No. D-312.
It is to be noted that, during the pendency of the suit, defendant
no.1 came to be expired and she has no legal heirs, therefore, necessary
order needs to be passed against remaining defendants and not against
the deceased defendant.
2. According to him, the present suit came to be filed for
declaration and permanent injunction. According to plaintiff, he and
defendant no.1 are the lawful joint owner in respect of the flat in question.
As both are joint owner, defendant no.1 cannot gift the suit flat to
anybody entirely. The Gift Deed in question is doubtful and is bad in law.
It cannot be acted upon. Defendant no.3 is trying to get the suit flat and
incorporated his name in the Share Certificate in respect of the flat on
record of the society, on the basis of Gift Deed is illegal, bad in law and
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N/M No. 3698 of 2019 3
against the provision of law. If defendant nos.1 and 3 succeed to transfer
the flat in the name of defendant no.3, the very purpose of the suit would
be frustrated and plaintiff would suffer irreparable loss. Therefore, he
prays, his Notice of Motion be allowed as prayed.
3. Defendant no.3 has filed written statement and contended that,
his written statement be treated as reply to the Notice of Motion entirely.
The plaintiff cannot seek injunction either by way of Notice of Motion or
suit. The prayer made in Notice of Motion is mischief and bad in law.
There is order of injunction against him from disturbing the defendant
no.1’s possession from 1997. The defendant no.1 has made Gift Deed
dtd.21-04-2016 in-favour of defendant no.3 and handed over possession
of the flat in question and since then, he is in possession. The plaintiff has
no right, title and interest as on today. He is not residing in the suit
property. He has no concern with the suit flat, therefore, Notice of Motion
be rejected.
4. Heard argument. Perused record.
5. It is the main contention of plaintiff that, he is joint lawful
owner in respect of the suit flat alongwith defendant no.1. As he is one of
the legal owner with the defendant no.1, cannot alienate or Gift the suit
flat to anybody. However, it appears that, defendant no.1 has executed
alleged Gift Deed on 21-04-2016 in favour of defendant no.3, which is
illegal, bad in law and against the provision of law.
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6. To support his contention, he has attracted my attention
towards the Gift Deed in para -2, wherein, the deceased defendant no.1
has admitted that,
" She alongwith present plaintiff purchased the suit flat from
Atul Tower Co-op Hsg. Society Ltd. jointly dtd.17-01-1984."
7. Not only this, the deceased defendant no.1 has further attached
certain documents alongwith Gift Deed is also necessary to discuss. The
defendant no.1 has attached Share Certificate /Member Certificate of the
Atul Tower Co-op Hsg. Society Ltd., wherein the name of deceased
defendant no.1 and present plaintiff are appeared as joint owner.
8. Not only this, the co-operative housing society has issued one
letter dtd. 09-1-2016, wherein it clearly mentioned that, the defendant
no.1 and the present plaintiff are the joint members of the flat in question.
9. These documents clearly shows that, the plaintiff and defendant
no.1 is the joint owner of the suit flat. In such circumstances, defendant
no.1 cannot alienate or gift the suit flat to defendant no.1 without consent
of the plaintiff. In short, the Gift Deed is doubtful and challenged by the
plaintiff. No doubt, it requires full fledge evidence by the respective parties
to decide the same. It appears that, the plaintiff is the joint owner of the
suit flat, therefore, defendant no.3 requires to be restrained to act upon on
the basis of alleged Gift Deed dtd.21-04-2016 by any means and
defendant no.2 society also needs to be restrained from transferring the
share certificate in favour of defendant no.3 in respect of the suit flat.
Hence, following order:
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ORDER-
1. Notice of Motion No. 3698 of 2019 is allowed.
2. Defendant no.3 is hereby restrained from acting upon
on the basis of alleged Gift Deed dtd.21-04-2016 by
any means till final judgment of the suit.
3. Defendant no.2 (society) is also hereby restrained
from transferring the Share Certificate in favour of
defendant no.3 in respect of the suit flat.
4. Accordingly, Notice of Motion No. 3698 of 2019
disposed off.
(C.S. Datir)
Judge,
City Civil Court,
Date : 14-10-2025 Gr. Bombay.
Dictated on : 14-10-2025
Typed on : 14-10-2025
Corrected on : 14-10-2025
Signed on : 14-10-2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14-10-2025 6.00 P.m. K.M.Rana
Name of the Judge (with Court Room
no.63)
HHJ Shri C.S.Datir
(Court Room No.63).
Date of Pronouncement of Judgment/Order 14-10-2025
Judgment/Order signed by P.O. on 14-10-2025
Judgment/Order uploaded on 14-10-2025
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