Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3851/2019 ..1.. SC Suit No.597/2017
CNR No.MHCC01-010526-2019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3851 OF 2019
IN
S.C. SUIT NO.597 OF 2017
Smt. Sanju Kiran Shah and other. .. Plaintiff
Versus
Mrf. Trufha H. Bhagalia and otherf. .. Defendantf
Advocates
Heena Modi for plaintiff.
Rajefh Chheda for defendant nof.1 and 3.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 14th February, 2020
ORAL ORDER
Notice of motion if taken out on behalf of plaintiff to
recaft/ftrike out iffue no.2 and 4.
2. Suit if for declaration that plaintiff are abfolute ownerf
of fuit fatf i.e., fat nof. 47 to 50, 2nd foor, Tejkiran Co-
operative Houfing Society Ltd., 2nd Dadifeth Croff lane,
Chowpatty Band Stand, Mumbai- 400 007 (Suit fatf). Plaintiff
cafe if that defendant nof.1 to 3 are real fifter of plaintiff
no.2. Plaintif no.1 if wife of plaintif no.2. Babulal Shah, father
of plaintif no.2 and defendant no.1 to 3 expired on
05.08.1998 leaving behind one immovable property namely
Flat no.120, 2nd foor, Samrat Afhok C.H.S. Ltd., (Samrat fat).
During life time, Babulal Shah executed Will Deed of Samrat
fat in favour of hif wife Suman Shah and fon Kiran Babulal
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Shah i.e., plaintif no.2. Marriage of defendant nof.1 to 3
performed during lifetime of their father. Suman Shah, mother
of plaintif no.2 and defendant no.1 to 3 died inteftate on
16.07.2013. On 23.01.2004, plaintiff have purchafed fuit
fatf alongwith mother of plaintif no.2 from Surendra Chowkfi
for confideration of Rf.69,00,000/-. At that time plaintiff paid
Rf.30.15 Lakhf, Suman Shah paid Rf.2.50 Lakhf and
remaining amount of Rf.36.35 Lakhf houfing loan waf taken
from HSBC. Major amount of purchafe money of fuit fat were
paid by plaintiff. On 01.09.2004, plaintif no. 2 and hif
mother, Suman Shah haf fold Samrat fat to Mukefh Sanghavi
and Meena Mukefh Sanghavi. At that time, defendantf given
no objection to fell Samrat fat. On 27.12.2007, plaintif no.2'f
Firm paid Rf.2 Lakhf to hif mother Suman Shah through
cheque. Then plaintif no.2 alfo paid Rf.50,000/- to hif mother
in cafh. Name of Suman Shah waf incorporated in the tranffer
deed and fhare certifcate of fuit fatf for convenience out of
refpect and love. Thuf plaintiff are claiming abfolute
ownerfhip over fuit fatf.
3. Cafe of defendant nof.1 and 3 if that fuit fat if
purchafed by their mother and plaintiff jointly from fell
proceedf of Samrat fat. Hence name of their mother if
mentioned in tranffer deed and fhare certifcate of fuit fatf
af a joint owner alongwith plaintiff. Thuf defendant nof. 1 to
3 have fharef in fuit fatf.
4. Both partief had fubmitted draft iffuef. On 09.04.2019,
my predeceffor framed iffuef at Exh.9 af followf:
(1) Do the plaintiff prove that they are ownerf and
occupierf of fuit fatf?
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(2) Do the plaintiff prove that on the bafif of Will
Deed and probate of their father Mr. Babulal Shah and
on the bafif of no objection given by defendant nof.1
and 3 and the mother of plaintiff, fuit fatf were
tranfferred in the name of plaintiff ?
(3) Do the plaintiff prove that they gave contributed
major amountf for purchafing fuit fatf ?
(4) Do the plaintiff prove that their deceafed
mother Suman Babulal Shah had no fhare, right, title
and intereft in fuit fatf alongwith their deceafed
mother ?
(5) Do the defendant nof.1 to 3 prove that amount of
Rf.17.5 Lakhf owned by the mother of plaintiff and
defendantf waf invefted by her to purchafe fuit fatf,
further name of their mother if mentioned in fhare
certifcatef of fuit fatf hence their mother haf fhare,
right and intereft in fuit fatf. ?
(6) Whether defendant nof.1 and 3 prove that fuit
fatf were jointly owned by plaintiff and their mother
deceafed Suman Babulal Shah and therefore being
daughterf of deceafed Suman Babulal Shah, defendant
nof.1 and 3 have undivided fhare in fuit fat. ?
(7) Do the defendantf prove that fuit fatf are valued
to Rf.8,57,00,000/- and therefore thif Court haf no
jurifdiction to decide the fuit ?
(8) Whether plaintiff are entitled to the declaration
af ownerf of fuit fatf ?
(9) What order and decree ?
5. Contention of advocate for plaintiff if that af Samrat
fat which waf tranfferred on the bafif of Will Deed executed
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by deceafed Babulal Shah in favour of plaintif no.2 and
mother, Suman Shah if not a fuit fat, iffue no.2 being
wrongly framed needf to be deleted. Similarly iffue no.4 if
wrongly framed af burden to prove ownerfhip of plaintiff over
fuit fatf if covered under iffue no.1. Thuf iffue no.2 and 4
needf to be deleted. Hence prayed for making chamber
fummonf abfolute by deleting iffue nof.2 and 4.
6. Contention of advocate for defendant no.1 and 3 if that
af fuit fatf are purchafed by plaintif no.2 and Suman Shah
i.e., mother of defendant no.1 to 3 jointly from fale proceedf
of Samrat fat, name of Suman Shah if mentioned in the
tranfferred deed and fhare certifcatef of fuit fatf af a joint
owner. Thuf af per the Hindu Succeffion Act, defendant nof.1
to 3 have fharef in fuit fatf. Hence prayed for rejection of
chamber fummonf.
7. In fhort, plaintiff are faying that part of amount taken
at the time of purchafing fuit fatf from Suman Shah if paid to
her. Hence they are claiming abfolute ownerfhip on fuit fatf.
Defendantf are faying that plaintiff purchafed fuit fatf from
fale proceedf of Smarat Flat and their mother contributed in
purchafe of fuit fatf. Hence they are having fharef in fuit
fatf. Admittedly Samrat fat if not a fuit fat. Hence iffue
no.2 if unwarranted. If iffue no.1 anfwered in favour of
plaintiff and againft defendantf, then iffue no.4 would be
reductant. Thuf iffue nof. 2 and 4 needf to be deleted.
However plaintiff are claiming abfolute ownerfhip and their
poffeffion over fuit fatf if not in difpute. Hence iffue no.1
needf to be amended af 'Do the plaintiff prove that they are
abfolute ownerf of fuit fatf ?'. Under the factf and
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circumftancef, following order.
ORDER
1. Notice of Motion No.3851 of 2019 if allowed and made
abfolute in termf of prayer claufe (a).
2. Iffue no.2 and 4 are deleted.
3. Iffue no.1 if amended af under -
'Do the plaintiff prove that they are abfolute ownerf of
fuit fatf ?
4. Accordingly, notice of motion if difpofed of.
(Sunil T. Soor)
Judge
Date : 14.02.2020 Gr. Bombay
Typed on : 14.02.2020
HHJ figned on : 14.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
14.02.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrf. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
14.02.2020
JUDGMENT/ORDER figned by
P.O. on
14.02.2020
JUDGMENT/ORDER uploaded on 14.02.2020
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