Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No.3929 OF 2019
CNR:MHCC01-010818-2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3929 OF 2019
IN
S.C. SUIT NO.2718 OF 2019
Apurva Janak Shah .. Plaintiff
V/s.
Janak Gulabchand Shah .. Defendant
Appearances :-
Adv. Ramchandani for plaintiff.
Adv. J.P. Thakkar for defendant.
Coram : R. M. Sadrani
Judge, City Civil Court,
Greater Bombay, C.R. No.07.
DATED : 5th May, 2021.
ORDER
1 This Notice of Motion is taken out by the plaintiff for
injunction.
2 Defendant is the father of the plaintiff. According to
the plaintiff, dispute relates to the properties viz. Residential
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property Room No.72, 4th Floor, Mangaldas Building No.1, Dava
Bazar(Princess Street), Mumbai(hereinafter referred to as
residential property) and another is commercial property i.e. shop
No.10(as per society records, shop No.11), Jakaria Building, 7,
Sherif Devji Street, Mumbai(hereinafter referred to as Suit shop.)
According to the plaintiff, residential property is ancestral property
and rent receipt is still in the name of his grand father’s brother
namely Nagardas Devchand. He is residing in the residential
property since his childhood till today. In the same property,
defendant was also residing. Family members of his later brother
are also residing. His grand father Gulabchand died on
09/03/1995.
3 Initially, suit shop was tenanted property. Later on, his
grandfather Gulabchand purchased the property. Business i.e.
M/s. Janta Eye clinic is joint family business initially carried out by
his grandfather and after his demise, plaintiff alongwith his father/
defendant. Suit shop was purchased on 11/04/1972. According
to the plaintiff, when he was 18-19 years old, he joined family
business and helped his grandfather and father and continued to
run family business till today. He enhanced the goodwill of his
family business due to hard work, sincerity, integrity and honesty.
According to the plaintiff, in the year 1995, defendant assured to
the plaintiff that though family business stands in his name,
plaintiff is entitled for 50% share as partner. Defendant used to
keep with him entire day collection of family business. It is case of
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the plaintiff that after demised of his grand father, defendant
behind his back and without knowledge, transferred share
certificate of the suit shop in his name. Defendant, out of income
of the family business, has purchased flat at Devlali. It is further
case of the plaintiff that he has opened another firm namely M/s.
Aum Optical from the suit shop by borrowing the money from the
relatives and bank. All the income tax papers and other
correspondence are having address of the suit property, which
shows that plaintiff is in possession of suit shop. According to the
plaintiff, defendant has already sold one of the properties at Zaveri
Bazar and now intending to sell the residential as well as suit shop.
Therefore, he filed present suit for injunction.
4 Learned Adv. Ramchandani for the plaintiff argued in
the line of the case of the plaintiff. He further argued that the
document produced on record i.e. bill of M/s. Aum Optical is
having address of the suit shop. Plaintiff is having right in the suit
property being ancestral property. Therefore, defendant has no
authority to sell the property. He further argued that in fact, the
suit shop is situated in the market area having good business. If
this property is sold out, plaintiff will be put to suffer irreparable
loss which cannot be compensated in terms of money. As per the
case of the defendant, as he wants to repay the loan taken from
the banks and relatives for the medical treatment of his another
son Anand and therefore, intends to sell out the property. He
submitted that plaintiff is giving his consent to sell out the flat
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situated at Devlali for the repayment of loan if at all. That
property is also purchased out of family business. That property
being residential property if sold out, plaintiff can purchase
another property by doing business from the suit shop. He lastly
requested to grant injunction against the defendant not to create
third party interest in the suit property or cause disturbance to the
possession of the plaintiff. He further argued that even trespasser
in settled possession of the property cannot be dispossessed
without following due process of law. On this point, he placed his
reliance on the landmark judgment delivered by Honble Supreme
Court in the matter of Rame Gowda(dead) by L.Rs. V/s. M.
Varadappa Naidu(dead) by L.Rs. & Anr. reported in
2004(3)Bom.C.R.788.
5 Learned Adv.J.P. Thakkar for the defendant opposed the
Notice of Motion. She argued that for the medical treatment of
another son of the defendant namely Anand, defendant has taken
huge amount of loan from the bank and relatives. From the bank,
Rs.28 lakhs have been taken and from the relatives, around Rs.10
lakhs have been taken. Another son Anand was diagnosed with
blood cancer in the year 2016 and untimely demise in the year
2017. Further, out of love and affection, defendant stood as
guarantor for the loan taken by the plaintiff for sum of Rs.36 lakhs
in all, including bank and private persons. Defendant is extremely
old and he wishes that before his demise, he wants to clear loan by
selling suit shop. She fairly submitted that defendant has no any
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intention to sell out the residential property. Therefore, Notice of
Motion can be allowed partly to the extent of residential property.
In the business under the name and style as Aum Optical, his both
sons i.e. plaintiff and his late brother Anand are having
partnership, however, plaintiff is avoiding to pay share of his later
brother Anand to his legal heirs, which shows conduct of the
plaintiff.
6 She further argued that suit shop is self acquired
property of the defendant as after demise of father of the
defendant i.e. grand father of the plaintiff, property was devolved
at defendant and is brother Pravinchandra. On 06/1/1987,
defendant has paid share to his brother Pravindchandra. Said
Pravindchandra executed relinquished deed of his and his legal
heirs interest in the suit shop and in favour of the defrendant on
stamp paper of Rs.5/-. She further argued that as the defendant
has paid share to his brother, therefore, entire suit shop is self
acquired property of the defendant and during lifetime of the
defendant, plaintiff has no right or interest in the suit shop
property. On this point, she placed her reliance on the following
judgments.
1) Conard Dias of Bombay V/s. Joseph Dias of Bombay
reported in AIR 1995 BOMBAY 210.
2) P. Periasami(Dead) By Lrs V/s. P. Periathambi and
Ors. reported in 1995 SCC(6) 523.
3) N.R. Chenniappan V/s. Minor Rikthu Anupama,
Appeal Suit No.732 of 2008 and CMP Nos. 959 of 2016
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and 1 of 2008 dt. 29/07/2016.
Lastly, she requested to dismiss the Notice of Motion.
7 After hearing both the sides, I go through record. It is
not in dispute that suit shop was purchased in the year 1972.
Plaintiff was born on 18/12/1969 as per entry in the passport.
Grand father of the plaintiff Gulabchand expired on 09/03/1995.
Share certificate issued by the Co-operative Society where the suit
shop is situated reflects the name of said Gulabchand and
thereafter, in the year 1995, the name of defendant. In view of
above facts of the case, I go through judgment relied by the
learned advocate for the defendant in the mater of P.
Periasami(supra). In this mater, it is observed that son has no right
in self acquired property of father and son can only inherit the
property. I also go through the judgment in the mater of N.R.
Chenniappan(supra). Facts of this case are that property was
purchased in the year 1921 by one Rasa Gounder and after his
demised, his two sons effected partition by registered partition
deed in the year 1951. On demise of one of the sons, his three
sons divided property by registered deed in the year 1991.
Plaintiff was daughter born on 23/02/2000 to Natarajan one of
the brothers out of those three sons and she filed suit against
father and brothers for partition. Question before the Hon’ble
Madras High Court was that whether suit property is joint family
property or separate property of the Natarajan and it is observed
that suit property is joint family property and by virtue of birth of
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the plaintiff, she is having legal right of partition. In the present
matter, property originally belonged to grand father of the plaintiff
and after his demised, defendant alongwith his brother
Pravindchandra inherited the suit shop. Therefore, in view of
guidelines given in the cited judgment, apparently plaintiff is
having right to claim partition. In the another judgment relied by
the defendant in the matter of Conard Dias(supra), this judgment
was delivered on merit and it was established that property in
question was self acquired property of the father, therefore,
injunction was granted against the son. In the present matter,
apparently, property particularly suit shop is not self acquired
property of the defendant but he has inherited the same from his
father. Therefore, with respect, ratio laid down in the cited
judgment cannot be applied to the facts of the present case.
8 Considering the facts of the present case, apparently,
plaintiff is having interest in the suit shop to claim partition. If the
injunction is refused, plaintiff will be put to irreparable loss,
property being situated in market area and after sale of the suit
shop, it will be difficult to plaintiff to purchase such type of
property again in such locality. Balance of convenience lies in
favour of the plaintiff. Plaintiff has established prima facie case to
grant injunction. Hence, in my opinion, Notice of Motion needs to
be allowed. Hence, I pass following order.
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ORDER
1 Notice of Motion No.3929 of 2019 is hereby allowed in
terms of prayer clause(a), however, parties to bear their own costs.
2 Notice of Motion is disposed off accordingly.
(R. M. Sadrani)
Judge,
City Civil and Sessions Court,
Dated : 05/05/2021. Greater Bombay.
Dictated on :05/05/2021.
Transcribed on :05/05/2021.
Signed on :07/05/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.
UPLOADED ON: 07/05/2021
(Santosh B. Sawant)
(Selection Grade Stenographer)
Name of the Judge(with Court Room
No.)
Shri. R. M. Sadrani, Judge, C.R.No.07.
Date of pronouncement of
Judgment /Order
05/05/2021.
Judgment/Order signed by P.O. on 07/05/2021
Judgment/Order uploaded on 07/05/2021
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