Final Order 1

Order Details: Notice of Motion
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MHCC010113252019 Presented on : 07.11.2019
Registered on : 07.11.2019
Decided on : 28.04.2025
Duration : 05 05 21
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT BOMBAY
NOTICE OF MOTION NO. 4129 OF 2019
IN
SUIT NO. 985 OF 2018
(CNR NO.MHCC010113252019)
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Mrs. Pramila Dattaram Chintal
having permanent address at :
Sai Sara Welfare Society,
Chawl No.2, Room No.8,
Kajupada, Pipeline, Kurla (W),
Mumbai 400 072.
Currently residing at 2nd Floor,
Ajay Nagar Colony, Bandlaguda,
Andhra Pradesh
Through her Power of Attorney Holder
Mr. Mahesh Dattaram Chintal
Having address at Sai Sara Welfare
Society, Chawl No.2, Room No.8,
Kajupada, Pipeline, Kurla (W), Mumbai
400 072.
Mrs. Rabiya Mosim Ansari
Mrs. Sushila Mahesh Chintal
Mr. Rupesh Mahesh Chintal
All Indian Inhabitant,
Residing at 2/8, Pratibha Niwas,
Kajupada Pipeline,
Near Krishna Chhya Building,
Kajupada Pipeline, Kurla West,
Mumbai 400 072.
…. deleted
(since deceased)
…. Plaintiffs
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Versus
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Late Mrs. Lalita D. Madhukuntha
Through her legal heirs
Mr. Dinesh Madhukuntha
Aged about 42 years
Mr. Mukesh Madhukuntha
Aged about 40 years
Mr. Umesh Madhukunta
Aged about 38 years
Rakesh Madhukuntha
Aged about 36 years
All residing at Krishna Chhaya Building,
Kajupada, Pipeline, Kurla (W),
Mumbai 400 072. …. Defendants
CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 28th DAY OF APRIL, 2025
Appearances :-
Ld. Adv. Aabha Dogra along with Adv. Vaibhav Jain instructed by
Rignaya and Associates LLP for the plaintiffs.
Ld. Adv. Darshana Singh for the defendants.
ORAL ORDER
1. By present Notice of Motion, the plaintiffs are praying for various
interim reliefs.
2. It is the case of the plaintiffs that plaintiff No.1 resides at
Hyderabad and plaintiff No.2 resides at Kurla. During pendency
of Notice of Motion, plaintiff No.2 expired and his legal heirs are
brought on record. Plaintiff No.2 is the son of plaintiff No.1.
Plaintiff No.1 is owner of Gala No.5 as described in plaint and
plaintiff No.2 is owner of Gala no.1 to 8 as described on
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paragraph No.4 of the plaint. The defendant is wife of real
brother of plaintiff No.1. All are residing at the address
mentioned in cause title.
3. It is contended that defendants are claiming to have acquired
ownership right, title and interest in respect of the suit properties
on the basis of an affidavit dated 08.12.2012. On the basis of said
affidavit, dated 08.12.2012, the plaintiffs were wrongfully,
illegally and forcefully removed from the premises and hence
plaintiffs seek declaration and cancellation of the affidavit dated
08.12.2012. In the year 2012, the defendants allured with false
promise and fraudulent intention to purchase said premises from
the plaintiffs by which the defendants were to provide the
plaintiff with 2BHK Flat, Rs.20 lakhs and sum of Rs.30,000/- per
month to plaintiff No.2 for his lifetime. Believing in the said
promises, there was undue influence to execute said affidavit by
their relatives without explaining the contents and is in violation
of the provisions of The Indian Contract Act. The plaintiffs did
not understand the contents of affidavit in English language. The
plaintiffs waited to receive what was falsely promised. On
02.08.2015, the defendants came to said premises and forcefully,
violently threw the plaintiffs out of the premises. Complaint was
lodged. On the basis of the said affidavit, notice was given on
06.08.2015, seeking cancellation, revocation and termination of
the said affidavit. The said notice was replied and raised false
contentions therein. The rejoinder was sent on 03.09.2015 by
correspondence dated 25.08.2015. The electricity bill is in the
name of plaintiff No.1. The telephone bill is in the name of
plaintiff No.2 and it shows ownership of plaintiffs. There is
certificate of Importer-Exporter Code (IEC) for the said address,
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the municipal licenses, electricity bills, telephone bills are in the
name of plaintiff. Complaint dated 16.09.2015 was forwarded to
concerned Police Officer. On the basis of false and frivolous
affidavit, defendant mishandled and abused plaintiffs on
05.10.2015 for which offence came to be registered. The affidavit
itself shows the ownership of the plaintiffs being accepted. No
consideration was given for alleged transfer and hence plaintiffs
are owners of said property. The said document is not registered
and hence, the document itself is bad in law. The said affidavit
was executed under false assurance and promise. Considering
same, it is pointed out that pending the suit, the defendants are
likely to transfer all the utility in their name and create right in
their favour. The premises are leased out and some third party
and they are earning money from it. Hence, prayed for the reliefs
are stated in the Notice of Motion.
4. The said Notice of Motion and the suit is opposed by the
defendants contending that earlier Notice of Motion with same
reliefs and averments was taken out and it was disposed. Present
notice of Motion is preferred now with same contentions and
reliefs and hence not maintainable. It is further pointed out in the
Written Statement that the averments in plaint are totally denied.
It is further pointed out that the property was joint property and
in fact, the plaintiffs have relinquished their share in the property
by way of family arrangement and hence it does not require any
registration or it is not amounting to transfer of property. It also
does not require any consideration. Hence, Notice of Motion and
suit be dismissed.
5. Heard both the sides. Considered the submissions.
6. Perused the Notice of Motion, reply and the documents on record.
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Considered the submissions advanced. Following points arise for
my consideration and I answer the same as under for the reasons
stated hereinafter;
Sr.
No.
POINTS FINDINGS
1. Whether prima-facie case is made out
by the plaintiffs ?
:: In the affirmative.
2. Whether balance of convenience lies
in favour of the plaintiffs ?
:: Partly in the
affirmative.
3. Whether irreparable loss will be
suffered by the plaintiffs if the prayers
in Notice of Motion are denied ?
:: Partly in the
affirmative.
4. What order ? :: As per final order.
REASONS
As to Point No. 1 :
7. From the pleadings, it is clear that the alleged dispute relates to
affidavit which is executed on 08.12.2012. If one considers said
affidavit, it states that plaintiff No.1 is entitled to Gala No.5 and
plaintiff No.2 is seized and possessed of Gala No.1 to 8 and 50 %
shareholder of shop No.8 and Room No.8. The rights in the said
Galas are given in favour of deceased Lalita. Thus, it appears to
be a kind of an agreement executed. Prima-facie, the said
agreement is neither registered nor does it comply with other
terms of property by way of sale or otherwise.
8. Defence is taken with regard to family arrangement. Considering
relation between the parties, it so could so happen, but the details
are insufficient to hold even prima-facie, the same at present
stage. The defendants have not disclosed how this could be a
joint family property and in what circumstances the family
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arrangement was arrived at and the reason of solitary one way
release of rights in favour of defendants. These circumstances
clearly make said affidavit a doubtful and questionable claim with
regard to claim of the defendants.
9. Having considered this, the claim of the plaintiffs prima-facie is
supported by the contention that there is alleged affidavit being
executed to usurp them from the property.
10. Having said this, if we consider pleadings, it is not the case of
the plaintiffs that they have given up their rights fraudulently but
it is the contention for such giving up of rights was a 2BHK Flat,
Rs.20 lakhs and a sum for the lifetime of defendant No.2. It is
because of this non-compliance, the contents of the affidavit are
disputed. Thus, from this, prima-facie, the intention of parties to
give up the rights in the property is also apparent. It would be
question of evidence as to the nature of property and the
circumstances in which the possession got handed over. Suffice to
say, considering these circumstances, although there is clog on
the title claimed by the defendants, it is not an absolute clog but
has shade of consent by the plaintiffs and their pleadings. Thus,
in such circumstances, I hold that plaintiffs have a prima-facie
case. Hence, I answer Point No.1 in the affirmative.
As to Points No.2 and 3 :
11. Having pointed above the doubts created with regard to alleged
claim of plaintiff so much so that there is apparent consent but
allegations of consideration not being given, there appears to be
some difficulty for grant of all the reliefs as claimed by the
plaintiffs. Apparently, the property is being used and utilized by
the defendants. The nature of defendants taking over the
property is question of evidence and apparently, it is not very
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clear. The probability of giving up of the property as alleged by
the plaintiffs in the plaint voluntarily also cannot be ruled out. In
such circumstances, the reliefs sought in prayer clause (e) to
restrain the defendants from relying upon the affidavit would not
be appropriate as it would amount to decreeing suit at interim
stage. The reliefs claimed in prayer clause (b) (i) appears to be
appropriate considering that (i) and (ii) with regard to creating
of third party rights and not allowing to convey right, title and
interest appears to be a proper relief to avoid further complexity
and maintain status quo of property as of date.
12. Possession is again a premature relief at this interim stage so
much so that there is no relief of possession claimed in the plaint.
13. The aspect of utility facilities such as the electricity, water,
telephone and other aspects cannot be withheld at this stage
when aspect of use of property has not been restrained and in
such circumstances, reliefs claimed under clause (b) (iv) and (v)
cannot be granted or be considered at present stage as it would
amount to granting relief of possession as the defendants could
not be able to utilize the property. Clauses regarding municipal
record and telephone bills is one of the utility services. It is clear
that the tax bills are raised for utility purposes. Hence, balance of
convenience or irreparable loss in that aspect does not arise.
14. Again, relief of not relying on affidavit dated 08.12.2012 at
interim stage ,does not arise as that issue is still pending and or
acceptance of affidavit and denial of affidavit by the plaintiffs in
one prayer clause.
15. Considering these circumstances, the balance of convenience
and irreparable loss to the defendants would be only with regard
to maintaining present status of property and as regards other
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reliefs, it does not lie in favour of the plaintiffs. Hence, I answer
point No.2 and 3 partly in the affirmative in favour of the
plaintiffs.
As to Point No.4 :
16. As regards, grant of this Notice of Motion, serious contention
was taken that the earlier notice of Motion was rejected with
similar reliefs. My Ld. Predecessor while considering Notice of
Motion No.4192 of 2018 by order dated 05.08.2019 passed an
order that the Notice of Motion was disposed off with liberty to
the plaintiffs to file fresh notice of Motion and making clear
specific prayer clauses. Thus, earlier Notice of Motion was not
decided on merits and liberty was given to plaintiffs to prefer
fresh Notice of Motion. Thus, the order dated 05.08.2019 will in
no way affect or come in way of consideration of present Notice
of Motion. Having said this, the plaintiffs are only entitled for
reliefs No.1 and 2 of the concerned Notice of Motion. Hence, I
pass following order.
O R D E R
1. Notice of Motion No. 4129 of 2019 in Suit No.985 of 2018 is
partly allowed.
2. The defendants not to create any third party rights with regard to
suit premises and shall not convey any right, title or interest in
the suit premises to any other party.
3. The reliefs with regard to utility services like the electricity meter
box, telephone box, municipal records and for restraining from
claiming out of affidavit dated 08.12.2012 stands rejected.
4. The defendants shall not claim any equities in this claim on
account of transfer and/or existence of such utilities in his name,
effected from the date of the suit.
5. Parties to bear their own costs.
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6. Notice of Motion No.4129 of 2019 is disposed off accordingly.
DATE : 28.04.2025 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 28.04.2025.
Checked and signed on : 30.04.2025.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 30.04.2025 at 05.59 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 28.04.2025
Judgment/order signed by the P.O. on : 30.04.2025
Judgment/order uploaded on : 30.04.2025
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