Bombay High Court
Vikram Davendra Ahuja And Anr vs Tania Vijaysingh Deol And 6 Ors on 7 June, 2016
Bench: A.S. Oka
K 1/25
902 app 1.16 os.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO.1 OF 2016
IN
NOTICE OF MOTION NO.189 OF 2015
IN
SUIT NO.133 OF 2015
1 Vikram Davendra Ahuja
Adult, of Mumbai, Indian inhabitant,
residing at Flat Nos.252/253,
Maker Tower "B", 25th Floor,
Near World Trade Centre,
Cuffe Parade, Mumbai - 400 005.
2 Nikunta Vikram Ahuja,
Adult, of Mumbai, Indian inhabitant,
residing at Flat Nos.252/253,
Maker Tower "B", 25th Floor,
Near World Trade Centre,
Cuffe Parade, Mumbai - 400 005. ..... Appellants
V/s
1 Tania Vijaysingh Deol
Adult, of Mumbai, Indian inhabitant,
residing at Plot No.22,
Road No.11, JVPD Scheme,
New India Society, Mumbai - 400 049.
2 Aryamansingh Vijaysingh Deol,
A minor by his next friend
Tania Vijaysingh Deol,
residing at Plot No.22,
Road No.11, JVPD Scheme
New India Society, Mumbai - 400 049.
3 Dharamsingh Vijaysingh Deol,
A minor by his next friend
Tania Vijaysingh Deol,
residing at Plot No.22,
Road No.11, JVPD Scheme
New India Society, Mumbai - 400 049.
1/25
::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 04:31:35 :::
K 2/25
902 app 1.16 os.doc
4 Marlene Davendra Ahuja
Adult, of Mumbai, Indian inhabitant,
permanently residing at
residing at Flat Nos.252/253,
Maker Tower "B", 25th Floor,
Near World Trade Centre,
Cuffe Parade, Mumbai - 400 005
and presently residing at
Plot No.22, Road No.11, JVPD Scheme
New India Society, Mumbai - 400 049.
5 Ravi Kiran Aggarwal,
Adult, of Mumbai, Indian inhabitant,
residing at Villa Orb,
18th Floor, Darabsha Lane,
Opp. Palm Beach School,
Off. Nepean Sea Road,
Mumbai - 400 036.
6 Subhash Chandra Nandkishore Goenka
Adult, of Mumbai, Indian inhabitant,
residing at B-1, Jolly Market Apartment No.1,
Opp. World Trade Centre, Cuffe Parade,
Mumbai - 400 005.
7 Tax Recovery Officer (Central Range III),
Department of Income Tax,
Old CGO Annexe, 10th Floor,
Maharishi Karve Road,
Mumbai - 400 020. ..... Respondents
WITH
NOTICE OF MOTION (L) NO.6 OF 2016
IN
APPEAL (L) NO.1 OF 2016
Vikram Davendra Ahuja & Anr. ..... Applicants
IN THE MATTER BETWEEN
Vikram Davendra Ahuja & Anr. ..... Appellants
V/s
Tania Vijaysingh Deol & Ors. ..... Respondents
2/25
::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 04:31:35 :::
K 3/25
902 app 1.16 os.doc
Mr. Navroz Seervai, Senior Counsel, Mr. Rajiv Narula i/b M/s. Jhangiani
Narula & Associates for the Applicants/Appellants.
Mr. Venkatesh Dhond, Senior Counsel a/w Mr. Ashish Kamat &
Mr. Kunal Mehta, Mr. Gaurav Shah, Ms. Heena Daulat and Mr. Aditya
Mehta i/b M/s. Negandhi Shah & Himayatullah, for the Respondent
Nos. 1 to 3.
Ms. Yasmin Bhansali i/b M/s. Yasmin Bhansali & Co. for Respondent
No. 5.
Mr. Ganesh Ambekar a/w Mr. Rajendra Jain i/b M/s. Thakore Jariwala &
Associates, for Respondent No. 6.
Mr. P. C. Chhotary for Respondent No.7-Income Tax Department.
Mr. A.S. Tamannawar, Section Officer for Court Receiver is present.
CORAM : A.S. OKA &
ig A.A. SAYED, JJ.
DATED : 07 JUNE 2016
ORAL JUDGMENT (PER A.S. OKA, J.):
1 The submissions of the learned Counsel representing for the
parties were heard yesterday.
2 The challenge in this Appeal is to the order dated 7 December
2015 passed by the learned Single Judge on Notice of Motion No.189 of
2015 in a pending suit. The Notice of Motion was taken out by the first to
third Respondents herein, who are the Plaintiffs.
3 With a view to appreciate the submissions canvassed across the
bar, a brief reference to the facts of the case will be necessary.
K 4/25
902 app 1.16 os.doc
4 The present Appellants are the first and second Defendants. They
are husband and wife. For the sake of convenience, we are referring to
the parties with reference to their status before the learned Single Judge.
Mr. Davendra Ahuja was the father of the first Plaintiff and the first
Defendant. We are referring to the said Davendra Ahuja as "the father".
The third Defendant is the widow of the Davendra Ahuja. We are
referring to the third Defendant as "the mother". The second and third
Plaintiffs are the minor children of the first Plaintiff. The fourth Defendant
is one of the two Executors appointed under the Will of the father. The
fifth Defendant has been subsequently appointed as the Executor
alongwith the fourth Defendant.
5 In the Suit, interalia, a relief is claimed of a decree of possession in
respect of Flat Nos.252 and 253 on 25th Floor, Maker Tower 'B', Cuffe
Parade, Mumbai 400 005 (for short "the suit flats") and garage No.B-2D
in the compound of the building. The case made out in the plaint is that
the father was the owner of 2/3rd undivided share in the suit flats and the
mother was the owner of remaining 1/3rd share.
6 It is pleaded in the plaint that the relationship between the father
on one hand and the first to third Defendants and his other daughter
Ms. Munisha was strained. It is alleged that the first and second
Defendants had a particularly acrimonious relationship with the father.
K 5/25
902 app 1.16 os.doc
On 20 August 2010, the father expired. Reliance is placed by the
Plaintiffs on the alleged last Will of the father under which one
Mr.Rohan Hemochand Jhaveri and fourth Defendant-Mr.Ravi Agarwal
were appointed as the Executors. It is alleged in the plaint that for the
reasons recorded in the Will, the first Defendant was disinherited. The
claim made by the Plaintiffs is that the father bequeathed his undivided
2/3rd share in the suit flats to the second and third Plaintiffs. It is alleged
that the father bequeathed his remaining assets to the first Plaintiff. The
Will set up by the Plaintiffs' father is dated 20 February 2008.
7 It appears that subsequently there was a dispute between the first
and second Defendants on one hand and the mother on the other hand.
It is claimed that the mother was evicted from the suit flats.
8 It is alleged that there are large dues of income tax payable by the
deceased father. Reliance is placed on registered Gift Deed dated 22
January 2011 executed by the mother by which she purported to gift her
undivided 1/3rd share in suit flats to the first Plaintiff.
9 The case made out in the Plaint is that the first and the second
Defendants have no right to occupy the suit flats. Notice dated 13 May
2011 was issued by the first Plaintiff through his Advocate to the first and
second Defendants calling upon them to hand over peaceful possession
K 6/25
902 app 1.16 os.doc
of the suit flats. Notice was replied by the first and second Defendants
through their Advocate on 26 May 2011 contending that the suit flats
were owned by Hindu Undivided Family of the father and they pleaded
ignorance about the will and the gift relied upon by the Plaintiffs. As the
first and second Defendants failed to vacate the suit flats, the present
suit has been filed by the Plaintiffs for a declaration that the first and
second Defendants have no right, title and interest in respect of the suit
flats and that the Plaintiffs have become owners of the suit flats.
Mandatory injunction was sought enjoining the first and second
Defendants to hand over the vacant possession of the suit flats to the
Plaintiffs. There are other consequential prayers made in the suit.
10 The Notice of Motion on which the impugned order has been
passed was moved before the learned Single Judge on 22 January 2015
for grant of ad-interim relief. By an order passed on the same day, the
learned Single Judge granted ad-interim injunction/relief against the first
and second Defendants restraining them from selling the suit flats and
creating any third party rights in respect of the suit flats. In the event of
the first and second Defendants raising the issue of jurisdiction, a liberty
was granted by the learned Single Judge to move the Court for further
ad-interim relief. Notice of Motion was ordered to be listed for final
hearing on 18 February 2015.
K 7/25
902 app 1.16 os.doc
11 It appears that after a preliminary issue of jurisdiction was raised
by the first and second Defendants by invoking section 9-A of the Code
of Civil Procedure, 1908 (for short 'the Code'), the Plaintiffs moved the
said Notice of Motion for grant of further ad-interim relief on 27 July
2015. The learned Single Judge permitted them to carry out the
amendment to the Notice of Motion. By further order dated 5 August
2015, the learned Single Judge fixed Notice of Motion on 17 August 2015
for considering the prayer for grant of further ad-interim relief.
12 By the impugned order, the learned Single Judge granted further
ad-interim relief. The learned Single Judge, by the impugned order
appointed the Court Receiver, High Court, as the Receiver of the suit
flats with a direction to the Court Receiver to appoint the first Defendant
as his agent to occupy the suit flats on payment of royalty but without
any security and on other usual terms including undertaking and
indemnity to be executed by both the first and the second Defendants. A
direction was issued to the first Defendant to deposit the Agreement for
Sale dated 19 April 1985 and the share certificate issued by the Society
in respect of the suit flats with the Court Receiver. The Court Receiver
was directed to fix the royalty on the basis of the Leave and License
compensation that the suit flats can fetch in the market. The learned
Single Judge fixed the matter for the hearing on preliminary issue of
K 8/25
902 app 1.16 os.doc
jurisdiction under section 9-A of the Code. The learned Judge continued
the ad-interim order dated 22 January 2015.
13 By an order dated 11 January 2016, a Division Bench of this Court
directed that the Appeal shall be disposed of at the stage of admission
and a limited ad-interim relief was granted directing the Court Receiver to
take symbolic possession of the suit flats. However, a direction was
issued to the Court Receiver not to finalize the amount of royalty payable
by the first and second Defendants.
14 The learned Senior Counsel appearing for the first and second
Defendants in support of the Appeal, invited our attention to the
ad-interim order dated 22 January 2015 passed by the learned Single
Judge on the said Notice of Motion. He invited our attention to the
paragraph 3 of the said order and submitted that the said order
specifically records that the relief as regards the appointment of Court
Receiver in respect of the suit flats can be considered at the time of final
hearing of the Notice of Motion. He urged that the learned Single Judge
was of the view that at ad-interim stage, the grant of injunction against
the first and second Defendants was sufficient. He submitted that only
on the basis of liberty granted by clause (ii) of paragraph 3 of the said
order, it was not open for the Plaintiffs to apply for further ad-interim
relief/s of the appointment of the Court Receiver as there was already a
K 9/25
902 app 1.16 os.doc
direction issued to consider the said prayer at the time of the final
hearing of the Notice of Motion. It is contended that the prayer for
appointment of the Court Receiver could be considered only at the stage
of final hearing. He submitted that the order dated 22 January 2015 has
attained finality. He pointed out that though it was not open for the
Plaintiffs to pray for ad-interim relief of the appointment of the Court
Receiver, by the impugned order, the learned Single Judge not only
appointed the Court Receiver but has directed the first Defendant to pay
royalty for occupying the suit flats as an agent of the Court Receiver. He
pointed out that the royalty has been directed to be fixed on the basis of
the leave and license compensation. He submitted that admittedly the
first and second Defendants have been occupying the suit flats for last
28 years and, therefore, it is unjust to direct them to pay royalty at market
rate. He invited our attention to the Affidavit-in-Reply filed by the first and
second Defendants relying upon a family arrangement. He invited out
attention to the averments made in paragraph 8 of the Affidavit-in-Reply.
He pointed out the stand taken that the father had constituted a Hindu
Undivided Family (HUF). He pointed out that as per the family
arrangement arrived at in the year 2003 between the first Defendant, the
mother and father, it was decided that the suit flats will be of his
exclusive ownership and the mother will have a life interest to occupy the
same along with the first Defendant. He pointed out that the family
K 10/25
902 app 1.16 os.doc
arrangement provided that the HUF property at Kailas Colony be sold
and the sale proceeds thereof will be given to the first Plaintiff. In
addition to the sale proceeds, the father had agreed to give a gift of
Rs.15 crores to the first Plaintiff as suit flats were to be allotted to the first
Defendant. He pointed out that there is a material placed on record to
show that between 5 September 2003 to 14 October 2009, the first
Plaintiff received the gift of Rs.14,01,00,000/- from the deceased father
as per the family arrangement. In the Affidavit, the first Defendant has
stated that Kailash Colony property was sold in August 2003 and that the
sale proceeds thereof paid to the first Plaintiff. He submitted that apart
from the setting out the details of the family arrangement, there was
enough material placed on record to show that large amounts were paid
by the father to the first Plaintiff on the basis of the family arrangement.
He pointed out that the Suit (L) No.1212 of 2015 was subsequently filed
by the first Defendant against the Plaintiffs and mother. The first
Defendant produced Affidavits of two independent witnesses namely,
Shri Ravi Iqbal Singh Ghai and Shri Arun Sawhney in the said suit. He
pointed out that both the independent persons deposed in support of the
family arrangement pleaded by the first and second Defendants. He
invited our attention to the reasons recorded by the learned Single Judge
while dealing with the said two Affidavits. His submission is that there
was no reason at ad-interim stage to discard the said two Affidavits. He
K 11/25
902 app 1.16 os.doc
invited our attention to the findings recorded by the learned Single Judge
in the impugned order. He submitted that though there was enough
material on record to show that the family arrangement was acted upon,
the learned Single Judge rejected theory of family arrangement on the
ground that the same was not credible. He urged that considering the
defence pleaded of the family arrangement and considering the prima-
facie material produced by the first and second Defendants, while
deciding the prayer for ad-interim relief, the reliance placed on family
arrangement could not have been rejected. He submitted that as far as
alleged income tax dues of the deceased father are concerned, there are
other large properties of the father both movable and immovable which
are available and, therefore, the dues can be realized from sale
proceeds. He pointed out that in any event, the learned Single Judge has
made it clear that the Income Tax Department can always proceed in
accordance with law. He submitted that apart from the fact that the
learned Judge could not have considered the prayer for further ad-
interim relief on merits, there was no reason to discard the family
arrangement and to pass such a drastic ad-interim order. He submitted
that the first Defendant will not be in a position to pay the royalty fixed at
the market value and, therefore, the impugned order will result in eviction
of the first and second Defendants from the suit flats though they have
been occupying the suit flats for last 28 years.
K 12/25
902 app 1.16 os.doc
15 The learned Senior Counsel appearing for the Plaintiffs urged that
by a raising frivolous contention of the bar of suit, the hearing of the
Notice of Motion has been prolonged and that is why the learned Single
Judge was justified in passing an order granting further ad-interim relief.
The learned Counsel representing the Income Tax Department relied
upon the Affidavit of Mr. Ameeta A. Lad, Tax Recovery Officer-17,
Mumbai and submitted that though the outstanding demand is of more
than Rupees four crores exclusive of interest and penalty, only a sum of
Rs.5,47,492/- could be recovered by the Income Tax Department. The
learned Senior Counsel appearing for the Plaintiffs states that
subsequent to filing of the Affidavit, a sum of Rs.85,00,000/- has been
recovered. He stated that the total amount payable to the Income Tax
Department is approximately Rs.7 crores. Learned Senior Counsel
appearing for the original Plaintiffs submitted that on one hand the tax
dues are mounting, and on the other hand the first and second
Defendants continue to occupy the suit flats without payment of any
amount.
16 We have carefully considered the submissions. The first question
is whether the Plaintiffs could have pressed for the grant of further
ad-interim relief of appointment of the Court Receiver and whether
learned Single Judge could have considered the said prayer in the light
K 13/25
902 app 1.16 os.doc
of the observations made in the paragraph 3 of the order dated 22
January 2015. For that purpose, it will be necessary to make a reference
to the said order passed by the learned Single Judge. We may note here
that the suit was lodged on 16 January 2015 and immediately thereafter,
on 22 January 2015, the learned Single Judge was moved for grant of
ad-interim relief in the Notice of Motion. Paragraph 3 of the said order
reads thus:
"3. The Plaintiff has today made an ad-interim
application seeking appointment of Court Receiver in respect
of the suit flats and also for an injunction restraining the
Defendant Nos.1 and 2 from selling, alienating,
encumbering, parting with possession an/or creating third
party rights in respect of the suit flats. In my view, the relief
as regards appointment of Court Receiver in respect of the
suit flats can be considered at the time of the final hearing of
the Notice of Motion. At this stage an injunction restraining
the Defendant Nos. 1 and 2 from creating third party rights in
respect of the suit flats will protect the rights/interest if any of
the Plaintiff and Defendant no. 3 in the suit flats. Hence
I pass the following ad-interim order:
(i) The Defendant Nos. 1 and 2 are restrained by an
order and injunction of this Court from selling, alienating,
encumbering, parting with possession an/or creating third
party rights in respect of the suit flats, more particularly
described in Exhibit "A" to the Plaint;
(ii) In the event of the Defendant Nos. 1 and 2 contending
that this Court has no jurisdiction to entertain and/or try this
K 14/25
902 app 1.16 os.doc
suit, the Plaintiff shall be entitled to move this Court for
further ad-interim relief/s.
(iii) The Defendants shall file their affidavit in reply on or
before 2nd February, 2015. Rejoinder, if any, be filed by the
Plaintiff on or before 13th February, 2015.
(iv) Place the above Notice of Motion for hearing and final
disposal on 18th February, 2015, subject to numbering."
(underlines supplied)
17 It is true that in paragraph 3, learned Single Judge observed that
according to him, at that stage, grant of injunction against the first and
second Defendants was sufficient and the prayer for appointment of
Court Receiver can be considered at the time of final hearing of the
Notice of Motion. However, clause (ii) of the operative part of the order
makes it very clear that if a preliminary issue of jurisdiction under section
9A of the said Code is raised, the Plaintiffs shall be entitled to move for
grant of further ad-interim relief. The reason for grant of liberty was
obvious. In view of the mandate of section 9A of the said Code, an
Application for grant of interim relief cannot be finally decided unless the
preliminary issue framed in accordance with sub section (1) of section 9-
A of the said Code is decided. It cannot be disputed that the hearing and
disposal of the preliminary issue takes a long time and that is the reason
why the learned Single Judge specifically observed that in the event a
preliminary issue of jurisdiction is raised by the Defendants, the Plaintiffs
can apply for grant of further ad-interim relief. Therefore, in view of the
K 15/25
902 app 1.16 os.doc
liberty granted by the learned Single Judge, as the first and second
Defendants admittedly raised a preliminary issue of jurisdiction under
section 9-A of the said Code, the Plaintiffs could have always moved the
Court for grant of further ad-interim relief of appointment of the Court
Receiver and other prayers which were already a part of the Notice of
Motion. We may note here that the preliminary issue of jurisdiction is not
yet decided and therefore, the Notice of Motion cannot be heard finally
which was to be heard on 18 February 2015.
18 On merits, the case of the Plaintiffs was resisted by the first and
second Defendants by relying upon a family arrangement of 2003 which
is pleaded in paragraph 8(e) of the Affidavit-in-Reply to the Notice of
Motion. The said Defendants claimed to have become the owner of the
suit flats on the basis of the family arrangement. At this stage, we may
note that before filing the suit, the Advocate for the Plaintiffs issued a
Notice dated 13 May 2011 calling upon the Defendants to vacate the suit
flats on the basis of allegation that the gratuitous use and occupation of
the suit flats by the first and second Defendants has been terminated.
There was a Reply issued by first and second Defendants through their
Advocate on 26 May 2011. In the said Reply, the first and second
Defendants disputed the claim of the Plaintiffs that the father had 2/3 rd
share in the suit flats and the mother had 1/3 rd share in the suit flats. In
K 16/25
902 app 1.16 os.doc
paragraph 8, a specific contention was raised by the first and second
Defendants that there is no writing or family arrangement or any
document showing that the shares of the father and mother were 2/3 rd
and 1/3rd respectively. We must note here that admittedly there is no
reference whatsoever in the said Reply dated 26 May 2011 to the
existence of any family arrangement which was subsequently pleased by
the first and second Defendants by way of filing of Reply dated 16
February 2015 to the Notice of Motion.
19 In paragraph 19 of the said Reply to the suit notice, a specific
contention was raised that the suit flats were the properties of the Hindu
Undivided Family of the father and even assuring that there was a Will
executed by the father, a bequest could have been made by him only in
respect of his undivided share in the Hindu Undivided Family property.
While giving the Reply to the Notice dated 13 May 2011, an opportunity
was available to the first and second Defendants to plead the existence
of the alleged family arrangement. However, the said Defendants did not
plead the existence of any such family arrangement. In fact, their Reply
states that there was no family arrangement and the suit flats continued
to be HUF property. There is no explanation given by the first and second
Defendants as to why such a family arrangement was not pleaded in the
Reply to the suit notice. It is necessary to consider the worth of the stand
K 17/25
902 app 1.16 os.doc
taken in the Reply dated 16 February 2015 filed by the first Defendant to
the Notice of Motion. Nearly four years after sending the Reply to the suit
notice, for the first time, a stand was taken by the first Defendant of the
existence of a family arrangement. In paragraph 8 of the Affidavit-in-
Reply, a specific stand was taken that there was a family arrangement in
the year 2003. The family arrangement was pleaded in clauses (e) and
(f) of paragraph 8 of the said Affidavit-in-Reply which reads thus:
"8.e) I say that in or about 2003, with regard to part distribution of family
properties, a Family Understanding was arrived at between me,
my mother and my father which was duly informed to the Plaintiff
in the following terms:
(i) That I along with my family will continue to stay in the Suit
flat and the Suit flat will belong to me and my mother will
have life interest in the same. It was further agreed that my
mother, the Defendant No.3 will not sell, transfer or create
third party rights in respect of her interest in the said flat;
ii) That the mother Marlene Davendra Ahuja (Defendant No.3)
has been continued to stay with me and I was given
responsibility to look after my mother.
iii) Co-parcenary property situate at "Kailash Colony" would be
sold and sale proceeds thereof would be given to the
Plaintiff. In addition to the sale proceeds of Kailesh Colony
Property, my father had agreed to give gift of
Rs.15,00,00,000/- (Rupees Fifteen Crores only) to the
Plaintiff in view of allotment of the Suit Flat to me.
f) I say that when the above family understanding of 2003 was
arrived at between me and my father and my mother, one
K 18/25
902 app 1.16 os.doc
Mr.Ravikiran Agarwal who is named as the Executor in the alleged
Will of my father dated 20th February 2008 was also present. I say
that the said Mr. Ravikiran Agarwal is the Chairman of a company
named M/s. Orbit Corporation Ltd. And my father was also on the
Board of Directors of the said company by reasons of which, my
father and the said Mr. Ravikiran Agarwal shared close business
relations."
20 Thus, the plea of family arrangement was belatedly pleaded by the
first and second Defendants. In fact the said plea was clearly an after-
thought. In Suit (L) No.1212 of 2015 subsequently filed by the first
Defendant on 5 November 2015, a reliance was placed on Affidavits of
Shri Rav Iqbal Singh Ghai and Shri Arun Sawhney. In the said Affidavits
of these two persons, it was claimed that the said two witnesses were
aware of the family arrangement pleaded by the first Defendant. In the
Reply dated 16 February 2015 to the Notice of Motion, there is not even
a reference to both the said persons. There is one more important aspect
which needs to be considered. A copy of Suit (L) 1212 of 2015 filed by
the first Defendant on 5 November 2015 is placed on record. It is
necessary to make a reference to the averments made in paragraph 3 of
the plaint. In clause (C) of the paragraph 3, the first Defendant came out
with the specific case that deceased father was the owner of 2/3 rd share
in the suit flats. While issuing a Reply to the suit notice in the present
suit, this fact was disputed by the first Defendant. In the suit filed by the
first Defendant, a reliance is placed on the alleged family arrangement of
K 19/25
902 app 1.16 os.doc
2003 as pleaded in the Affidavit in Reply filed in the suit present suit.
However, for the first time in the said suit, it was pleaded that family
arrangement was arrived at in presence of Shri Ravikiran Agarwal. In
the Reply filed in the present Suit on 16 February 2015, the first
Defendant did not state that the family arrangement was arrived at in the
presence of the said Ravikiran Agarwal. The first Defendant pleaded in
subsequently filed suit that one Mr. Arun Sawhney was aware of the
family arrangement. This fact was also not pleaded in the Affidavit-in-
Reply in the present suit. Therefore, prima facie, the stand taken by the
first Defendant in the Reply to the present Notice of Motion about the
existence of family arrangement cannot be believed at all. If there was
really a family arrangement, that would have been first defence in the
Reply to the suit notice issued by the first and second Defendants
through their Advocate way back in the year 2011. As stated earlier, the
names of two persons who were allegedly aware of the family
arrangement were disclosed for the first time in the subsequently filed
suit by the first Defendant. Surprisingly the said names are not disclosed
in the Reply to the Notice of Motion. Therefore, the copies of the Affidavit
of these two persons filed in the subsequent suit were not rightly relied
upon by the learned Single Judge in the present Suit while passing the
impugned order. Moreover, in the Reply to the suit notice, the first
Defendant disputed that the father was having 2/3 rd share in the suit
K 20/25
902 app 1.16 os.doc
flats. In fact, in the Reply to the notice as well as in the Reply filed to the
Notice of Motion, the first Defendant contended that the suit flats were a
part of the assets of the Joint Hindu Family. In the suit subsequently filed
by the first Defendant, he accepted that the father was having 2/3 rd share
in the suit flats. In the subsequent suit as well as in the Reply filed in the
present suit, the first Defendant relied upon the fact that the first
Defendant was made a nominee by the father in respect of the
membership of the Society in relation to the suit flats. Subsequently the
nomination was revoked. The first Defendant has himself annexed to the
Affidavit-in-Reply to the Notice of Motion a copy of letter dated 8
November 2006 addressed to him by the father. The second and third
paragraphs of the said letter read thus:
"I wish to inform you that I had nominated you as my
nominee for my portion of 252/253 Maker Tower B premises
as I was hospitalized to undergo bypass surgery in the
second week of December 2003. By your good wishes and
the support given by you, your mother, your wife and
Munisha as well as the wishes of everybody, I have
recuperated well and I am leading a healthy and normal
active life for last three years.
Accordingly, I feel that there is no necessity to continue the
nomination given in your favour. In view of the above, please
note that by this letter I am revoking my nomination in your
favour for my portion of 252/253 Maker Tower B premises
and I am informing the Secretary of Maker Towers Society,
accordingly."
K 21/25
902 app 1.16 os.doc
21 Thus, way back on 8 November 2006, the father had asserted that
he was the owner of a portion of the suit flats and he had nominated the
first Defendant as his nominee in respect of his portion. The first
Defendant never disputed the ownership of the father in respect of a part
of the suit flats. Ownership was sought to be disputed for the first time by
sending a Reply to the suit notice in the year 2011 by contending that the
suit flats were part of the assets of the Hindu Joint Family.
On the other hand, the Plaintiffs have produced a copy of
Agreement of Sale dated 19 April 1985 executed by the erstwhile owner
of the suit flats jointly in favour of the father and the mother. The Plaintiffs
have also produced a copy of the share certificate issued by the Society
in the joint names of the father and mother. Copies of Income tax returns
from the assessment year 1986-87 were filed on record showing that
consistently the father claimed to be the owner of the 2/3 rd share and the
mother claimed to be the owner of the 1/3 rd share. The first Defendant
made an endeavor to dispute even the joint ownership of father and the
mother by contending that the suit flats were a part of the assets of the
Hindu Undivided Family.
23 We have already held that there were more than sufficient reasons
to discard the plea of the family arrangement. The plea of family
K 22/25
902 app 1.16 os.doc
arrangement is based on the contention that the suit flats are the assets
of the Hindu Undivided Family. There is one more important aspect of the
plea of the alleged family arrangement. The family arrangement,
according to the first Defendant, provided that he became the owner of
the suit flats but the mother was to have a life interest in the suit flats.
Moreover, even according to the first Defendant, the family arrangement
provided that the mother would continue to stay in the suit flats and that
the first Defendant was responsible to look after the mother. Admittedly,
the mother is not residing with the first and second Defendants in the suit
flats from the year 2010 onwards. It is not the case of the first Defendant
that from the year 2010, he paid any amounts to the mother for her
maintenance or any attempt was made by the first and second
Defendants to ensure that the mother comes back and stays with them.
Even assuming that there was a family arrangement, the first Defendant
has not acted upon the same. He has not looked after the mother and
that the mother has not stayed with him right from the year 2010.
24 The Plaintiffs are relying upon a registered gift deed executed by
the mother in the year 2011 by which she gifted her 1/3 rd share to the first
Plaintiff. There is a strong prima facie evidence on record to support the
plea that the mother had 1/3rd share in the suit flats. Thus, prima facie,
the first Plaintiff has became the owner of 1/3 rd share in the suit flats.
The Plaintiffs are relying upon the last Will and Testament of the father
K 23/25
902 app 1.16 os.doc
under which a bequest of his 2/3 share of the suit flats was made in
favour of the second and third Plaintiffs who are the grand children of the
father. An Application for grant of probate in respect of the said Will is
pending. Even if the Will is ignored, as per the law of intestate
succession, the first Plaintiff has 1/4th share in the undivided share of the
father and the mother has 1/4th share. Hence, the share of first Plaintiff
in suit flats will be 1/3rd (under the gift) plus 1/6th (1/4th of 2/3rd) i.e. 1/2.
She will also get undivided share of the mother in the 2/3 rd share of the
father. The share of the first Defendant will be only 1/6th.
25 Considering the conduct of the first Defendant and considering the
inconsistent stand taken by the first Defendant that the learned Single
Judge has passed an order appointing the Court Receiver without
disturbing the possession of the first and second Defendants. This was
done after recording a prima facie finding regarding the failure of first and
second Defendants to prove the existence of a family arrangement.
Prima facie, there is more than sufficient evidence on record to show that
suit flats were never a part of the assets of Hindu Undivided Family and
in fact, the father had 2/3rd share in the suit flats and the mother had 1/3rd
share in the suit flats. The first Defendant has not looked after the mother
and she is not allowed to stay in the suit flats. We may note here that
even as of today, the hearing on the preliminary issue of jurisdiction has
not commenced.
K 24/25
902 app 1.16 os.doc
26 At this stage, we may also make a reference to the stand taken by
the Income Tax Department by filing a Reply to the Notice of Motion. The
stand is that there is an outstanding demand of income tax of
Rs.4,05,31,247/- exclusive interest under section 220(2) of the Income
Tax Act, 1961 against the father. Going by the submissions made by the
learned Counsel appearing for the Income Tax Department, even 25% of
the principal amount has not been recovered. The total dues are of
approximately Rs.7 crores. Thus, there is a prima facie material on
record to show that there are income tax dues of the deceased father.
The first Defendant continues to occupy the suit flats for several years
without making any payment whatsoever.
27 Considering the fact that the final hearing of the Notice of Motion
will be considerably delayed as the preliminary issue is yet to be heard,
we find nothing wrong with the further ad-interim order passed by the
learned Single Judge. According to us, the order is an equitable order. In
Appellate jurisdiction, it is not possible to interfere with the said
discretionary and equitable order of ad-interim relief passed by the
learned Single Judge. The impugned order is based on consideration of
material on record. There is no perversity. The order seeks to protect
interests of all the parties.
K 25/25
902 app 1.16 os.doc
28 The grievance of the first and second Defendants is that it is likely
that a very high royalty amount will be fixed, and, therefore, if they are
unable to pay the same to the Court Receiver, though they are occupying
the suit flats for more than 28 years, they will be evicted. If the first and
second Defendants are aggrieved by the quantum of the amount fixed by
way of royalty, he can always move learned Single Judge for grant of an
appropriate relief.
Subject to what is observed above, no case for interference is
made out. Accordingly, the Appeal is dismissed. Pending Notice of
Motion does not survive and the same is disposed of.
30 At this stage, the learned Counsel appearing for the first and
second Defendants prays for continuation of ad-interim relief under order
dated 11 January 2016. The said prayer is opposed by the learned
Senior Counsel appearing for the original Plaintiffs.
31 Considering the fact that the ad-interim relief is operative from 11
January 2016, we direct that the same ad-interim relief will continue to
operate for a period of eight weeks from today.
(A.A. SAYED, J.) (A.S. OKA, J.)
katkam
