Bombay High Court
Raana (Rana) Haripada Roy vs Shobha Mukherje And 5 Ors. And Ram ... on 22 April, 2019
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.136 OF 2019
WITH
CHAMBER SUMMONS NO.145 OF 2018
NOTICE OF MOTION NO.578 OF 2018
NOTICE OF MOTION NO.583 OF 2018
IN
SUIT NO.602 OF 2017
Raana (Rana) Haripada Roy )....Plaintiff (since deceased)
Ram Kumar Sen )....Applicant/Executor
V/s.
Shobha Mukherje & Ors. )....Defendants
----
Ms.Vijaya Ingule I/by Sean Wassoodew for plaintiff's wife and
daughters.
Mr.Ubaid Ghawte I/by Zalak M.Parikh for the applicant in CHS
136/2019.
Mr.Bhavin Gada I/by Pratibha Mehta for defendant nos.1 & 2.
----
CORAM : K.R.SHRIRAM,J
DATE : 22.4.2019
P.C.:-
1. This Chamber summons has been taken out by the
applicant to be substituted as plaintiff in place of the original plaintiff
who died on or about 17.10.2018.
2. Defendant no.1 is the sister of the deceased plaintiff. The
mother of plaintiff and defendant no.1 had gifted by a registered gift
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deed an apartment at 96, Mount Unique, Dr.G.Deshmukh Marg,
Mumbai-400 026 (the said flat) to defendant no.1. Plaintiff filed this
suit to challenge the gift deed and the prayers sought are as under :-
"(a) This Hon'ble Court be pleased to hold and declare
that the impugned Gift Deed dated 11th July 2014
(Exhibit A) is illegal, void and non-est in the eyes of law
and deserves to be cancelled forthwith ;
(b) The Hon'ble Court be pleased to order and direct the
Registrar of Assurances Mumbai to cancel the impugned
Gift Deed dated 11th July 2014 bearing registration
No.Mumbai-1/6120/2014 and amend the records
accordingly ;
(c) This Hon'ble Court be pleased to declare that Plaintiff
has one-half (½) ownership right, title, share and
interest in the suit flat ;
(d) Pending the hearing and final disposal of the suit :-
(a) Defendant No.1 her agents, servants and
representatives claiming through her, be
restrained by an order of injunction of this
Hon'blle Court from disturbing the Plaintiff's
peaceful and settled possession and use of his
two rooms in suit flat and that of the use of
kitchen and other domestic appliances and
facilities including the dining area, cooking
gas, laundry, refrigerator etc. as have been
available to the plaintiff ;
(b) Defendant No.1 and her agents, servants
and representatives claiming through her, be
restrained by an order of injunction of this
Hon'ble Court from creating any third party
rights in the suit flat by way of sale, Gift,
mortgage or any other instrument.
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3. Defendant no.2 is the aunt of defendant no.1 and of the
deceased plaintiff and is currently residing in the said flat.
4. During the pendency of the suit, on 17.10.2018, plaintiff
died. Notice was given to legal heirs of plaintiff who were
Ms.Vandana Roy (estranged wife), Ms.Monali Roy and Ms.Rishita Roy
(both daughters).
5. Mr.Sean Wassoodew counsel had appeared for the wife and
the daughters and informed the Court that they were not interested in
pursuing the suit. On 4.1.2019 Ms.Ingale appearing for the legal heirs
of the deceased stated that there appears to have been a Will left
behind by the deceased plaintiff and one Dr.R.K.Sen seems to be an
executor of the Will of the deceased plaintiff. Therefore, notice was
issued to Dr.R.K.Sen who was represented by an Advocate on
1.2.2019. Dr.R.K.Sen had also lodged this current Chamber summons
to be added as plaintiff in place of deceased plaintiff.
6. To the Chamber summons, the wife and two daughters of
the deceased plaintiff, viz. Ms.Vandana Roy, Ms.Monali Roy and
Ms.Rishita Roy have filed a joint affidavit affirmed on 2.3.2019 in
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which, paragraph-2 reads as under :-
"We say that the best of our knowledge, the deceased
plaintiff did not have any right title or interest in the suit
flat viz. Flat No.96, Mount Unique, Pedder Road,
Mumbai. We say that accordingly, we have no right and
are not claiming any right in respect of the suit flat. We
say that we are therefore, not interested in pursuing the
present suit on behalf of the estate of the deceased
plaintiff either as his legal heirs or otherwise. We have
therefore not taken out any application for substituting
ourselves in place of the deceased plaintiff in the present
suit, nor are we interested in doing so."
7. Mr.Ghawte for the applicant relies on the photo copy of the
Will annexed at Exh.E to the affidavit in support. Mr.Ghawte states
that Dr.R.K.Sen has applied for grant of probate of this Will. Relying
on this Will, Mr.Ghawte states that the executor-R.K.Sen should be
made plaintiff in this suit. It is settled law that a Will has to be
considered in its entirety. Assuming for the sake of argument,
Dr.R.K.Sen succeeds in getting a probate issued for the Will of the
deceased plaintiff purportedly made on 23.3.2016, still this suit will be
infructuous. This suit, in my view, need not be carried forward and
can be dismissed. The reason why I am saying is, in paragraph-7 of the
purported Will, plaintiff deceased has bequeathed the said flat to his
two daughters Ms.Rishita and Ms.Monali Roy. Paragraph-7 of the
purported Will reads as under :-
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"I give devise and bequeath my share, right, title and
interest in flat No.96, situated at Mount Unique,
Dr.G.Deshmukh Marg, Mumbai 400 026, mentioned in
para 2(i) to my daughters Ms.Rishita and Ms.MONALI
Roy, absolutely and equally".
8. Therefore, even if the applicant as newly added plaintiff
succeeds in the suit, still the said flat will go to his two daughters
Ms.Monali Roy and Ms.Rishita Roy. Both these daughters in their
affidavit-in-reply, have stated that the deceased plaintiff did not have
any right, title or interest in the said flat and in any event, they are not
claiming any right, title or interest in the said flat. Ms.Ingule reiterate
that stand even today saying that two daughters are not interested in
the said flat.
9. In the circumstances, allowing the Chamber summons and
thereafter allowing the applicant to prosecute the suit, framing issues,
going through full trial later, will be an exercise in futility. It would
only amount to unnecessary waste of judicial time. The applicant has
nothing to gain from prosecuting the suit and nothing to lose if suit is
dismissed.
10. In the circumstances, Chamber summons stands dismissed
with no order as to costs. The suit accordingly abates. It is clarified
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that this Court has not made any observation on the genuineness of
the Will or whether probate has to be granted.
11. Accordingly, all interim applications stand disposed. All
interim orders stand vacated.
(K.R.SHRIRAM,J)
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