Bombay High Court
Jean Nusly Duggan vs Pheroze Home Duggan And 10 Ors on 23 July, 2021
Bench: D. S. Naidu
sg 8. nms112-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.112 OF 2019
IN
SUIT NO.258 OF 1996
Jean Nusly Duggan ...Plaintiff
vs.
Pheroze Home Duggan And 10 Ors. ...Defendants
WITH
INTERIM APPLICATION (L) NO.9103 OF 2021
IN
SUIT NO.258 OF 1996
Brian Joseph Moreyra And Anr. ...Plaintiffs
vs.
Jean Musly Duggan And Ors. ...Defendants
.....
Mr. Anuj Athalye, a/w. Ms. Prangana Barua, i/b. Bharucha & Partners, for
Defendant No.4 in Notice of Motion.
Ms. Meena Ruparel, for Respondent No.7.
Mr. Karl Tamboly, i/b. Ravindra Wagh, for Applicant in IA(L)
No.9103/2021.
Mr. Jehan Lalkaka, i/b. Mulla & Mulla And C.B.C., for Defendant No.10.
Ms. Nandini H. Joshi, a/w. Mr. Dhruv H. Joshi, for Defendant No.6 in
Notice of Motion.
Mr. Shailesh Shah, Senior Advocate, a/w. Ms. Soniya Putta, Mr. Atharva
Sawant and Ms. Rohini Hirwane, i/b. Solomon & Co., for the
Applicant/Defendant No.1 in Notice of Motion No. 112 of 2019 and
Defendant No.1 in IA(L) No.9103 of 2021.
Mr. D.N. Kher, Court Receiver present.
....
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sg 8. nms112-19.doc
CORAM : DAMA SESHADRI NAIDU, J.
DATED : 23 JULY 2021
P.C. :
. In the suit, the sole Plaintiff died. Technically, the suit stood
abated. But because of the Supreme Court's periodic directions during
Covid extending limitation periods, the proposed legal representatives--that
is, the deceased Plaintiff's brother and sister--have applied to the Court to
come on record. Of course, the application reveals a delay of 26 days if the
Supreme Court directive does not apply.
2. When the learned Counsel for the Applicants had argued the
matter, the learned Counsel for the First Defendant pointed out that besides
the bald claim that the Applicants are the deceased Plaintiff's brother and
sister, the Applicants placed no material on record to support their claim.
Then, the Applicants' Counsel has responded that if the Court grants one
week, the Applicants will file the proof. He thought that LR application
would be considered as a matter of course.
3. It is a matter that concerns the estate of a deceased person. The
Plaintiff in this suit seems to have contended that the estate holder died
intestate. But the other relatives came out with a plea that she had died
testate. So these counter assertions have led to two parallel proceedings. I
am given to understand that the probate proceedings have attained finality.
4. So the branch that relied on will, as the Defendants in this suit,
wanted this Court to close this Suit as infructuous. Before the Court could
rule on that, the Plaintiff herself died. In fact, all along, the disputed
property has been in the Court Receiver's possession. And the Plaintiff had
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sg 8. nms112-19.doc
lived in the outhouse as the Receiver's agent. Thus, on the last occasion,
too, I noted that once the agent has died, the possession reverted to the
principal. At any rate, the agent's possession was for the principal's sake.
5. Based on the first Defendant's plea about the status of the
property, on the last occasion I required the Receiver to visit the property
and file a report. That requirement was fulfilled; the Receiver's report,
6.7.2021, is on file.
6. The disputed property has three components: the main
building, servants' accommodation, and an outhouse. The servant
accommodation has two floors, each floor having six rooms. Of the 12
rooms, only one has been occupied. It was occupied by Ms. Pratibha
Vengurlekar, who is said to be the caretaker. The main building has been
so dilapidated that the Receiver's representative found it unsafe to enter.
Therefore, they kept away from it. At any rate, it seems to remain locked.
7. As to the outhouse, in which Plaintiff lived during her lifetime,
the Receiver's representatives' report that it is vacant. That said, they were
informed by Pratibha Vengurlekar that "Ms. Brinda Moreay, sister of Late
Jean Duggan, was not present at the site she went to Nasik to take care of
her husband."
8. In the above backdrop, I clarify that the entire building stands
unoccupied, and the possession is deemed to be with the Receiver. I also
gather that the Applicants, as the putative LRs of the deceased Plaintiff,
have filed their objections to the Receiver's report. Those objections may
require adjudication only if they succeed in coming on record as the LRs.
So, I note that this Court's observations about possession or any other
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sg 8. nms112-19.doc
aspect will not prejudice the Applicants' alleged rights, if any, as the
deceased Plaintiff's legal representatives.
9. Once the Court considers the Applicants' claim to come on
record as the legal representatives of the deceased Plaintiff, the Court will
decide all other issues, including whether the suit survives in the face of the
other parallel proceedings that have attained finality with the Supreme
Court's judgment.
10. The Registry will receive the first Defendant's affidavit, if filed.
11. If at all the Applicants are allowed to come on record as the LRs
of the Plaintiff, they may raise all please legally available for them in the
matter.
12. Post the matter on 9 August 2021.
(DAMA SESHADRI NAIDU, J. )
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