Kanaiyabhai Lalbhai Contractor vs Kalpesh Patel And 5 Ors
2021 Latest Caselaw 15212 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION


                 INTERIM APPLICATION (L) NO.13158 OF 2021
                                             IN
                                  SUIT (L) NO.13156 OF 2021


Kanhaiyabhai Lalbhai Contractor                               .. Applicant
In the matter between
Kanhaiyabhai Lalbhai Contractor,
r/at - "Suvas" Bunglow,
Behind Aarya Samaj Mandir,
Off Linking Road, Santacruz (W),
Mumbai-400 054.

         And

A4/1 "Kalash" Somnath Mahadev Society,
Athwa Umra Road, Athwalines,
Surat (Gujarat)-395007.                                       .. Plaintiff
         v/s.
1. Kalpesh Patel

2. Seasons Enterprises Private Limited

3. Vishwas Patel

4. Vivek Patel

5. Varini Patel
   Defendant nos.1 to 5 being the partners
    of Seasons Avenues Properties,
   a partnership firm carrying on business
  at 701, Seasons Avenue, Linking Road,
  Khar (West), Mumbai-400 052.

                                            1/58
IAL-13158-21 IN SL-13156-21.doc
wadhwa
 6. Hemant Lalbhai Contractor,
  r/at - 25, "Leher" Adarsh Society,
  Near Gokulam Dairy, Athwalines,
 Surat (Gujarat)-395001.                              .. Defendants



Mr. Zubin Behramkamdin a/w Ms. Ferzana Behramkamdin & Ms.
ShleshaSheth i/b. FZB & Associates for the applicant-plaintiff.

Dr. Veerendra V. Tulzapurkar, Sr. Advocate, a/w Mandar Soman & Sean
Wassoodew, Ms. Vijaya Ingule & Rupesh Mandhare for respondent-
defendant nos.1 to 5.

Mr. S.C. Naidu, a/w Aniketh Poojari i/b. C.R. Naidu & Co. for defendant
no.6.


                                       CORAM : A. K. MENON, J.
                                  RESERVED ON : 22ND SEPTEMBER, 2021
                              PRONOUNCED ON : 25TH OCTOBER, 2021


JUDGMENT

1. The suit seeks a declaration that the plaintiff and defendant no.6

are joint owners of the suit property. The plaintiff seeks a decree

for partition, for division of the suit property by metes and bounds

and separate possession subject to a declaration being made as

aforesaid. It also seeks disclosure on oath of permissions that may

be obtained by defendant nos.1 to 6 who are developers and in

IAL-13158-21 IN SL-13156-21.doc wadhwa whose favour the defendant no.6 has executed a Development

Agreement. As a corollary, the plaintiff also seeks a declaration

that the defendant nos.1 to 5 have no share, right, title or interest

in the suit property and the Development Agreement executed

between defendant no.6 and defendant no.1 to 5 is unenforceable

null and void and to declare that the Power of Attorney is illegal.

The plaintiff also seeks permanent injunctions restraining the

defendants from dealing with, disposing, transferring the suit

property and injunctions restraining the defendants from

obstructing the plaintiffs' access, possession and enjoyment of the

suit property. Pending the disposal, the plaintiff seeks injunctions

in the aforesaid terms and inter alia appointment of the Court

Receiver, High Court, Bombay.

2. It is appropriate that description of the parties be set out prior to

considering the interim application. The plaintiff and defendant

no.6 are brothers. The plaintiff's grandfather Ramji Dayawala had

started a family business. In or about 1965, the plaintiff claims to

have joined this family business. The defendant no.6 also is said

to have joined much later in the year 1977. The plaintiff and

defendant no.6 are still partners of Ramji Dayawala Sons & Co.

along with other family members. They carry on business inter

IAL-13158-21 IN SL-13156-21.doc wadhwa alia at Surat. The suit property is said to have been purchased in

July 1962 by the father of the plaintiff one Lalbhai. Lalbhai and

Dahiben had seven children, 5 daughters and the 2 sons viz. the

plaintiff and the defendant no.6. It is the plaintiffs' case that in or

about 1968, Lalbhai was desirous of gifting the suit property to

the plaintiff and defendant no.6 who are his two sons to the

exclusion of five daughters. The plaint sets out several other

aspects of properties purchased by Lalbhai during his lifetime.

However, in the present suit we are only concerned with the

property in Mumbai known as "Suvas".

3. It is the plaintiffs' case that sometime in August 1968 an oral

family arrangement was arrived at between his parents, the

plaintiff and defendant no.6 then a minor, agreeing that the

property would always be used as a family home of the

Contractor family in Mumbai. The parents Lalbhai and Dahiben,

the plaintiff and defendant no.6 would at all times be joint owners

with rights of occupation, possession and use along with their

respective family members. A Gift Deed came to be executed on

4th September, 1968 wherein the plaintiff and defendant no.6

were described as "Donees". At that time, the defendant no.6 was

a minor and was represented by his mother and natural guardian

IAL-13158-21 IN SL-13156-21.doc wadhwa Dahiben. The suit property was said to be subject of an Indenture

of Mortgage in August 1967 and it was later registered with the

Sub-Registrar of Assurances in Bombay in or about 1968.

4. It is the plaintiffs' case as canvassed by Mr. Behramkamdin that

during the period when the Gift Deed was executed, the family

business at Ramji Dayawahla Sons & Co. Pvt. Ltd. had contracts

with the Maharashtra State Electricity Board in relation to certain

power plants. They also had insurance arrangements with Vulcan

Insurance Company Limited and Advanced Insurance Company

Limited. They had furnished guarantees on behalf of a company

through the aforesaid MSEB. The company Ramji Dayawahla &

Sons had along with the father Lalbhai mortgaged the suit

property as security to Advance Insurance Company Limited

against the guarantee issued to MSEB. This fact finds reference in

the Gift Deed which was subject, expressly to the Indenture of

Mortgage as between Lalbhai and Advance Insurance Company

Limited.

5. It is the plaintiffs' case that in or about 1970 MSEB had

threatened to invoke the guarantee given by Advance Insurance

Company Limited on behalf of the company. The plaintiff who

IAL-13158-21 IN SL-13156-21.doc wadhwa was then a Director of the company claims that the company's

Solicitors had advised Lalbhai that the plaintiff should relinquish

his rights in the suit property in favour of defendant no.6 then a

minor, apparently in order to "save" the suit property from being

attached and sold in execution of any decree that may be passed.

The plaintiff though unwilling, claims to have been convinced by

Lalbhai and Dahiben to release his rights in favour of defendant

no.6. A further Oral Family Agreement is mooted as between

Lalbhai, Dahiben acting as mother and natural guardian for

defendant no.6 and the plaintiff whereby it was agreed that the

plaintiff would release the suit property in favour of defendant

no.6 to save the suit property from being attached and probably

sold at the instance of creditors. In other words, they sought to

exploit the fact that the defendant no.6 was then a minor and that

a minor's property could not be subjected to sale. As part of the

family arrangement it is contended that it was orally agreed that

daughters of Lalbhai and Dahiben, sisters of the plaintiff and the

defendant no.6 would have a right to use the suit property.

6. Acting on the alleged oral family arrangement, the plaintiff is said

to have released his share in the suit property for disclosed

IAL-13158-21 IN SL-13156-21.doc wadhwa consideration of Rs.1000/-. He executed a Release Deed on 8 th

September, 1970 relinquishing all right, title and interest in the

suit property in favour of defendant no.6. It is admitted that the

Release Deed has been registered with the Sub-Registrar at

Bombay. Thus, the first important fact to be noted is that there is a

written deed of release duly executed by the parties and registered

before a Sub-Registrar at Mumbai. This fact is admitted. The

plaintiff has then contended that in or about 1975, upon attaining

majority, the defendant no.6 had been appraised of the oral family

arrangement. He had agreed to be bound by at all times and thus,

the oral family arrangement was to be given effect to, in the

manner set out in the plaint. The daughters of Lalbhai are said to

have agreed to this arrangement. Notwithstanding the Release

Deed, the plaintiff and his family members are said to be holding

passports, their ration card and business cards which displays

their address as that of the suit property.

7. Lalbhai who was then a resident of London died there on 15 th

November, 1984 and the death certificate of Lalbhai also displays

the address of the suit property. Some family businesses,

Partnership firms and the company also continued to have their

IAL-13158-21 IN SL-13156-21.doc wadhwa address at the suit property. The plaintiff has contended that in

1978 after the defendant no.6 joined the family business, he was

using the suit property in transit till 1986 and in 1986 the

defendant no.6 shifted to Surat and looked after the family

business from there. The plaintiff claims he continued to use the

suit property whenever his family members or he would come to

Mumbai they would stay at the suit property and use the

furniture and fixtures of which the plaintiff claims ownership.

The plaintiff claims that in 1984 after Lalbhai's death the plaintiff,

defendant no.6 and their mother Dahiben reaffirmed the oral

family arrangement between them. While the right of

occupation, possession and ownership of these three persons

continued, the plaintiff's sisters and their family were allowed to

use the property. The mother- Dahiben expired on 7 th March,

2012. Upon the demise of Dahiben, the oral family arrangement

is said to have been reaffirmed as between the plaintiff and

defendant no.6. The plaintiff claims that he along with defendant

no.6 continued to hold the suit property as owners with the sisters

having a right to reside there at along with their families.

8. According to Mr. Behramkamdin, the plaintiff has left behind

several personal belongings including furniture and fixtures in

IAL-13158-21 IN SL-13156-21.doc wadhwa one room on the first floor of the suit property which has always

been in the plaintiffs' sole, exclusive, continued use and

occupation. On or about 14th June, 2019 and onwards, the

defendant no.6 unilaterally prevented the plaintiff form using the

suit property. In this background, the plaintiff claims that on or

about sometime in the 1st week of May 2021 he was informed by

the neighboring plot owner that there were Security Guards

posted at the suit property. He learnt that there were several

people in the compound of the suit property and soil testing work

was underway. Being unaware acts of defendant no.6, and being

apprehensive that the defendant no.6 may unilaterally deal with

the property, the plaintiff issued a public notice dated 10 th May,

2021 mentioning that the plaintiff was an owner of the suit

property and in possession thereof alerting members of the public

not to deal with the suit property with any person other than the

plaintiff.

9. According to Mr. Behramkamdin, upon demise of Lalbhai and

Dahiben, the suit property is owned jointly by the plaintiff and

defendant no.6 for themselves and their respective families. Even

according to the alleged Will of Lalbhai (which the plaintiff does

IAL-13158-21 IN SL-13156-21.doc wadhwa not appear to admit of) the oral family arrangements have been

reiterated that the bequest is being made in respect of suit

property in favour of Dahiben, the plaintiff and defendant no.6.

However, the oral family arrangement is said to have been

reiterated. The Will provides that Lalbhai had transferred the suit

property from defendant no.6 to Dahiben and himself. The

absence of reference to the plaintiff in this respect very material.

Notwithstanding the provisions of the Will or its legal effect, the

plaintiff has claimed that the defendant no.6 along with the

plaintiff are joint owners and in the event of any decision to

redevelop the property, it could not have been taken without the

express consent of the plaintiff. Viewed in this light Mr.

Behramkamdin submitted that the execution of the Development

Agreement and the power of attorney are non-est, not binding

upon the plaintiff, and as such, in breach of the oral family

arrangement and therefore liable to be ignored. The Development

Agreement and Power of attorney are said to be null and void

despite being a registered document, it is liable now to be

cancelled.

10. In an affidavit dated 8 th September, 2021 filed by the

IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff he has produced copies of his Voter's ID card, Aadhar

card and current ration card. A copy of the cover page of a

cheque book issued by Bank of Baroda in the name of Ramji

Dayawahla Engineers is also included which also shows the name

of the suit property, copies of the passport of the plaintiff's wife

and daughter also discloses that the address provided is that of the

suit property. The affidavit annexes therewith two photographs

at Exhibit 'H' & 'G' which are said to be of the room that was

refurnished and repaired by the plaintiff and which was in

occupation. The affidavit also contains reference to Income Tax

notices received by the plaintiff in March 2017 at the suit

property as also a notice from Bank of Baroda calling upon Ramji

Dayawahala Engineers to complete KYC requirements. Copy of a

request for issuance of new cheque book of which HDFC Bank is

also relied upon to show that the address of the Kanaiyalal

Lalbhai Contractor HUF was that of the suit property. So also the

pass book in respect of the said account with HDFC Bank Ltd.

held by Kanhaiyalal Contractor HUF was that of the suit property.

These are but a few other documents that have been pressed into

service at the hearing of this interim application.

11. In a further affidavit dated 17 th September 2021, the

IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff has reiterated the contents of a handwritten letter dated

6th March, 2006 sent by facsimile by the defendant no.6 to the

plaintiff describing various properties. At serial number 7 the

handwritten letter deals with the suit property. The language

used in the said letter pertaining to the Suit property is in plural

and not singular. The defendant no.6 and the plaintiff would thus

mutually decide the fate of the suit property and not the

defendant no.6 alone. This is indicative of the intention of the

parties to take a joint decision if at all in relation to the suit

property.

12. The plaintiff as a joint owner of the property is desirous of

continuing in ownership, use and occupation of the premises but

the defendant no.6 appears to be opposed to it. In view of the joint

ownership that is now pleaded and canvassed before me, the

plaintiff claims to be entitled to all the aforesaid reliefs, leading

upto the delivery of the purported Development Agreement and

Power of Attorney to this court for cancellation and for handing

over possession of the suit property. In the interregnum the

plaintiff seeks to restrain the defendants from proceeding with

redevelopment or taking any steps in furtherance thereof. The

interim application filed by the plaintiff seeks appointment of the

IAL-13158-21 IN SL-13156-21.doc wadhwa Court Receiver, High Court Bombay of the suit property,

injunction restraining the defendants from proceeding with any

development activity. Meanwhile, seeks deposit of original title

deeds of the suit property in this court. It also seeks to restrain the

defendant nos.1 to 5 in proceeding with demolition of the suit

property or altering the property in any manner including by

removing the furniture and fixtures and personal belongings of

the plaintiff said to be lying thereat. Mr.Behramkamdin therefore

submits that the reliefs sought may therefore be granted. Mr.

Behramkamdin has also relied on the following judgments;

1) Syndicate Bank v/s. M/s. S. S. Printers and others1

2) MST Rukhmabai v/s. Lala Laxminarayan & Ors.2

3) Smt. Gangabai w/o Rambilas Gilda v/s. Smt. Chhabubai w/o Pukharajji Gandhi3

4) Sanjay Kaushis v/s. D.C. Kaushis & Ors.4

13. Opposing the grant of relief on behalf of respondent nos.1

to 5, Dr. Tulzapurkar would submit that the plaintiff has failed to

make out a case for grant of the reliefs sought. He relies upon the

fact that the plaintiffs attempt to establish the validity of the oral

1995(2) Mh.L.J. 198

(1960) 2 SCR 253

)1982) 1 SCC 4

1991 SCC OnLine Del 497

IAL-13158-21 IN SL-13156-21.doc wadhwa agreement cannot succeed. He submitted that when there is a

written document such as the Release Deed which is registered as

required by law and which has been acted upon, the terms of the

registered deed would prevail over any oral contract. It cannot be

substituted by any oral agreement and in particular the Release

Deed being a document which confers title. The requirement of

recording the same writing and registering the same is to ensure

its validity. Dr. Tulzapurkar also submitted that the terms of the

registered deed such as the Release Deed in the present case, may

be varied only by a valid registered document. It could not be

varied except by an instrument in writing and duly registered. Dr.

Tulzapurkar submitted that there is no case whatsoever for grant

of any reliefs in favour of the applicant. Canvassing the case of

the developer Dr. Tulzapurkar submitted that the developer spent

over 17,52,98,909/- and having spent such large sums of money,

the balance of convenience is clearly in favour of the defendant

nos.1 to 5 and against the plaintiff who has come to court

belatedly with a case of an oral agreement seeking to modify a

registered contract. This is submitted is clearly not sustainable.

The plaintiff has produced little or no evidence of such an oral

agreement having been arrived at. There are no other persons

IAL-13158-21 IN SL-13156-21.doc wadhwa named as witnesses or could in any manner resist in ascertaining

whether an oral agreement preceded the execution of the deed of

release or whether it was arrived at contemporaneously with the

deed of release or shortly thereafter.

14. Dr.Tulzapurkar submitted that in an affidavit dated 7 th July,

2021 file don behalf of defendant nos.1 to 5, the deponent has

reaffirmed the contents of an affidavit filed on behalf of defendant

no.6. He submitted that the developers have entered into the

development agreement after carrying out an exercise in due

diligence, investigating the title of defendant no.6 of the suit

property and after taking searches at the offices of Sub-Registrar

of Assurances, the defendant no.6 was found to be the sole owner

of the property . Public notices have since been issued and no

objections were received. It is only thereafter that the

development agreement and power of attorney came to be

executed in favour of the developers. Substantial consideration

has been paid and costs incurred as aforesaid and the defendant

no.6 is said to have put the developers in possession. At the time

possession was taken none of the belongings of the plaintiffs as set

out in the plaint was lying thereat. Acting upon the development

IAL-13158-21 IN SL-13156-21.doc wadhwa agreement, the deponent has applied for approvals of plans and

for construction of a building, the plans are under process and at

an advanced. Intimation of disapproval is expected to be issued

by the Municipal Corporation shortly. The deponent has also

contended that large amounts have been spent towards fees of

Architects, legal fees, scrutiny fees, premiums paid to the

corporation, and in these circumstances, considering the delay in

approaching this court no relief should be granted.

15. Defendant no.1 who is the partner of the developer has also

filed an additional affidavit dated 1st September, 2021 in which he

sets out that after taking possession of the suit property, on 30 th

March, 2021, an IOD has been issued on 2nd August, 2021,

conditions of the IOD save and except demolition have since been

complied and that the defendant no.1 has spent about

17,52,98,909/- till date towards costs of redevelopment on

account of gross delay.

16. Dr. Tulzapurkar relied on the following judgments;

1) S. Saktivel (Dead) by LRS. v/s. M. Venugopal Pillai and others 5

2) Chandrakant Shankarrao Machale v/s. Parubai Bhairu Mohite

(2007) 7 SCC 104

IAL-13158-21 IN SL-13156-21.doc wadhwa (Dead) through LRS.6

17. Mr. Naidu appearing on behalf of the defendant no.6

submitted that the alleged oral agreement is non-existent. He

submits that the plaintiff has not filed the suit for specific

performance of any family arrangement. On the other hand, he

seeks a declaration and partition but there is no prayer for

specific performance of any alleged family arrangement. There is

also no challenge to the Release Deed or the Gift deed. According

to Mr. Naidu the claim is for partition of property in which the

plaintiff has no share. He has relied upon a compilation of

documents and submitted that the nephew of the plaintiff had

initiated a suit in Surat before the Additional Principal Judge and

in that suit, an injunction was sought against the disposal of the

property. The property included the Mumbai suit property and

the defendant no.6 who was arraigned as defendant no.3 in that

suit had defended his possession and has effectively sought

certain reliefs. The defendant no.6 had successfully thwarted the

attempts of the nephew to obtain an injunction and arguments on

behalf of the 6th defendant were supported the plaintiff herein

(2008) 6 SCC 745

IAL-13158-21 IN SL-13156-21.doc wadhwa who was a party defendant in that suit. The court had not

granted any relief in respect of the Mumbai property since it was

beyond its jurisdiction but having supported the case of

defendant no.6 in the Surat suit, it is not possible to now contend

contrary to the submissions made in this court at Surat. Mr.

Naidu further submitted that the plaint is based upon false

assertions. It falsely states that plaintiff is a joint owner.

18. Mr. Naidu further submitted that since the suit seeks

partition of the property there would have been at least 1/8 th

share that would fall within the share of each family member

inasmuch as Lalbhai and his wife and seven children and

therefore 1/8th share would fall to the share of each of these

family members but in the present suit, the daughters have been

excluded. The five sisters of the plaintiff were necessary parties

and even otherwise the sisters had not conveyed their consent to

the plaintiff approaching this court without making them parties.

Since they were necessary parties, the relief sought could not have

been urged without securing their presence especially since the

oral agreement pleaded includes a component whereby the sisters

are entitled to also use the property for their residence in Mumbai

IAL-13158-21 IN SL-13156-21.doc wadhwa from time to time. If the allegations in the plaint are true, it was

absolutely essential that the five sisters of the plaintiff and

defendant no.6 were impleaded as party defendants. Not having

done so, Mr. Naidu submits that the assertions in the plaint cannot

be believed. In fact as we can see the sisters have not supported

either plaintiff or defendant no.6 since neither of them has been

able to procure any affidavits of support of their respective cases.

19. Mr. Naidu submitted that the plaintiffs' suit is clearly barred

by law of limitation assuming that the family agreement is true

and the Release Deed is sham and bogus document. In 2014, the

entire property has been claimed and a judgment delivered by the

Surat court, none of the present defences has seen to have been

canvassed in that court. Of course there may be some truth in

the contention of Mr. Behramkamdin that the Surat court was not

concerned with the property of the Mumbai and has expressly

made it clear in its judgment that it had no territorial jurisdiction

over the property in Mumbai. Mr. Naidu submitted that the suit is

filed on 16th June, 2021 and by operation of Article 58 and 59 of

the Limitation Act the suit is clearly barred and since the suit is

not maintainable, the interim application too must fail.

IAL-13158-21 IN SL-13156-21.doc wadhwa

20. Mr. Naidu further submitted that in any event the plaintiff

has omitted to assail the Release Deed which was absolutely

essential. If the plaintiff is to succeed in the present suit since he is

claiming ownership of the property along with the defendant no.6

to the exclusion of all others. Despite the execution of the deed of

release, it was necessary that the oral agreement propounded by

the plaintiff is supported by challenge to the registered deed of

release. He submitted that in the facts of the case, since the

applicant is now seeking performance of the alleged oral

arrangement, the suit which only seeks a declaration of

ownership and without assailing the deed of release executed by

the plaintiff, is defective and the declaration in the suit cannot be

granted even assuming the averment were true without the

plaintiff having first assailed the deed of release. Mr. Naidu also

submitted that considering the prayers in the suit which seeks a

declaration of ownership, absent to the challenge of deed of

release, the suit is not maintainable since that he really seeks is

specific performance of the oral agreement and that the suit

cannot succeed in the absence of a challenge to the written

document in the form of the deed of release. He therefore

IAL-13158-21 IN SL-13156-21.doc wadhwa submitted that the suit is barred and liable to be rejected.

21. The plaintiff being a stranger to the property, the provisions

of Section 41(h) of the Specific Relief Act will operate as a bar to

grant of injunction. The suit is speculative and does not even

disclose a proper cause of action. In any event have been

executed the Release Deed and admittedly so, there is no

subsisting cause of action in favour of the plaintiff. The Release

Deed cannot be undone by mere pleading of an oral family

arrangement. Mr. Naidu then invited my attention to the

property register card in respect of the suit property and

submitted that the alleged deed of mortgage which caused the

plaintiff to have given up his share pursuant to the alleged family

arrangement. In any event the defendant no.6 was then a minor

and by virtue of the gift deed dated 4 th September, 1968, 50%

share in the property would vest in the minor.

22. My attention is invited to the affidavit filed on behalf of

defendant no.6. Defendant no.6 claims that the plaint is liable to

be rejected under provisions of Order VII Rule 11(a) & (d). The

IAL-13158-21 IN SL-13156-21.doc wadhwa suit is also liable to be rejected under Order VII Rule 11B of the

CPC for want of payment of proper court fees. Mr. Naidu in his

submission made it clear that the defence to be present interim

application is without prejudice to three other interim application

filed by defendant no.6 viz. the IA no.1483 of 2021 filed under

Order VII Rule 1D and IA-1492 of 20201 filed under Order VII

Rule 11A and D and IA 1491 of 2021 filed under Order XII Rule

6. These are sought to be raised as preliminary objections.

23. According to the defendant no.6 the suit is not competent

and the plaintiff cannot seek possession under Section 6 of the

Specific Relief Act. It is contended that the critical elements

required in pleadings for a suit of this nature to succeed have not

been met. The plaintiff has not claimed to be in actual physical

possession of the suit property within six months prior to

institution of the suit. He has not made out a case of being in

settled possession, open, continuous and to the knowledge of

defendant no.6 and/or that he was forcefully dispossessed. There

is no mention of the alleged manner in which such forcible

possession took place or any complaint having been lodged

against such alleged dispossession. According to the defendant

no.6, the suit is filed under Section 5 of Specific Relief Act. The

IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff has only sought a declaration and as part of such

declaration he seeks an order of partition by metes and bounds.

Thus the suit is based on title, a proprietary suit for declaration

and hence, clearly falling within the scope of Section 5 of the

Specific Relief Act. Defendant no.6 has urged his case that the

plaintiff was not in settled possession at any time.

24. In support of these contentions it is stated that the

plaintiffs' parents were residents of Surat that the plaintiff and

their father had serious disputes and differences sometime in the

year 1983 as a result of which the plaintiff moved out of their

parental home into rental premises in Surat. There was a

separation between plaintiff on one hand and the father Lalbhai,

post separation the plaintiff had set up an independent business in

the name of TP Construction Co. but continued to be shown as

partner albeit merely on paper of Ramji Dayawahla Sons & Co.

though no business had been carried out in the name of that firm

since about 1983. The plaintiff later shifted to his own Bungalow

at Surat sometime in 1989 and/or permanently residing in Surat

thereafter ever since.

25. It is then contended by defendant no.6 that in or around

IAL-13158-21 IN SL-13156-21.doc wadhwa 1992-1993, the plaintiff set up a proprietary business in the

name of Ramji Dayawahla Engineers. Sometime in 2003, the

plaintiff had requested the defendant to permit his son Urmil to

reside at a suit premises since he was pursuing his education in

Mumbai. The defendant permitted Urmil to stay during 2003 to

2005 gratuitously. No member of the plaintiff's family other than

Urmil has resided at the suit property. The plaintiff's businesses

are run by him and his sons in the aforesaid firm name and style.

It had major contracts in Gujarat, Abu Dhabi and Muscat.

26. When the defendant no.6 came to Mumbai in 1972 he was

residing in a suit property during his education here. He

proceeded to London in 1976 but on all visits to India he would

continue to stay at the suit property. The plaintiff it is contended

never resided at the suit property or had any furniture and

personal belongings thereat. The family business at Mumbai and

Surat continued with the defendant no.6 in-charge. He claims to

have paid all bills of all property tax, water charges and electricity

charges in respect of the suit property for over 30 years. Bills for

the aforesaid services are also said to be in the name of the

defendant no.6 alone. The bungalow being in a dilapidated state,

he has been spending considerable amounts repairing it but it was

IAL-13158-21 IN SL-13156-21.doc wadhwa getting difficult to maintain the property and therefore he decided

to redevelop the property. However, the defendant no.6 continued

to maintain the property including a number of domestic servants

and security guards. He claims to have paid for the services of

these persons himself.

27. The defendant no.6 has reiterated the issuance of the public

notice, the fact that no objections were received and asserts to

have been in continuous open and exclusive possession of the suit

property since about 1972 till he handed over possession to

developers. Neither the plaintiff nor any of his family members

were ever in settled possession of the property since adverting to

the contentions in the plaint regarding the plaintiff's ration card

showing the address of the suit property. The deponent states that

the name of the plaintiff was inserted only to enable him to obtain

a passport from Mumbai. There being no passport office in Surat

at the material time, passports were being issued from Mumbai

and Mumbai being the closet and most convenient place. The

plaintiff's name was inserted to facilitate the issuance of passports.

The plaintiff is also said to have obtained a liquor license on the

basis of his Mumbai address. The plaintiff's son Urmil's name was

inserted in the ration card only for the purposes of facilitating

IAL-13158-21 IN SL-13156-21.doc wadhwa admission to the college and principally the ration card stands in

the name of defendant no.6, his wife and children upon issuance.

The plaintiff's name was inserted in the year 2000.

28. The reply highlights the fact that the plaintiff has

admittedly stayed on the suit property till about 2002 when he

voluntarily shifted to Surat. The absence of particulars of any of

his family members residing in the suit property after 2002 is

conspicuous by its absence and hence it is contended that the

plaintiff was not dispossessed, as now contended. Defendant no.6

has denied that any furniture or fixtures or personal belonging to

the plaintiff is lying at the suit property. The Release Deed in no

uncertain terms records the plaintiff having released all right, title

and interest in the suit property in favour of defendant no.6 and

as sole owner he was entitled to deal with the property. The claim

of joint ownership is untenable and the plaintiff has no right

whatsoever to seek any of the interim or ad-interim reliefs unless

he first obtains a declaration of title to the suit property and that

cannot be done unless the plaintiff establishes that the Release

Deed in favour of the defendant no.6 was not valid. In any event,

it is not the plaintiff's case that the Release Deed is a sham and

bogus document but he seeks to set up an oral family

IAL-13158-21 IN SL-13156-21.doc wadhwa arrangement contrary to this written registered document. The

suit is thus proceeding on the basis of the alleged oral family

agreement arrived at in 1970 about 51 years ago without

disclosing a subsisting cause of action especially since the Release

Deed has not been challenged in any manner. The Release Deed

being registered and in operation, the plaintiff cannot seek

enforcement of any oral arrangement contrary thereto. Thus, it is

contended that the reliefs claimed in the plaint are liable to be

rejected.

29. Mr. Naidu in support of the defendant's case has argued

that the plaintiff's case is also barred in the light of Section 91 and

92 of the Indian Evidence Act. The suit is not competent and has

incurable defects including non-joinder of necessary parties

being the sisters of the plaintiff and defendant no.6 especially

since the plaintiff has claimed that he is the head of the family

and has filed the suit on behalf of self, his wife and children. No

leave has been obtained to file the suit in a representative capacity

though non-joinder of necessary parties such as the 5 sisters of

the plaintiff is said to be material and despite such objections, the

plaintiff has taken no steps to implead the sisters even though

matter has been pending for a long time. Mr. Naidu submitted

IAL-13158-21 IN SL-13156-21.doc wadhwa that once the fact of the Release Deed having been executed and

registered is accepted unless the Release Deed is revoked and

cancelled it is no question of the plaintiff seeking any relief

contrary to the provisions of the Release Deed and therefore the

plaintiff is precluded from setting up an oral arrangement. In fact

no cause of action arises in favour of the plaintiff to seek

cancellation of the Release Deed much less to file the suit seeking

partition or separate possession. The defendant no.6 is a sole

owner of the property and no cause of action has arisen to file the

present suit as such sole owner he has entered into an agreement

of development. The affidavit refers to the fact that there is one

electricity meter and one water meter at the suit property. These

meters are in the name of the defendant no.6. Municipal Tax bills

are also issued to defendant no.6 alone and this is prima facie

evidence of a fact that the defendant no.6 alone was in use and

occupation of the suit property contrary to the plaintiff's claims

now set up in the suit. Absent any cause of action, it is submitted

that the suit has no merit and therefore there is no question of

granting any interim protection as now sought.

30. According to defendant no.6, the plaintiff's voter ID card,

IAL-13158-21 IN SL-13156-21.doc wadhwa Aadhar Card and ration card all show that he is a permanent

resident of Surat and having obtained these documents at Surat. It

is obvious that the previous ration card in Mumbai cannot be

pressed into service as proof of use and occupation and residence

at the suit property. In particular the ration card at Mumbai does

not include the names of the plaintiff's wife and daughters and

the plaintiff's name was thus introduced only for the purpose of

enabling him to obtain a passport as aforesaid. In fact continuous

residence of the plaintiff at Surat is virtually admitted. The

defendant no.6 has denied the plaintiff's contention that the

premises in his occupation were renovated and that the

photographs are of no value, especially since the plaintiff has not

produced any evidence in terms of bills or vouchers to establish

that he had the premises renovated, particulars of the contractor

or workmen who are involved has been set up. In support of his

case, Mr. Naidu placed reliance on a document dated 6 th March,

2006 written by the defendant no.6 and admitting of the

plaintiff's right in the suit property is of no assistance to the

plaintiff. It is contended that the translation annexed is

misleading. Mr. Naidu submitted that the document if read in its

entirety will reflect an attempt at amicable settlement of long

IAL-13158-21 IN SL-13156-21.doc wadhwa pending disputes between the parties and is not supportive of the

plaintiff's case of use and occupation of the suit property. Specific

reference to the property 'Suvas' in the said letter is consistent

with the case of the defendant no.6 that the arrangement in

relation to Suvas as recorded in the Release Deed would continue

to operate and there is no occasion to make any change to that

position. Mr. Naidu submitted that the letter which has been

produced only much later and not as one forming the basis of the

suit claim does not support the plaintiff's oral arrangement. Even

otherwise, at least one of the properties in which the plaintiffs'

sisters are said to have a share has been sold and the proceeds

were divided between the plaintiff and defendant no.6. No share

was provided to the sisters. Mr. Naidu has taken me through the

additional affidavit dated 9 th September, 2021 filed on behalf of

defendant no.6 and which deals with the various items of

property set out in the letter of 2006. He submitted that the letter

does not advance a case of the plaintiff in any manner and it is

hardly admission of the plaintiff's case as set up in the plaint.

31. Mr. Naidu also stressed upon the fact that the identity card

issued to the plaintiff by the Election Commission of India

undoubtedly shows the address of the plaintiff at Surat so did the

IAL-13158-21 IN SL-13156-21.doc wadhwa Aadhar card and the ration card. The ration card also bears the

name of the plaintiff's wife, sons, daughters-in law and daughters

and the address on ration card is that of Surat. It is also pointed

out that a copy of an envelope addressed by Bank of Baroda to

Ramji Dayawahla Engineer shows the address of the company as

Bal Sadan Apartments Mumbai and this property Bal Sadan is not

the suit property but is opposite the suit property. This Mr. Naidu

seeks to press into service to establish that the plaintiff's attempt at

showing use and occupation of the suit property is baseless and

cannot succeed. In this manner, the plaintiff's case is sought to be

disputed and denied.

32. Mr. Naidu highlighted the fact that no relief under Section

6 has been claimed, there is no allegation of forcible illegal

dispossession and of continuous prior possession as contemplated

in Section 6. He also submitted that the valuation clause is

defective the suit has not been properly valued and the plaint

clearly is one that that falls under Article 1 of the schedule and

not Article 2 especially since the reliefs under Section 5 & 6 of the

Specific Relief Act are mutually exclusive and the present suit is

not one that complies with the requirement of Section 6. In any

event, making reference to paragraph 4(k) of the plaint, Mr.

IAL-13158-21 IN SL-13156-21.doc wadhwa Naidu highlighted the fact that the plaintiff had shifted to Surat in

the year 2002 and it is not his case that he was dispossessed

within 6 months prior to having approach this court. Settled

possession has not been established. The plaintiff and his family

members are permanent residents of Surat and this has been

reiterated in the affidavits and the documents their testimony to

this fact. In effect there is no challenge to the obvious factual

aspect that the plaintiff and his family members are permanent

residents of Surat. Mr. Naidu relied upon the following decision in

support of his case;

1) I.S. Sikandar (Dead) by LRS. v/s. K. Subramani and Others 7

2) N.V. Srinivasa Murthy and others v/s. Mariyamma (Dead) by proposed LRS and Others8

3) Poona Ram v/s. Moti Ram (Dead) through Legal Representatives and Others9

4) Ramanlal Ambalal Patel v/s. Hina Industries10.

33. On behalf of the plaintiff it is contended that while Dr.

Tulzapurkar has relied upon the costs incurred upto 31 st July,

2021 in terms of professional fees, TDR acquisition costs, stamp

duty, and other charges. In a further affidavit in rejoinder dated

(2013) 15 SCC 27

(2005) 5 SCC 548

(2019) 11 SCC 309

1993 CivilCC91

IAL-13158-21 IN SL-13156-21.doc wadhwa 11th September, 2021 the plaintiff has reiterated his case in the

plaint and denies that prior to execution of the development

agreement, the defendants no.1 to 5 had carried out any due

diligence exercise and has put them to strict proof thereof. The

suit property was described being the Surat suit and that no

reference whatsoever to the said suit is found to be made in the

development agreement. The public notices issued in Mumbai are

of no consequence since the plaintiffs were residents of Surat and

that the defendants were well aware when the notice was

published. The premises although in Mumbai the plaintiff was

one of the likely claimants and that the notice should have been

published in Surat as well.

34. The plaintiff has reiterated the fact that he was not aware

that defendant no.6 had handed over the property to the

developers and that he came to know of the same only on receipt

of the letter dated 14th May, 2021 from the Advocate of the

developer. He seeks to press this aspect into service to overcome

the objection on the ground of delay. The affidavit reiterates that

one room on the first floor of the suit property has always been

and continued in the possession of the plaintiff and his family

IAL-13158-21 IN SL-13156-21.doc wadhwa members for their sole and exclusive occupation till illegal

dispossession by defendants. The affidavit reiterates that the

plaintiff continues to be the joint holder and that the relief sought

in the plaint be granted.

35. In yet another additional affidavit filed on behalf of

defendant no.6 dated 17th September, the defendant no.6 has

stated that the plaintiff's case that the Release Deed was not to be

acted upon is incorrect. The affidavit reiterates that the Release

Deed was acted upon by the plaintiff, reference being had to an

application made by the plaintiff dated 6 th June, 1972 addressed

to City Survey Officer informing him that he had released the

property in favour of defendant no.6 and requesting transfer of

the property in the City Survey Record. A copy of this document

is to be found at Exhibit 1. Furthermore it is contended that the

said application is made under Section 149 of Maharashtra Land

Revenue Code 1966. The application was registered by the office

of the Tahsildar, Bandra and pursuant to this application dated

29th July, 1972 the plaintiff was called upon to record objections,

if any, to the deletion of his name from the property registrar card

pertaining to suit property. The plaintiff raised no objection at the

IAL-13158-21 IN SL-13156-21.doc wadhwa relevant time and that the Tahsildar made an endorsement on the

application that the request for deletion of name had been made a

month ago no objection was received and the mutation was

approved. Thus this endorsement is said to be dated 6 th January,

1973 and accordingly the property registered card duly mutated

shows the defendant no.6 as the sole and exclusive owner of the

suit property.

36. Mr. Naidu submits that these documents conclusively

establish the case of defendant no.6 and falsifies the case of the

plaintiff. The affidavit also sets out the fact that plaintiff is a

stranger to the suit property and that in view of the dilapidated

condition of the suit property, the defendant no.6 had instructed

his solicitors to issue a public notice in the Free Press Journal

notifying the public at large inserted a public notice inviting

objections if any to the defendants claim to ownership. The

plaintiff at the time did not raise any objection and the notice was

unanswered knowing fully that the plaintiff had no right title and

interest. Copy of the public notice has been attached and that

clearly evidences publication on Friday 2 nd December, 2016

whereby the defendants name is shown as the client on whose

instructions the notice has been inserted calls upon individuals,

IAL-13158-21 IN SL-13156-21.doc wadhwa companies, banks, non-banking financial institutions or firms or

association of persons having any claim to forward their claims in

writing within 14 days of the date of the publication and not

having responded to even this public notice. It is obvious that the

plaintiff had no case whatsoever that the property was of his joint

ownership.

37. Having heard the rival contentions and having considered

the pleadings and the documents at this interim stage I am unable

to find merit in the plaintiff's case. In support of the plaintiffs

attempt at securing reliefs, references have been made by Mr.

Behramkamdin to various documents, I will briefly deal with

some of the important ones which the plaintiffs have relied upon.

The ration card issued in the name of the plaintiff shows the

address of the suit property, the ration card also makes mention of

the name of the plaintiff's son Urmil. The passport issued to the

plaintiff in or about 4th August, 2012 and which is scheduled to

expire on 13th August, 2022, also shows the address of the suit

property. The passports of the plaintiff's two sons also show the

address of the Mumbai property. In addition it is contended that

the liquor license issued to the plaintiff in June 2007 and the

death certificate of Lalbhai, the father of the plaintiff and

IAL-13158-21 IN SL-13156-21.doc wadhwa defendant no.6 both mentioned the address as Suvas-the suit

property. Reference is also been made by Mr. Behramkamdin to a

list of movables said to be lying at the suit property.

38. The plaint also sets out that one room in the suit property is

still in the possession of the plaintiff and his family members till

they were illegally dispossessed. According to the plaintiffs, his

son Urmil took photographs of the renovated room in June/July

2019 in the presence of the plaintiff, the references to these

statements are to be found in the affidavits filed by the plaintiffs

along with the sons. The passport of the plaintiff's wife also

shows the address of the suit property. In addition, the plaintiffs

have relied upon a copy of the cheque book issued by Bank of

Baroda to Ramji Dayawahla Engineers which held an account

with the said bank and calling the plaintiff to complete the KYC

requirements. This letter is dated 1st September, 2020 and has

been canvassed as evidence of the fact that the plaintiff was in

occupation of the suit property. A cheque book issued by HDFC

Bank in the name of Kanhaiyalal Contractor HUF also has been

pressed into service. Finally, the plaintiff has relied upon the

handwritten letter dated 6th March, 2006 which he believes is

critical in establishing the fact that the property in question was

IAL-13158-21 IN SL-13156-21.doc wadhwa in the joint ownership of plaintiff and defendant no.6. The letter

is said to have been sent by facsimile to the plaintiff from the fax

machine bearing the phone number of the telephone installed at

Suvas. In this manner, the plaintiff has attempted to establish

possession and ownership of suit property. Incidentally, the letter

dated March 2017, addressed by the Income Tax Department to

the plaintiff, is really addressed to the plaintiff at his Surat address

it is only the copy that has been marked to the Mumbai address.

These are the documents in support which the plaintiff has

pressed into service in support of this case. Last but not the least,

at the conclusion of hearing, Mr. Behramkamdin submitted that

the plaintiff has since located the original Release Deed which the

defendant believed was lost. He offered to produce the original

Release Deed in court.

39. My attention is also invited to the averment in the plaint to

the effect that the property belong to Lalbhai, Dahiben, plaintiff

and defendant no.6, and what is contemplated is dealing with the

share of minor since the defendant no.6 attain the majority only

in the year 1975. Thus, the plaintiffs' version of the father of the

plaintiff being advised to have the Release Deed executed in order

to save the property from attachment or sale does not help the

IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff today because nothing prevent him from setting the

record straight to seek cancellation of the release. The alleged

mortgage in favour of the Insurance Company is not reflected in

the record of rights or any contemporaneous record. There is no

evidence of such an arrangement.

40. I am of the view that the plaintiff would have been advised

of the consequences of a Release Deed being executed and

registered and if indeed the family arrangement was true, as

pleaded, the plaintiff would have always had the option of seeking

cancellation of that Release Deed. I have taken into consideration

the facts in the present case, the plaintiffs' claim that there is an

oral agreement which had been arrived at prior to the Release

Deed or about the time the Release Deed was executed and which

was subsequently reiterated. The question is whether the alleged

oral agreement can prevail over the registered Release Deed ? If

the plaintiff succeeds in establishing the oral agreement

supersedes the release, he may have a case. All other surrounding

circumstances urged by the plaintiff including documentation

cannot assist the plaintiff if he cannot establish that the oral

agreement prevails.

IAL-13158-21 IN SL-13156-21.doc wadhwa

41. It is in this respect that Section 92 of the Evidence Act will

have to be considered. It is apposite at this stage to consider the

provisions of the Evidence Act. Chapter VI of the Act provides for

exclusion of oral evidence by documentary evidence. Section 91

provides that when terms of a contract or a grant or any other

dispossession of property have been reduced in writing, no

evidence shall be given in proof except the document itself or

secondary evidence of its contents. Section 92 in terms provides

that when terms of a contract of grant for dispossession of

property or any other matter required by law to be reduced to

writing in the form for document and which has been proved, no

evidence of any oral agreement or statement shall be admitted of

the purposes of contradicting, varying, adding to or subtracting

from the terms of the document. It will be appropriate that we

reproduce provisions of Section 91 and 92 for ease of reference.

"Section 91. - Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents. -

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or

IAL-13158-21 IN SL-13156-21.doc wadhwa other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2. - Wills 1[admitted to probate in 2[India]] may be proved by the probate.

Explanation 1. - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.

Explanation 2. - Where there are more originals than one, one original only need be proved.

Explanation 3. - The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact."

"Section 92. - Exclusion of evidence of oral agreement.-- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso (1) .--Any fact may be proved which would

IAL-13158-21 IN SL-13156-21.doc wadhwa invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law:

Proviso (2).-- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:

Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:

Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:

Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts."

IAL-13158-21 IN SL-13156-21.doc wadhwa

42. The only exception, when a person may be permitted to give

evidence of any agreement varying the terms of a document is

provided for Section 99 which reads thus;

"Section 99. - Who may give evidence of agreement varying term of document.--Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document."

43. Thus, analysis of the three provisions reveals that once a

document pertaining to dispossession of property has been

prepared in accordance with law, no evidence may be given in

proof of terms of such a document except the document itself or

secondary evidence of the contents of the document. Continuing

with the underlying principle in Section 91, Section 92 provides

that where terms of any dispossession of property is required by

law to be reduced to writing, no evidence of any oral agreement

shall be admitted between the parties or their representatives in

interest for the purposes of altering the contents of the written

document. The effect of the section is that any attempt at

contradicting, varying, adding to or subtracting from its terms, is

not permissible.

IAL-13158-21 IN SL-13156-21.doc wadhwa

44. It will be useful to consider the second proviso to Section 92

which states that if a separate oral agreement exists as to any

matter which a document is silent that separate oral agreement

may be provide, provided it is not inconsistent with the terms of

the document and in considering whether or not the proviso

applies the court is required to have regard to the degree of

formality of the document. In the instant case the document is a

Release Deed executed and registered in accordance with law. It

is of the highest degree of formality that one expects a document

of this nature to be. Proviso 4 deals with the existence of any

distinct or subsequent oral agreement to rescind or modify any

grant or dispossession of property and such subsequent

agreement may be proved provided that the contract or

dispossession is required by law to be in writing or has been

registered in accordance with the law enforce in relation to

registration of documents. Proviso 4 is a hurdle in the plaintiff's

path which he has failed to cross.

IAL-13158-21 IN SL-13156-21.doc wadhwa

45. The plaint as drafted proceeds on the basis that there is an

oral agreement between the parties just prior to the execution of

the Release Deed and which has been reiterated later. Thus, it

absorbs several elements to which reference has to be found in

chapter VI of the Evidence Act. We have seen that where a

document is required to be registered, proviso 4 to Section 92

expressly prohibits proof of such oral agreement. The oral

agreement in contemplation is to rescind or modify any contract

grant or dispossession of property. In the present case, such an

oral agreement is said to exist both before and after execution of

the deed of release and in that view of the matter, the deed of

release having been registered I am unable to hold in favour of

the plaintiff on this aspect.

46. I must also consider the effect of Section 99 which provides

that persons who are not parties to a document or their

representatives in interest may give an evidence of facts tending to

show that a contemporaneous agreement, varying the terms of the

document existed. The case of the plaintiff could probably have

fallen in this category. However, it is necessary that persons who

may give evidence to vary the terms of the Release Deed could not

IAL-13158-21 IN SL-13156-21.doc wadhwa have been parties to the Release Deed and the plaintiff is clearly

not qualified to invoke this provision which necessarily requires

that the person who wishes to give evidence to facts tending to

show a contemporaneous agreement and thereby varying the

terms of a document must not be a party to the document.

47. In the present case, the plaintiff is very much a party to the

Release Deed and even assuming the plaintiff or his

representatives in interest seek to give evidence, it must be

contemporaneous. In the present case, it may be possible to

believe that the oral agreement if it exists was arrived just before

at the time of the execution of the Release Deed and was reiterated

thereafter. One must not lose track of the fact that the defendant

no.6 was then a minor and did not have the capacity to contract.

However, being entitled to the benefits of the grant, the vesting

took place upon the execution of the deed of release, not only that

the defendant no.6 has since placed on record. Further evidence

indicates that not only was the Release Deed reiterated, the

property was also transferred to the name of defendant no.6 in

the record of rights. Had the oral agreement being give an effect

to or intended to give an effect to, there was no occasion for the

IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff to apply for removing his name from record of rights and

thus, ensure that the vesting in favour of defendant no.6 was

formally recorded in the revenue records. Even today in view of

the cause of action pleaded the very basic prayer would have been

to challenge the execution of the date of release this has still not

been done and the suit has filed proceeds merely on the basis of a

family arrangement and in my view is clearly hit by provisions of

Section 91 and 92 of the Indian Evidence Act.

48. One other aspect that was highlighted in submissions was

that the Release Deed in its schedule also refers to the furniture

and fixtures which the plaintiff has given up and in the light of

that release there is no question of today seeking to take

advantage of any alleged repairs or renovations carried out

claiming ownership of the furniture and fixtures in the room that

the plaintiff claims he occupies at all times. The averment

pertaining to the exclusive use of this room also do not commend

itself to me since the plaintiff has gone on record to state in no

uncertain terms that it is that one room that was exclusively

occupied by him and his family members and which was

renovated. The records before me indicates that there are at least

IAL-13158-21 IN SL-13156-21.doc wadhwa three photographs which have said to be of this room. However, a

comparison of this evidence the fact that these are different rooms

the photographs are not obviously of the same room. When one

views the photographs at Exhibit 'G' and 'H' of the affidavit of the

plaintiff dated 8th September, 2021 and the size of the room

becomes immediately apparent. Whereas the photographs at

Exhibit 'A' to 'D' of the affidavit dated 26 th July, 2021 is obviously

a larger room and the different one. Thus, the photographic

evidence which the plaintiff relies upon in my view is

questionable and that goes to the root of the plaintiffs claim to be

in exclusive use and occupation of "one room" and furniture and

fixtures therein and the allegation of dispossession.

49. In my view the plaintiff has failed to make out a case that he

was dispossessed of this room as alleged. Furthermore there is no

evidence whatsoever of whether or not the plaintiff was

contributing to the maintenance costs of the suit property. The

contentions of the defendant no.6 that there is only one electricity

meter and one water meter at the suit property and the fact that

all municipal tax bills and electric charges and water charges

have been borne by the defendant no.6 has not been seriously

IAL-13158-21 IN SL-13156-21.doc wadhwa challenged. In fact there was no evidence to suggest anything to

the contrary including as to whether the plaintiff had contributed

to these costs at any stage.

50. While the plaintiff claims that on or about sometime in the

1st week of May 2021 he was informed by the neighboring plot

owner that there were Security Guards posted at the suit property

there is no mention of who the plot owner was. No supporting

affidavit is filed. Considering the balance of convenience I do not

find it is in favour of the plaintiff.

51. In rejoinder, Mr. Behramkamdin submitted that the

absence of the challenge to the Release Deed will not come in the

way of the plaintiff seeking protection in the suit. According to

Mr. Behramkamdin, the decision in Chandrakant Machale

(supra) is not applicable to the facts of the present case and it is

not the plaintiffs' case that the Release Deed was a sham and

bogus document. Execution of the Release Deed is admitted but it

was agreed right from a very first day that the ownership of the

property would vest in the plaintiff and defendant no.6 to the

exclusion of the others. He submitted that there is no effective

IAL-13158-21 IN SL-13156-21.doc wadhwa denial of the mortgage by the defendants that the mortgage is very

much pleaded the factual basis for execution of the Release Deed

has been set out and there is no denial of this fact.

52. According to Mr. Behramkamdin the plaintiff did not seek

specific performance and the suit need not be only under Section

6. The suit is a title suit and the plaintiff is thus entitled to

protection till such time he establishes his case at the trial.

Alluding to the lack of assistance in the order of the Surat court,

Mr. Behramkamdin submitted that the plaintiff in that suit being

the nephew had claimed several properties including a share in

Suvas that it is obvious that the court had not taken into

consideration since Suvas was beyond the jurisdiction of that

court and any effective terms that judgment is of no assistance to

the defendants. One other important factor that Mr.

Behramkamdin highlighted is the fact that no due diligence

exercise was conducted at Surat. In effect what he submits is that

the public notice was issued only in Mumbai no attempt was

made to ascertain whether the plaintiffs and his family members

had any objections especially since the parties had been using the

Mumbai property in common. The defendant developer was also

aware that the plaintiff is a resident of Surat and was bound to

IAL-13158-21 IN SL-13156-21.doc wadhwa carry out a proper due diligence exercising including publication

of notice in Surat. Had that been done the plaintiff would have

been alerted within time and before the execution of the

development agreement. This he submitted is an important fact

that must be held against the developer while considering balance

of convenience.

53. Perusal of the public notice copy of which is annexed to the

plaint reveals that the plaintiff has claimed as joint owner in

possession since the time of the father Lalbhai, The address of the

plaintiff in the said public notice is that of Surat and not of the

suit property). In pursuance of the public notice, the plaintiff

states that he received a letter dated 14th May, 2021 from

Attorney's representing defendant nos.1 to 5 claiming that they

had entered into a Development Agreement dated 30th March,

2021 with defendant no.6 which was registered that the

defendant no.6 had also executed a power of attorney in favour of

defendant nos.1 to 5 and put the defendant nos.1 to 5 in

possession of the suit property for redevelopment of the property.

The notice declares that the Attorney's letter informed the plaintiff

that defendant nos.1 to 5 had already inserted a public notice

dated 1st March, 2021 in the Free Press Journal and Janmabhoomi

IAL-13158-21 IN SL-13156-21.doc wadhwa inter alia, inviting objections in respect of title that no response is

received to the said public notice. The plaintiff in reply through

his Advocate's letter dated 20 th May 2021 contended that the

plaintiff was joint owner along with defendant no.6 and that

possession claimed by the developers-defendant nos.1 to 5 was

illegal in other words the plaintiffs case of joint ownership,

possession and right to use the suit property was reiterated the

date of filing the suit the plaintiff claims that he had not received

the copies of the developer agreeing or power of attorney.

However, he has since obtained copies of the Development

Agreement through search taken in the sub-registry but the

power of attorney was still not available meanwhile defendant

no.6 vide his Advocates' letter dated 2 nd May, 2021 claimed that

he was the sole owner of the suit property having been in

exclusion use and continuous possession of the suit property for

about 50 years. This is the state of affairs at the time of the

plaintiff approaching this court and seeking the aforesaid

declarations. These contentions canvassed by Mr. Behramkamdin

will not help the petitioner in overcoming the basic hurdle in his

path viz. the Release Deed and its legal effect.

54. In the suit filed in the court of the Senior Civil Judge, Surat,

IAL-13158-21 IN SL-13156-21.doc wadhwa by one Dhaval Ravindrabhai Contractor who is a son of one of the

sisters of the plaintiffs i.e. nephew of the plaintiff and defendant

no.6, inter alia claiming that he has a share in various properties

of Lalbhai and Dahiben, the suit property figures as one of those

in respect of which the nephew claims a share. In the Surat suit,

the nephew seems to have referred to the said Will of Lalbhai

dated 29th April, 1983 and the plaintiff claims that it is for the

first time that he became aware of such a Will. The plaintiff

claims that perusal of the Will reflects that the oral family

arrangement has been reiterated. However, Lalbhai has said to

have "transferred" the property back from defendant no.6 to the

names of Dahiben and himself. I do not see how this supports the

plaintiff's case.

55. In the course of submissions, the plaintiff having placed

reliance upon the handwritten letter dated 6 th March, 2006 and

the same was in Gujarati language, both sides relied upon their

own versions the contents of the translation into English. To avoid

any controversy, I called upon the registry to obtain an official

translation which has since been provided. The copy of this fair

translation is reproduced below;

IAL-13158-21 IN SL-13156-21.doc wadhwa

IAL-13158-21 IN SL-13156-21.doc wadhwa

56. Having considered the contents, the question is whether this

letter would entitle the plaintiff to the reliefs sought. In my view,

IAL-13158-21 IN SL-13156-21.doc wadhwa though certain reference is made alluding to the author or the

letter, defendant no.6, having suggested that "we" would decide

the course of action in relation to Suvas. I am not persuaded to

hold that this is sufficient to indicate that there was an oral

arrangement as pleaded in the plaint.

57. There is absolutely no explanation as to why the plaintiff

agreed to the changes being made in the record of rights. In fact

he raised no objections and consented to his name being deleted.

These are acts which have not been explained by the plaintiff. In

fact there is no attempt to explain his conduct except to state that

the record of rights is not evidence of title. The import of having

supported an application for deletion of his name and having

stood by that till date of suit is immense and has not been

explained satisfactorily. All other contentions in support of the

plaint pales into insignificance in the absence of a challenge to the

Release Deed and the implementation of it.

58. In the factual background that I have had to consider,

reliance placed by Mr. Behramkamdin on the decision in

Rukhmabai's (supra) is of no assistance. Likewise, Syndicate Bank

(supra) also does not help since those are issues which will be

IAL-13158-21 IN SL-13156-21.doc wadhwa decided at a later stage in view of the pendency of other interim

applications seeking dismissal of the plaint. Reliance upon

Gangabai's (supra) in the facts of the present case will not help

the plaintiff. In fact, the decision in Gangabai's case reiterates that

the law declares that the nature and intent of the transaction must

be gathered from the terms of the document itsef. Since Release

Deed has been acted upon by the plaintiff itself by supporting

deletion of his name from the record of rights. The decision of the

Delhi High Court in Sanjay Kaushish (supra) also will not assist

the plaintiff at this interim stage.

59. As we have already seen, S. Saktivel (supra) clearly clarifies

the legal position that oral agreement cannot modify or substitute

a registered document and as held in Poona Ram (supra), the

plaintiff has failed to establish settled, continuous, effective, open

possession with animus possidendi. Maintainability of the suit for

want of cause of action or imporper frame of suit and the aspect

of limitation need not be considered at this stage. What is of

relevance is whether the plaintiff has made out a prima facie case

for grant of interim relief and that he has failed to do.

60. The Supreme Court has in the case of S. Saktivel ( Dead)

IAL-13158-21 IN SL-13156-21.doc wadhwa (supra), clearly laid down the law on this aspect inter alia holding

that since a disposition conferring title to properties is required

by law to be reduced into writing to ensure its efficacy. The

parties to such a document cannot be permitted to adduce oral

evidence to substantiate any subsequent agreement which results

in modifying the written document. Chandrakant Shankarrao

Machale (supra) has followed the decision of the court in S.

Saktivel (supra).

61. In view of what is stated above, I am not persuaded to grant

interim relief prayed for and accordingly I pass the following

order;

(i) Interim Application (L)No.13158 of 2021 is dismissed.

        (ii)         No costs.

        (iii)        Ad-interim protection operating till date shall continue till

                     30th October 2021.



                                                                  (A. K. MENON, J.)




        Digitally
        signed by
        SANDHYA
SANDHYA BHAGU
BHAGU   WADHWA
WADHWA Date:
        2021.10.25
        13:38:53
        +0530





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