Bombay High Court
Meena Ravindra Jhaveri And Anr vs Nilesh Vrajlal Vora And Anr. And 2 ... on 2 March, 2022
Bench: N. J. Jamadar
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 18570 OF 2021
IN
SUIT (L) NO. 18555 OF 2021
Meena Ravindra Jhaveri & anr. Applicants
In the matter between
Meena Jhaveri & anr. ...Plaintiffs
Versus
Dr. Nilesh Vora & anr. ...Defendants
And
Andhra Bank & anr. ...Respondents
Mr. Pramod Bhosle, i/b Bhosle & Co., for the Applicants/
Plaintiffs.
Mr. Vishwanath Patil, i/b Kewal Ahya & Mr. Ankit Lodha, for
SANTOSH
SUBHASH Defendant no.1.
KULKARNI
Mr. Vyom Shah, i/b Swarup D. Patil, for Defendant no.2.
Digitally signed by
SANTOSH SUBHASH
KULKARNI
CORAM: N. J. JAMADAR, J.
Date: 2022.03.02
16:59:37 +0530
RESERVED ON: 27th OCTOBER, 2021
PRONOUNCED ON: 2nd MARCH, 2022
ORDER:-
1. This application is for restraining the defendants and their
servants and/or agents, assignee etc. from in any manner
dealing with, alienating, disposing of, parting with possession
and/or creating any third party rights and/or creating any
charge in respect of the immovable properties described in
'Exhibit-B' to the plaint, for appointment of Court Receiver in
respect of those properties and also to make an inventory of
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Locker Nos.2130153 and 0740014 in Andhra Bank, Ghatkopar
Brach, Mumbai, standing in the name of defendant no.1 and
also for a direction to defendant no.1 to disclose on an affidavit
all his dealings with the assets of late Vrajlal and Rama Vora,
the plaintiffs and defendant no.1's parents.
2. The background facts can be stated, in brief, as under:
(a) Late Vrajlal Vora and Rama Vora were the parents of
the plaintiffs and defendant no.1, who is the brother of the
plaintiffs. Defendant no.2 is the son of defendant no.1. Vrajlal
Vora passed away in the year 2006. Rama died on 16th January,
2019. Vrajlal was a Doctor by profession. He had acquired a
large number of properties. Those immovable properties
included;
(a) A premises at ground floor Satya Sadan, 6A, next to
Aurora Cinema, Matunga, Mumbai;
(b) A premises at first floor, Wadala Udyog Bhawan alias
Hindu Rajasthan Industrial Estate, Wadala, Mumbai and,
(c) Flat no.6B - 101 to 104, first floor, Damodar Park,
Ghatkopar West, Mumbai.
(b) The plaintiffs aver that property at Matunga [Sr.No.
(a)] was taken on lease and after the demise of the said Vrajlal,
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the tenancy was surrendered in or around August - 2008. All
the proceeds from the said surrender, i.e. Rs.60,00,000/- were
appropriated by defendant no.1 to the detriment of Rama and
the plaintiffs. The property at Wadala [Sr.No.(b)] was acquired
by Vrajlal in the name of Rama. Post the demise of Vrajlal, at
defendant no.1's insistence, Rama sold the said property and
the sale proceeds were appropriated by defendant no.1 to
himself alone. Vrajlal had purchased four flats bearing Nos.101
to 104 [Damodar Park flats, Sr.No.(c)]. Flat Nos.101 and 103
were purchased in the name of late Vrajlal. Flat No.102 was
purchased nominally in the name of Rama, and Flat No.104 in
the name of defendant no.1.
(c) Defendant no.1 clandestinely and with malafide
intention got Flat Nos.101 to 103 transferred by way of
instruments in the nature of gift from late Vrajlal as well as
Rama in the year 2002. Subsequently, in the year 2003,
defendant no.1 sold Flat Nos.101 to 104 at Damodar Park, and
again appropriated the sale proceeds to himself alone. Upon
being confronted, defendant no.1 had assured the plaintiffs that
the plaintiffs would be paid their share in the sale proceeds of
all the above properties.
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(d) The plaintiffs have further asserted that the plaintiffs
became aware of the transfer of Flat Nos.101 to 103, Damodar
Park, in favour of defendant no.1 only in the year 2018, when
late Rama had confided in them. The plaintiffs have thus
sought a declaration that those gift-deeds are void and not
binding on the plaintiffs.
(e) The plaintiffs aver that defendant no.1 utilized the
sale proceeds to create Secured Overdraft facility and make
payment of EMI for acquiring four office premises bearing
Nos.101 to 104 at Presidential Plaza, Ghatkopar. Though
defendant no.1 had ostensibly financed the said acquisition by
availing a loan from New India Co-operative Bank Ltd. on 1 st
November, 2002, yet, the joint family funds, especially the
proceeds from the sale of Flat Nos.101 to 104, Damodar Park,
were utilized to repay the said loan amount.
3. The plaintiffs further aver that defendant no.1 purchased
Flat No.A-401 and 402, Presidential Towers, L.B.S. Road,
Ghatkopar (West), Mumbai, in the year 1995-1996. The
consideration to acquire the said flats again, according to the
plaintiffs, flowed from the joint family funds and the loans
advanced and funds made available by the Vrajlal and Rama.
Thus, defendant no.1 through various modes and means
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utilized Vrajlal's funds for the purpose of ensuring that the then
existing business loans were retired and further properties were
acquired in defendant no.1's individual name, to the detriment
of the plaintiffs interest. The plaintiffs have furnished the
details of the various loans allegedly advanced by Vrajlal, Rama
and Ratilal Vora (HUF) and Smt. Jabakben Vora, the mother of
Vrajlal, to defendant no.1 and defendant no.1's wife Nita.
4. After the demise of Vrajlal, Rama stayed with the
defendants at Flat Nos.401 and 402 Presidential Towers. Rama
had sumptuous amount and also investments in various
financial instruments, including five Samruddhi Deposit
Schemes, Fixed Deposits, jewellery etc. Defendant no.1 was
managing all the financial matters of Rama. Defendant no.1
clandestinely transferred the joint family property including the
movables and valuable property possessed by Rama, in the
name of his wife and children. After the death of Rama, the
plaintiff confronted defendant no.1. The latter repeatedly
assured them that the entire joint family property including the
movables and money and deposits would be equally distributed
between the plaintiffs and defendant no.1. It further transpired
that defendant no.1 had clandestinely transferred Flat No.402
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Presidential Towers in the name of defendant no.2 by executing
a gift-deed.
5. The plaintiffs were thus constrained to institute this suit
seeking a declaration that the suit properties described in
Exhibit-B are the joint family properties and the plaintiffs and
defendant no.1 have 1/3 share each in those properties, for
partition by metes and bounds, prohibitory injunction
restraining the defendants from alienating and/or otherwise
creating third party rights therein and also for a declaration
that the gift-deeds executed by Vrajlal and Rama in favour of
defendant no.1 are null and void and, in the alternative, for a
declaration that the plaintiffs and defendant no.1 have 1/3
share in the proceeds of the properties, which were sold by
defendant no.1 pursuant to those gift-deeds. There is a
legitimate apprehension that defendant no.1 in order to the
frustrate the claim of the plaintiffs may create third party rights
over the joint family properties. Since defendant no.1 has been
in possession of the valuable movable properties, including
jewellery, financial instruments and funds of Rama, it was
imperative to have the inventory of the contents of Locker
Nos.2130153 and 0740014 in Andhra Bank, Ghatkopar Branch,
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Mumbai, which stand in the name of defendant no.1. Hence,
this application for interim reliefs.
6. An affidavit-in-reply is filed by defendant no.1. At the
outset, defendant no.1 contends that the plaintiffs are guilty of
suppression of important material facts and are, therefore, not
entitled to any equitable relief. Defendant no.1 did not dispute
that the late Vrajlal had self-acquired properties i.e. first floor
premises at Wadala Udyog Bhavan, Flat No.6B-101 and 103,
Damodar Park and Flat No.102 at Damodar Park in the name of
Rama, a tenanted premises of Satya Sadan 6A, Matunga. It
was, however, denied that defendant no.1 was the nominal
owner of Flat no.104, Damodar Park. Defendant no.1 claimed to
have purchased the said flat out of his own income and savings.
Contesting the claim of the plaintiffs that all the properties
which stand in the name of defendant no.1 were acquired with
the aid of joint family nucleus, defendant no.1 contended that
he had been practicing as a Senior Gynecologist in Mumbai
since last 40 years and has had sumptuous income from the
said profession and acquired Flat Nos.401 and 402 at
Presidential Towers, Ghatkopar, in the year 1995.
7. Defendant no.1 contends that Vrajlal and Rama had gifted
him Flat No.101, 103 and 104, Damodar Park, out of their
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natural love and affection on 7th October, 2002. Defendant had
sold Flat Nos.101 to 103 at Damodar Park, during March -
December, 2003 and acquired four office premises being Nos.101
to 104, Presidential Plaza, Ghatkopar. The plaintiffs never
challenged either the gift-deeds or the Will executed by late
Vrajlal on 25th February, 2006. After the demise of Vrajlal,
Rama surrendered the leasehold premises at ground floor Satya
Sadan 6A, Matunga, unto the landlord without any monetary
consideration. The plaintiffs and defendant no.1 were
signatories to the Memorandum of Understanding ("MoU")
evidencing the surrender of the said premises. Thus, the
plaintiffs claim that defendant no.1 appropriated the entire
consideration of Rs.60,00,000/- is patently false. Late Rama
paid a sum of Rs.11,00,000/- each to the plaintiffs out of the
proceeds of the sale of the premises on the First floor, Wadala
Udyog Bhavan and, therefore, the allegations that the sale
proceeds thereof were taken by defendant no.1 alone are against
the weight of the material on record.
8. Defendant no.1 asserted that in the year 2017, defendant
no.1 was constrained to execute the gift-deed of Flat No.402,
Presidential Towers, in favour of defendant no.2 on account of
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the acts and omissions of defendant no.1 which bordered on
emotional blackmail and harassment of defendant no.1.
9. The very institution of the suit was stated to be at the
instance of defendant no.2. In fact, the plaintiffs had mediated
in the dispute between defendant no.1 and defendant no.2 and
several meetings were held to resolve the disputes and arrive at
a family settlement.
10. Defendant no.1 has also contested the assertion of the
plaintiffs as regards the appropriation of the movable properties,
jwelleries and funds of Rama.
11. Defendant no.2 has filed an affidavit-in-reply. Defendant
no.2 claimed to have contributed money for the acquisition of
the properties by defendant no.1. The possession of defendant
no.2 over the suit properties was sought to be substantiated by
placing documents, which evidence the running of business
concerns by defendant no.2 from those premises. It was
asserted that defendant no.1 had gifted Flat No.402 in
Presidential Towers to the knowledge and acquiescence of the
plaintiffs. The gift-deed executed by defendant no.1 in favour of
defendant no.2 is thus legal and valid. It was asserted that
though there were negotiations between the plaintiffs and the
defendants to arrive at a family settlement yet the documents
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relied upon by defendant no.1 are 'primary without prejudice
draft' and, thus, defendant no.1 cannot derive any advantage
therefrom.
12. An affidavit-in-rejoinder is filed on behalf of the plaintiffs,
controverting the assertions of defendant no.1 of acquiescence
on the part of the plaintiffs. The dispositions and payments,
which were made by Vrajlal and Rama in favour of the plaintiffs,
were sought to be accounted for. It was denied that Vrajlal and
Rama desired that defendant no.1 would exclusively inherit the
entire joint family property.
13. The parties have placed on record a number of documents
to substantiate their respective claims.
14. I have heard Mr. Bhosale, the learned Counsel for the
plaintiffs, Mr. Patil, the learned Counsel for defendant no.1 and
Mr. Shah, the learned Counsel for defendant no.2, at some
length. I have also perused the pleadings and the material on
record.
15. Mr. Bhosale, the learned Counsel for the plaintiffs, would
urge that there is no controversy over the fact that Vrajlal had
acquired large number of properties including the immovable
properties at Wadala, Flat No.6B-101, 102 and 103, Damodar
Park, and was in the occupation of a leased premises at Satya
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Sadan, Matunga. Nor is it in contest that Vrajlal was a medical
professional and had seizable income. Moreover, neither the
existence of the joint family nor the joint family property can be
disputed. In the absence of any material to indicate that there
was a partition of the joint family property, the plaintiffs have an
equal share with defendant no.1 in the joint family properties as
well as the properties acquired by defendant no.1 in his
individual name, which are also impressed with the character of
joint family properties. It would, therefore, be imperative to
protect the interest of the plaintiffs during the pendency of the
suit for partition, for which a strong prima facie case is made
out by the plaintiffs. In the face of the material, in the nature of
the gift of Flat No.402 by defendant no.1 in favour of defendant
no.2 and conversion of the valuable properties, jewellery and
financial instruments, which belonged to Rama, by defendant
no.1, there is an imminent danger that the joint family
properties would be alienated, wasted and dissipated. From this
standpoint, according to Mr. Bhosale, the balance of
convenience tilts in favour of the plaintiffs and they would suffer
irreparable loss if interim protection is not granted.
16. Mr. Patil, the learned Counsel for defendant no.1,
controverted the submissions on behalf of the plaintiffs. It was
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urged that the claim for partition of the suit properties
described in Exhibit-B is wholly misconceived. Since the
immovable properties were indisputably the self-acquired
properties of Vrajlal, the gift-deeds of Flat No.101 and 103 at
Damodar Park by Vrajlal and Flat No.102 by Rama in favour of
defendant no.1 are legally impeccable. There is no serious
challenge to those gift-deeds. Therefore, the plaintiffs cannot lay
any claim over the office premises Nos.101 to 104 at Presidential
Plaza, the properties acquired by defendant no.1 out of the sale
proceeds of Flat Nos.101 to 103 at Damodar Park and his own
funds. Nor there is any material to show that Flat Nos.401 and
402 at Presidential Towers were acquired by defendant no.1 from
and out of joint family funds.
17. In any event, according Mr. Patil, the claim of the plaintiffs
is stale and barred by acquiescence. Not only were the plaintiffs
aware of the execution of the gift-deeds by Vrajlal and Rama in
favour of defendant no.1 on 7th October, 2002, but plaintiffs also
derived benefits under the Will dated 25 th February, 2006,
executed by Vrajlal, constituting defendant no.1 as the residuary
legatee. Mr. Patil endeavoured to impress upon the Court that
the suit has been instituted at the instance of defendant no.2,
who pursued an evil design to usurp the entire properties of
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defendant no.1. In the absence of any coherent material to
indicate that the properties retained the character of the joint
family properties, defendant no.1 cannot be restrained from
exercising absolute ownership over the suit properties.
Therefore, the plaintiffs do not deserve any interim relief, urged
Mr. Patil.
18. It must be noted that Mr. Bhosale and Mr. Patil took pains
to take the Court through the thicket of facts and documents to
substantiate their respective submissions. However, in the
context of the limited nature of controversy, at this juncture, it
may not be expedient to delve deep into the facts.
19. In a sense, the facts which bear upon the controversy at
hand are rather uncontroverted. Firstly, the relationship
between the parties is not in contest. Secondly, there is not
much controversy over the fact that Vrajlal passed away in the
year 2006 and Rama expired in the year 2019. There is no
qualm over the fact that the properties at Udyog Bhavan,
Walada, Flat Nos.B-101, 102 and 103, Damodar Park and the
leasehold property at Satya Sadan 6A, were the self-acquired
properties of Vrajlal. The parties did not dispute that Vrajlal
was a medical professional. By and large, there is not much
dispute over the fact that Vrajlal executed the gift-deeds in
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respect of Flat Nos.101 and 103, Damodar Park, in favour of
defendant no.1 on 7th October, 2002. Rama also executed the
gift-deed of Flat No.102 on the very day in favour of defendant
no.1. Nor is it in contest that defendant no.1 sold the Flat
Nos.101 to 104 at Damordar Park in the year 2003.
20. In the light of the aforesaid uncontroverted facts, the issue
which primarily crops up for consideration is the character of
the aforesaid properties. The normal condition of a Hindu
family is one of jointness. However, there is no presumption
that a joint family possesses joint property or any property.
Where it is, however, established or admitted that family
possessed some joint property which, from its nature and
relative value, could form the nucleus from which the property
in question could have been acquired, a presumption arises that
such property was a joint family property and the party who
asserts self-acquisition carries the evidentiary burden to
establish the same in the affirmative. What is thus of critical
significance is the proof of existence of adequate family nucleus,
which could support the further acquisition of the properties.
21. In the context of aforesaid fundamental principle, it is
imperative to note that the plaintiffs have approached the Court
with a two-fold case. One, the properties which have been
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acquired by defendant no.1 namely Flat Nos.401 and 402,
Presidential Towers and office premises Nos.101 to 104,
Presidential Plaza, were acquired, out of joint family
property/funds. Two, the execution of the gift-deeds in respect
of Flat Nos.101 and 103 by Vrajlal and Flat No.102 by Rama in
favour of defendant no.1 on 7th October, 2002 was void and
illegal and to the detriment of the plaintiffs interest in the joint
family properties. The further acquisition of the properties
especially office premises Nos.101 to 104, Presidential Towers,
from out of the sale proceeds of Flat Nos.101 to 104, Damodar
Park, is therefore impressed with the character of the joint
family property.
22. First and foremost, as noted above, the parties are not at
issue over the fact that,
(a) the leased premises situate at ground floor Satya
Sadan, 6A, next to Aurora Cinema, Matunga, Mumbai;
(b) the premises at first floor, Wadala Udyog Bhawan alias
Hindu Rajasthan Industrial Estate, Wadala, Mumbai and,
(c) Flat no.6B - 101 to 103, first floor, Damodar Park,
Ghatkopar West, Mumbai, were self-acquired properties of
Vrajlal.
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23. Once this position is conceded, the gift of Flat Nos.101 to
103 by Vrajlal and Rama in favour of defendant no.1 can hardly
be called in question. On the one hand, the legal competence of
a father to make a valid gift of the self-acquired property to one
of his heirs to the detriment of others, is recognised. On the
other hand, the properties so gifted does not retain the
character of joint family property in the hands of the donee. To
put it in other words, the gift of the self-acquired property by
the father to his son does not constitute an ancestral property
in the hands of the donee. In this context, the reliance placed
by Mr. Patil on the judgment of the Supreme Court in the case
of C. N. Arunachala Mudaliar vs. C. A. Muruganatha Mudaliar
and another1, is well founded. This position was reiterated by
the Supreme Court in the case of Govindbhai Chhotabhai Patel
& ors. vs. Patel Ramanbhai Mathurbhai.2
24. In the case at hand, the endeavour on the part of the
plaintiffs to assail the gift-deeds dated 7th October, 2002, by
Vrajlal and Rama in favour of defendant no.1 is paved with
multiple hurdles. One, the gift-deeds were executed in the year
2002. Two, within a year of such gift and during the lifetime of
both Vrajlal and Rama, defendant no.1 sold the flats at
1AIR 1953 S.C. 495.
2Civil Appeal No.7528/2019.
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Damodar Park. Three, there is no material to indicate that the
plaintiffs had resisted the disposal of those flats by defendant
no.1. At this length of time, the explanation on the part of the
plaintiffs that they became aware of the execution of the gift-
deeds by Vrajlal and Rama under coercion and undue influence
as late as the year 2018, does not appeal to human credulity.
25. The plaintiffs assertion that defendant no.1 had
appropriated the proceeds of rest of the two properties acquired
by Vrajlal, exclusively to himself, is also not borne out by record.
Indisputably, the tenanted premises at ground floor Satya
Sadan 6A, Matunga, was surrendered by Rama in or around
August - 2008, after the demise of Vrajlal. The plaintiffs assert
that defendant no.1 had appropriated the entire consideration of
Rs.60,00,000/- received for the said surrender. When the
defendant no.1 controverted the said assertion, by contending
that even the plaintiffs were parties to the MoU evidencing the
surrender of the said premises sans any consideration, the
plaintiffs attempted to salvage the position by contending that
the tenancy could not have been surrendered without obtaining
the substantial compensation and, thus, though the plaintiffs
had signed the MoU, the consideration was exclusively
appropriated by defendant no.1.
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26. In the face of a clear and explicit admission that the
plaintiffs were the signatories to the MoU evidencing the
surrender of the said premises coupled with absence of any
evidence to show that the said surrender was for consideration,
at this juncture, it would be difficult to draw an inference that
defendant no.1 had received consideration for the said
surrender of the tenancy by late Rama.
27. As regards the sale of the third property i.e. First floor,
Wadala Udyog Bhavan, the parties were not at issue over the
fact that the said premises was sold by Rama in the year 2006.
The plaintiffs assert that it was defendant no.1 alone, who
grabbed the entire consideration. The counter version of
defendant no.1 that each of the plaintiffs had received a sum of
Rs.11,00,000/- by way of their share in the consideration for the
sale of the said property was sought to be substantiated by
placing reliance on the entries in the passbook of Rama
with Andhra Bank, which evidence payment of
Rs.11,00,000/- each to plaintiff nos.1 and 2 on 20 th March,
2014. Though the plaintiffs made an effort to explain away the
said payment by contending that it was unconnected with the
sale of the said premises, yet, at this stage, the contention of
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defendant no.1 that the said payment was made towards the
share of the plaintiffs in the sale proceeds, gains credence.
28. This takes me to the crucial aspect of the acquisition of
the properties by defendant no.1. Whether those properties
were acquired with the aid of the joint family nucleus. In all,
there are three acquisitions. First, the purchase of Flat Nos.401
and 402, Presidential Towers, in the year 1995. Second, the
purchase of Flat No.104 at Damodar Park, (along with Flat
Nos.101 and 103 in the name of Vrajlala and Flat No.104 in the
name of Late Rama.). Third, the acquisition of office premises
Nos.101 to 104 at Presidential Plaza.
29. The claim of defendant no.1 that the office premises
Nos.101 to 104 at Presidential Plaza were acquired by availing
loan and utilizing the sale proceeds of Flat Nos.101 to 104,
Damodar Park, finds prima facie support in the documents on
record.
30. The controversy revolves around the acquisition of the Flat
Nos.401 and 402, Presidential Towers, and Flat Nos.104 at
Damodar Park. Defendant no.1 endeavoured to impress upon
the Court that Flat Nos.401 and 402, Presidential Towers, were
purchased by him in the year 1995 out of his earnings and
savings. Likewise, Flat No.104, Damodar Park, was purchased
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by defendant no.1 out of his own income and savings. Yet the
exact date of acquisition of Flat No.104, Damodar Park, is not
pleaded.
31. At this stage, the existence of the joint family properties
and the income of Vrajlal assumes significance. There is
material on record to indicate that Vrajlal practiced medicine till
the year 2003. The plaintiffs have banked upon documents to
show that during the relevant period, funds were transferred by
Vrajlal to finance the said acquisition. Attention of the Court
was invited to an entry in the account of defendant no.1's wife
Mrs. Nita to the effect that on 15th May, 1996, a sum of
Rs.2,00,000/- was transferred to her by Vrajlal. Reliance was
also placed on the entry in the balance-sheet of Vrajlal Vora
submitted along with the Income-tax Return for the year ending
31st March, 1997, which indicated that the late Vrajlal claimed to
have advanced a sum of Rs.9,30,000/- to defendant no.1 and
Rs.6,52,950/- to his wife Nita Vora. Coincidentally, total
consideration for the acquisition of Flat Nos.401 and 402 was of
Rs.17,40,000/-.
32. The purpose for which the aforesaid sums were transferred
by Vrajlal, and whether there were, in fact, such advances are
the matters for trial. What is of significance, at this stage, is the
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fact that as late as February, 2015, Rama Vora made a
declaration, in response to a query by the Income Tax Officer
that, in Financial Year 2011 - 2012 (AY 2012-2013), she along
with her married daughters (plaintiffs) had decided to waive the
unsecured loans of;
(a) late Dr. V. R. Vora of Rs.12,54,500/-,
(b) V. R. Vora HUF of Rs.4,92,701/- and
(c) late Jabekaben Vora, her mother-in-law of Rs.7,26,926,
standing in the books of Dr. Nilesh V. Vora, defendant
no.1.
It is pertinent to note that defendant no.1 has not set up
the case that the plaintiffs had so written off all the loans.
33. Conversely, defendant no.1 has made no effort to furnish
the particulars of the source of funds for financing the
acquisition of Flat Nos.401 and 402 apart from asserting that he
had acquired those properties out of his earnings and savings.
The same explanation is offered to sustain the claim of self-
acquisition of Flat No.104, Damodar Park.
34. In the aforesaid view of the matter onus, prima facie,
shifts on defendant no.1 to establish that Flat Nos.401 and 402
were acquired by defendant no.1 without the aid of the funds
from Vrajlal and Rama. It is true that the time-lag may bring in
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the elements of acquiescence and bar of limitation. These
issues would warrant adjudication at the trial. There are two
factors which prima facie tilt the scale in favour of the plaintiffs.
The stand of defendant no.1 that post the sale of property at
Wadala Udyog Bhavan, the plaintiffs were paid Rs.11,00,000/-
each constitutes an implied admission of the right of the
plaintiffs in the joint family property, even post the demise of
Vrajlal. Two, the further stand of defendant no.1 that the
parties were making efforts to arrive at a family settlement, not
in the distant past of the institution of the suit, cannot be said
to be inconsequential. Albeit, as defendant no.1 professes, the
primary object of the said exercise might have been to resolve
the disputes inter se between defendant no.1 and defendant
no.2. However, the involvement of the plaintiffs underscores, in
the least, the assertion of their claim by the plaintiffs.
35. The second limb of plaintiff's case is the appropriation of
the property of Rama by defendant no.1, exclusively, to the
detriment of the plaintiffs. It would be suffice to note that there
are documents which evidence deposits and financial
instruments to the credit of Rama. Emphasis was laid on behalf
of the plaintiffs on an entry dated 23rd April, 2018 in the bank
account of late Rama, indicating transfer of a sum of
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Rs.48,00,000/- and the consequent conversion of the said
amount into fixed deposits of various amounts in the name of
defendant no.1 and his wife Mrs. Nita to bolster up the
submission that defendant no.1 converted the property of late
Rama during and after her lifetime to his own use.
36. Defendant no.1 attempted to meet the said contention by
placing on record material to indicate that the said account
from which the amount of Rs.48,00,000/- was transferred stood
in the joint names of Rama, defendant no.1 and his wife Nita
and, on the very day, fixed deposits receipts of varying amounts
were created in the joint names of Rama, Nilesh and Nita, to
make the investment tax efficient.
37. Whether late Rama was exclusively entitled to the said
funds is again a question of fact to be decided on the basis of
the evidence. Nonetheless, the fact that Rama was endowed
with movable properties and funds can hardly be disputed.
Defendant no.1 claimed that under the Will of late Vrajlal dated
25th February, 2006, he was constituted a residury legatee and
after the demise of Rama he was exclusively entitled to all the
properties left behind by Rama. It is not the case that late
Rama made any testamentary dispositions. Even if the case of
defendant no.1 is taken at par, whether the directions for
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application of the property bequeathed by late Vrajlal to Rama
constitutes a non-dispositive desire or legacy in favour of
defendant no.1 is the question which needs determination.
38. The position which thus obtains is that the plaintiffs have
succeeded in making out a prima facie case so far as Flat
Nos.401 and 402 and the movables including cash and valuable
securities left by late Rama. So far as the office premises
Nos.101 to 104 at Presidential Plaza, there is material to indicate
that the property in the hands of defendant no.1 did not retain
the character of joint family property and, therefore, those
acquisition cannot be said to be accretions, out of joint family
property.
39. In the backdrop of the time-lag and the fact that defendant
no.1 has been residing in Flat Nos.401 and 402, Presidential
Towers, it may not be just and convenient to appoint a Court
Receiver. Nor the prayer for appointing a Court Receiver to have
the inventory of the lockers standing in the name of defendant
no.1 seems justifiable. In the circumstances of the case, the
interest of the plaintiffs can be adequately protected if defendant
no.1 is directed not to alienate, dispose of or otherwise create
third party rights in Flat No.401, without the leave of the Court.
Since defendant no.2 volunteered to maintain the status quo as
IAL18570-2021INSL18555-2021.DOC
regards Flat No.402 gifted by defendant no.1, it may be
appropriate to direct defendant no.2 to continue to abide by the
said statement with liberty to move for relieving defendant no.2
from the said statement, if the circumstances so warrant.
40. The conspectus of the aforesaid consideration is that the
application deserves to be partly allowed.
41. Hence, the following order:
:Order:
(i) The application stands partly allowed.
(ii) Defendant no.1 is directed not to alienate, dispose of
or create third party rights in Flat No.401,
Presidential Towers, without prior leave of the Court
obtained at least after two weeks prior notice to the
Advocate for the plaintiffs.
(iii) Defendant no.2 shall continue to abide by his
statement that defendant no.2 will not dispose of or
encumber or otherwise create third party rights in
Flat No.402, Presidential Towers, till disposal of the
suit.
(iv) Defendant no.2 shall be at liberty to move by way of
an application to relieve him from the aforesaid
IAL18570-2021INSL18555-2021.DOC
statement after two weeks prior notice to the
Advocate for the plaintiffs.
(v) Application stands disposed of.
(vi) Costs in cause.
[N. J. JAMADAR, J.]
