Bombay High Court
Kml Estates Private Ltd vs Darryl D'Monte And 8 Ors on 8 March, 2023
Bench: K.R. Shriram, Rajesh S. Patil
Digitally
signed by
MEERA
MEERA MAHESH
MAHESH JADHAV 1/28 APP(L)556-18.doc
JADHAV Date:
2023.03.09
10:39:22
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 556 OF 2018
IN
NOTICE OF MOTION NO. 2250 OF 2012
IN
SUIT NO. 2335 OF 2012
KML Estates Private Limited )
formerly known as KML Foods Private Ltd. )
A company incorporated under the provisions of )
the Companies Act, 1956 having its registered )
office at G-2, Ground Floor, Trade Centre, Kamala )
Mills Compound, Senapati Bapat Marg, Lower ) ....Appellant
Parel, Mumbai - 400 013. ) (Orig. Def. No.7)
V/s.
1A. Zarine D'Monte )
Aged 75 years, Occupation : Psychotherapist )
1B. Samir D'Monte )
Aged 45 years, Occupation : Architect )
2A. Sunita Cecile D'Monte )
C/o Samir D'Monte, Kinara, 29-B, Carter Road, )
Bandra (West), Mumbai - 400 050. )
3. Ena D'Monte )
Aged 96 years, Occupation : Housewife )
Plaintiff Nos. 1 to 3 all of Mumbai, all residing at )
"Kinara", 29-B, Carter Road, Bandra (West), )
Mumbai - 400 050. ) ....Original plaintiffs
(Since deceased and deleted in the plaint)
4. Saint Peter's Church, Bandra )
A public trust registered under the provisions of )
The Bombay Public Trust Act 1950 bearing Public )
Trust Registration (P.T.R.) No.D/100) and having )
its trust office at Hill Road, Bandra (West), )
Mumbai - 400 050. )
5. Dr. Frazer Mascarenhas S.J. )
Parish Priest of Saint Peter's Church, Bandra. )
6. Norman J. D'Monte )
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Indian Inhabitant of Mumbai, a practicing )
Advocate having his office at 51-A, Church Road, )
Bandra (West), Mumbai - 400 050. )
7. M/s. Vinky Developers )
an erstwhile partnership firm of the Defendant )
Nos.5 and 6 having its place of business at 1, )
Aradhana Building, 88, Veer Savarkar Marg, )
Mahim, Mumbai - 400 016. )
8. Vandana Punwani )
Indian Inhabitant of Mumbai, carrying on )
business at Anand Vihar Samaj Kendra, 20 th Road, )
Khar Danda, Mumbai - 400 052. )
9. Ramal Advani )
Indian Inhabitant of Mumbai, carrying on )
business at M/s. Advani Consultancy Services, ) ....Respondents
Flat No.6, Renuka Apartment, Linking Road, ) (Orig. Def. Nos.
Bandra (West), Mumbai - 400 050. ) nos.1 to 6)
WITH
NOTICE OF MOTION (L) NO.1332 OF 2018
IN
APPEAL (L) No.556 OF 2018
----
Mr. Arif Bookwala, Senior Advocate a/w. Mr. Ashraf Ahmed Shaikh, Ms.
Mahek Bookwala i/b. Ms. Chaitali Kamble for appellant.
Mr. Rafiq Dada, Senior Advocate a/w. Mr. Vishal Kanade, Mr. Mukul Taly,
Ms. Shamima Taly, Mr. Aziz Mohd, Ms Sayali Gharpure and Adv. Sehyr Taly
i/b. S. Mahomedbhai and Co. for respondent nos.1(A), 1(B) and 2(A).
Mr. Aspi Chinoy, Senior Advocate a/w. Dr. Rohini Pandit and Ms. Esha
Solanki for respondent nos.4 and 5.
----
CORAM : K. R. SHRIRAM & RAJESH S. PATIL, JJ.
RESERVED ON : 20th FEBRUARY 2023
PRONOUNCED ON : 8th MARCH 2023
JUDGMENT (PER K.R. SHRIRAM, J.) :
1 By consent, it was decided to take up the appeal for final
hearing at the admission stage itself.
2 Appellant is impugning an order dated 23 rd October 2018
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passed by the Learned Single Judge in Notice of Motion no.2250 of 2012,
whereby appellant was restrained from acting upon pursuance/ furtherance
of the decree dated 29th June 1988 and/or the agreement dated 9 th June
1989 and/or the supplemental agreement dated 28 th March 1996 and/or the
Deed of Conveyance dated 17th April 2020 and from developing,
constructing upon, alienating, encumbering, parting with possession of,
granting any lease, license or tenancy or creating any other third party
rights in respect of the land admeasuring 1774.25 sq.mtrs. or thereabouts
situate at Saint John Baptist Road, Bandra (West), Mumbai 400050 (the suit
property).
3 One Darryl D'Monte (original plaintiff no.1), his brother Dr.
Brian D'Monte (original plaintiff no.2) and their mother Ena D'Monte
(original plaintiff no.3) [all three are dead now and legal heirs are on
record] filed Suit No.2335 of 2012. Plaintiff no.1 is now represented by his
legal heirs Zarine D'Monte and Samir D'Monte. Dr. Brian D'Monte - original
plaintiff no.2 is represented by his legal heir Sunita Cecile D'Monte and
name of Ena D'Monte is deleted as her legal heirs are, we are informed,
respondent nos.1A, 1B and 2A. These plaintiffs are respondent nos.1, 2 and
3 to the appeal. Original defendant Nos.1 to 6 are respondent nos.4 to 9 in
the appeal. Appellant was the original defendant no.7. The interim order is
basically causing absolute prejudice to appellant and hence this appeal has
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been preferred.
4 Original respondent nos.1 to 3 filed the suit claiming to be the
owners of the suit property having inherited the same through one Dr. Cecil
D'Monte. Dr. Cecil D'Monte was the father of original plaintiff nos.1 and 2
and husband of original plaintiff no.3. Original respondent nos.1 to 3 (for
ease of reference are collectively referred to as said respondents) claimed
that Dr. Cecil D'Monte had acquired the suit property and the structure
standing thereon under a registered Deed of Partition dated 6 th June 1947.
Respondent No.4 (original defendant no.1) is the Church in the suit
property. Respondent no.5 (original defendant no.2) is the sole trustee of
respondent no.4. Respondent no.6 (original defendant no.3) is a practicing
advocate, who was engaged by Dr. Cecil D'Monte, predecessor in title of the
suit property to represent him in the proceedings in the City Civil Court.
Respondent no.7 (original defendant no.4) is a partnership firm in which
respondent nos.8 and 9 (original defendant nos.5 and 6) were partners.
Later respondent no.7 (original defendant no.4) was converted into sole
proprietory concern of respondent no.8 (original defendant no.5). The
development rights of the suit property were granted to respondent nos.7 to
9 by respondent no.4 after public notices and charity commissioner's
permission. Appellant is the purchaser of the suit property by a Deed of
Conveyance dated 17th April 2010.
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5 The following chronology of facts is necessary to decide this appeal :
(a) On or about 14th June 1924, an Indenture of Lease was executed
between one Reverend Braz D'Monte (lessor) and the Trustees of the society
of Jesus and the Archbishop of Bombay, leasing in favour of the Trustees
with the permission of the Archbishop, the suit property for a period of 20
years commencing from 1st July 1923 for yearly rent of Rs.1/-. The trustees
were to erect temporary structures for residence and housing of poor
Gujaratis and Catholics.
(b) On 29th January 1935, Reverend Braz D'Monte expired as a
bachelor. The suit property was part of larger estate and properties of Braz
D'Monte and other family members which devolved on Dr. Cecil Joseph
D'Monte the predecessor in title of plaintiffs.
(c) On 30th June 1943, the lease dated 14th July 1924 expired.
(d) On 6th June 1947, Deed of Partition was executed between the
heirs Reverend Braz D'Monte whereby the suit property and structure
standing thereon was transferred and vested in favour of Dr. Cecil D'Monte.
(e) On 19th February 1948, indenture was executed between
Dr. Cecil D'Monte (Lessor) and the Church of St. Peter, Bandra (Respondent
No.4). The Lessor leased the suit property in favour of the church for a
period of 20 years commencing from 1st July 1943 for the yearly rent of
Rs.1/-.
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(f) On 30th June 1963, lease dated 19th February 1948 expired.
(g) On 18th August 1977, Dr. Cecil D'Monte prepared his last Will and
Testament. In this Will there was no mention of the suit property.
(h) On 18th August 1983, respondent no.6 addressed a letter to the
Deputy Charity Commissioner under instructions from respondent no.4
requesting that the leasehold property be shown as the property of the Trust
in the Trust Register and submitting a change report as property of the trust.
(i) On 30th March 1985, the order was passed by the Deputy Charity
Commissioner recording the change in schedule-I to the extent of the
leasehold rights of the suit property.
(j) On 13th July 1987, one Advocate O. S. Pereira under instructions of
respondent no.4 addressed a letter to Dr. Cecil D'Monte stating that
respondent no.4 is in adverse possession of the suit property from 1 st July
1963. In the plaint, said respondents admit Dr. Cecil D'Monte received the
said letter but said respondents themselves, at the material time, had never
seen the letter.
(k) On 16th October 1987, respondent no.4 instituted Suit No.239 of
1988 in the City Civil Court seeking a declaration that respondent no.4 is
the owner of the suit property by adverse possession.
(l) On 30th March 1988, respondent no.6 appeared in the City Civil
Court proceedings and submitted that he had filed his vakalatnama for
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Dr. Cecil D'Monte and service of writ of summons was waived. He also
submitted that Dr. Cecil D'Monte did not want to file a written statement or
contest the suit.
(m) On 29th June 1988 the suit came to be decreed.
(n) On 31st October 1988, respondent no.4 issued public notices in
Mumbai Samachar and on 1st September 1988 in English Daily by name
"Daily", inviting tenders for development/sale of the suit property.
(o) On 9th June 1989, an agreement was entered into between
respondent no.4 and respondent no.6 granting development rights of the
suit property to respondent nos.6 to 8. Total consideration of Rs.20,00,000/-
was paid to respondent no.4. Respondent nos.6 to 8 were to construct 15
flats with a carpet area of 250 sq.ft. each and hand over the same to
respondent no.4 free of cost.
(p) Sometime in 1990, respondent no.4 made an application under
Section 36 of the Bombay Public Trust Act to the Charity Commissioner for
obtaining sanction of the sale and transfer of the suit property to respondent
no.6 for consideration of Rs.22,00,000/-.
(q) On 24th April 1992 an order came to be passed by the Charity
Commissioner granting permission under Section 36(1) to respondent no.4.
(r) On 9th June 1996, a supplemental agreement was entered into
between respondent no.4 and respondent nos.6 to 8 modifying terms and
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conditions of the agreement dated 9 th June 1989. The Charity Commissioner
by an order dated 2nd June 1997 imposed certain conditions on the sale of
the suit property, one of such condition being that the sale should be
completed within 6 months of the order and change report should be filed.
(s) On or about 9th November 1997, the decree passed by the Bombay
City Civil Court on 29th June 1988 was registered and Index-II was changed
to trustees of respondent no.4.
(t) On 21st November 1998 Dr. Cecil D'Monte expired leaving behind
him original plaintiffs (respondent nos.1 to 3) as only legal heirs and next of
kin.
(u) The Bombay City Civil Court's decree was drawn up on
9th February 1999.
(v) The probate was granted on 13th October 1999 to original
respondent no.3, who was one of the executor of the Will dated 18 th August
1977 of Dr. Cecil D'Monte. It is necessary to note that the schedule of the
assets in the Will does not include the suit property.
(w) On an application filed to the Charity Commissioner for extension
of time for completing the sale of the suit property, the Charity
Commissioner by an order dated 10 th July 2009 extended the period of
completion of construction by a period of 24 months. By an order dated
15th March 2010 read with order dated 6th April 2010, the Charity
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Commissioner amended the earlier order and enhanced compensation
amount to Rs.10,30,00,000/- and the property was to be conveyed on "as is
where is basis" in favour of respondent no.6 or its nominee.
(x) On 17th April 2010 the Deed of Conveyance was entered into
between respondent no.4, respondent no.7 as the sole proprietor of
respondent no.6, and appellant, whereby appellant purchased the suit
property. It is stated that the suit property by then was fully encroached and
the consideration of Rs.10,30,00,000/- had already been paid.
(y) On 13th September 2012, Suit No.2335 of 2012 was filed by
plaintiffs (the said respondents) seeking, inter alia, a declaration that the
decree dated 29th June 1988 passed by the Bombay City Civil Court be
declared as null and void and for injunction.
(z) On 24th September 2012 the notice of motion in which the
impugned order was passed came to be lodged.
Affidavit in reply dated 5th December 2012 was filed by respondent
no.6 opposing ad-interim reliefs. The stand taken by respondent no.6 in the
reply was that the suit property was lost to tresspassers and hutment
dwellers who could not be evicted by respondent no.4 which Dr. Cecil
D'Monte was also aware; that Dr. Cecil D'Monte had not disclosed the
property in his tax returns and therefore, did not want to execute any
document but would not contest any suit filed by respondent no.4; that the
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vakalatnama prepared in favour of respondent no.6 was signed in the
presence of respondent no.3; that the vakalatnama is not found in the board
department; that respondents have remained silent and not objected to the
sale of the suit property despite the public notices given way back in 1988;
that the name of respondent no.7 was displayed on a large notice board in
front of the suit property for more than 20 years; that appellant has
removed the structures, hutments and encroachers by paying them lakhs of
rupees and cleared the entire property and made it entirely vacant.; that the
suit is barred by law of limitation and the statement of respondents that
they came to know only in August 2012 is false; and that the certified copy
of the drawn-up decree dated 29th June 1988 was obtained by respondents
on 22nd May 2012.
(aa) Respondent no.6 filed a further affidavit dated 14 th June 2013 in
reply to the notice of motion stating that the contents of the earlier affidavit
are reiterated; that a preliminary issue be framed - whether the suit is
barred by limitation?; that the plaint should be rejected under Order 7 Rule
11 of the CPC; that said respondents did not take action for more than 23
years although they had full knowledge of decree passed on 29 th June 1988
and the letter dated 13th July 1987 was not replied to by Dr. Cecil D'Monte.
(bb) Respondent no.5 also filed affidavit in reply dated 24 th December
2013 opposing the notice of motion in which the stand taken by respondent
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no.5 was that the suit is not maintainable and ought to be dismissed; that
letters dated 28th October 2013, 12th November 2013 and 11th December
2013 were addressed by the advocate for appellants asking if any petition
for probate had been filed and any probate obtained; that inspection was
taken by the advocate for respondents of the documents and it was
discovered that in the probate proceedings of the Will of Dr. Cecil D'Monte,
in the schedule of assets, the suit property was not included; that
respondents failed and neglected to give the advocate inspection of medical
records of Dr. Cecil D'Monte in support of the claim of dementia as alleged
in the plaint; that Dr. Cecil D'Monte transacted deals of other lands at
Bandra at the relevant time.
(cc) Respondent no.6 filed another affidavit in reply dated
13th January 2014 alleging that said respondents had deliberately not
disclosed that probate was obtained of the Will of Dr. Cecil D'Monte and
that the suit property did not form part of estate of the deceased in the
probate proceedings. Respondent no.6 also alleged that said respondents
had got this vakalatnama removed from the proceedings in the City Civil
Court and to make false allegations of fraud.
(dd) Appellant also filed affidavit in reply dated 20 th February 2014
taking a stand that appellant was an innocent purchaser and had purchased
after taking search of record of 40 years of the suit property and therefore
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there was no need to go behind the decree passed by the Bombay City Civil
Court.
(ee) said respondents filed affidavit in rejoinder dated 5 th March
2014, in which they stated that they acquired knowledge of the alleged
fraud committed by defendants to the suit only in August 2012 when they
were conducting a search of the immovable properties of their father Dr.
Cecil D'Monte; that the letter dated 13th July 1987 was never received by
respondents. The suit property not being mentioned in the Will or the
schedule would not efface the title of Dr. Cecil D'Monte.
6 Almost 2 years after the notice of motion was taken out an
order dated 10th March 2014 came to be passed by the Trial Court refusing
ad-interim relief. In the said ad-interim order dated 10 th March 2014, the
Court rejected it, inter alia, on the grounds that it is not explained why
suddenly between May to August 2012 a search was conducted of the
immovable properties by said respondents; respondents were expected to
have taken search in 1999 at the time of filing of the probate petition which
appears not to have been done; that respondents have given no particulars
of the knowledge which shows gross delay and laches on their part; the
explanation in rejoinder is inadequate; that two issues with regard to
jurisdiction and limitation were framed; that the issue regarding whether
the Court has jurisdiction was answered in the affirmative; that the issue
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regarding the suit being barred by the laws of limitation was adjourned for
evidence and; that notice of motion was to be taken up for hearing after the
preliminary issue of limitation was decided. This order was not challenged
in any appeal.
7 On 31st May 2016, appellant received the commencement
certificate with respect to the suit property and on 1 st June 2016 intimation
of disapproval was received by appellant in respect of the suit property.
8 On 8th October 2016, a further affidavit came to be filed by said
respondents stating that heavy machinery for construction has been brought
in and installed on the suit property and in view of change in circumstances,
pending the issue under Section 9A to be decided by this Court in its usual
course, interim reliefs be granted.
9 Appellant filed affidavit in reply dated 18 th October 2016 to the
further affidavit of respondents stating that appellant has spent huge
amounts for removing encroachments by providing huge compensation to
the occupants/encroachers; that the development process has begun on the
suit property and therefore, in view of the refusal of any ad-interim order on
10th March 2014, no permission was required by appellant to continue with
the construction activity etc.
In the meanwhile, recording of evidence began in the
application taken out under Section 9A of CPC.
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On 23rd October 2018 the impugned order came to be passed.
10 Mr. Bookwala submitted that when one considers the impugned
order holistically, the only basis on which the learned Single Judge has
passed the order of injunction was because in the City Civil Court
proceedings vakalatnama of respondent no.6 was not found and there was
no record to show registration of any such vakalatnama in the register
maintained by City Civil Court because the register has been missing and
vakalatnama was lost. Strangely, the Learned Single Judge states that on
these facts the case of respondents that the decree passed in the Bombay
City Civil Court was a nullity prima facie merits consideration. Of course,
the Court also observed that the decree was passed without service of writ
of summons (respondent no.6 states that the service of writ of summons
was waived on instructions from Dr. Cecil D'Monte). In view of the above,
the Court has observed that respondent no.6 prima facie appeared to lack
any authority to represent Dr. Cecil D'Monte which goes a long way to
prima facie support said respondents' case of want of knowledge on their
part till the time they claim to have got to know of the suit and the decree
passed therein in the year 2012. The Court has observed that said
respondents have imminently agruable case on nullity of the decree and for
cancellation of all subsequent documents of title executed on the strength of
such decree and pending such trial, status quo needs to be preserved in
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respect of the suit property. This is the only basis on which the ad-interim
order has been granted. The learned Single Judge, however, has failed to
notice or even consider or deal with the fact that in the Will of Dr. Cecil
D'Monte dated 18th August 1977, for which probate was obtained by
original respondent no.3 on 13 th October 1999, the suit property is not
mentioned. Even in the schedule of the assets in the application of probate
does not include the suit property. The Court did not find anything amiss
and in our view incorrectly so, as to how suddenly said respondents,
between May to August 2012, conducted search of immovable properties of
Dr. Cecil D'Monte, 14 years after he died and 13 years after the probate was
obtained and suddenly found two Indentures of Lease dated 14 th July 1924
and 19th February 1948. There is no explanation as to why such search was
not taken when Dr. Cecil D'Monte died, or when the schedule of assets to
the probate petition came to be prepared.
11 The learned Single Judge has simply come to a conclusion that
respondent no.6 prima facie appeared to be lacking any authority to
represent Dr. Cecil D'Monte only because vakalatnama and the register
where vakalatnamas are maintained by the Bombay City Civil Court have
been missing/lost. The Court also failed to consider the fact that on
31st October 1988 and 1st September 1988 respondent no.4 had issued a
public notice inviting tenders for development/sale of the suit property and
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Dr. Cecil D'Monte, who was alive at that time, had not even objected. If,
Dr. Cecil D'Monte was the owner of the suit property, certainly he would
have objected and also would have included the suit property in the Will
dated 18th August 1977.
12 Further the suit in the Bombay City Civil Court came to be
instituted by respondent no.4 only on 16 th October 1987, more than 10
years after the Will was executed, which would prima facie indicate that Dr.
Cecil D'Monte had handed over the property to respondent no.4. None of
these factors have been considered while passing the impugned order.
13 The learned Single Judge failed to consider any of the grounds
for which the ad-interim relief was rejected vide order dated 10 th March
2014. Those grounds, in our view, were still relevant when the impugned
order was passed.
14 Mr. Dada's thrust, appearing for said respondents, was that the
Suit No.2335 of 2012, in which the appeal is filed, was for cancellation of
the decree dated 26th September 1988 because that was a collusive decree
and obtained by fraud. If Dr. Cecil D'Monte wished to divest himself of his
rights in the suit property, he would have done so vide a Conveyance and/or
Gift Deed.
15 Mr. Dada submitted :
(a) the decree dated 26th September 1988 of the Bombay City Civil
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Court as it was obtained by fraud was void ab initio and that forms the root
of the alleged title through which appellant claims.
(b) the conduct of respondent no.6 shows that respondent no.6
purported to appear for Dr. Cecil D'Monte in the City Civil Court suit was
regularly acting for respondent no.4 Trust, both before and after the
institution of the said suit. It is said respondents' case that respondent no.6
had submitted to decree without any instructions from Dr. Cecil D'Monte
and the fraud committed by respondent no.6 both on the City Civil Court
and said respondents, who are original plaintiffs, could be seen from the
various documents filed in the City Civil Court proceedings; a fraud has
been played by respondent no.6 in collusion with others and the following
judgments hold that a decree obtained by fraud is a nullity and non-est :
(i) Ram Kumar V/s. State of UP1
(ii) SP Chengalvaraya Naidu (Dead) by LRs V/s. Jagannath (Dead) by
LRs and Ors.2
(iii) AV Papayya Sastry and Ors. V/s. Government of AP and Ors.3
(iv) T. Vijendradas and Anr. V/s. M. Subramanian and Ors.4
(v) Meghmala and Ors. V/s. G. Narasimha Reddy and Ors.5
(vi) Biman Chandra Datta V/s. Promotha Nath Ghose 6
1. 2022 SCC Online 1312
2. (1994) 1 SCC 1
3. (2007) 4 SCC 221
4. (2007) 8 SCC 750
5. (2010) 8 SCC 383
6. 1922 ILR 886
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(c) the decree dated 26th September 1988 was passed under Order 8
Rule 10 read with Order 8 Rule 5 and as held by the Apex Court in Balraj
Taneja and Anr. V/s. Sunil Madan and Anr. 7, the Court should not proceed to
pass judgment merely because a written statement has not been filed by
defendant. Where a written statement has not been filed, the Court should
be a little cautious in proceeding under Order 8 Rule 10. This submission of
Mr. Dada is a non starter because the decree dated 26th September 1988 is
not in challenge before us.
(d) certain portions of the evidence that was recorded on the issue
that was framed by the Trial Court in the suit under the provisions of
Section 9A of the Code of Civil Procedure, 1908 were also relied upon in an
attempt to show the said respondents alongwith late Dr. Cecil D'Monte were
victims of fraud.
We have to note that the learned Single Judge has not referred
to any evidence in the impugned order. At the same time, considering the
evidence recorded, particularly of original plaintiff no.1 (late Darryl
D'Monte), we have a lot to say on the conduct of said respondents (original
plaintiffs).
16 Mr. Chinoy appearing for respondent nos.4 and 5 submitted,
and rightly so, that said respondents have been economical with truth.
7. (1999) 8 SCC 396
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Mr. Chinoy pointed out that in the plaint, plaintiffs, i.e., the said
respondents, have stated in paragraph 16 that at the material time during
the period from 1985 until his death in 1998 the said Dr. Cecil D'Monte was
suffering from dementia and craved leave to refer to the medical records of
the said Dr. Cecil D'Monte, when produced (Mr. Bookwala stated that till
date no records have been produced despite being called upon).
Mr. Chinoy submitted that in cross examination of original
plaintiff no.1 (late Darryl D'Monte), to decide the issues framed under
Section 9A of CPC, in answer to question nos.89 to 95 PW-1 (Darryl
D'Monte) has answered as under :
Q.89. According to you, your father continued to be the owner
of the said property despite the fact that the lease was not
renewed. Therefore, if your father was the owner why was the
property was not shown in the schedule annexed to the petition?
Ans. It was not shown in the schedule because it was given out
as a charitable transaction to the church at Rs.1/- a year and he
did not want to show it in his properties as he would have to pay
property tax thereon. Since there was no income from this
property, he did not show the said property in the schedule.
Q.90. Are you therefore suggesting that the property was
donated to the church so that your father ceased to be the owner
thereof?
Ans. I am stating nothing of the kind and he continued to be the
owner.
Q.91. Was this property shown in any income tax returns filed by
your father at any time during his life time?
Ans. I cannot vouch for the earlier periods, but towards the end
of his life, he did not show it because there was virtually no
income from the said property and he did not want to pay
property tax thereon.
Q.92. Upto which year according to you was it shown in his
income tax returns?
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Ans. I have no recollection.
Q.93. Are you aware of the tax returns filed by your father?
Ans. I was aware of the returns filed by him towards the end of
his life.
Q.94. What do you mean by "towards the end of his life"?
Ans. From the early 1980's till his death 1998.
Q.95. Would it therefore be correct to say that right from the
early 1980's your father did not show this property as a part of
his estate?
Ans. I believe that is correct.
(emphasis supplied)
Mr. Chinoy submitted that if PW-1 could say his father Dr. Cecil
D'Monte did not show the suit property in his income tax returns because
Dr. Cecil D'Monte did not want to pay property tax thereon and this was
during the period from early 1980 till his death in 1998, that would only
mean that Dr. Cecil D'Monte was quite capable of managing his affairs and
cannot, by any stretch of imagination, be called suffering from dementia as
falsely averred in paragraph 16 of the plaint. Moreover, it also belies
plaintiffs' averments in the plaint that they did not know about the existence
of the suit property until 2014 or that was the reason for not disclosing it in
the schedule of property in the petition to grant probate of the Will of
Dr. Cecil D'Monte.
17 Mr. Chinoy submitted that in paragraph 11 of the plaint,
plaintiffs have admitted that Dr. Cecil D'Monte received the letter dated 18 th
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July 1987 from advocate O.S. Pereira which notes that Respondent No.4
(original defendant no.1) is in adverse possession of the suit property from
1st July 1963 and was exercising all the rights of an owner. Dr. Cecil D'Monte
never protested, which also indicates that the decree passed by the Bombay
City Civil Court was not obtained by fraud. Mr. Chinoy also submitted that
the registry of City Civil and Sessions Court, has, by a letter dated 26 th April
2021, informed that as per the office records department of City Civil and
Sessions Court, for the period from March 2004 to December 2015 only
advocate Norman Joseph D'Monte (respondent no.6) has taken inspection
on 5th November 2012 and nobody else which also shows that the stand of
said respondents that they took search of the City Civil Court proceedings
when they received the certified copy of the entire records and proceedings
on 1st March 2014 is incorrect.
18 Mr. Chinoy also submitted that a fraud would arise only if the
property had any value. If PW-1 in his evidence, as quoted earlier, has stated
that Dr. Cecil D'Monte did not want to show the property in his income tax
returns because there was no income from the property, how could there be
any fraud or deprivation. Mr. Chinoy submitted that respondent no.6, in his
examination in chief in Section 9 application, has stated in paragraph 4 as
under :
4. However, Dr. C.J. D'Monte, although was agreeable to the
suggestion of transferring the suit property and benefiting the
Church, he expressed his apprehension to execute or sign any
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document of transfer of the suit property to the Church, for the
reason given by Dr. C.J. D'Monte was that he had not disclosed
that he was the Owner of the suit property and had not shown
the suit property in any of his Tax Returns at any time and
therefore would not like to execute any document of transfer in
favour of St. Peter's Church, but that he would not contest or
oppose any claim by the Church to title to the suit property. Dr.
Cecil Joseph D'Monte himself suggested that the Church could
adopt any proceedings on title to the suit property.
Mr. Chinoy submitted that this matches with what PW-1 (late
Darryl D'Monte, plaintiff no.1) has stated in his cross examination.
Therefore, there can be no fraud being played by respondent no.6 as
alleged.
19 Mr. Bookwala in rejoinder brought to the notice of the Court
certified copy of the decree dated 29th June 1988 which has been filed by
said respondents in the compilation and in the bill of cost forming part of
the certified copy of the decree it is mentioned that two rupees is the cost on
defendant's Vakalatnama. Mr. Bookwala submitted that if the registry has
shown two rupees on defendant's Vakalatnama, certainly the Vakalatnama of
respondent no.6 must have been on record.
20 In our view, this appeal has to be allowed. In our opinion the
said respondents, who are plaintiffs in the suit, should have come to the
Court with clean hands. The observations of the Hon'ble Supreme Court in
S. P. Chengalvaraya Naidu V/s. Jagannath (Dead) by LRS (Supra), that was
relied upon by Mr. Dada, are relevant in this context. The Court observed :
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"The Courts of law are meant for imparting justice
between the parties. One who comes to the Court must
come with clean hands ......... We have no hesitation to say
that a person whose case is based on falsehood, has no
right to approach the Court. He can be summarily thrown
out at any stage of the litigation".
The Apex Court and this Court have, on many occasions, stated
that if a party comes to the Court with unclean hands, should be dealt with
very strongly and substantial costs also should be imposed on the party. The
conduct of such party intends to impede and prejudice the administration of
justice. Judiciary is the bedrock and handmaid of orderly life and civilized
society. In Sciemed Overseas Inc. V/s. BOC India Ltd. 8 the Apex Court has
lamented about the unhealthy trend in filing of affidavits which are not
truthful. Paragraph 2 of the said judgment reads as under :
"2. A global search of cases pertaining to the filing of a
false affidavit indicates that the number of such cases that are
reported has shown an alarming increase in the last fifteen
years as compared to the number of such cases prior to that.
This is illustrative of the malaise that is slowly but surely
creeping in. This 'trend' is certainly an unhealthy one that
should be strongly discouraged, well before the filing of false
affidavits gets to be treated as a routine and normal affair."
Kuldip Singh, J. (as he then was) in S.P. Chengalvaraya Naidu
(Dead) by LRS (Supra) in paragraph 5 observed :
"5. ................ We are constrained to say that more
often than not, process of the Court is being abused. Property-
grabbers, taxevaders, bank loandodgers and other
unscrupulous persons from all walks of life find the Court
process a convenient lever to retain the illegalgains
indefinitely. We have no hesitation to say that a person, who's
8. 2016 AII SCR 370
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case is based on falsehood, has no right to approach the Court.
He can be summarily thrown out at any stage of the
litigation."
The reason why we say this is because if during the period from
1985 until his death in 1998 the said Dr. Cecil D'Monte was suffering from
dementia, how could PW-1 in his cross examination (as quoted earlier) state
that his father did not show the suit property in his name because Dr. Cecil
D'Monte did not want to pay property tax thereon. If Dr. Cecil D'Monte had
dementia from 1985-1998 how could he even decide which property should
be shown in his tax returns and which should not be or that tax will have to
be paid if disclosed. This is one lie by said respondents. Secondly, the
answers in the cross examination (quoted earlier) also indicate that said
respondents were always aware about the existence of the suit property
because, if PW-1 (late Darryl D'Monte) was not aware at all of the suit
property, he could not have answered in his cross examination that his
father Dr. Cecil D'Monte did not show it in the income tax returns during the
period from 1985 till his death in 1998 because he did not want to pay tax
on the said property. How could he say this unless his father Dr. Cecil
D'Monte had discussed the suit property with him. This proves the other
averment in the plaint that plaintiffs got to know about the existence of the
said property or alleged fraud only in the month of August 2012 was
another falsehood.
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21 The suit property was not mentioned in the Will of Dr. Cecil
D'Monte or in the schedule in the list of properties in the probate petition.
This has not been considered by the learned Single Judge.
22 The learned Single Judge has also not considered the fact that
the Will of Dr. Cecil D'Monte is dated 18 th August 1977 and on 31st October
1988 respondent no.4 issued public notices in Mumbai Samachar and on
1st September 1988 in English Daily by name "Daily" inviting tenders for
development/sale of the suit property. But still Dr. Cecil D'Monte did not
object. We say this with some affirmation because said respondents have in
the plaint admitted that Dr. Cecil D'Monte received the letter dated 13 th July
1987 from Advocate O. S. Pereira on behalf of respondent no.4 stating
respondent no.4 was in adverse possession of the suit property from 1 st July
1963. That public notice, in our view, would be notice even to said
respondents who never protested, since as noted earlier they were aware of
the existence of the suit property.
23 The impugned order is based purely on a very narrow compass
that in the City Civil Court proceedings no Vakalatnama of respondent no.6
was found and the Vakalatnama register was not available, hence there was
prima facie a fraud. But the learned Single Judge has not considered that
respondent no.6, in his affidavit in examination in chief dated 6 th June 2016,
has stated in paragraph 7 as under :
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7. I thereafter got a Vakalatnama prepared in my favour a week
before the hearing of the suit and then went to the residence of
Dr. Cecil Joseph D'Monte, opposite Otter's Club, Bandra, and
obtained his signature on the same in the presence of Plaintiff
No.3 who was present at that time. I then filed the said
Vakalatnama about 3 days before the hearing of the suit in the
Board Department of the Bombay City Civil Court. I handed
over the Vakalatnama to the Clerk in charge who entered the
details of same in the Register kept for recording Vakalatnamas
received.
(emphasis supplied)
The original plaintiff no.3, who died during the pendency of
this suit, has not filed any affidavit denying this fact. She was alive at the
time when the affidavit of respondent no.6 dated 6 th June 2016 was filed,
though of advance age.
The learned Single Judge has not considered any of these facts
before passing the impugned order.
24 The learned Singe Judge has also not considered the certified
copy of the decree of the Bombay City Civil Court which shows rupees two
for defendant's Vakalatnama and the only defendant was Dr. Cecil D'Monte.
25 PW-1 (late Darryl D'Monte), in his evidence in chief, also stated
and so also in his cross examination that there is no income from the suit
property and hence, there was never any need to include the suit property in
the income tax returns of Dr. Cecil D'Monte or myself or my family
members. This destroys the case of fraud raised by Mr. Dada. Fraud would
mean wrongful or criminal deception intended to result in financial or
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personal gain. If according to plaintiffs, the property was worthless and because of
which they did not even include it in any income tax returns or even in the probate
petition of Dr. Cecil D'Monte, makes us feel that there could not have been a fraud.
26 Therefore, since none of these points have been considered by the
Learned Single Judge, in our view the order impugned in this Appeal cannot be
sustained. The impugned order is hereby quashed and set aside.
27 Appeal allowed with costs in the sum of Rs.6,00,000/- of which said
respondents to pay Rs.3,00,000/- to appellant and Rs.3,00,000/- to respondent
nos.4 and 5 by way of cheque drawn in favour of advocates on record for the
respective parties within four weeks from the date of this order being uploaded.
28 Appeal disposed accordingly. Consequently, all interim applications
also stand disposed.
29 Since the suit has been pending from 2012, we pass the following
directions akin to case management hearing in a commercial suit :
(a) whichever party that has not filed written
statement shall file the same and serve a copy
thereof within four weeks from the date of this
order being uploaded.
(b) within two weeks thereafter, parties shall file
their respective affidavit of documents and serve a
copy thereof upon the other side, failing which
parties will not be permitted to rely on any
document, copy whereof is not annexed to the
plaint and/or written statement and mentioned in
the list of documents annexed to the plaint and/or
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written statement. This will not, however, prevent a
party from confronting a witness of another party
with any document.
(c) within two weeks thereafter, parties shall
complete discovery and inspection. If inspection is
not given, such party will not be permitted to rely
on such document.
(d) within two weeks thereafter, statement of
admission and denial with reasons for denial to be
exchanged. If the statement of admission and denial
is not given, parties shall be deemed to have
admitted the existence of all the documents of the
other side.
(e) the suit be listed for directions on 9 th June 2023
before the learned Single Judge.
30 Mr. Kanade prays for stay of this order for a period of four
weeks. Mr. Bookwala strongly opposes. Mr. Kanade states that plaintiffs
(respondent nos.1A, 1B and 2A) shall also gave an undertaking in
accordance with Rule 148 of the Bombay High Court, (Original Side) Rules
as per the format prescribed by Prothonotary and Senior Master, High Court,
Bombay and that undertaking will be given before the end of this week.
Statement accepted.
31 In view of the undertaking being given, this order and judgment
is stayed for a period of four weeks from today.
(RAJESH S PATIL, J.) (K.R. SHRIRAM, J.)
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