[Cites 2, Cited by 0]
Bombay High Court
Shri Hari Ashram Th. Its Trustees vs Vijay Jayantilal Patel on 3 February, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-OS:3046
OS IA-668-2025.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
INTERIM APPLICATION NO. 668 OF 2025
IN
SUIT NO. 13 OF 2025
Shri Hari Ashram Applicant
.. (Org. Plaintiff)
In The Matter Between
Shri Hari Ashram .. Plaintiff
Versus
Vijay Jayantilal Patel & Anr. Respondents
.. (Org. Defendants)
....................
Mr. Karl Tamboly a/w Mr. Gaurav Srivastav, Mr. Aaman Keharia, Mr.
Adil Parsuram Puria, Ms. Monorama Mohanty & Mr. Hitanshu Jain
i/by S.K. Srivastav & Co., Advocates for Applicant / Org. Plaintiff
Mr. Rohaan Cama a/w Mr. Piyush Shah, Mr. Nagendra Dubey, Mr.
Dishang Shah, Mr. Yash Oza & Mr. Ankit Shah i/by Lexi
Conveniens, Advocates for Defendant No. 1
...................
CORAM : MILIND N. JADHAV, J.
DATE : FEBRUARY 03, 2026
P. C.:
1. Heard Mr. Tamboly, learned Advocate for Applicant (Org.
Plaintiff) and Mr. Cama, learned Advocate for Defendant No. 1.
2. For the sake of reference and convenience, Applicant is
referred to as "Plaintiff" and Respondents are referred as " Defendants".
Suit is filed by Plaintiff Trust for declaration, possession, damages and
injunction on the basis of a Deed of Assignment dated 30.07.2012.
Interim Application is filed for appointment of Court Receiver and
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damages in the interregnum. Interim Application is decided by this
order.
3. Following facts are relevant for adjudicating the present
lis:-
3.1. Applicant - Plaintiff is a Charitable Trust registered under
the Public Charitable Trust Act, 1950 and based in Vadodara, Gujarat.
Plaintiff holds and maintains several properties across India including
temples, multipurpose halls, bhojnalayas, etc.
3.2. Defendant Nos. 1 and 2 are sons of late Mr. Jayantilal
Mohanlal Patel. According to Plaintiff, in 2012 Plaintiff Trust was
desirous of acquiring properties in Mumbai for the purposes and
objects of the Trust. According to Plaintiff, in February 2012, Mr.
Jayantilal Mohanlal Patel (hereinafter referred as " Jayantilal") - father
of Defendant Nos. 1 and 2 and his cousin brother Dr. Peter @
Shantilal Bhailal Patel (hereinafter referred as " Dr. Peter ") represented
to Plaintiff that Jaihind Co-operative Housing Society Ltd (hereinafter
referred as "Society") situated in JVPD Scheme, Juhu, Vile Parle is
owner of Plot No.6 admeasuring 669.80 sq.mtrs., bearing Survey No.
580 which is part of land bearing Survey No.70 in JVPD Scheme,
Juhu, Mumbai Suburban District (the said Plot). Jayantilal and Dr.
Peter represented that they were entitled to the said plot and building
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standing thereon called "Usha Villa" in equal share of 50% by
operation of law under the last Will and Testament of one Mr. Bhailal
Chhotalal Patel (hereinafter referred as "Bhailal") who was the original
member of the Society and holder of five shares of Rs.100 each
bearing Nos.76 to 80 comprised in Share Certificate No. 16 issued by
Society in respect of Plot No. 6. According to Plaintiff, Dr. Peter and
Jayantilal, inter se, agreed that said Jayantilal was entitled to ground
floor, 1st floor, garage and storage on the ground floor and Dr. Peter
was entitled to 2nd and 3rd floor of the building known as Usha Villa
standing thereon.
3.3. According to Plaintiff, it agreed to acquire from Dr. Peter
his undivided 50% share in the said building 'Usha Villa' and
undivided share in the said Plot together with joint ownership of five
shares of Plot No. 6 with the consent of Jayantilal. Deed of
Assignment dated 30.07.2012 was executed by Dr. Peter as Assignor
and Sadhu Purushottamacharandasji and Vithalbhai Somabhai Patel
being Trustees of Plaintiff - Trust as Assignee and Jayantilal as
confirming party, thereby assigning unto the Plaintiff, Dr. Peter's 50%
undivided share, right, title and interest in the leasehold Plot No.6 and
the 2nd floor admeasuring 161.54 sq. mtrs. and 3 rd floor admeasuring
92.84 sq. mtrs. in the building known as Usha Villa for the remainder
of the lease period to Plaintiff for consideration of Rs. Five Crore. The
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Deed of Assignment was registered with the Sub-Registrar of
Assurances at Andheri, Mumbai on 30.07.2012. According to Plaintiff,
it was put in vacant and peaceful possession of the 2 nd and 3rd floor and
in joint possession of the said plot along with Jayantilal who was
holder and occupant of ground and 1st floor. Consideration of Rs. 5
Crore was paid to the Assignor Dr. Peter by cheque dated 05.06.2012.
3.4. According to Plaintiff, whenever the religious head of the Yogi
Divine Society of the Swaminarayan Sampradaya Swami Shri.
Hariprasaddasji visited Mumbai, he used to reside in the suit premises
i.e. 2nd and 3rd floor along with his fellow trustees, representatives and
servants of the Trust. According to Plaintiff, the 2 nd and 3rd floor i.e.
suit premises became the abode of the religious head known as
"Anirdesh" amongst the followers and devotees of the Plaintiff Trust
worldwide. According to Plaintiff, there were several similarly
situated places of abode all over the world where religious head of the
Trust resided intermittently during his visits along with his followers
and devotees for Trust related programs / works.
3.5. In the aftermath of COVID-19 pandemic, the religious
head of the Trust while staying in the suit premises passed away on
26.07.2021. Due to this the suit premises were kept locked and
unused by Plaintiff - Trust thereafter. According to Plaintiff Trust, in
November 2021 taking advantage of the COVID-19 pandemic situation
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and lockdown, Defendants i.e. sons of Jayantilal illegally took over
possession of the suit premises and put their own lock on the gate
leading to the suit premises and illegally and unlawfully dispossessed
the Plaintiff Trust claiming to be owners of the suit premises by
putting up a legal notice. Representatives of Plaintiff Trust were
denied entry into the suit premises. Plaintiff Trust addressed letter to
the Society for issuance of duplicate share certificate on 30.06.2023
and issued public notice in respect thereof. Society responded to the
public notice stating that as per Society record, Plot No. 6 stood in the
name of their member and Plaintiff Trust was not registered as
member as per record of the Society. Defendant No. 1 thereafter
through his Advocate asserted that Plot No. 6 was standing in the
name of Jayantilal Mohanlal Pate as member of the Society and only
he was entitled to the said plot and the building 'Usha Villa' standing
thereon and after his demise Defendants were owners of the suit
premises. According to Plaintiff Trust, after the death of the spiritual
head of Plaintiff Trust many descendants and followers of the religious
head by illegal and unlawful means attempted to take possession of
the assets and properties of the Trust in a similar fashion. Hence
Plaintiff Trust filed present Suit seeking declaration, possession ,
injunctive reliefs and damages alongwith interim compensation @ Rs.
10,00,000/- per month. In the interim Plaintiff - Trust prayed for
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appointment of Court Receiver for the suit premises and a direction to
put Plaintiff in possession as agent of the Court Receiver and restrain
Defendants from disturbing possession of Plaintiff in the suit premises.
4. Mr. Tamboly, learned Advocate for Plaintiff would submit
that Defendants have forcibly and unlawfully occupied the suit
premises when they were kept locked by Plaintiff during the COVID-
19 pandemic period pursuant to the demise of their father Jayantilal
who was the confirming party to the Deed of Assignment dated
30.07.2012. He would submit that by virtue of the Deed of
Assignment Dr. Peter assigned his right, title and interest in his 50%
share of the entire property namely Plot No.6 and building named
'Usha Villa' standing thereon to the Plaintiff. He would submit that the
said act of transfer / assignment was confirmed by Jayantilal which is
now resiled by the Defendants who are his sons after his demise on
22.03.2022. He would submit that Dr. Peter's 50% share namely 2 nd
and 3rd floor was assigned to Plaintiff Trust for the remainder period of
the lease which was a perpetual lease for 999 years beginning from
14.03.1962 onwards. He would submit that taking advantage of the
demise of the religious head and Jayantilal, the Defendants have
illegally trespassed onto the suit premises which was otherwise
assigned and transferred to Plaintiff Trust. He would submit that
therefore until the Suit proceedings are decided, on the basis of the
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Deed of Assignment dated 30.07.2012, Court Receiver be appointed
forthwith and Plaintiff - Trust be put back in possession of the suit
premises until the Suit is determined. He would submit that Plaintiff
Trust has made out a prima facie case on the basis of Deed of
Assignment dated 30.07.2012 and the consideration paid to Dr. Peter,
that irreparable loss will be caused to the Plaintiff - Trust if injunction
is denied and balance of convenience lies in favour of Plaintiff Trust
since conduct of Defendants who are sons of Jayantilal is prima facie
contumacious, illegal and contrary to law. Hence he would submit that
interim reliefs prayed for in the Interim Application be allowed.
5. PER CONTRA Mr. Cama, learned Advocate for Defendants
would submit that Suit filed by Plaintiffs suffers from gross delay and
laches since Plaintiff Trust did not take any steps under the purported
Deed of Assignment dated 30.07.2012 to fructify its substantive right
title and entitlement in the suit premises as member of the Co-
operative Housing Society. He would submit that Plaintiff has in fact
laid completely silent and taken no steps whatsoever to assert its
alleged right. His submission is that the Deed of Assignment itself was
ab initio void and incapable of being executed or even fructified as it
was in violation of the terms and conditions of the original lease
Agreement of the year 1962 and the Suit premises was incapable of
sub-division under the extant bye-laws of the Society. He would submit
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that the police complaint by Plaintiff on 19.06.2023 was limited to the
grievance of purported loss of original share certificate and it did not
refer to any act of dispossession of Defendants. He would submit that
admittedly Plaintiff - Trust is not a member of the Society and
therefore is disentitled to any interim relief.
5.1. On the issue of merits of the transaction of Assignment,
he would submit that the purported Deed of Assignment dated
30.07.2012 is itself ab initio void for want of permission and consent
from the Society in as much as it is impermissible for a member of the
Society to sub-divided and transfer and alienate part of the property to
a third party in the manner which has been done in the present case or
for that matter split the 5 shares into two parts. He would submit that
the share certificate issued by Society dated 06.05.2006 does not
confirm or entitle Dr. Peter to assign his 50% shareholding in the
property to the Plaintiff Trust. He would draw my attention to clause
2(12) of the lease deed dated 10.09.1962 by which the said Plot No. 6
was leased to the predecessor-in-title of the parties namely one Bhailal
Patel through whom the Plaintiff Trust and Defendants are claiming
entitlement. He would submit that the said clause categorically bars
members from transferring of the demised plot and the structure
(Usha Villa) standing thereon at any time during the tenure of the
lease without written consent of the Society for that purpose having
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been previously obtained by the member. He would submit that in the
present case, admittedly there is no the written consent of the Society
obtained by Dr. Peter or Jayantilal before executing the Deed of
Assignment in 2012. He would submit that under clause 12(2), it is
impermissible for the lessee to assign its rights or part of its rights in
the said plot and the structure standing thereon without written
consent of the Society and thus, Dr. Peter was not legally permitted to
assign his rights in respect of 50% of the land and property to the
Plaintiff Trust.
5.2. He would submit that the Deed of Assignment relied upon
by the Plaintiff executed with Dr. Peter and confirmed by Jayantilal
admittedly does not bear the consent of the Society. He would submit
that even otherwise the Deed of Assignment is contrary to the bye-
laws of the Society as it prima facie violates bye-laws 19 and 20 as no
right would be accrued to the transferee without the Consent of the
Society or sanction of the General Body of the Society. He would
submit that in such a case where transfer takes place without the
consent of the Society, it confers no right on the purported assignee i.e.
Plaintiff Trust in the present case. In support of this proposition, he
seeks to refer and rely upon the decisions in the case of Zoroastrian
CHS Ltd & Anr. v. District Registrar CHS & Ors.1 and Ghanshyam
1 2005(5) SCC 632
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Malhotra & Ors. v. Vithalnagar CHS Ltd.2 to contend that it is well
settled position that if an agreement is ab initio void, then the same
need not even be set aside or cancelled in that case. He would submit
that no title whatsoever could be passed to the Plaintiff on the basis of
the purported Deed of Assignment dated 30.07.2012 as it is prima
facie ab initio void and therefore Plaintiff Trust derives no right, title
and interest in the Suit premises at all.
5.3. He would submit that Plaintiff's claim is through 50%
shareholding of Dr. Peter as per the Deed of Assignment but name of
Dr. Peter is not certified on the Memorandum of Transfer of the share
certificate, copy of which is appended at page Nos. 56 and 57 of the
suit plaint. He would submit that insofar as Dr. Peter is concerned, he
was a citizen of UK. He would submit that he was not an Indian
citizen either by birth and residence and therefore pursuant to the
demise of his predecessor-in-title - Bhailal C. Patel, under his Will he
could never have held property in India without the permission of
Reserve Bank of India. He would submit that Reserve Bank of India
under the provisions of FEMA had issued a Master Circular on
02.07.2012 contemplating conditions for persons of non-Indian origin
i.e. resident outside India and foreign nationals permitted to inherit
property from a person who was resident in India. He would submit
2 2023 SCC Online Bom 2408
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that thus holding of any property by Dr. Peter in India was barred
under the provisions of Section 31 of FERA which was in application at
the then time. He would vehemently submit that any transaction done
in breach of Section 31 of FERA without seeking permission of the
Reserve Bank of India would be void as is the present case and thus
the aforesaid reasons put a significant question mark on the validity
and legality of the Deed of Assignment dated 30.07.2012. He would
submit that Dr. Peter had no right to inherit the Suit property and if he
had no right to inherit the property, then no right accrued to him to
transfer the same to the Plaintiff Trust under the purported Deed of
Assignment. He would submit that Plaintiff is entitled to return of
their monies paid by them to Dr. Peter and not to assert rights in
respect of the suit premises in the present facts and situation. On the
issue of return of monies, he would submit that the entire amount
received from the Plaintiff - Trust under the Deed of Assignment has
been returned back to the Plaintiff by Defendants' father Jayantilal
between 2012 and 2017.
5.4. On the aspect of possession, he would vehemently
contend that case of Plaintiff that they were put in possession of the
2nd and 3rd floor of the building 'Usha Villa' is completely false. He
would submit that it is Plaintiff's case in the affidavit in rejoinder that
Plaintiff had put faith in Defendant Nos. 1 and 2 to maintain the suit
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premises on behalf of Plaintiff since Plaintiff had its base in Gujarat
which itself is a clear admission that Plaintiff was never in possession
of the suit premises. According to him Defendant Nos. 1 and 2 were in
possession of the suit premises and were taking care of the suit
premises and therefore case of dispossession of Plaintiff is not proved.
He would submit that Defendants have been making payment of all
statutory and other payments in respect of the entire property
including Plaintiff's alleged share all through out from 2007 onwards.
He seeks to refer to and rely upon the electricity bills (appended at
page Nos. 272 to 396 of Defendant No. 1's reply), water bills
(appended at page Nos. 397 to 406) and PR tax / Municipal Tax
(appended at page Nos. 407 to 441) in support of the above
submission. He would submit that that pursuant to the Deed of
Assignment Plaintiff has never demanded possession of the suit
premises, neither Plaintiff has applied to the Society under its bye-laws
to recognize itself as member of the Society.
5.5. He would submit that Plaintiff has suppressed the lease
deed dated 10.09.1962, the contents of which clearly disentitle
predecessor of Plaintiff from dealing with or transferring their rights to
any third party without the written consent of the Society. He would
submit that Society is a proper and necessary party in the present Suit
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proceeding but it has not been impleaded and thus the Suit is bad in
law for non-joinder of proper and necessary party.
5.6. He would submit that Plaintiff has stated in the Suit
Plaint that Defendant Nos. 1 and 2 obstructed entry of the Plaintiff on
21.04.2022 but at that time Defendant No. 2 was in the United States
of America during the period 06.03.2022 to 16.10.2022. Further
Defendant No. 1 who is a principal and teacher in a School in Surat,
Gujarat was admittedly in Gujarat and has marked his presence in the
muster roll of the School through the month of April which can be
seen from the copy of muster roll appended at page No. 450 of the
reply. He would submit that since it is Plaintiff's own case in the plaint
that Defendant Nos. 1 and 2 were taking care of the suit premises and
were in possession thereof, there is no question of Plaintiff's
dispossession and requiring the Plaintiff to be put back in possession
through the Court Receiver. He would submit that Plaintiff Trust has
alternate residential premises at Kandivali (E) in Ashok Nagar where
the present religious head of Plaintiff Trust has been visiting and
residing during his visits to Mumbai which has been suppressed by
Plaintiff from this Court. That apart he would submit that putting the
Plaintiff in possession of the suit premises would amount to grant of
final relief at the interim stage. He would submit that there are no
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extraordinary circumstances pleaded which prejudice the rights of
Plaintiff for grant of interim relief in its favour.
5.7. He would submit that Court Receiver cannot be appointed
unless there is a clear case of danger or waste of the suit premises
which is not the present case as Defendant Nos. 1 and 2 are in
possession of the same and are taking due care of the same. Most
importantly he would submit that as per Deed of Assignment, the
amount stated therein was Rs. 3.97 crores since Rs. 1.03 crore was
retained back to pay tax on behalf of Dr. Peter as recorded in the
purported Deed of Assignment itself and father of Defendants -
Jayantilal has repaid back the entire amount of Rs. 3.97 crores back
to the Plaintiff in its entirety. He would submit that the said amount
was paid back by Jayantilal to Plaintiff - Trust in the guise of
donations as Jayantilal would otherwise not be able to justify
repayment of such large sums of money to the Plaintiff. He would
submit that there was no question of repurchasing the property which
is wrongly contended by the Plaintiff. He would submit that in such
circumstances, the Deed of Assignment was obtained and given a
complete go-bye by the parties and it is in any event ab initio void and
cannot be challenged. He has strongly relied on the entire re-payment
having been made by Defendants' father to the Plaintiff details of
which are appended at page No. 58 of the reply. He would submit that
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payments have been made immediately after it was realized since the
purported Deed of Assignment dated 30.07.2012 could not be given
effect to as it was impermissible in law.
5.8. He would submit that reliefs prayed for by Plaintiff are on
the premise that Plaintiff is entitled to 50% share in the suit premises
and therefore Plaintiff has sought relief of possession and injunctive
reliefs. He would submit that in the aforesaid factual circumstances
Deed of Assignment did not confirm any right, title and interest unto
the Plaintiff and therefore it was incumbent upon the Plaintiff to seek
declaratory relief on the basis of the purported Deed of Assignment
rather than assume entitlement to 50% of the holding in the entire
property and seek possession and injunctive reliefs.
5.9. In view of the above, he would submit that Interim
Application be dismissed.
6. I have heard both the learned Advocates at the bar and
with their able assistance perused the record of the case. Submissions
made by the learned Advocates have received due consideration of the
Court.
7. Case of Plaintiff seeking declaration relief, possession,
damages and injunctive relief is principally and primarily based upon
the Deed of Assignment dated 30.07.2012. It is Plaintiff's case that
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pursuant to execution and registration of the same, Plaintiff was put in
physical possession of the suit premises. The suit premises in the
present case are the 2nd and 3rd floor of the building known as 'Usha
Villa' standing on Plot No.6 of JVPD Scheme. The said plot said
scheme belong to Jaihind Co-operative Housing Society Limited.
8. Record shows that Dr. Peter alias Shanitlal Patel and
Jayantilal Mohanlal Patel, both were devotees of the Yogi Divine
Society Swaminarayan Sampradaya Swami Shri. Hariprasaddasji
would to visit Mumbai very often for discourses and other trust related
work. Since the head of the Plaintiff used to reside in 'Usha Villa'.
Plaintiff - Trust, Dr. Peter and Jayantilal decided to execute and enter
into the Deed of Assignment dated 30.07.2012. However, it is seen
that admittedly the original parent Deed of Assignment / Lease
whereby the perpetual lease was granted to the original Bhailal Peter
has a specific covenant whereby if any further assignment was to be
granted, then the written permission of the Jaihind Co-operative
Housing Society was a sine qua non and was required to be obtained
by the Assignor. In the present case, admittedly the written consent of
the Society was not obtained and Deed of Assignment was sans this
written permission.
9. That apart, it is seen that the holders of Plot No.6 who
were Members of the Society did not transfer the entire right, title and
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interest by way of assignment to Plaintiff. They had agreed to transfer
only 2nd and 3rd floor of the building 'Usha Villa'. Whether transfer of
part premises held in the Co-operative Housing Society can be allowed
to be transferred is a question to be answered? At the threshold, there
is no answer to this question because it is seen that the Member of the
Society held 5 shares in respect of its right and entitlement in Plot
No.6 which comprised of land and building 'Usha Villa'. Thus on this
count, there is no agreement between parties with respect to sub-
division up of the shares which can be found in the Deed of
Assignment.
10. In that view of the matter, Plaintiff has assumed that it
has become the owner of the suit premises and has prayed for
possessory reliefs and injunctive reliefs. Prima facie since title of
Plaintiff is not fructified fully, I am not inclined to accept the case of
Plaintiff either at the interim stage.
11. Plaintiff has filed the present Suit proceedings without
impleading the Society as proper and necessary party. Impleadment of
the Society who is the owner of the subject plot whereon 'Usha Villa'
building is standing and the suit premises comprises of 2 nd and 3rd
floor in the said Usha Villa building, the Suit is prima facie bad for
non-joinder of parties also. Written consent of the Society as required
by the parent lease Agreement has not been obtained by the Assignee
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or even the Assignor before execution of the same which is a condition
precedent in the present case.
12. Apart from this factual aspects which are prima facie seen
from the record of the case, the issue of payment which has been
raised by both the sides is also a disputed question of fact. According
to Plaintiff, an amount of Rs.5 crores was paid, but the same stands
prima facie refuted since an amount of Rs.1.03 crores was held back
for the purpose of paying tax as stated in the Deed of Assignment
itself.
13. Be that as it may, Defendants have prima facie accepted
the fact the amount of Rs.3.97 crores was no doubt received from the
Plaintiff by Dr. Peter, but it is case of Defendants and argued
vehemently by Mr. Cama that immediately after the said payment was
received, father of Defendants namely Jayantilal started repaying back
the said payment in its entirety to the Plaintiff. Appended at page
No.58 of the Affidavit-in-Reply is the list of payments made
intermittently by Jayantilal after execution of the said Deed of
Assignment to Plaintiff - Trust.
14. The dichotomy which has been pointed out by Mr.
Tamboly, learned Advocate for Plaintiff is that these payments cannot
be considered as repayment at all. According to Plaintiff, since
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Jayantilal was a devotee of the spiritual head of Plaintiff - Trust, these
payments were infact donations given by Jayantilal to the Trust over a
period of 7 years. Once such disputed questions of facts are asserted
and denied by either side, then it become a case for trial.
15. No prima facie opinion can be expressed by the Court
merely on the basis of such cross and rival averments made by the
parties. In so far as the Defendants are concerned, they have placed
on record details of payment relating to repayment of Rs.5.66 crores
made by Jayantilal according to them to Plaintiff. The reason
mentioned by them as to why these payments were made
intermittently and in the manner and fashion paid for is that the entire
amount of Rs.3.97 crores received by the Assignor (Dr. Peter) and the
confirming party could not be paid back due to income tax reasons.
Therefore it is prima facie seen that such disputed questions of facts
can only be resolved on evidence.
16. In so far as the issue of trespass and physically taking over
of the subject property is concerned, the case of Plaintiff does not
inspire any confidence. It is seen that Plaintiff has not taken any steps
whatsoever neither Plaintiff has approached the Society from the year
2012 to assert its right of it being in possession of the suit premises
and for seeking membership. If Defendants have forcibly taken over
the suit premises, it was incumbent upon the Plaintiff to have
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approached the Law Enforcement Agencies in the first instance to
show their bonafides. This has not been done rather complaint is filed
with the Police Authorities by Plaintiff claiming a missing certificate
namely Share Certificate of the subject premises. That complaint as
filed by Plaintiff is not adequate enough to inspire confidence of the
Court to believe the case of Plaintiff prima facie.
17. It is seen that Plaintiff claims ownership in respect of the
plot and structure standing thereon and asserts 50% undivided right in
the same by virtue of the Deed of Assignment dated 30.07.2012. It is
Plaintiff's case that other portion of the building namely ground floor,
first floor, garage and storage on the ground floor remained in
possession of Jayantilal the other co-owner and Defendants who are
his sons took over physical possession of the Plaintiff's suit premises.
18. That apart, Defendants have raised questions with respect
to Dr. Peter's entitlement to execute the Deed of Assignment being a
German national and not an Indian citizen and therefore questioned
the very foundation of the Deed of Assignment as being violative of
the FERA provisions and requirement of the permission from RBI as
per Master Circular dated 02.07.2012. According to Defendants, Dr.
Peter namely Shantilal Patel was born in Germany and lived in UK and
was a UK residence and never an Indian citizen either by birth or by
residence and therefore upon the death of the original lessee Bhailal
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Patel in the year 1983, he could not have held property in India
without the permission from the RBI. Once the title of the suit
premises is itself in question, then the case of Plaintiff cannot be
believeed prima facie. This case of the Defendants is also unbelievable
atleast prima facie on the basis of documents produced by Defendants
on record.
19. Right of the Plaintiff emanates from the Deed of
Assignment dated 30.07.2012. The challenge to the right of Plaintiff
thereto in respect of suit premises is argued vehemently by the
Defendants. Their respective submissions have been noted by the
Court. However when the Deed of Assignment and documents
submitted alongwith the Suit plaint are prima facie seen by the Court
they bear out a completely different picture. It is unfortunate that
none of the Advocates appearing at the bar either for the Plaintiff or
Defendants have pointed out the said position emanating from the
documents to me. For deciding interim relief all that the Court will
have to be convinced with is prima facie case placed before the Court.
Both the parties have argued on the basis of factual submissions and
law as noted above without drawing the Court's attention to the prima
facie case emanating from the documents which are appended to the
Suit plaint determining rights of both sides.
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20. Description of the Suit property is 50% undivided share,
right, title and interest in the leasehold Plot No.6 admeasuring 669.80
sq. meters bearing City Survey No.580 and situated, lying and being at
Juhu Vile Parle Development Scheme in the registration District and
Sub-District of Mumbai City and Mumbai Suburban together with joint
ownership of fie fully paid-up shares of Rs.100/- bearing Nos.76 to 80
(both inclusive) of the Jaihind Co-operative Housing Society Limited
and ownership of second floor admeasuring 161.54 sq.meters and
third floor admeasuring 92.84 sq.meters of the building known as
'Usha Villa'.
21. Whether what is stated in the description of the suit
property enures to the right of the Plaintiff or the Defendants or for
that matter the Assignor or the Assignee will have to be seen from the
documentary evidence placed before the Court. As stated above,
primary document is the Deed of Assignment dated 30.07.2012. This
document is executed by Dr. Peter @ Shantilal Bhailal Patel as
Assignor for transferring his 50% share which is the suit property to
the Plaintiff. This Deed of Assignment is also signed by Jayantilal
Mohanlal Patel as 'confirming party'. It is registered before the Sub-
Registrar of Assurance on 30.07.2012. What is stated in the Deed of
Assignment is crucial to determine how the rights have accrued to the
respective parties.
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22. Jaihind Cooperative Housing Society Limited is the owner
of Plot No.6 in Juhu Vile Parle Development Scheme. By Indenture of
Lease dated 10.09.1962 duly registered before Sub-Registrar of
Assurances, the Society leased and demised three plot of lands
belonging to the said Society to Lalbhai Purshottamdas Shah as lessee
for a term of 999 years with effect from 14.03.1962 for the annual
rent of Re.1/- and on terms and conditions contained therein. One out
of the 3 plots is Plot No.6. One of the significant term and condition
contained in the lease was that if the lessee desires to transfer by way
of assignment the balance period of the remainder of the lease to any
third party then prior written consent of the Society would be a
condition precedent for the same.
23. Thereafter by Indenture of Assignment dated 10.09.1969
duly registered with the Sub-Registrar of Assurances, the said lessees
Lalbhai Purshottamdas Shah and others as Assignors assigned Plot
No.6 to Bhailal Chhotalal Patel as Assignee with the Society being a
confirming party thereto. The unexpired term of the original
Indenture Leased dated 10.09.1962 was assigned for consideration
and on the terms and conditions contained therein.
24. Thus Bhailal Chhotalal Patel became shareholder of five
shares of Rs.100/- each bearing Nos.76 to 80 (both inclusive) during
his lifetime and until his demise. The said Bhailal Chhotalal Patel
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constructed a building known as 'Usha Villa' comprising of ground plus
three storey on the said plot No.6. The said Bhailal Chhotalal Patel
expired on 27.12.1983 leaving behind his last Will and Testament
dated 21.06.1982. According to Defendants and as stated in the Deed
of Assignment Dr. Peter alias Shantilal Bhailal Patel became entitled to
said plot No.6 and said building 'Usha Villa' in equal shares under the
last Will and Testament of the deceased Bhailal Chhotalal Patel.
25. The aforesaid dates are significant because what is
appended by the parties to the said Deed of Assignment bears a
different picture altogether. The parties have appended Memorandum
of Transfer which is effected by the Society on the backside of the
share certificate at page No.56 which prima facie shows that on
07.08.1969 under registered Folio No.77 duly authenticated by the
Secretary of Society name of Bhailal Chhotalal Patel was incorporated
as transferee in the Society record.
26. Thereafter it is seen that on 16.01.1985, name of Shri.
Jayantilal Mohanlal Patel was entered into as transferee against Folio
No.28 duly authenticated by the Secretary of the Society. On the same
Memorandum of Transfer, it is next seen that on 06.05.2006, name of
Dr. Peter alias Shantilal Bhailal Patel is added / entered into
Memorandum of Transfers / Share Certificate as transferee but there is
no authentication of the such transfer under the registered Folio of the
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Society, the Clerk's initials are not there as stated therein (it is a clear
blank) and most importantly the same is not authenticated by the
signature and stamp of the Society and Secretary which once again is a
clear blank.
27. Prima facie, it is seen that on 06.05.2006 name of Dr.
Peter entered into as transferee on the Memorandum of Transfer is not
duly authenticated by the Society. When this Memorandum of
Transfer is juxtaposed with the recitals in the Deed of Assignment at
page No.41 of the suit plaint, the same are completely incongruous.
The fact that Dr. Peter alias Shantilal Bhailal Patel and Shri Jayantilal
Mohanlal Patel (confirming party) were entitled to equal shares as
stated in the Deed of Assignment is prima facie proved false on the
face of record by merely looking at the Memorandum of Transfer.
28. It is seen that Jayantilal Mohanlal Patel expired on
22.03.2022. Thereafter it is Defendants' case that in the record of
Society name of Dr. Peter alias Shantilal Bhailal Patel does not appear
and the name of the Member which appears is that of Jayantilal
Mohanlal Patel, their father. Such case of Defendants' is prima facie
belied by or rather destroyed by the Memorandum of Transfer which
has been appended to registered Deed of Assignment by the parties
themselves.
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29. The dishonesty of Defendants is also prima facie evident
from the material which they themselves have placed on record. In
the compilation of documents Will of Bhailal Chhotalal Patel owner of
Plot No.6 and 'Usha Villa' has been appended at Exhibit-D, page
No.131. It is seen that in the said Will in paragraph No.5 he has
bequeathed and devised the said immovable property namely Plot
No.6 and Usha Villa to the beneficiaries more particularly described in
Schedule - A thereunder as 'Scheduled Beneficiaries'. He has
instructed his Executors and Trustees (one of them been Jayantilal
Mohanlal Patel) to divide amongst and pay to the Scheduled
Beneficiaries or to the exclusion of any one or more of them and in
such proportions as they deem fit.
30. In Schedule - A appended to the Will, list of Scheduled
Beneficiaries are (i) Dr. Peter alias Shantilal Patel (son of Bhailal C.
Patel), his wife and their issues, (ii) Dr. Mrs. L. K. alias Nalini
HinzPeter alias Patel (daughter of Bhailal C. Patel), her husband and
their issues and (iii) Jayantilal Mohanlal Patel (nephew of Bhailal C.
Patel), his wife and their issues. From the above, it is prima facie seen
that in so far as the Scheduled Beneficiaries and namely daughter -
Nalini is concerned, she is completely excluded from the present set of
transaction (Assignment). Her name does not even find mention in
the Deed of Assignment wherein it is stated that as per the last Will
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and Testament dated 21.06.1982, the Assignor and confirming party
namely Dr. Peter and Jayantilal Mohanlal Patel have become entitled
to the said plot and the said building 'Usha Villa' in equal shares. Thus
there is a clear dichotomy with respect to what is stated in the Will of
Bhailal Chhotalal Patel and the recital made on page No.41 in the
Assignment Deed. Thus it is prima facie clear that Defendants who are
sons of Jayantilal Mohanlal Patel have not approached the Court with
clean hands on the face of record.
31. Defendant Nos.1 and 2 cannot take a different and
contrary stand which was adopted by their own father Jayantilal
Mohanlal Patel who was a confirming party to the Deed of
Assignment. Though it is pleaded by the Defendants and also argued
across the bar vehemently that Dr. Peter alias Shantilal Bhailal Patel
was a citizen of United Kingdom and was not an Indian citizen by
birth and residence and therefore pursuant to the demise of
predecessor-in-title Bhailal Chhotalal Patel under his Will could never
have inherited any property in India contrary to Reserve Bank of
India's Master Circular, Foreign Exchange Regulation Act and Foreign
Exchange Management Act, 1999 Regulations, however once again the
documents which are appended to the suit plaint do not support such
submissions at all.
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32. It is seen that Dr. Peter alias Shantilal Bhailal Patel was
issued a PAN Card by the Government of India, copy of which is
appended at page No.73. It is seen that Dr. Peter alias Shantilal
Bhailal Patel was also issued a driving license as far back as in the year
1996 which is appended at page No.75 of the Suit Plaint. The
documentary evidence prima facie shows that he has been a resident
of "Usha Villa" in the Suit premises as per his residential address.
33. In that view of the matter, case of Defendants prima facie
cannot be believed. The question that now arises is why such a
circuitous transaction was entered into by the parties. Though it is
clear that permission of the Co-operative Housing Society was never
taken as it does not find mention nor place in the Deed of Assignment.
By virtue of the Deed of Assignment what is effected by the parties is
subdivision of property belonging to the Society. Society is governed
by the provisions of the Maharashtra Cooperative Societies Act, Rules
framed thereunder and bye-laws of the Society which are all placed on
record.
34. Be that as it may, in any event if any Assignment was
required to be contemplated by the parties, written consent of the
Society was sine qua non which was required to be procured from the
Society concerned. Thus it is seen that both Plaintiff and Defendants
have entered into Deed of Assignment by flouting the terms and
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conditions which govern substantive rights of the parties at the
threshold itself. Such rights of the parties would fructify eventually for
transfer of the subject property and would be ultimately decided only
at trial.
35. Hence the aforesaid actions of both parties which are
noted by the Court do not inspire confidence of the Court at all in so
far as Plaintiff is concerned or for that matter the Defendants are
concerned. It is Defendants' case that their father Jayantilal Mohanlal
Patel has repaid the entire amount to the Plaintiff in the form of
donations in order to save himself from the wrath of the Income Tax
Act. What is prima facie seen from the details of payments made by
Jayantilal Mohanlal Patel made to Plaintiff - Trust is that amounts
have been paid by Jayantilal Mohanlal Patel to Plaintiff - Trust by 10
cheque payments between 12.08.2012 upto 03.03.2017 over a period
of five years totalling to Rs.5,66,11,000/-, details of which are
appended to the reply filed by Defendants. According to Defendants,
these cheques were paid in lieu of the amount received from the
Plaintiff under the Deed of Assignment. However, if the Deed of
Assignment is seen, the entire amount (Rs. 3.97 crores) was paid by
one singular cheque as admitted therein to Dr. Peter alias Shantilal
Bhailal Patel whereas according to Defendants, their father Jayantilal
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Mohanlal Patel has returned the amounts under the Deed of
Assignment.
36. The nexus and circuitous transactions between Dr. Peter
alias Shantilal Bhailal Patel receiving the amount under the Deed of
Assignment and Jayantilal Mohanlal Patel repaying the same is prima
facie not established at all on the face of record. Parties will therefore
have to prove their case at trial. According to Plaintiff - Trust, the
amounts which were paid by Jayantilal Mohanlal Patel were donations
to the Trust. Whether Plaintiff is correct or whether the Defendants'
case needs to be accepted can only be proved at Trial.
37. Prima facie, it is seen that Deed of Assignment was
executed by parties and there are gaping loopholes which remain
unexplained in so far substantive right of Plaintiff thereto are
concerned. Merely because the Defendants' claim that they have been
paying the utility bills, electricity bills, water tax and property tax will
not entitle them to claim entitlement to the said premises unless the
suit is tried on evidence.
38. The aforesaid position prima facie, requires several issues
to be proved on evidence by both sides. From the Will of Bhailal
Chhotalal Patel it is prima facie, seen that Dr. Peter alias Shantilal
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Bhailal Patel was his son and Jayantilal Mohanlal Patel was his
nephew.
39. In my opinion, both the parties before me have failed to
prove their respective case at the threshold on the basis of available
documents so as to consider their submission in the interim.
40. In view of the aforesaid dichotomy which is prima facie
emanating from the record of the case, Court Receiver stands
appointed on the suit premises namely the 2 nd and 3rd floor of the
building called as 'Usha Villa' forthwith. It is seen that both
Defendants who are sons of Jayantilal Mohanlal Patel have placed a
banner on the entrance to the suit premises titled "Legal Notice" which
reads that 'same is owned and is in possession and custody of
Defendants after the demise of their father Jayant Mohanlal Patel and
general public are cautioned and desisted from disturbing the said
possession in any manner whatsoever'. The said legal notice which is
pasted thereon states that it is by order of the owners. However, in the
aforesaid facts and circumstances, I am of the opinion that the said
legal notice which has been appended on the suit premises, copy of
which is placed at Exhibit-D, page No.85 of the suit plaint is
immediately required to be removed.
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41. Court Receiver is directed to remove the same forthwith
and if so required take police assistance. Defendants are directed to
hand over the possession of the suit premises namely the 2 nd and the
3rd floors of the 'Usha Villa' building to the Court Receiver on the basis
of server copy of this order. If the Defendants or their representatives
do not hand over possession of the suit premises to the Court Receiver,
the Court Receiver is directed by this Court to break-open the lock on
the Suit premises and take charge of the suit premises and seal the
same forthwith and thereafter make appropriate report to the Court
for seeking further orders.
42. The case of Defendants in the legal notice dated
05.07.2023 appended at Exhibit-J, page No.91 that from the year
2006 Mr. Jayantilal Mohanlal Patel was the owner of Usha Villa and
was in adverse possession of the 2 nd and 3rd floor is once again prima
facie contrary to the contents of the Deed of Assignment as also to the
Memorandum of Transfer of the share certificate in respect of the said
premises.
43. However case of Defendant No.1 namely Vijay Jayantilal
Patel claiming to be the owner of the suit premises from 22.03.2022
merely on the basis that he has been paying electricity and water bills
and property taxes cannot be accepted at the threshold at all in the
aforesaid facts and circumstances of the case.
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44. In view of the aforesaid observations and findings which
prima facie emanate from the record of the case the Interim
Application seeking interim reliefs stands disposed with the aforesaid
directions to the Court Receiver. The Court Receiver will take custody
and possession of the said premises and after complying with this
order make an appropriate Report to the Court for dealing with the
suit premises strictly in accordance with law.
45. After the premises are taken over by Court Receiver both
parties shall be entitled to bid for being appointed as Agent of the
Court Receiver if Report is made for dealing with preservation,
protection and augmentation of the suit premises in the interregnum
until disposal of the Suit.
46. Interim Application is disposed in the above terms.
[ MILIND N. JADHAV, J. ]
47. After this order is pronounced, learned Advocate for
Defendant No.1 has persuaded the Court to stay the effect of this order
in order to test its validity and legality in the superior Court. However
in view of the strong facts which are stated qua the conduct of
Defendants in the present case, I am not inclined to accede to the
request made by learned Advocate for Defendant No.1. Hence, the
request made for stay of this order stands declined.
Amberkar [ MILIND N. JADHAV, J. ]
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AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.02.03
13:07:56 +0530
