[Cites 107, Cited by 0]
Bombay High Court
Sabita Rajesh Narang @ Sabita G. Raheja vs Sandeep Gopal Raheja And 33 Ors on 5 January, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-OS:5
NMS.1211.2014+.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1211 OF 2014
IN
SUIT NO. 777 OF 2014
Sabita Rajesh Narang .. Applicant
IN THE MATTER OF:
Sabita Rajesh Narang (Nee Sabita G. Raheja) .. Plaintiff
Versus
Sandeep Gopal Raheja and Ors. Defendants
....................
Mr. Kevic Setalvad, Senior Advocate a/w, Mr. Jehan Lalkaka, Ms.
Manaswi Agrawal, Ms. Salomi Kalwade, Mr. Vishal Latange,
Advocates i/b Meraki Chambers for Plaintiff.
Mr. Darius Khambata, Senior Advocate a/w, Ms. Nishtha Gupta,
Mr. Vivek A. Vashi, Alya Khan, Zahra Padamsee, Ms. Riya Thakkar
and Saumya M. Saurastri, Advocates i/b Mr. Vivek A. Vashi for
Defendant No.1.
Dr. Birendra Saraf, Senior Advocate a/w, Mr. Kushal Amin, Mr.
Vivek A. Vashi, Advocates i/b Mr. Vivek A. Vashi for Defendant
No.2.
Mr. Karl Tamboly, Advocate i/b Mr. Vivek A. Vashi for Defendant
Nos.3 and 4.
Mr. Aditya Mehta a/w, Ms. Etika Srivastava, Ms. Rakshita Singh,
Advocates i/by Rashmikant and Partners for Defendant No.5.
Mr. Vikram Nankani, Senior Advocate a/w, Mr. Hrushi Narvekar,
Advocate i/by Ms. Hansa Advani for Defendant Nos.7 to 10.
Mr. Yash Momaya, Advocate i/b Ms. Hansa Advani for Defendant
Nos.11 to 15, 17 to 19, 22, 24 and 25.
Mr. Sarosh Bharucha, Advocate i/b Ms. Madhu Hiraskar for
Defendant Nos.27 to 30.
Mr. Aseem Naphade, Advocate i/b Ms. Hansa Advani for Defendant
Nos.31 and 32.
Mr. Tushad Kakalia, Advocate i/b Ms. Vijay Kakwani for Defendant
Nos.33 and 34.
None appears for Defendant Nos.6, 16, 20, 21, 23 and 26.
...................
CORAM : MILIND N. JADHAV, J.
DATE : JANUARY 05, 2026
1
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NMS.1211.2014+.doc
JUDGMENT:
1. Heard Mr. Setalvad, learned Senior Advocate for Plaintiff;
Mr. Khambata, learned Senior Advocate for Defendant No.1; Mr. Saraf,
learned Senior Advocate for Defendant No.2; Mr. Tamboly, learned
Advocate for Defendant Nos.3 and 4; Mr. Mehta learned, Advocate for
Defendant No.5; Mr. Nankani, learned Senior Advocate for Defendant
Nos.7 to 10; Mr. Momaya, learned Advocate for Defendant Nos.11 to
15, 17 to 19, 22, 24 and 25; Mr. Bharucha, learned Advocate for
Defendant Nos.27 to 30; Mr. Naphade, learned Advocate for
Defendant Nos.31 and 32 and Mr. Kakalia, learned Advocate for
Defendant Nos.33 and 34 at length.
2. Pleadings in Notice of Motion No.1211 of 2014 seeking
interim reliefs are completed upto Sur-Rejoinder stage.
3. Notice of Motion is heard and determined finally by this
order.
4. Notice of Motion seeks interim reliefs as follows:-
"a. That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to restrain Defendants and in particular
Defendant Nos. 1 and 2 from excluding /obstructing the Plaintiff
from exercising and protecting her rights including in the joint
management and control of the properties, assets and businesses of
the Gopal Raheja including those held by and through the
instrumentality of the Defendant Nos. 7 to 19 and 21 to 23 and 27 to
32 and interest in 20 and 24 to 26 Companies and Entities;
b. That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to appoint an Administrator for the
management and control of the properties, assets and running of the
businesses of the Gopal Raheja Group including those held by and
through the instrumentality of the Defendant Nos. 7 to 19 and 21 to
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23 and 27 to 32 and interest in 20 and 24 to 26 Companies and
Entities till such time that the partition is implemented;
c. That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to pass an order of injunction restraining
the Defendants by themselves or through their servants, agents,
officers or employees from in any manner selling, transferring
and/or creating any encumbrance or third party rights in respect of
any of the properties, assets and businesses of the Gopal Raheja
Group including those held by and through the instrumentality of
the Defendant Nos. 7 to 19 and 21 to 23 and 27 to 32 and interest in
20 and 24 to 26;
d. That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to pass an order of injunction restraining
the Defendants by themselves or through their servants, agents,
officers or employees from in any manner altering, selling,
transferring and/or creating any encumbrance or third party rights
in respect of any of the shares of the Defendant Nos. 7 to 19 and 21
to 23 and 27 to 32 and in 20 and 24 to 26;
e. That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to direct Defendants and in particular
Defendant Nos. 1 and 2 to disclose on oath details and status of all
the properties, assets and businesses of the Gopal Raheja Group;
f. That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to stay all the acts, deeds and things
unilaterally done taken by Defendants and in particular Defendant
Nos. 1 and 2 in and from December 2011 including the illegalities
set out in Exhibit "AAA" post the demise of late Gopal L. Raheja;"
5. To determine and adjudicate the Notice of Motion following
relevant facts are necessary for consideration:-
5.1. Lachmandas Raheja, alongwith his wife and other family
members migrated to India during partition in the year 1947. In the
year 1956, his son Gopal L. Raheja joined him and his uncles,
Bhagwandas and Girdharidas Raheja in the real estate business.
Thereafter, in the year 1962 Chandru L. Raheja, brother of Gopal L.
Raheja joined the family business. In the year 1966, Lachmandas
Raheja separated from his brothers, Bhagwandas and Girdharidas
Raheja and continued business with this sons, Gopal L. Raheja and
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Chandru L. Raheja under the brand name "K Raheja Group". In the
year 1972, Suresh L. Raheja another son of Lachmandas Raheja joined
the family business. There was a fourth son Kishore L. Raheja who
joined and separated in 1991.
5.2. Lachamandas Raheja passed away on 21.06.1983. On
31.10.1987, Suresh L. Raheja separated his business from his brothers
by way of Family Arrangement. After 1987 Gopal L. Raheja and
Chandru L. Raheja continued business under the name "K Raheja
Group" while Suresh L. Raheja carried on business separately under
the brand name of "K. Raheja Developers" which is now known as
"Raheja Universal". In the year 1992, Defendant No.1 who is brother of
Plaintiff and son of Gopal L. Raheja completed his diploma in
Architecture and joined the business. During the period 1995-1996
'Gopal L. Raheja' and 'Chandru L. Raheja' agreed to separate their
businesses. All assets, businesses and properties jointly held by them
under K. Raheja Group were divided by way of a Family Arrangement
recorded through four Arrangements dated May-1995, 05.04.1996,
16.11.1996 and 09.12.1996 exhibited to the Suit Plaint as Exhibits C1,
C2, C3 and C4. It was agreed that the assets would be divided equally
between the two groups on a 50:50 share basis. Pursuant thereto,
blocks of businesses and assets handled by them were created and
allocated into 2 sets and parties agreed to execute documents to give
effect to the distribution by giving up cross holdings in the other set.
NMS.1211.2014+.doc
5.3. Summary Suit No.633 of 2000 was filed on 08.12.1999 by
Gopal L. Raheja Group against Chandru L. Raheja Group for recovery
of Rs.9 Crores alongwith interest being the differential amount
between the 2 sets as per the Family Arrangement of 1995-1996. In
2005 the Hindu Succession (Amendment) Act, 2005 came into force
and under the said amendment, daughters of coparceners were
recognized as coparceners by birth. Around the period 2005 - 2006,
Gopal L. Raheja made some protem change in the ostensible
shareholding structure pursuant to certain apprehensions and
insecurity expressed by Defendant No.1 that the Plaintiff and
Defendant No.5 and their husbands would influence Gopal L. Raheja
and sideline Defendant No.1. Transfers of shareholding took place
between 2005 - 2007 from Plaintiff and Defendant Nos.2 to 4.
Disputes arose for the first time on 01.09.2011 when Gopal L. Raheja
proposed division of assets to which Defendant No.1 allegedly did not
cooperate. It is alleged that between September 2011 to 09.01.2012,
Defendant No.1 allegedly took steps to isolate Gopal L. Raheja
including restricting his access to his residence and office. On
11.01.2012, Gopal L. Raheja addressed letter to Defendant Nos.1, 2
and 33 recording events which transpired i.e. changing of lock of office
cabin and cupboards therein. In this letter he recorded that all
operations of Defendant Nos.7 to 32 should be jointly executed by
Gopal L. Raheja and Defendant No.1 and he alongwith Plaintiff and
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Defendant No.5 revoked the Power of Attorney given to Defendant
No.1 and insisted that Defendant No.33 stopped attending office and
be withdrawn as Director and authorised signatory from all Gopal L.
Raheja Group Companies.
5.4. On 12.01.2012, Gopal L. Raheja discovered through ROC
records that Defendant No.1 had appointed Defendant Nos.33 and 34
as Additional Directors of the Group Companies without his consent.
On 28.01.2012, Defendant No.1 in reply to letter dated 11.01.2012
propounded the 1992 oral Family Arrangement of the Gopal L. Raheja
Group having been acted upon the years wherein it was decided that
Defendant No.1 will be the sole beneficiary of the Group assets; that he
would take over the complete charge of business despite Gopal L.
Raheja continuing to remain in business; that sisters of Defendant No.1
namely Plaintiff and Defendant No.5 would exit from the business and
on demise of Gopal L. Raheja his shares would formally be transferred
in the name of Defendant No.1.
5.5. On 28.02.2012, Gopal L. Raheja in his response to the above
letter denied existence of any such oral arrangement and alleged that
Defendant No.1 was taking undue advantage of his fiduciary position
since shares were already transferred to Defendant No.1 as an interim
measure on his assurance that he would abide by Gopal L. Raheja's
decision for distribution of the assets of Gopal L. Raheja Group as he
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decided. On 01.06.2012 Gopal L. Raheja proposed division of the
group assets in specific proportions and assured further distribution.
However settlement efforts failed in August - September 2012 and on
18.09.2012 Gopal L. Raheja filed Suit No.2366 of 2012 seeking
declaration and specific performance of the division of businesses and
assets proposed by him. Ad-interim order was passed on 24.09.2012
restraining further actions subject to Court orders. Subsequently on
16.10.2012, Affidavit-in-Reply was filed. It was Plaintiff's case in her
reply dated 27.05.2013 to Defendant No.1's letter that Defendant No.1
held shares only in fiduciary capacity and the 1995-1996 Family
Arrangement was valid and binding. On 25.01.2014 Arbitral Award
was passed by the learned Arbitrator Justice B. N. Srikrishna in
Arbitration proceedings between Gopal L. Raheja Group and Chandru
L. Raheja Group.
5.6. Pending hearing of Notice of Motion No. 2261 of 2012 in
Suit No.2363 of 2012 (filed by Gopal L. Raheja) and hearing on
preliminary issue raised by Defendant Nos.1 to 4 under Section 9A of
the Code of Civil Procedure, 1908 (for short 'CPC') Gopal L. Raheja
passed away on 18.03.2014. It is Plaintiff's case that within a period of
six days thereafter i.e. commencing from 24.03.2014 onwards
Defendant No.1 unilaterally initiated steps for transmission of shares
standing jointly in his and Gopal L. Raheja's name in his sole name
without consent or concurrence of Plaintiff or Defendant No.5. On
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14.04.2014 in continuation of her earlier correspondence dated
25.03.2014 Plaintiff addressed a detailed letter to Defendant No.1
asserting that she continued to have an equal and undivided share in
the assets and businesses of the Gopal L. Raheja Group of Companies
in terms of the 1995-1996 Family Arrangement. Plaintiff asserted that
Defendant No.1 held shares and Directorship in the Group Companies
in a fiduciary capacity and in trust for members of the Gopal L. Raheja
Group and denied existence of any oral Family Arrangement of 1992
propounded by Defendant No.1 which was stated to be false and
contrary to law. Plaintiff called upon Defendant No.1 to fix a date and
time to jointly discuss and undertake steps for management and
control of the Group Companies and assets in accordance with the
1995-1996 Family Arrangement. By reply dated 25.04.2014 Defendant
No.1 denied Plaintiff's claims and contended that the alleged real oral
Family Arrangement of 1992 was fructified over the years and was
binding on all parties. Defendant No.1 asserted that all shares vested
absolutely in him and/or Defendant Nos.2 to 4; that he and Defendant
Nos.2 to 4 were the beneficiaries of the Gopal L. Raheja Group assets
and Plaintiff was neither a shareholder nor entitled to any share
therein as she had received her reciprocal benefit. It was contended
that all shares earlier standing in Plaintiff's name were already
transferred to Defendant Nos.1 and 2 to 4 resulting in her complete
exit from the Group Companies and that Plaintiff and Defendant No.5
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continued as Directors in some Companies only as a matter of
convenience. On 28.04.2014 Defendant No.1 contended that
transmission of shares was governed by Articles of Association of the
respective Companies and accordingly they were transmitted to his
name by following the due process of law.
5.7. From 29.04.2014 correspondence was exchanged between
Plaintiff and Defendant No.1 with assertions and denials. On
16.06.2014 Defendant No.1 without knowledge of Plaintiff filed
Chamber Order No.399 of 2014 in Summary Suit No. 633 of 2000
seeking substitution of her name in place of Gopal L. Raheja claiming
to act as representative of Gopal L. Raheja and Karta of Gopal
Lachmandas HUF. On the same day i.e. 16.06.2014, Defendant Nos.27
to 30 Companies convened Extraordinary General Meetings at the
instance of Defendant No.1 wherein Resolutions were passed for
removal of Plaintiff and Defendant No.5 as Directors. By reply dated
21.07.2014 to Plaintiff's letter dated 18.07.2014 Defendant No.1
reiterated that objections and reservations raised by the Plaintiff were
of no consequence and that he intended to avail credit facilities
amounting to Rs.391 Crores against charge of properties belonging to
Defendant No.9 Group Company. On 01.08.2014 the present suit was
filed by Plaintiff. On the same date the present Notice of Motion was
also filed.
NMS.1211.2014+.doc
5.8. On 27.10.2014 Defendant No.1 filed Perjury Petition No.2 of
2014 against Plaintiff, inter alia seeking dismissal and/or rejection of
the present Suit and Notice of Motion No.1211 of 2014. This Petition is
pending. On 08.11.2014, Defendant Nos.1 to 4 filed a limited
Affidavit-in-Reply to present Notice of Motion raising preliminary
issues under Section 9A of the CPC, raising issues of limitation and bar
of transaction under the Benami Transactions Act. Pending a reference
admitted on 17.08.2015 before a larger bench of the Supreme Court
the present Suit was dismissed under Section 9A of the CPC by Order
dated 11.09.2015 holding that issues raised were matters of evidence
and Plaintiff had chosen not to lead any evidence. On 07.10.2015
Plaintiff filed Appeal No.517 of 2015 challenging the said order dated
11.09.2015.
5.9. Appeal was admitted and subsequently by judgment dated
04.10.2019 the Division Bench of this Court allowed the Appeal and
restored the Suit and the Notice of Motion. On 11.07.2023, the above
Division Bench Order was upheld and Special Leave Petition filed by
Defendant Nos.1 to 4 was dismissed by Supreme Court. On 31.07.2023
Defendant Nos.1 to 4 filed Interim Application (Lodging) No. 20871 of
2023 under Order VII Rule 11 of CPC seeking rejection of Suit Plaint
on grounds which were already raised and rejected by the Division
Bench in Appeal and Supreme Court. By Order dated 10.06.2024
passed by this Court (Coram: Manish Pitale, J.), Interim Application
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(Lodging) No.20871 of 2023 was dismissed with costs of Rs.2,00,000/-
imposed on Defendant Nos.1 to 4 and hearing of Suit was expedited.
Written Statement is not filed. Writ of Summons is not served on
Defendants. At the outset, before hearing of this Notice of Motion on
the suggestion of Court Defendant Nos.1 to 4 agreed to filed their
Written Statement within 2 weeks but Plaintiff's instructions were to
press the Application for interim reliefs. Before I consider and state the
submissions made by the respective Advocates, it is necessary to place
on record that there are following four (4) other civil proceedings
pending between the parties hereto in this Court qua the same cause of
action and/or assets/properties on the basis of their pleaded
substantive rights.
(i) Suit No.2363 of 2012 was filed by Gopal L. Raheja
(now prosecuted by Defendant No.5 as Plaintiff
therein) for distribution and division of assets;
(ii) Testamentary Suit No.63 of 2015 is filed by Defendant
No.1 propounding the Will dated 14.05.2017 of Gopal
L. Raheja;
(iii) Testamentary Suit No.115 of 2015 is filed by Defendant
No.5 for propounding the Last Will dated 12.01.2012 of
Gopal L. Raheja; and
(iv) Suit No.103 of 2015 is filed by Defendant No.5 for
Administration and protection of assets of Gopal L.
Raheja's estate.
6. Mr. Setalvad, learned Senior Advocate for Plaintiff at the
outset would submit that the Plaintiff being a coparcener in the Joint
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Family Property of Gopal L. Raheja has invoked her substantive right
as a coparcener in the present Suit proceeding seeking partition. He
would submit that under paragraph No.210 of Mulla's Hindu Law - 24th
Edition1 a "Joint Hindu Family" consist of all persons lineally
descended from a common ancestor and includes their wives. He
would submit that a Hindu "Coparcenary" is a narrower body as
compared to the Hindu Joint Family as it includes only those persons
who acquire an interest in the joint or coparcenary property by birth.
He would submit that such coparcenary is confined to the three
generations of descent i.e. sons, grandsons and great-grandsons and
after the amendment of 2005, daughters, grand-daughters and great-
grand-daughters are now included.
6.1. He would submit that only sons and daughters vertically and
laterally would constitute a coparcenary in a Joint Hindu Family. He
would submit that wives of sons/brothers can be Members of the Joint
Hindu Family but cannot be considered as coparceners as their right to
share would only arise at the time of partition. In support of this
submission he has referred to and relied upon the decision of this
Court in the case of Uday Narendra Shah Vs. Narendra Amritlal Shah 2
and specifically on paragraph Nos.11 to 16 of the said decision.
1 Part I - Principles of Hindu Law; I. - Coparceners; Authored by Sir Dinshaw Fardunji Mulla.
2 2014(2) Mh.L.J.739
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6.2. He would draw my attention to paragraph No.214 of the
Mulla's Hindu Law - 24th Edition and would submit that essence of
coparcenary lies in unity of ownership with coparcenary property
vesting in the entire body of coparceners collectively. He would submit
that as long as the Joint Family remains undivided no individual
coparcener can predicate or claim his/her definite share in the
property as the share of the coparcener fluctuates and enlarges by birth
and death of the family members and only on partition the share
becomes definite and until partition the right of coparceners are
limited to common possession and enjoyment. He would submit that as
per paragraph No.339 of the Mulla's Hindu Law - 24th Edition only on
partition the respective share becomes a separate property and if an
individual separating from his/her other coparceners continues joint
with his own issues then the share allotted to him on partition shall
retain the character of a coparcenary property qua such issue, who
acquire an interest therein by birth. Hence, he would submit that in
view of these settled legal principles and in this background Plaintiff
being a coparcener of the Gopal L. Raheja Group of properties and
Companies has a subsisting legal interest in the suit properties which
he would urge the Court to protect pending adjudication of the Suit
proceeding and grant her interim reliefs as prayed for.
6.3. He would submit that the Suit is not barred by Section 4(1)
of the Prohibition of Benami Property Transactions Act, 1988 (for short
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"Benami Transactions Act") as pleaded by Defendants since Plaintiff's
case squarely falls within the exception carved out under Section 4(3)
(a) therein wherein the person in whose name the property is held is a
coparcener in a Hindu Undivided Family and if such property is held
for the benefit of the coparceners of the family then the bar under
Section 4(1) would not apply. He would submit that Gopal L. Raheja,
Plaintiff, Defendant Nos.1 and 5 are/were coparceners in the Gopal L.
Raheja HUF (for short "HUF") and Defendant No.2 a Member of the
said HUF and hence even though shares of Gopal L. Raheja Group
Companies are held in name(s) of one or the other member(s) /
coparcener(s) it does not automatically vest any definite right of that
member(s) / coparcener(s) as shares are held by those Defendants
ostensibly for and on behalf of members of the Group. In support of his
above submission he has referred to and relied upon the decision of the
Supreme Court in the case of C.I.T., Andhra Pradesh Vs. C.P. Sarathy
Mudaliar3 and specifically on paragraph Nos.8 and 9 of the said
decision.
6.4. He would submit that Defendant Nos.1 and 2 have admitted
existence of the Gopal L. Raheja HUF in the 1995-1996 Family
Arrangement. He would submit that upon Gopal L. Raheja's death in
the Chamber Order No.399 of 2014 filed in Summary Suit No.633 of
2000 against Chandru L. Raheja Group, Defendant No.1 sought to
3 (1972) 4 SCC 531
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implead himself as Karta of the HUF. He would submit that this
conduct and admission by Defendant No.1 constitutes a judicial
admission under Section 58 of the Indian Evidence Act, 1872 which is
binding on Defendant Nos.1 to 4 and operates as a waiver of proof and
forms a foundation of the parties' rights. In support of this submission
he has referred to relied upon the decision of the Supreme Court in the
case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and
Ors.4 specifically on paragraph No.27 of the said decision. He has
further referred to and relied upon the decision of the Full Bench of the
Allahabad High Court in the case of Shri Ajodhya Pd. Bhargava Vs. Shri
Bhawani Shankar Bhargava and Another5 and specifically on
paragraph Nos.66 to 72, 77, 83 to 85, 95 and 106 of the said decision.
6.5. He would submit that in the year 2016 i.e. after filing of the
Suit, the Benami Act was amended, inter alia, and an exception was
carved out in Section 4(3)(a) and integrated into Section 2(9)(A)(i).
He would submit that the scope of the amended provision is wider as it
includes property held by a Member of the HUF and therefore shares
held by Defendant Nos.1 to 4 for and on behalf of other members of
Gopal L. Raheja Group continue to be protected under this statutory
exception.
4 (1974) 1 SCC 242
5 1956 SCC OnLine All 131
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6.6. He would submit that Plaintiff's case falls within the
"fiduciary capacity" exception under Section 4(3)(b) of the Benami Act
(as it stood at the time of filing of the Suit in 2014). He would submit
that the statutory bar under Section 4(1) does not apply where
property is held in a fiduciary capacity for another's benefit. He would
submit that shares of Gopal L. Raheja Group Companies, though
admittedly are standing in the names of Defendant Nos.1 to 4 and/or
their nominees, they are held by them in a fiduciary capacity for the
benefit of other members, including the Plaintiff. He would submit that
the expression "fiduciary capacity" is of wide import, extending beyond
formal trusteeship, and is recognized both before and after the 2016
amendment, thereby excluding the Plaintiff's case from the bar under
Section 4(1) of the Benami Transactions Act. In support of this
submission he has referred to and relied upon the decision of the
Supreme Court and Delhi High Court in the case of Marcel Martins Vs.
M. Printer and Ors.6 specifically on paragraph Nos.23 to 38 and 44 of
the said decision and Neeru Dhir and Ors. Vs. Kamal Kishore Dhir and
Ors.7 specifically on paragraph Nos.3, 20 to 25 of the said decision. He
would submit that in that view of the matter Defendant Nos.1 to 4
cannot claim exclusive ownership of the shareholdings in Defendant
Nos.7 to 32 and deny the right of the Plaintiff to participate and deal
with the operations of the said entities which primarily belong to the
6 (2012) 5 SCC 342
7 2020 SCC OnLine Del 2506
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Gopal L. Raheja Group of Companies and Plaintiff being the Karta of
the Gopal L. Raheja HUF being the eldest daughter post the demise of
Gopal L. Raheja on 18.03.2014. He would submit that right of the
Plaintiff is traced to the 1995-1996 Family Arrangement when the
Gopal L. Raheja Group separated and carved out as the Gopal L.
Raheja HUF comprising of Plaintiff, Defendant No.1, Defendant No.5
and Gopal L. Raheja himself and thus urge the Court to grant the
interim reliefs.
6.7. In this regard he has relied upon the decision of the Supreme
Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others8
and specifically on paragraph Nos.22 to 47 of the said decision and
taken me through them painstakingly to buttress his submissions.
6.8. Mr. Setalvad in support of his submissions for seeking
interim relief has further referred to and relied upon the following
citations and decisions of Court:-
i. Manu Gupta Vs. Sujata Sharma9
ii. Tribhovandas Haribhai Tamboli Vs. Gujarat Revenue
Tribunal 10
iii. Revanasiddappa Vs. Mallikarjun 11
iv. Anjana Kumar Vs. Vivek Goel 12
v. Sandeep Kohli Vs. Vinod Kohli 13
vi. Chhotey Lal Vs. Jhandey Lal 14
vii. Mahavirprasad Badridas Vs. M S Yagnik 15
8 (2020) 9 SCC 1
9 2023 SCC Online Del 7722
10 1991 3 SCC 442
11 2023 10 SCC 1
12 2024 SCC Online Del. 4135
13 2016 SCC Online Del. 6533
14 AIR 1972 All 424
15 AIR 1960 Bom. 191 (DB)
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viii. Ram Laxman Sugar Mills Vs. CIT, Uttar Pradesh 16
ix. P.A.R. Ramaswamy Chettiar Vs. Srinivasa Iyer and Ors. 17
x. Commissioner of Income Tax, Assam, Tripura and Manipur
Vs. Nand Lal Agarwal and Anr.18
xi. Adiveppa and Ors. Vs. Bhimappa and Anr.19
xii. N. Padmamma and Ors. Vs. S. Ramakrishna Reddy and
Ors.20
xiii. Sri. Rabindra Mohan Senapati Vs. Sri. Budhiram Senapati
and Ors.21
xiv. V. Anantha Raju and Anr. Vs. T.M. Narasimhan and Ors. 22
xv. Syed Dastagir Vs. T.R. Gopalkrishna Setty 23
xvi. Prasanta Kumar Sahu and Ors. Vs. Charulata Sahu and
Ors.24
xvii. Gulabrao Maruti Bhagat Vs. Bhagwan Nana Bhagat and
Ors.25
xviii. Raghunath Rai Bareja and Anr. Vs. Punjab National Bank
and Ors.26
xix. Appalaswami Vs. Suryanarayanmurti 27
xx. State Bank of India Vs. Ghamandi Ram (Dead) Through Shri
Gurbax Rai 28
7. Mr. Khambata, learned Senior Advocate appearing on behalf
of Defendant No. 1, would oppose the Application and at the outset
submit that the present Suit is not a suit filed for partition of the HUF
property, nor does the Suit Plaint disclose any cause of action under
the HUF or coparcenary law as argued by Plaintiff. He would submit
that the Plaintiff has belatedly attempted to recast her case under the
exception of Section 4(3)(a) of the Benami Transactions Act despite no
foundational pleadings in the Suit Plaint.
16 MANU/SC/0176/1967
17 1936 43 LW 437
18 1965 SCC Online SC 214
19 (2017) 9 SCC 586
20 (2015) 1 SCC 417
21 2014 SCC Online Ori 219
22 (2021) 17 SCC 165
23 (1999) 6 SCC 337
24 (2023) 9 SCC 641
25 2001 (2) All MR 598
26 (2017) 2 SCC 230
27 1947 60 LW 412
28 AIR 1996 SC 1330
NMS.1211.2014+.doc
7.1. He would submit that Plaintiff has not pleaded in the Suit
that the properties belong to the Gopal L. Raheja HUF or that she is a
coparcener or Karta of the family. He would submit that HUF
ownership argument is raised for the first time in 2023 during oral
submissions in Appeal No.517 of 2015, over 11 years after the demise
of Gopal L. Raheja on 18.03.2014. He would submit that the Suit
Plaint as filed alleges that Defendant No.1 held shares and
management in a fiduciary capacity for the Gopal L. Raheja Group of
Companies. He would submit that Plaintiff has now abandoned these
pleadings and impermissibly attempted to create a new case without
amendment of the Suit Plaint.
7.2. He would submit that Plaintiff seeks interim reliefs after 11
years, despite seeking identical reliefs in Notice of Motion 1740 of
2017, Notice of Motion 1004 of 2018, and Interim Application No. 1 of
2020 in Appeal No.517 of 2015 which were never allowed by the
Court, thus demonstrating lack of urgency and laches. He would
submit that delay is rather attributable to Plaintiff's own conduct and
her claim of she being kept out of Court is factually incorrect as she has
been prosecuting various Suit proceedings in the interim. He would
submit that Plaintiff's attempt to equate Gopal L. Raheja Group with
the Gopal L. Raheja HUF is a complete afterthought unsupported by
pleadings.
NMS.1211.2014+.doc
7.3. He would submit that Gopal L. Raheja Group's composition
is inconsistent with the legal concept of a coparcenary, and Defendant
Nos.3 and 4 daughters of Defendant No.1 and grand-daughters of
Gopal L. Raheja who would be coparceners, are excluded. He would
submit that the Plaint contains no prayer for declaration or partition of
HUF or coparcenary property, reflecting deliberate omission. He would
submit that the 1995-1996 Family Arrangement divided 2 family
groups, not HUFs exclusively, as is evident from Exhibit C3 which is
admittedly signed by multiple parties including Late Gopal L. Raheja
and Defendant No.1.
7.4. He would submit that Plaintiff has suppressed Defendant
No. 1's signature in Exhibit C-3, misleadingly projecting only Late
Gopal L. Raheja as Karta. He would submit that such selective omission
undermines Plaintiff's credibility and conduct and seeks to recast the
nature of the 1995-1996 Family Arrangement. He would submit that
references to "Karta" is only descriptive in Exhibit C3 and does not
establish a case for HUF partition as assets are described as family-
owned and quasi-partnership businesses by members of the 2 groups
therein.
7.5. He would submit that the Plaint pleads a 3 year limitation
period, not 12 years under Article 110 of the Limitation Act, 1963
further demonstrating that the Suit is not filed for HUF partition. He
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would submit that even if the HUF existed under the 1995-1996
Family Arrangement, Plaintiff's share could not exceed 1/4th therein
due to absence of Defendant Nos. 3 and 4 at the relevant time. He
would submit that the Plaintiff's claim for a 1/4 th independent share
itself contradicts her HUF partition theory.
7.6. He would submit that the definition of the Gopal L. Raheja
Group is inconsistent throughout the Plaint, excluding minor
coparceners Defendant Nos.3 and 4. He would submit that Plaintiff
refers to Late Gopal L. Raheja as Head of the Group, with no
meaningful reference to a Karta. He would submit that Plaintiff has
failed to demonstrate how shares and assets vested in the HUF,
misplacing reliance on Section 101 of the Indian Evidence Act, 1872,
as the burden of proof lies on her to atleast prima facie prove the
same. He would submit that transfers to non-coparceners completely
belie the Plaintiff's claim that shares in the Group Companies were
held for the HUF's benefit.
7.7. He would submit that transfers to Defendant Nos.2, 3, 4 and
Companies pre and post 2005 amendment to the Hindu Succession Act
demonstrate that HUF shares were minimal which is supported by the
decisions and findings of the Supreme Court in the case of Vineeta
Sharma (supra) and State Bank of India Vs. Ghamandi Ram (supra).
He would submit that entries between 2001 to 2007 clearly distinguish
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HUF shares from personal shares, consistent with the 1992 oral Family
Agreement propounded by Defendant No.1 since it has been acted
upon.
7.8. He would submit that Defendant No.1's consistent stance
since 2014, including balance sheets showing no HUF shares, remains
unchallenged by the Plaintiff. He would submit that the Suit is not
founded on HUF or coparcenary property, as is evident from the
Plaintiff's pleadings, admissions, and failure to rebut. He would submit
that the Plaintiff has relied on pleadings of Gopal L. Raheja in Suit No.
2363 of 2012, wherein Gopal L. Raheja never claimed that the HUF
had full ownership of the Group Companies. He would submit that
Gopal L. Raheja's position was that only certain limited shares
belonged to the HUF, distinct from his personal assets which is borne
out by the 1995-1996 Family Arrangement wherein Gopal L. Raheja
HUF is one of the six (6) co-sharers and signatory thereto on behalf of
Gopal L. Raheja Group which admittedly includes a non-coparcener
(Defendant No.2).
7.9. He would submit that the Plaintiff has suppressed affidavits
of 25.10.2012 and 10.12.2012 (Rejoinder, later withdrawn) in which
she has admitted the binding nature of the 1995-1996 Family
Arrangement, undermining her current case, supported by the decision
of hte Supreme Court in the case of S. P. Chengalvaraya Naidu Vs.
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Jagannath (dead) by Lrs. & Ors.29, Ramjas Foundation & Anr Vs. Union
of India30, and Prestige Lights Ltd. Vs. State Bank of India31. He would
rely upon the decision of the Calcutta High Court in the case of
Mohammed Seraj Vs. Adibar Rahaman Sheikh & Ors. 32 which holds
that statements even in withdrawn pleadings can be treated as
admissions.
7.10. He would submit that Plaintiff's reliance on the purported
01.06.2012 division is inconsistent, arbitrarily asserting a 25% share
without financial support. He would submit that in Testamentary
proceedings filed by the Plaintiff, she has acted only as a legal heir
under the Hindu Succession Act, 1956, never as coparcener or Karta.
He would submit that suppression of material admissions and prior
pleadings amount to unclean hands. He would submit that Defendant
No.1 has led extensive evidence in Suit No.2363 of 2012 in which
Plaintiff has deliberately chosen not to cross-examine him on any issue
whatsoever which she has pleaded and argued for interim reliefs
herein. He would submit that cross-examination of co-defendants is
legally permissible and Plaintiff's failure to do so thus cannot be
excused.
7.11. He would submit that reliance placed on prior Suit No.2363
of 2012 by the Defendant is permissible and is supported by the
29 (1994) 1 SCC 1
30 (2010) 14 SCC 38
31 (2007) 8 SCC 449
32 1968 SCC Online Cal 43
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decision in the case of Muddasami Venkata Narsaiah Vs. Muddasani
Sarojana33 and Vinod s/o Khimji Lodaya Vs. Muljibhai s/o Manjibhai
Patel & Ors.34 He would submit that Defendant Nos.1 to 4's limited
Affidavit has relied on evidence from Suit No.2363 of 2012,
unrebutted in Plaintiff's Rejoinder. He would submit that Plaintiff's
contention that Defendant No.1's evidence in Suit No.2363 of 2012 is
unreliable as it was led under Section 9A is misconceived, as such
evidence is required to be considered at the stage of final disposal in
terms of Order dated 16.07.2018 read with Section 3 of the Ordinance
dated 27.06.2018. He would submit that Defendant No.1 has never
claimed HUF was partitioned and transfers clearly show that its shares
were never treated as HUF property.
7.12. He would submit that decision in the case of Vineeta Sharma
(supra) establishes that a combination of factors demonstrate partition,
which the conduct of the Plaintiff, Defendant No.5 and Gopal L. Raheja
on record satisfies. He would submit that decision in the case of H.
Vasanti Vs. A. Santha (Deceased) Through Lrs. And Others 35 places the
burden on the Plaintiff to prove coparcenary character, which she has
failed to discharge even at the prima facie stage. He would submit that
reliance placed by Plaintiff on Revanasiddappa (supra) and Anjana
Kumar (supra) is misplaced, as they reinforce strict proof requirements
33 (2016) 12 SCC 288
34 Civil Revision Application No.249 of 2011, decided on 25.06.2013
35 (2023 SCC Online SC 998))
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which are absent here at the interim stage.
7.13. He would submit that Plaintiff's reliance on oral partition
judgments is also misconceived; that HUF continues to exist with
balance sheets up to Financial Year 2023-24. He would submit that
reliance on Plaint of Suit No.633 of 2000 is misleading, as it was filed
by multiple parties individually, not solely by HUF. He would submit
that the Suit demonstrates multiple recipients of shares, with HUF
being only one among them.
7.14. He would submit that Plaintiff first attempted to claim Karta
status orally over a decade after Gopal L. Raheja's demise and
therefore her reliance on the decision of the Supreme Court in the case
of Nagindas Ramdas Vs. Dalpatram Ichharamand and Ors.36 is
misplaced. He would submit that paragraph No.27 of the same case
clarifies that admissions in separate proceedings are evidentiary, not
judicial. He would submit that Basant Singh Vs. Janki Singh37
reinforces that extra-judicial admissions are not conclusive. He would
submit that Shri Ajodhya Bhargava Vs. Shri Bhawani Shankar
Bhargava similarly distinguishes judicial and extra-judicial admissions,
which are only partially binding.
7.15. He would submit that even if some assets were partially
acquired from a family nucleus, the doctrine of blending ensures that
36 (1974) 1 SCC 2420
37 AIR 1967 SC 341
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assets purchased from personal funds or independent sources retain
their separate character and there is no automatic conversion of all
acquisitions into joint family property merely because some prior assets
belonged to the nucleus. He would submit that Plaintiff cannot assume
that shares, properties, or businesses automatically belong to the HUF
without tracing each asset to the nucleus of joint family funds and
there is no presumption that property is joint family property merely
by existence of a joint Hindu family and the burden lies on the
claimant to establish HUF character.
7.16. He would submit that the Court in the case of Angadi
Chandranna (supra) relied upon by Plaintiff emphasized that the
existence of the nucleus must be established as a matter of fact, and
cannot be presumed on probabilities and mere existence, however
small, is insufficient; that it must be shown to be capable of reasonably
producing the alleged joint family property and even if the nucleus is
established, any accretions or acquisitions by a family member are not
automatically presumed to be from the nucleus unless it is shown that
the nucleus was an income-yielding apparatus, as held in R. Deivanai
Ammal (Died) Vs. G. Meenakshi Ammal. He would submit that
Plaintiff has prima facie failed to establish a presumption that the
properties, shares, and assets belong to the HUF; that there is no
proven nucleus, and reliance on prior judgments or oral partition
claims is entirely misplaced and that partial blending of funds does not
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convert personal acquisitions into HUF property without explicit proof
linking them to the nucleus. He would submit that a person asserting
joint family property must prove the existence of a sufficient nucleus as
held in DS Lakshmaiah & Anr. Vs. L Balasubramanyam & Anr.38
7.17. He would submit that it is held in the case of Amita
Gandoak Vs. Harikrat Singh Sodhi39 that a Hindu male, along with his
wife and children, ipso facto constitutes a Hindu Undivided Family.
However, post-1956, a HUF can only come into existence if an
individual's property is thrown into a common hotchpotch with the
intention of making such property HUF property. He would submit that
in the case of Sagar Gambhir Vs. Sukhdev Singh Gambhir40, a Division
Bench of the Delhi High Court held that the only way a Hindu
Undivided Family can come into existence after 1956 is if the family
property is thrown into a common hotchpotch and once property is so
combined, the exact details of the specific date, month, and year of the
creation of the HUF must be clearly pleaded and mentioned, as
required under Order VI Rule 4 of the CPC and entitlement of the
coparcener to a share in such HUF property must be expressly stated,
and such positive statements regarding the constitution of the HUF are
mandatory.
38 (2003) 10 SCC 310
39 2024 SCC OnLine Del 3475
40 2017 SCC OnLine Del 7305
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7.18. He would submit that in Surender Kumar Vs. Dhani Ram41,
the Delhi High Court held that it is insufficient to merely aver in the
Plaint that a joint Hindu family or HUF exists and detailed facts must
be specifically pleaded, including when and how the HUF properties
became HUF properties, with factual references for each property
claimed and only when such specific facts are clearly averred can a suit
be filed and maintained by a person claiming to be a coparcener for
the partition of HUF properties. He would submit that the Plaintiff has
placed reliance on Manu Gupta (supra) and Tribhovandas Haribhai
Tamboli (supra) to contend that being Karta is a legal entitlement of
the eldest or senior-most member (including a daughter) of the HUF
and that these judgments do not have any application in the present
case because Plaintiff has neither sought a declaration to be Karta of
the HUF in the present Suit nor she has ever claimed to be Karta of the
said HUF till date.
7.19. He would submit that Plaintiff, having recognised the fatal
flaws in her case, is belatedly attempting to couch her relief under the
guise of a HUF and such an attempt ought not to be permitted after 11
years as it would amount to a gross abuse of the due process of law if
Plaintiff is allowed to alter and set up a case inconsistent with the
pleadings in the Suit Plaint, after a lapse of almost a decade. He would
submit that the Plaintiff is effectively seeking to thwart the functioning
41 2016 SCC OnLine Del 333
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of the Defendant Companies, which are going concerns, and is seeking
in effect to halt the revenue-generating activities of the companies,
attempting to bring them to a standstill without regard to the goodwill
and reputation of the companies, the family, or the adverse impact on
the life and livelihood of over 2,000 persons (as of 2014) employed
and associated with the companies. He would submit that Plaintiff has
failed to make out any case for the grant of interim reliefs in her
favour.
7.20. He would submit that Defendant No.1 filed Application
under Order VII Rule 11 of the CPC, 1908 seeking rejection of the
Plaint as being barred inter alia under the provisions of the Limitation
Act, 1963, the Prohibition of Benami Transactions Act, 1988, and the
Companies Act, 1956 and 2013.
7.21. He would submit that the said Application came to be
dismissed by an Order dated 10.06.2024 passed by this Court. He
would further submit that Defendant No.1 has preferred Appeal (L)
No.21572 of 2024 against the said Order, which Appeal is presently
pending before this Court and no orders have been passed therein till
date.
7.22. He would submit that the findings recorded in the Order
dated 10.06.2024 are confined strictly to the limited scope of an
Application under Order VII Rule 11 of the CPC, wherein this Court
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considered only the averments made in the Suit Plaint, and was
expressly precluded from examining any material beyond the Plaint.
7.23. He would submit that, consequently, the said Order does not
consider, and could not have considered, the extensive documentary
and evidentiary material now placed on record by Defendants,
including prior pleadings, cogent documentary evidence from the
record of the Defendant Companies / Entities, affidavits, admissions,
documentary evidence and conduct of the Plaintiff which Defendant
No.1 is entitled to rely upon at this stage which needs consideration for
grant / rejection of interim reliefs.
7.24. He would submit that once the material pleaded by
Defendant No.1 as also other Defendants is taken into account, it will
be seen that the present Suit is demonstrably barred under the
provisions of the Limitation Act, 1963 and/or the provisions of the
Benami Transactions Act and/or the Companies Act, 1956 and 2013,
notwithstanding the pendency of the Appeal arising from the Order VII
Rule 11 proceedings.
7.25. He would submit that the relevant portion of the Order
dated 10.06.2024 passed on the Application under Order VII Rule 11
of the CPC, 1908, insofar as limitation is concerned, records that based
on the averments in the Plaint, the issue of limitation was held to be a
mixed question of law and fact and therefore it is not determined at
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the stage of Order VII Rule 11.
7.26. He would submit that assuming whilst denying that
limitation is a mixed question of law and fact, Defendant Nos.1 to 4
are relying upon material which could not have been considered at the
stage of Order VII Rule 11 which clearly establishes that the Plaintiff's
claims are barred by limitation and hit by gross delay and laches.
7.27. He would submit that the Plaintiff's claim of entitlement to
an alleged one-fourth share in the assets of the Gopal L. Raheja Group
of Companies on the basis of the 1995-1996 Family Arrangement is ex
facie untenable and contrary to contemporaneous documents and her
own conduct. He would submit that the contemporaneous documents,
including the oral Family Arrangement of 1992 having been fructified
over the years, the 1992 Will of Late Smt. Sheila Gopal Raheja, the
2001 and 2005-2007 share transfers by Gopal L. Raheja, Plaintiff and
Defendant No.5 to Defendant Nos.1 to 4, and Plaintiff's own
knowledge and participation, clearly demonstrate that Plaintiff's claims
are barred by limitation, and her purported entitlement to 1/4th share
is inconsistent with the actual transactions and arrangements.
7.28. He would submit that Plaintiff's case is premised on claims of
nominal or fiduciary holdings and exceptions under the Benami
Transactions (Prohibition) Act, 1988. He would submit that no HUF or
fiduciary relationship exists to bring the transactions within the
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statutory exceptions under Sections 4(3)(a) and/or 4(3)(b), and
therefore, the Suit is barred under the Benami Transactions Act. He
would submit that the Plaintiff cannot rely on HUF or trust/fiduciary
exceptions as the shares are held by non-coparceners or third parties,
making the Suit untenable under the statute. In this regard, he would
rely upon the decision in the case of Maharaja of Vizianagram Vs.
Secretary of State of India42 stating that it is trite law that a litigant
who has all along maintained one position in a suit cannot be
permitted to withdraw from the said position belatedly after failing to
secure any relief.
7.29. He would submit that the Plaintiff relies on the expanded
scope of Section 2(9)(A) of the Benami Act post the 2016 Amendment
and contends that the "trust" exception falls within "fiduciary capacity"
under Section 2(9)(A)(ii) but would submit that the 2016 Amendment
is applicable only prospectively and in any event Section 2(9)(A)(b)(i)
applies solely to HUF property is not the subject matter of the present
Suit. Hence he would submit that the 2016 Amendment to the Benami
Transactions Act has been held to be applicable in several decisions,
inter alia, in the judgments like Mangathai Ammal (Died) through
Legal Representatives & Ors. Vs. Rajeshwari & Ors.43 and Joseph
Isharat Vs. Rozy Nishant Gaikwad44.
42 1926 ILR Mad 249
43 (2020) 17 SCC 496
44 2017 SCC OnLine Bom 10006
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7.30. He would submit that as regards Section 4(2) of the Benami
Act, the Plaintiff's attempt to invoke it on the ground that Defendant
No.1 allegedly contends that the Plaintiff is seeking to recover property
held benami is misconceived. He would submit that Section 4(2) bars
a defense only by a person claiming to be the real owner of property
held benami. He would submit that it is the Plaintiff who asserts that
the shares are ostensible, while Defendant No.1 maintains that the
recorded shareholdings are genuine and there is no separate "real
owner." He would submit that the reference in the Plaintiff's
submissions is merely evidentiary and does not constitute a substantive
plea under Section 4(2) as Section 4(2) cannot be used to prevent the
recorded owner from asserting that the property is not benami.
7.31. He would submit that the Plaintiff's previous stand in Suit
No. 2363 was that all properties were held in a fiduciary capacity for
Gopal L. Raheja. However in the present Suit, however, the Plaintiff
alleges that the properties were held in fiduciary capacity for multiple
persons, including Gopal L. Raheja, the Plaintiff, Defendant No.1, and
Defendant No.5 and this demonstrates an approbating and reprobating
stance by the Plaintiff.
7.32. He would submit that, notwithstanding the above, each
person or entity held shares individually after the 1995-1996 Family
Arrangement. He would submit that Plaintiff and Defendant No.5 held
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certain minority shares only briefly, subsequently transferring all of
them in 2005-2007 to Defendant Nos.2 to 4 when they exited the
Group Companies and received consideration for the transfers. Thus he
would submit that the shares were not held in fiduciary capacity for
the Plaintiff, Gopal L. Raheja, Defendant No.1, or Defendant No.5,
contrary to the Plaintiff's allegations.
7.33. He would submit that Section 88 of the Indian Trusts Act,
1882 requires a person in a fiduciary position to hold any pecuniary
advantage gained for the benefit of the person whose interests are
protected. He would rely on the judgment in the cae of Chennuru
Gavararaju Chetty Vs. Chennuru Sitaramamurthy Chetty & Ors.45
which holds that a Plaintiff must bring the case strictly within the
terms of Section 88 of the Indian Trusts Act, 1882. He would submit
that Plaintiff has failed to establish the essential elements that any
member of the alleged Gopal L. Raheja Group was bound to protect
the interests of another and gained a pecuniary advantage by availing
of such fiduciary position.
7.34. He would submit that the Supreme Court and High Court
decisions make it clear that a fiduciary relationship must be established
based on factual context and must resemble a trustee-beneficiary
relationship and mere incantation of the term "fiduciary" without
showing that the real owner claimed the property is insufficient to
45 1959 Supp (1) SCR 73 / AIR 1959 SC 190
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escape the bar under Sections 3 and 4 or secure the benefit of Section
4(3)(b) of the Benami Transactions Act (Pushpa Kanwar Vs. Urmil
Wadhawan & Ors.46, Marcel Martins, Neeru Dhir & Ors. Vs. Kamal
Kishore Dhir & Ors.). He would submit that the Plaintiff's own
contradictions regarding fiduciary capacity demonstrate that the intent
is unclear. He would submit that accordingly, no case is made out
under Section 88 of the Indian Trusts Act, 1882 and no member of the
alleged Gopal L. Raheja Group has acted in a fiduciary capacity for
another.
7.35. He would submit that the Plaintiff's plea of "fiduciary
capacity" is misconceived. He would refer to and rely upon the
decision in the case of Savita Anand Vs. Krishna Sain and Ors.47
wherein the Delhi High Court held that fiduciary relationships have a
strict legal meaning and do not arise merely from family or filial ties.
He would submit that the Plaintiff has neither pleaded nor established
any fiduciary duty, its misue in share transfers or any resulting
precuniary advantage and hence not entitled for any relief at the
interim stage.
7.36. He would submit that the Plaintiff has attempted to save her
Suit from being barred under Section 4 of the Benami Act by claiming
that the shares or properties held benami were held in "trust" for the
46 2009 SCC OnLine Del 3761
47 2020 SCC OnLine Del 2672
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purported Gopal L. Raheja Group. The Plaintiff has only made vague
references to the assets, businesses, and properties being held in a
fiduciary capacity or in trust for all members of the Group.
7.37. He would submit that for the exception under Section 4(3)
(b) of the Benami Transactions Act to apply, the trust must be an
express trust as held in Soonderedas Thakersey and Ors. Vs. Bai
Lamibai and Ors.48 Sections 81, 82, and 94 of the Indian Trusts Act,
1882, which dealt with resulting, implied, or constructive trusts, were
repealed by Section 7 of the Benami Act and an express trust must be
expressly created in accordance with Sections 5, 6, and 10 of the
Indian Trusts Act, 1882 requiring the author of the trust to indicate
intention, purpose, beneficiaries, and trust property with reasonable
certainty. He would submit that the Plaintiff has prima facie failed to
show that any such express trust exists.
7.38. He would submit that resulting, implied, or constructive
trusts are no longer recognized under law, and only express trusts are
valid as confirmed by hte Delhi High Court in the case of J.M. Kohli Vs.
Madan Mohan Sahni49. He would submit that Plaintiff's references to
implied or resulting trusts are legally insufficient, and her reliance on
cases like Janardhan Dagdu Khomane & Anr. Vs. Eknath Bhiku Yadav
& Ors. is distinguishable as it pertained to public trusts. He would
48 ILR BOM (1945) 1047
49 2012 SCC OnLine Del 2620
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submit that minors (Defendant Nos.3 and 4) cannot hold shares in a
fiduciary capacity as no express trust has been established, making
Section 4(3)(b) inapplicable.
7.39. He would submit that there is no pleading or document
establishing any express trust and the Plaint at best alleges a resulting
trust. He would submit that in the absence of pleadings satisfying
Section 6 of the Indian Tusts Act, as held in LIC Vs. Smt. Iqbal Kaur &
Ors.50 no case of express trust is made out by the Plaintiff.
7.40. He would submit that the Plaintiff's reliance on Circular No.
8/18/75/-CL-V dated 31.03.1975 is misplaced, as her case is not for
partition of an HUF and the Circular cannot override statutory
provisions of the Companies Act. He would submit that Plaintiff has
failed to file statutory declarations under Section 187C of the
Companies Act, 1956, or Section 89(8) of the Companies Act, 2013
and Section 89(8) bars enforcement of rights in undeclared shares, and
Section 90 requires declaration of significant beneficial interest or
control. Hence he would submit that Plaintiff's failure to comply
renders any claims over the alleged shares unenforceable.
7.41. He would submit that the Plaintiff's claim to be a 25%
undivided beneficial owner and Karta of the HUF, which allegedly
holds all shares, properties, and assets of the Defendant Companies, is
50 J&K HC 1983
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untenable. He would submit that Plaintiff has failed to file Forms BEN-
1 or BEN-2 under the Companies (Significant Beneficial Owners)
Rules, 2018, Sections 89 and 90 of the Companies Act, 2013,
demonstrating that she never considered herself the Karta or ultimate
beneficial owner. He would refer to and rely upon the decision of the
Delhi High Court in the case of Sanjeev Mahajan Vs. Aries Travels Pvt.
Ltd.51 and other authorities which confirm that beneficial ownership
must be publicly declared and failure to do so bars enforcement. He
would submit that the Plaintiff has admitted that the HUF
shareholding had been transferred prior to 2007 and she cannot
produce documentation of beneficial ownership hence her claims are
therefore inconsistent with contemporaneous records, including prior
Affidavits and her alleged benami plea is therefore legally unteanable.
7.42. He would submit that the Division Bench of the Madras High
Court in Syed Mohamed Salahuddin & Ors. Vs. Ahmed Abdulla Al
Ghurair & Ors.52 affirmed by the Supreme Court in Ahmed Abdulla
Ahmed Al Ghurair Vs. Star Health & Allied Insurance Co. Ltd. 53 has
held that where relief is barred by Section 187(c) read with 89(8) of
the Companies Act, a suit seeking such relief is itself not maintainable.
7.43. He would submit that the Plaintiff's Suit is barred for non-
compliance with statutory declarations under Section 187C or Section
51 2020 SCC OnLine Del 2550
52 (2018) 6 Mad LJ 257
53 (2019) 13 SCC 259
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89(8) of the Companies Act, akin to a notice under Section 80 of the
CPC. Courts are duty-bound to reject a plaint barred on the face of it,
as held in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa,
Widow of Late Lochannapa Gugwad & Ors .54 and her reliance on cases
such as Khajamiya Miransaheb Vs. Peerapasha Miransaheb and
Indrakumar Mahendran Vs. G R Pathmaraj is misplaced as she has
admitted prior HUF share transfers.
7.44. He would submit that findings under Order VII Rule 11 of
CPC that a pleading survives does not establish a prima facie case. He
would submit that while Plaintiff's status as coparcener is not disputed,
the properties, assets, and businesses listed in Exhibit B to the Suit
Plaint are in dispute and which can be decided only at trial since
contemporaneous records, prior Affidavits, Family Arrangements, and
Wills prima facie distinguish HUF property from self-acquired property
and hence the Plaintiff cannot simultaneously claim the same shares as
HUF property while relying on the alleged Will (while approbating and
reprobating) at the same time.
7.45. He would submit that the Supreme Court in the case of
Mandali Ranganna & Ors Vs. T. Ramachandra & Ors55 has held that, in
addition to the three factors of (i) prima facie case, (ii) balance of
convenience, and (iii) irreparable injury, the Court must also consider
54 1970 3 SCC 716
55 (2008) 11 SCC 1
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the conduct of the parties; that a party who has kept quiet for a long
time cannot be entitled to an injunction, which is an equitable relief.
He would submit that the contrary stances of the Plaintiff in the Plaint
and in support of the case as pleaded by Gopal L. Raheja can only be
displaced by Plaintiff by leading evidence and at trial and without such
evidence being given and surviving cross-examination, Plaintiff cannot
sustain even a prima facie case. He would submit that apart from
limitation, Plaintiff's conduct, delay, laches, and suppression disentitle
her from any interim reliefs, and such conduct must be weighed
against her plea for equitable relief. He would therefore pray that the
present Notice of Motion No.1211 of 2014 be dismissed with costs, and
that the Perjury Petition No.2 of 2014 filed by Defendant No.1 be listed
for hearing expeditiously.
8. Dr. Saraf, learned Senior Advocate appearing for Defendant
No.2 at the outset would adopt the submissions advanced by Mr.
Khambata. For the sake of brevity the same are not reiterated herein
and are taken as traversed herein. Additionally he would submit that
Plaintiff has categorically asserted that present Suit is one for partition
of the Gopal L. Raheja HUF however such a case has absolutely no
foundation in the Suit Plaint. He would submit that on bare perusal of
the Suit Plaint it is seen that except for stray references to "Karta" or
"Joint Family" there is no pleading whatsoever to suggest that Suit is
one for partition of any HUF much less Gopal L. Raheja HUF. He
NMS.1211.2014+.doc
would submit that on the contrary, Suit Plaint consistently proceeds on
the footing that it seeks enforcement of a partition/division of
properties, assets and businesses of the "Gopal L. Raheja Group" as a
contractual group under the 1995-1996 Family Arrangement namely
Exhibits C1 to C4. He would submit that the Suit, pleadings and
prayers clearly negate any case of partition of a HUF but Plaintiff's case
now advanced in arguments on coparcenary share in HUF is wholly
beyond pleadings and therefore impermissible in law.
8.1. He would submit that the Suit Plaint defines "Gopal L.
Raheja Group" as comprising of Gopal L. Raheja/his estate, Plaintiff,
Defendant No.1 (for himself and his family/ group being Defendant
Nos.2 to 4) and Defendant No.5 in terms of the 1995-1996 Family
Arrangement (Exhibits C1 to C4). He would submit that the reliefs
sought are for a declaration that these members have equal and
undivided 1/4th share in Gopal L. Raheja Group and seeks partition in
accordance with the Family Arrangement. He would submit that if at
all Plaintiff's case is considered to be one for partition of HUF then the
shares would necessarily be fluctuating and upon demise of Gopal
Raheja in March 2014, at the highest Plaintiff could only have claimed
a 1/3rd share only. He would submit that the Suit Plaint conspicuously
ignores the coparcenary rights of daughters (Defendant Nos.3 and 4)
of Defendant No.1 which would otherwise necessarily have been
recognised in a HUF partition. He would submit that these issues and
NMS.1211.2014+.doc
absence of foundational pleadings clearly demonstrate that the Suit is
not founded on coparcenary or HUF principles.
8.2. He would submit that Plaintiff's reliance on the 1987 Family
Arrangement as a document effecting partition of the Lachmandas
Raheja HUF is entirely misconceived and unsupported by any material
and cogent pleadings. He would submit that said Agreement merely
records separation of Suresh L. Raheja from the business carried on by
the brothers at the then time and involves as parties their wives, minor
sons and daughters and separate HUFs also. He would submit that the
1987 Family Agreement nowhere records that the businesses or
properties were HUF assets or that they were brought under any HUF.
He would submit that merely because the father and brothers carried
on business together does not in any manner give rise to a presumption
of HUF ownership in the absence of a clear intention to treat the assets
as Joint Family Property since inception.
8.3. He would submit that the 1995-1996 Family Arrangement
equally do not constitute that business carried on by Chandru L. Raheja
and Gopal L. Raheja were a part of the Lachmandas Raheja HUF. He
would submit that complete absence of Kishore L. Raheja from these
Arrangement despite Plaintiff's own pleadings that he had an
independent and insignificant interest alone defeats any suggestion of
a HUF partition. Further, he would submit that the documents relied
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upon by Plaintiff themselves recognise individual shareholdings and
separate HUF holdings, demonstrating that the HUFs were treated as
distinct and independent entities in the said group holdings.
8.4. He would submit that it is crucial to consider Plaintiff's
conduct in including Defendant No.2 (daughter-in-law of Gopal L.
Raheja) as a constituent of the "Gopal L. Raheja Group" in paragraph
No.1 of the plaint and relying on her participation and signatures in
Exhibits C3 and C4 pertaining to the Family Agreement of 1995-1996
while simultaneously excluding her from the reliefs sought which is
legally impermissible. He would submit that such selective inclusion
and exclusion by Plaintiff renders the Suit Plaint internally inconsistent
and vitiates the Suit on the ground of coparcenary share.
8.5. He would submit that Defendant No.2 being the daughter-in-
law of Gopal L. Raheja is not a coparcener of the HUF and that shares
standing in her name are her absolute personal property. Since 1995-
96, Defendant No.2 has held shares in her individual capacity and
between 2005-2007, Plaintiff and Defendant No.5 exited the
Defendant Companies and thereafter transferred shares to Defendant
No.2 for due consideration paid by her in her personal capacity. He
would submit that these transactions are corroborated by
contemporaneous records including Plaintiff's Capital Account for the
year 2007-2008 thereby reflecting substantial gifts received by Plaintiff
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from Gopal L. Raheja, Defendant No.1 and Defendant No.2. He would
submit that these transfers were never challenged in accordance with
law, these transfers are valid, binding and have not been brought to
Court in any collateral proceedings. He would therefore submit that
Plaintiff has not placed on record any explanation as to why such
absolute and complete transfers were made in the name of Defendant
No.2 considering there being HUF in existence according to Plaintiff's
own case.
8.6. He would submit that Plaintiff herself has relied upon the
Suit Plaint and pleadings in Suit No.2363 of 2012 filed by her father
Gopal L. Raheja and is therefore bound by the positions taken therein,
wherein it was never his case that the Group Companies or their
shareholdings belonged to any the HUF much less Gopal L. Raheja
HUF, rather it was his case that all properties, assets and businesses
absolutely belonged to Gopal L. Raheja personally with shares standing
in the names of family members and it is clearly stated in that Suit
Plaint that the HUF or holding Companies held shares only for
convenience in a fiduciary capacity and in trust for him.
8.7. He would submit that the Suit Plaint in the said Suit records
a binding and subsisting Family Arrangement arising from the 1995-
1996 Family Agreement under which Gopal L. Raheja continued as the
sole beneficial owner and all shareholding, voting rights, management
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and control were to be exercised only as directed by him, a position
consistently supported by Plaintiff, who asserted that such shares and
even those held by the HUF were held in trust for Gopal L. Raheja. He
would submit that Plaintiff herself in the Suit Plaint creates a clear
distinction between the Gopal L. Raheja Group and the HUF wherein
she herself considers the HUF to be a part of the Gopal L. Raheja
Group. He would submit that Plaintiff in paragraph No.25 in the Suit
Plaint has stated that incorporation of new Companies and acquisition
of assets were from the funds accrued by Gopal L. Raheja himself and
not from any purported nucleus of HUF as is now sought to be alleged
by her. He would therefore submit that the jointness of family has to
be proved but the initial burden would lie upon the person alleging
existence of a Joint Family and that the property belongs to it. In
support of his above submission he has referred to and relied upon the
decision of the Supreme Court in the case of Bhagwant Sharan (dead
through legal representatives) Vs. Pururshottam and Others.56 and
specifically on paragraph No.21 in the said decision.
8.8. He would submit that Plaintiff has suppressed her earlier
Affidavit dated 25.10.2012 in the previous Suit proceedings which fact
is highlighted by Defendant No.1 wherein she has expressly supported
Gopal L. Raheja, affirmed the binding nature of the 1995-1996 Family
Arrangement, accepted share allotments and the division granting her
56 (2020) 6 SCC 387
NMS.1211.2014+.doc
only an 8.5% share, has also acknowledged that the HUF held only
nominal shareholding and accepted transfer of such HUF shareholding
in favour of Gopal L. Raheja in his personal capacity and Defendant
No.1 thereby negating any claim of equal coparcenary rights
whatsoever under a HUF.
8.9. He would submit that Plaintiff has reiterated the same
position in her Rejoinder dated 10.12.2012 and only after no reliefs
were granted has sought to change her stand in her Written Statement
of April 2013 by setting up an alternative and contingent claim of
equal rights under HUF, amounting to impermissible approbation and
reprobation, coupled with evasive denials. In support of this
submission he has referred to and relied upon the decision of the
Supreme Court in the case of Badat and Co. Bombay Vs. East India
Trading Co.57 wherein the Court held that evasive or non-specific
denials in pleadings operate as admissions under Order VIII Rules 3, 4
and 5 of the CPC subject to discretion of the Court. He would submit
that law prohibits a party from simultaneous approbation and
reprobation after the said party has accepted the benefits of
transactions and in the case at hand, the same is prima facie proven on
the basis of cogent prima facie documentary evidence by Defendant
Nos.1 to 4. In support of his above submission he has referred to and
relied upon the following decisions of the Supreme Court in the case of
57 1963 SCC OnLine SC 9
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R.N. Gosain Vs. Yashpal Dhir58 ; Mumbai International Airport Pvt. Ltd.
Vs. Golden Chariot Airport 59 and Union of India and Others. Vs. N.
Murugesan and Others.60
8.10. He would submit that Plaintiff's case was never one for
partition of HUF and the present Suit is filed nearly after two decades
to seek partition of the 1995-1996 Family Arrangement and to set
aside share transfers that are clearly barred by limitation. He would
submit that Plaintiff's case on ostensible shareholding is also hit by the
provisions of Benami Transactions Act which thereby disentitles her to
any interim or final relief. He would submit that Plaintiff's reliance on
the Order passed in Order VII Rule 11 Application is misplaced as it
does not conclude merits at the stage of interim relief. Hence, he
would urge the Court to reject the present Notice of Motion.
9. Mr. Tamboly, learned Advocate appearing for Defendant
Nos.3 and 4 would adopt the submissions advanced by Mr. Khambata
and Dr. Saraf and would additionally submit that the HUF is
admittedly not made a party to the present Suit. He would submit that
if at all Plaintiff's case is genuinely one for partition of the HUF, then in
that case the HUF would necessarily have to be impleaded and the Suit
should have been instituted by Plaintiff in her capacity as Karta of the
HUF. Rather he would submit that it is an admitted position that
58 (1992) 4 SCC 683
59 (2010) 10 SCC 422
60 (2022) 2 SCC 25
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Defendant No. 1 has been acting as Karta of the HUF since the demise
of Gopal L. Raheja which completely contradicts Plaintiff's own stand
on pleadings in the Suit Plaint.
9.1. He would submit that had the Suit been one for partition,
Defendant Nos.3 and 4 would have been included within the definition
of the "Gopal L. Raheja Group" and would have been included in the
prayers as shares have been admittedly transferred by Plaintiffs to
these Defendants on reciprocity. He would submit that prayer clauses
"A" and "B" in the Suit Plaint conspicuously exclude Defendant Nos.3
and 4 while including Gopal L. Raheja who had already passed away
prior to filing of the Suit. He would submit that Defendant Nos.3 and 4
i.e. Gayatri and Aditi, both daughters of Defendant No.1 were minor
at the time of filing of the Suit, however it is crucial to consider that
the Suit Plaint was never amended upon them attaining majority
despite the Hindu Succession (Amendment) Act, 2005 coming into
force and they were never treated as coparceners or allotted any share
thereby demonstrating that the Suit is not one for partition of a HUF.
9.2. He would submit that Plaintiff's plea that shares were
transferred to Defendant Nos.3 and 4 i.e. Gayatri and Aditi as
fiduciaries or trustees is inherently untenable as the transfers were
effected when Gayatri was 8 years old and Aditi was 4 years old. He
would submit that it is settled law that minors cannot act as fiduciaries
NMS.1211.2014+.doc
or trustees and under Section 10 of the Indian Trusts Act, 1882 a
Trustee shall be a person capable of holding a property and can
execute a contract where discretion is involved. He would therefore
submit that this very ground renders Plaintiff's case legally
unsustainable.
9.3. He would submit that Plaintiff has set up inconsistent claims
namely an alleged 25% share under the 1995-1996 Family
Arrangement, an alleged 8.5% share under the 01.06.2012 - Family
Arrangement coupled with an alleged "assurance" of half (1/2) of 33%
and unpleaded claim of equal coparcenary rights i.e. 1/4 th share as
coparcener of the HUF. He would submit that such contradictory
stands cannot coexist in law and it clearly demonstrates the absence of
a coherent cause of action in the Suit Plaint.
9.4. He would submit that Plaintiff's own submissions show that
she seeks to interfere with the management and operations of 26
Defendant - Companies by seeking disclosures and appointment of an
Administrator or Receiver. He would submit that Plaintiff has failed to
satisfy the requirements of a prima facie case, balance of convenience
and irreparable injury. He would submit that Defendant - Companies
are professionally managed for the past several years rather decades
owning substantial assets and employing thousands of employees. He
would submit that the reliefs claimed by Plaintiff are in the nature of
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causing hindrance to the ongoing businesses, therefore the balance of
convenience favours non-interference in the Defendant - Companies.
9.5. He would submit that no case for irreparable injury suffered
by Plaintiff is made out if the interim reliefs are not granted. He has
referred to and relied upon the decision of the Supreme Court in the
case of Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd.
and Others61 wherein it is held that irreparable injury is injury/damage
that cannot be compensated in monetary terms, however he would
submit that in the present case the alleged loss is clearly compensable,
if any, in monetary terms. Hence he would submit that there is no
question of Plaintiff suffering irreparable injury in the event if interim
reliefs are not granted at this stage.
9.6. He would submit that it is crucial to consider Plaintiff's
conduct as Plaintiff has approached the Court by suppression of
material facts, inconsistent Affidavits and pending perjury proceedings
thereby disentitling her to any equitable relief as argued by Defendant
Nos.1 and 2. He would submit that while granting equitable relief
Court shall look at the conduct of the party in invoking the jurisdiction
of Court and may refuse to interfere unless the party's conduct is free
from blame. In support of his above submission he has referred to and
relied upon the decision of the Supreme Court in the case of Gujarat
61 (2012) 6 SCC 792
NMS.1211.2014+.doc
Bottling Co. Ltd. and Others Vs. Coca Cola and Others62.
9.7. He would submit that appointment of Administrator or
Receiver under Order XL Rule 1 of the CPC is wholly unwarranted in
the absence of any threat to the properties. He would submit that
power of the Court for appointment of Administrator or Court Receiver
are discretionary and Courts only resort to such appointment when
there is a serious threat to the property which is not the case however
in turn it would seriously hamper and disrupt the functioning of
Defendant - Companies. Lastly, he would submit the Plaintiff is seeking
to be introduced in some capacity in the Defendant - Companies, a
position which did not exist in the last 30 years. He would therefore
submit that such wide reliefs can only be granted in exceptional
circumstances which is not the case in the present Notice of Motion. He
would submit that under the guise of interim reliefs Plaintiff is
impermissibly seeking final reliefs at an interim stage which is
impermissible in law and the facts of the present case. In support of his
above submissions he has referred to and relied upon the decisions of
the Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi
Sorab Warden and Others63; Samir Narain Bhojwani Vs. Aurora
Properties and Investments and Another64; Hammad Ahmed Vs. Abdul
Majeed and Others; S. Saleema Bi Vs. S. Pyari Begum and Another 65
62 (1995) 5 SCC 545
63 (1990) 2 SCC 117
64 (2018) 17 SCC 203
65 (2019) 14 SCC 1
NMS.1211.2014+.doc
and Parmanand Patel (dead by legal heirs) and Another Vs. Sudha
Chowgule and Others.66 In view of the above submissions, he would
urge the Court to reject the Notice of Motion in the interest of justice.
10. Mr. Mehta, learned Advocate appearing for Defendant No.5
at the outset would fairly submit that Defendant No.5 neither supports
the Plaintiff's case nor the Defendant Nos.1 to 4's case and would
adopt a completely neutral and independent stand. He would submit
that there was no oral Family Arrangement of 1992 as alleged by
Defendant No.1 which is evident from the fact that as part of
separation with Chandru L. Raheja in 1995-1996, approximately 11%
and 5% shareholding in the Gopal L. Raheja controlled Group
Companies were allotted to Sonali i.e. Defendant No.5 and Sabita i.e.
Plaintiff respectively. He would submit that Defendant No.1 admits the
said position as is evident from his limited Affidavit-in-Reply. He would
submit that Defendant No.1 has alleged that this Arrangement was
done only on account of the fact that it was not permissible for Gopal
L. Raheja and Defendant No.1 to be the only shareholders of the Group
Companies on account of statutory regulations. He would submit that
pursuant to this Arrangement, on 01.06.2012, Gopal L. Raheja
distributed the assets and businesses amongst the Members of the
Gopal L. Raheja family.
66 (2009) 11 SCC 127
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10.1. He would submit that around 31.08.2012 and onwards while
Gopal L. Raheja was undergoing surgery, Defendant No.1 illegally held
Board Meetings and appointed his in-laws as Directors of various
Group Companies to usurp control over the Boards of these
Companies. He would submit that on 18.09.2012 Gopal L. Raheja filed
Suit No.2363 of 2012 in this Court seeking specific performance of the
Gopal L. Raheja Family Arrangement and distribution and division
effected by him on 01.06.2012 and also challenged the validity of the
various Board Meetings held in the interregnum and its decisions.
10.2. He would submit that on 18.03.2014 Gopal L. Raheja
expired leaving behind his Will dated 12.01.2012 and Codicil dated
11.02.2014 under which Plaintiff and Defendant No.5 are the primary
beneficiaries of Gopal L. Raheja's entire Estate. He would submit that
Defendant No.1 has usurped all shares standing in the name of Gopal
L. Raheja as he was the 2nd holder therein for convenience. He would
submit that Defendant No.5 filed Testamentary Petition No.1140 of
2014 before this Court seeking Probate of the last Will late Gopal L.
Raheja dated 12.01.2012 and Codicil thereto. He would submit that
the Petition is converted into Testamentary Suit No.115 of 2015 and is
pending in this Court.
10.3. He would submit that Defendant No.1 has filed
Testamentary Petition No.1072 of 2014 seeking Probate in respect of
NMS.1211.2014+.doc
Gopal L. Raheja's Will dated 14.05.2007 despite the fact that the said
Will was cancelled by Gopal L. Raheja during his lifetime. He would
submit that this Petition is also converted into Testamentary Suit No.63
of 2015. He would submit that on 30.07.2014, Plaintiff filed the
present Suit. He would submit that Defendant No.5 in view of the
conduct of Defendant No.1 has filed an independent Suit being Suit
No.103 of 2015 in which she has sought administration and protection
of Gopal L. Raheja's Estate in which order dated 12.02.2015 has been
passed by consent of parties in respect of shareholdings of Gopal L.
Raheja's four Companies and the said order continues to operate as on
date.
10.4. On merits, for entitlement to share in the Gopal L. Raheja
group of Companies, he would submit that, in 1995 - 1996 though
shareholding of the Gopal L. Raheja Group of Companies standing in
the name of Plaintiff and Defendant No.5 was approximately 5% and
11% only, the said shareholding was held only for convenience. He
would submit that name of Defendant No.1 was added as second name
in respect of all shares of the Group Companies only for convenience
and without any consideration. He would submit that in 2004
Defendant No.5 was detected with a brain tumor at which time
Defendant No.1 had serious apprehension regarding possible
interference by the family members of Plaintiff and Defendant No.5 in
the Gopal L. Raheja Group of Companies. He would submit that due to
NMS.1211.2014+.doc
this reason and at the insistence of Gopal L. Raheja (their father), the
Plaintiff and Defendant No.5 transferred their entire shareholding to
Defendant Nos.1 - 4 for NIL / nominal consideration. He would argue
that even assuming consideration was received it was not against
transfer of shares. He would submit that in 2011 - 12, disputes arose
between Gopal L. Raheja and Defendant No.1 as Defendant No.1
believed Gopal L. Raheja intended to marry a lady and confer benefits
upon her. He would submit that due to this apprehension Defendant
No.1 for the first time on 28.01.2012 in his reply to Gopal L. Raheja
propounded an alleged the 1992 oral Family Arrangement claiming to
be the sole beneficiary of the businesses of Gopal L. Raheja Group of
Companies. He would submit that even though this theory is
propounded by Defendant No.1, in 2012 Gopal L. Raheja directly and
indirectly through his 4 Holding Companies held substantial
shareholding in Defendant Nos.7 - 10, he would vehemently submit
that there was no such 1992 oral Family Arrangement as propounded
by Defendant No.1 since post 1995 - 1996 Family Division /
Arrangement, 11 % and 5% shareholding in the Gopal L. Raheja Group
of companies was allotted to Defendant No.5 and Plaintiff respectively.
He would submit that in that view of the matter Defendant No. 5 has
filed a separate Suit being Suit No. 103 of 2015 seeking declaration
and entitlement to 50% undivided right, title and interest in all assets
and properties and estate of her father Gopal L. Raheja as per his Last
NMS.1211.2014+.doc
Will and 2 Codicils and other consequential reliefs. Hence he would
submit that this Court take into cognizance the facts and circumstances
in the present case and pass appropriate orders in the Notice of Motion
filed by the Plaintiff in accordance with law.
11. Mr. Nankani, learned Senior Advocate appearing for
Defendant Nos.7 to 10 - Companies would at the outset submit that he
would adopt the submissions made by Mr. Khambata, Dr. Saraf and
Mr. Tamboly on behalf of Defendant Nos.1 to 4, which for brevity are
not reiterated herein and are taken as traversed by him. Additionally
he would submit that Defendant Nos.7 to 10 - Companies own multiple
projects across India, including hotels, clubs, malls, residential and
commercial developments, employing over 2,000 (as in 2014)
employees and Plaintiff's assertion that all their shares, assets and
businesses belong to the HUF is prima facie unsustainable as there no
such averment made in the Suit Plaint. He would submit that these
Companies are distinct legal entities under the Companies Act and if
any of their shares were ever held by any HUF then the Register of
Members of Companies would expressly reflect such share holding
which it does not as no HUF ever held any shares in Defendant Nos. 7
and 9.
11.1. He would submit that insofar as Defendant Nos. 8 and 10 are
concerned limited shares were indeed held by the Gopal L. Raheja HUF
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in the past. With regard to Defendant No.8 - Company, he would
submit that in 2001 these share were transferred in the joint names of
the HUF and Defendant No.1. and were thereafter in 2005 transferred
in the joint names of Gopal L. Raheja and Defendant No.1. He would
submit that after the demise of Gopal L. Raheja in 2014 all such shares
now stand solely in the name of Defendant No.1 as reflected in the
statutory records which has been effected by following the due process
of law. With regard to Defendant No.10 - Company, he would submit
that in 2007 these shares were transferred in the joint names of Gopal
L. Raheja and Defendant No.1 and subsequently they now stand solely
in the name of Defendant No.1. He would submit that as on the date of
the Suit (2014), the HUF held no shares in Defendant Nos. 7 to 10 -
Companies and none of these transfers have ever been challenged by
Plaintiff until filing of the Suit.
11.2. He would submit that under Sections 88 readwith Section 95
of the Companies Act, 2013, the Register of Members constitutes prima
facie evidence of shareholding and any plea to the contrary must be
proved at trial. He would submit that if Plaintiff claims to be a 25%
beneficial owner then mandatory declaration under Sections 89 and 90
of the Companies Act, 2013 readwith the Companies (Significant
Beneficial Owners) Rules, 2018 is required to be made which is not
been done or filed by Plaintiff on the date of her such assertion.
NMS.1211.2014+.doc
11.3. He would submit that Plaintiff was a Director only in
Defendant No.9 - Company however owing to her conduct she was
removed as Director on 29.09.2020. He would submit that Plaintiff has
not challenged her removal which clearly goes to the root of the
matter. He would submit that Plaintiff held shares only in Defendant
Nos.8 and 9 - Companies however by 2005-2006 all such shares held
by here were transferred to other Defendants for reciprocity and none
of the above transfers are challenged by Plaintiff in the interregnum
until her claim by way of the present Suit.
11.4. He would submit that to overcome the above the alleged
Arrangement is pleaded by Plaintiff which can only be proved at trial.
In support of his submissions he has referred to and relied upon the
decisions of the Supreme Court in the case of Bacha F. Guzdar Vs.
Commissioner of Income Tax, Bombay67 and BRS Ventures Investment
Limited Vs. SREI Infrastructure Finance Limited and Another 68. He
would submit that the Suit as filed in any event is barred by limitation
and the Benami Transactions Act which issues have been adequately
argued by Defendant Nos.1 to 4. Hence, he would urge the Court to
reject the Notice of Motion.
12. Mr. Momaya, learned Advocate appearing for Defendant
Nos.11 to 15, 17 to 19, 22, 24 and 25 would adopt the submissions
67 (1954) 2 SCC 563
68 (2025) 1 SCC 456
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advanced by the learned Advocates for Defendant Nos.1 to 4 and
Defendant Nos.7 to 10 which for brevity are not reiterated herein but
taken as traversed by him. Additionally he would submit that
Defendant No.12 has been renamed from K. Raheja Real Estate
Services Pvt. Ltd. to K. Raheja Realty Services Private Limited and even
after Plaintiff expressly being informed of this change by letter dated
11.05.2022 by the Advocate for these Defendants despite that Plaintiff
has deliberately failed to amend the Suit Plaint.
12.1. He would submit that Defendants are Companies
incorporated under the Companies Act with independent legal
existence and limited by shares. He would submit that Plaintiff earlier
held certain shares in Defendant No.11 - Company and in her erstwhile
holding of Defendant No.13 - Company which were subsequently
transferred by her and thereafter she never held any shares in those
Companies. He would submit that Plaintiff has never filed any
declaration as mandated that she is the beneficial owner of any of
these Defendants - Companies.
12.2. He would submit that Plaintiff's assertion that the
shareholdings of these Defendant Companies belong to the HUF is
wholly misconceived as the HUF held only a minuscule shareholding in
Defendant Nos.11 and 25 - Companies which were then transferred on
30.11.2007 to the joint names of Gopal L. Raheja and Defendant No.1,
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after which Gopal L. Raheja HUF held no shares. He would submit that
none of these transfers have been challenged by the Plaintiff. He would
submit that upon demise of Gopal L. Raheja on 18.03.2014 the jointly
held shares by him were duly transmitted to the sole name of
Defendant No.1 in accordance with the Articles of Association and
provisions of the Companies Act. He would submit that Plaintiff is
neither a shareholder nor Director of any of these Companies and has
therefore has no locus to maintain the present Notice of Motion against
these Defendants and in any event, even a shareholder has no right,
title or interest in the properties or assets of a Company. Hence, he
would submit that Plaintiff's case for grant of interim reliefs is wholly
untenable.
13. Mr. Bharucha, learned Advocate appearing for Defendant
Nos.27 to 30 would adopt the submissions advanced by learned Senior
Advocates for Defendant Nos.1 to 26 which for brevity sake are not
reiterated herein and are taken as traversed by him. Additionally he
would submit that Defendant Nos.27 to 30 are companies incorporated
under the Companies Act with independent legal existence and limited
by shares. He would submit that Plaintiff admittedly never held any
shares in these Companies nor filed any mandatory declaration
claiming beneficial ownership.
NMS.1211.2014+.doc
13.1. He would submit that Plaintiff's contention that the
shareholdings of these Companies belong to the HUF is false as the
HUF held only one share each jointly with Defendant No.1 which was
then transferred on 30.11.2007 to the joint names of Gopal L. Raheja
and Defendant No.1 and none of these transfers have been challenged
till date by the Plaintiff. He would submit that in line with the Oral
Family Arrangement of 1992 these Companies were made the holding
Companies of Gopal L. Raheja in the year 1994 and since inception
Gopal L. Raheja and Defendant No.1 were the only Directors and
shareholders apart from one HUF share with joint holdings structured
to ensure succession in favour of Defendant No.1 which is evident from
the compilation of excerpts from historical Annual Returns of
Defendant - Companies from 20 years ago which have been filed with
Registrar of Companies and are in the public domain.
13.2. He would submit that upon the demise of Gopal L. Raheja on
18 March 2014, all jointly held shares were transmitted to the sole
name of Defendant No.1 in accordance with the Articles of Association
and the provisions of the Companies Act. He would submit that even
assuming that Plaintiff was a shareholder she would still have no right,
title or interest in any of these Company's assets. He would submit
that Plaintiff had illegally appointed her and thereafter was lawfully
removed as Director on 16.06.2014 after following the due process,
that neither a shareholder nor a Director of any of the Defendants has
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locus or entitlement to seek any interim reliefs against these Defendant
- Companies. Hence, he would urge the Court to reject the Notice of
Motion filed by the Plaintiff.
14. Mr. Naphade, learned Advocate for Defendant Nos.31 to 32
would adopt the submissions and arguments advanced by Advocates
for Defendant Nos.1 to 4 and Defendant Nos.7 to 10 which for brevity
are not reiterated herein. Additionally he would submit that Defendant
No.31 (Sea Crust Properties Pvt. Ltd.) was converted into Sea Crust
Properties LLP on 26.02.2021 and Defendant No.32 (Greenfield Hotels
and Estates Pvt. Ltd.) was converted into Greenfield Hotels and Estates
LLP on 19.03.2021 and Plaintiff was expressly informed of these
conversions by letters dated 08.06.2021 enclosing the relevant
Certificates of Registration yet Plaintiff deliberately failed to amend the
Suit Plaint thereby amounting to suppression of material facts and
launching prosecution against non-existent entities.
14.1. He would submit that prior to conversion, Plaintiff never
held any shares in these Defendants - Companies and never filed any
statutory declaration claiming beneficial ownership and the assertion
that the shareholdings belonged to the HUF is wholly misconceived as
the HUF never held any shares in these Companies. He would submit
that Defendant No.31 was made the holding company of Defendant
No.1 in the year 1994 and Defendant No.32 was made the holding
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company of Defendant No.2 in the year 1996 pursuant to the 1995-
1996 Family Arrangement with Defendant Nos.1 and 2 holding the
entire shareholding since inception.
14.2. He would submit that none of the share transfers in favour of
Defendant Nos.1 and 2 and specifically Defendant No.2 not being a
coparcener of the HUF have ever been challenged by the Plaintiff and
any such challenge is now barred by limitation. In support of his
submissions he has referred to and relied upon the decision of this
Court (Coram: Sharmila U. Deshmukh, J.) in the case of Ganesh
Madhukar Pednekar through his legal heir Vs. State of Maharashtra
and Others.69. Further, he would submit that Plaintiff was never a
Director in these Companies and is presently not a Partner in the LLPs
hence she has no locus to seek any reliefs against Defendant Nos.31
and 32 and the proceedings against them are wholly misconceived.
15. Mr. Kakalia, learned Advocate appearing for Defendant
Nos.33 and 34 would submit that Defendant No.33 is an independent
and well-established business family engaged in finance and
distributorships since the year 1932 owning substantial assets across
India and neither Defendant No.33 nor Defendant No.34 has ever been
dependent on Gopal L. Raheja or the Raheja family for income. He
would submit that Defendant No.33 was appointed as Director in
various Defendant - Companies at the request of Defendant No.1 and
69 2024 SCC OnLine 2645
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Gopal L. Raheja with their knowledge, consent and participation,
including Board Resolutions signed by Gopal L. Raheja and Defendant
No.33 never received any salary or remuneration for the same.
15.1. He would submit that appointments of Defendant Nos.33
and 34 as Additional Directors in December 2011 were lawful and in
accordance with the Companies Act and the Articles of Association,
duly supported by Form 32 filings and regularised at Annual General
Meetings in September 2012, rendering all objections academic. He
would submit that Plaintiff has no locus to challenge these
appointments as she is neither a shareholder nor a Director of any of
these Defendant - Companies, save and except having been a Director
of Defendant No.9 - Company until September 2020 and therefore her
claim of learning of appointments only through ROC searches is prima
facie false.
15.2. He would submit that allegations that Defendant Nos.33 and
34 were appointed to usurp control are baseless and unsupported and
they are being unnecessarily drawn into an inter se family dispute. He
would submit that Plaintiff has no authority under the Memorandum
or Articles of Association to interfere with Board functioning or restrain
duly appointed Directors. He would submit that Plaintiff has not
approached the appropriate forum and has also failed to establish any
prima facie case, balance of convenience or irreparable injury and thus
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grant of interim reliefs as prayed for for interference with these
Defendants - Companies would prejudice the functioning of the
Companies. Hence, he would urge the Court to reject the Notice of
Motion in the interest of justice.
16. Mr. Setalvad, learned Senior Advocate appearing for Plaintiff
has made the following submissions in his Rejoinder submissions in
reply to Defendants' case.
16.1. He would submit that absence of a pleaded express trust is
not fatal and that repeal of Section 94 of the Indian Trusts Act, 1882
does not fetter this Court's inherent power to declare a trust where
fraud or abuse of confidence is alleged. He would submit that the
doctrine of constructive trust applies, as Defendant No.1 has
fraudulently usurped exclusive control over the Group's assets,
including the Plaintiff's share, and therefore urges the Court to pass
interim reliefs in the interest of justice. In support of this submission he
has referred to and relied upon the decision of the Supreme Court in
the case of Janardan Dagdu Khomane and Another Vs. Eknath Bhiku
Yadav and Others70, specifically on paragraph Nos.32 to 38 of the said
decision.
16.2. He would submit that even if Defendant No.1's contention of
applicability of bar under Section 4(1) of the Benami Act is considered,
70 (2019) 10 SCC 395
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Defendant No.1 would equally be barred under Section 4(2) from
raising any defence in respect of alleged benami property. He would
submit that while Defendant No.1 has asserted in his limited Affidavit-
in-Reply (page No.102) that Plaintiff seeks recovery of benami
property, Plaintiff in fact seeks only a declaration of her equal and
undivided right, title and interest in the assets of the Gopal L. Raheja
Group Companies. He would submit that this issue however stands
concluded by Order dated 10.06.2024 passed by this Court in
Defendant Nos.1 to 4's Application under Order VII Rule 11 CPC and
therefore Plaintiff cannot be precluded from urging the same and
relying upon the said finding in the present proceedings.
16.3. He would submit that plea of limitation raised by Defendant
Nos.1 to 4 is misconceived as Plaintiff is not challenging transfers of
shares in 1996 or 2005-2006 but seeks a declaratory relief of her equal
and undivided share in the assets of Gopal L. Raheja Group and
partition thereof. He would submit that Article 110 and 58 of the
Limitation Act, 1963 provide for a period of 12 years from the date of
exclusion or ouster from the joint family once it becomes known and 3
years from the date on which the right to sue first accrues. He would
submit that the Suit is filed within limitation under both the aforesaid
Articles. He would submit that it is an admitted position that there was
no dispute until December 2011 - January 2012 when Defendant No.1
for the first time refused to co-operate with Gopal L. Raheja qua
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division and distribution of the assets of the Group.
16.4. He would submit that on 28.01.2012 Defendant No.1
propounded an alleged oral Family Arrangement of 1992 and denied
rights of Plaintiff and Defendant No.5 and claimed exclusive interest in
shares, including those standing in the name of Gopal L. Raheja. He
would submit that cause of action thus arose on 28.01.2012 and Suit
filed on 01.08.2014 is well within limitation under both the applicable
Articles. He would therefore submit that the cause of action arose
within three years prior to the filing of the Suit and it does not defeat
Plaintiff's claim for partition, which necessarily follows once the
declaratory relief is sought within limitation.
16.5. He would submit that objection of Defendant Nos.1 to 4 as
also Defendant Nos.7 to 10 and 27 to 30 Companies that Suit is barred
for non-filing of declarations under Section 187C of the Companies
Act, 1956 and Section 89 of the Companies Act, 2013 is misconceived.
He would submit that the Circular dated 31.03.1975 issued by the
Department of Company Affairs clarifies that Section 187C does not
apply to HUF as no coparcener can claim specific shares and it
continues to operate under the 2013 Act by virtue of Section 465(2)(a)
and (b) of the 2013 Act read with Section 24 of the General Clauses
Act, as supported by the decision of the Supreme Court in Poonjabhai
Vanmalidas Vs. Commissioner of Income Tax, Ahmedabad 71. He would
71 1992 Supp (1) SCC 182
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submit that there is no inconsistency between Section 187C of the
1956 Act and Section 89 of the 2013 Act as affirmed by this Court in
its Order dated 10.06.2024. He would submit that contention that the
Circular applies only when a Karta holds shares on behalf of the family
is erroneous, particularly when Defendant No.1 has fraudulently
usurped the shares and falsely claimed exclusive ownership to the
exclusion of the other coparceners. He would rather argue and submit
that Plaintiff is the lawful Karta of the family after demise of Mr. Gopal
L. Raheja in 2014. He would submit that Defendant No.1 cannot take
advantage of his own wrong and since dispute pertains to title of the
shares, provisions relating to declaration of beneficial interest under
both Acts is wholly inapplicable. In support of this submission he has
referred to and relied upon the decision of the Karnataka High Court
and Madras High Court in the case of Khajamiya Miransaheb Vs.
Peerpasha Miransaheb72 and specifically on paragraph Nos.7, 9 and 10
and Indrakumar Mahendran Vs. G.R. Pathmaraj and Ors. 73 and
specifically on paragraph Nos.841 and 842 of the said decision.
16.6. He would submit that Plaint must be read as a whole and on
bare perusal of Plaint it is clearly seen that Plaintiff's case is for
partition. He would submit that vide order dated 10.03.2024 it is
affirmed that there are sufficient pleadings of there being a HUF. He
would submit that contention of Defendant Nos.1 to 4 that Plaint
72 IRL 1986 Kar 2240
73 2010 5 L.W. 832
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pertains to Gopal L. Raheja Group and not Gopal L. Raheja HUF is also
noted in the Order dated 10.06.2024 and the same has been rejected.
He would therefore submit that mere nomenclature used in the Suit
Plaint does not in law alter the case of Plaintiff of there being a HUF.
He would submit that once the existence of HUF is held by the
Competent Court then the same cannot be re-adjudicated for the
purpose of interim reliefs before the same Court. In support of his
above submission he has referred to and relied upon the decision of the
Supreme Court and Rajasthan High Court in the case of Gulabchand
Chhotalal Parikh Vs. State of Gujarat74; Sulochana Amma Vs.
Narayanan Nair 75; Hope Plantations Ltd. Vs. Taluk Land Board,
Peermade and Another76 and Magharaj Calla Vs. Kajodi Mal77.
16.7. He would submit that Defendant No.1 also confirmed that
businesses were Joint Family businesses and therefore jurisprudentially
this pleading is sufficient for seeking share by the coparceners. He
would submit that Defendant No.1 has tried to take advantage of the
fact that Plaintiff refers to Gopal L. Raheja HUF as Gopal L. Raheja
Group in the Suit Plaint. He would submit that It is settled legal
position that a "group" cannot hold property as there can be no
partition of a "group". He would therefore submit that Plaintiff's
coparcenary rights cannot be denied merely because it is
74 AIR 1965 SC 1153
75 (1994) 2 SCC 14
76 (1999) 5 SCC 590
77 AIR 1994 Raj 1
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nomenclatured as a "group" instead of "HUF" and the said contention
of Defendant No.1 is misconceived and untenable. In support of this
submission he has referred to and relied upon the decision of the
Supreme Court in the case of Hardeo Rai Vs. Sakuntala Devi78
specifically on paragraph No.18 in the said decision.
16.8. He would therefore submit that as there exist a Gopal L.
Raheja HUF in which Plaintiff is a coparcener then the assets and
businesses held by and through Defendant Nos.7 to 32 Companies
constitute joint family property. He would submit that the coparcenary
properties as on date are set out in the Family Arrangement of 1987
from page No.265 onwards of the Suit Plaint and therefore it is clear
that Gopal L. Raheja HUF was never partitioned till date and therefore
it is this partition which Plaintiff seeks in the present Suit. He would
submit that the same is established by way of Chamber Order No.399
of 2014 wherein Defendant No.1 transposed himself as "Karta" of the
Gopal L. Raheja HUF and no partition is borne out by the fact that
Defendant No.1 and 5 never pleaded a partition and never stated the
percentage of share. He would submit that no documents or pleadings
have been placed on record to evidence either a complete or partial
partition at any time after 1995-1996. Hence, he would submit that the
assets and businesses that came to Gopal L. Raheja HUF pursuant to
partition of 1995-1996 are and continue to be Joint Family properties.
78 2008 7 SCC 46
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16.9. He would submit that Defendant No.1's case that an oral
Family Arrangement of 1992 existed is a complete afterthought raised
for the first time only on 28.01.2012. He would submit that the same is
denied by every other coparcener and the same is not supported by any
contemporaneous public document. He would submit that such an oral
partition cannot survive in law particularly in light of Section 6(5) of
the Hindu Succession Act, 1956 which is a complete answer to the
Defendant's case. He would submit that prior to 09.09.2005 Plaintiff
had no coparcenary rights in law, consequently any transfers made to
her between 1992 and 09.09.2005 could never have been in lieu of
coparcenary rights or partition. He would submit that such transfers
cannot defeat statutory rights that accrued only on 09.09.2005. He
would submit that even post-2005 transfers cannot be construed as
settlement of coparcenary rights as Plaintiff's right to claim partition
arose only by operation of law on 09.09.2005 and cannot be
retrospectively extinguished by reference to an alleged pre-2005 oral
arrangement. He would submit that the 1995-1996 written family
arrangement clearly demonstrates continued joint property and
directly contradicts the theory of a 1992 partition. Hence, he would
submit that in absence of proof of concurrence no valid partition could
have occurred in 1992.
16.10. He would submit that the contention that only shares
standing in the name of the Gopal L. Raheja HUF constitute
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coparcenary property is legally untenable. He would submit that
merely because certain shares were shown in the register of Members
and entered wrongly in the name of the HUF does not and cannot in
law and in absence of partition lead to conclusion that the HUF
property was limited to only those shares. He would submit that Gopal
L. Raheja as Karta held the authority to direct in whose names the
shares would be held however this did not alter the fundamental
position that all such shares though held in the names of various
members /coparceners of the HUF were held for the benefit of the
coparceners and it did not affect the equal and undivided rights of the
coparceners of the Gopal L. Raheja HUF. He would therefore submit
that there was "no" transfer either in law or in fact as the shares
continued to vest in all the coparceners of the Gopal L. Raheja HUF
even though ostensibly held by Defendant No.1.
16.11. He would submit that the contention of Defendant No.1 that
Plaintiff had fully supported Gopal L. Raheja in Suit No.2263 of 2012
and he has now taken a contrary stand which is misconceived and
untenable. He would submit that even assuming Plaintiff had accepted
Gopal L. Raheja's case, there can be no estoppel against law, and
Plaintiff cannot be precluded from asserting her legal entitlement of an
equal and undivided share in the Gopal L. Raheja HUF.
NMS.1211.2014+.doc
16.12. He would submit that Defendant No.1's reliance on Plaintiff's
failure to cross-examine him in Suit No.2363 of 2012 is wholly
misconceived as the evidence led therein was confined to preliminary
issues under Section 9A of the CPC. He would submit that non-cross-
examination in the earlier Suit does not amount to any admission in
the present Suit since evidence from a prior proceeding can be relied
upon only in the limited circumstances contemplated under Section 33
of the Indian Evidence Act, none of which are satisfied. In support of
this submission he has referred to and relied upon the decision of the
Calcutta High Court in the case of Sarba Ranjan Basak Vs. Haripriya
Dasi 79. He would submit that there was also no consent between the
parties to adopt such prior evidence in the present Suit. He would
submit that Defendant No.1 is therefore required to lead evidence
afresh, rendering Plaintiff's non-cross-examination in Suit No.2363 of
2012 wholly irrelevant for the purposes of the present Notice of
Motion.
16.13. He would submit that Section 2(9)(A)(b) of the Benami
Transactions Act is inapplicable as the properties are held by the Gopal
L. Raheja HUF and the consideration was also paid by the HUF and
therefore none of the ingredients of Section 2(9)(A) are satisfied. He
would submit that the burden of proving benami lies on the party
asserting. In support of this submission he has referred to and relied
79 ILR 1949 2 Cal 510
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upon the decision of the Supreme Court in the case of Jaydayal Poddar
Vs. Bibi Hazra80 and since it is Defendant No.1 who alleges that the
shares are held benami the initial onus to prove the same by leading
evidence rests entirely on him. He would submit that mere allegations
cannot defeat Plaintiff's claim for interlocutory reliefs and the question
of Plaintiff proving any statutory exception would arise only if
Defendant No.1 first establishes the applicability of the Benami
Transactions Act.
16.14. He would submit that Defendant Nos. 11 to 15, 17 to 19, 22,
24, 25, 31 and 32 have not filed any Affidavit-in-Reply and the
averments against them therefore remain uncontroverted. He would
submit that Defendant No.1 is impermissibly using the Group
Companies to espouse and advance his own personal case, which
cannot be permitted. He would submit that all properties, assets and
businesses of the Gopal L. Raheja HUF were held through the Group
Companies which were merely vehicles for holding coparcenary
property and Plaintiff's coparcenary rights cannot be defeated by
reliance on the Companies Act. He would submit that the Companies
have no independent locus and are misused by Defendant Nos.1 and
Defendant No.2 the said Companies being family-owned and family-
run entities intrinsically linked to the joint family properties and
businesses of the Gopal L. Raheja HUF. He would submit that
80 (1974) 1 SCC 3
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Defendant No.1 and his wife are seeking to hide behind the Corporate
Veil of the Defendant Companies to defeat Plaintiff's coparcenary
rights. He would submit that the fact that the HUF did not hold shares
in the Group Companies is irrelevant, a company being incapable of
being a shareholder and the shareholding pattern did not reflect true
ownership, the shares being held ostensibly for and on behalf of the
coparceners of the Gopal L. Raheja HUF. He would submit that the
provisions of Section 59 readwith Section 430 of the Companies Act,
2013 relied upon by the Group Companies are wholly irrelevant and
cannot be read de-hors HUF law or used to defeat the Plaintiff's
coparcenary rights.
16.15. He would submit that Defendant Nos.33 and 34 have not
filed any Affidavit-in-Reply to the present Notice of Motion and are
therefore precluded from making submissions. He would submit that
their appointment as Additional Directors / Directors was part of
Defendant No.1's plan to usurp control of the Group Companies and
consequently the properties, assets and businesses of the Gopal L.
Raheja HUF. He would submit that prior to disputes in 2011-2012
Defendant No.33 was a Director in Defendant Nos.16 to 20, 22 and 25
while Defendant No.34 was not a Director in any Company and that
after disputes arose Defendant No.1 unilaterally appointed them as
Additional Directors in Defendant Nos.7 to 11, 14, 31 and 32
Companies. He would submit that these unilateral appointments are
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illegal and were made solely to usurp control of the family-owned
companies holding HUF properties as also reflected in Gopal L.
Raheja's letters dated 11.01.2012 and 28.02.2012 calling upon
Defendant No.33 to stop attending the office and to be withdrawn as
Director / Additional Director.
16.16. He would therefore submit that Plaintiff does not seek to
interfere with the functioning of the Gopal L. Raheja Group Companies
but is asserting her lawful rights as a coparcener and Karta of the
Gopal L. Raheja HUF which Defendant No.1 seeks to defeat. Hence, in
view of the aforesaid facts and settled legal position, he would urge the
Court to allow the present Notice of Motion and grant interim reliefs in
the interest of justice.
16.17. Hence, in view of the above submissions he would urge the
Court to allow the present Notice of Motion and grant interim reliefs in
the interest of justice.
17. I have heard the submissions of the learned Senior Advocates
/ Advocates appearing for the respective parties at length and with
their able assistance perused the entire record of the case. Submissions
made by the learned Advocates at the bar have received due
consideration of the Court for considering Plaintiff's case for grant of
interim reliefs.
NMS.1211.2014+.doc
18. At the outset, it is seen that the case of Plaintiff is based on
the premise that Plaintiff is a coparcener by virtue of the Amendment
to the Hindu Succession Act, 2005 in respect of all properties, assets
and businesses held by and through Defendant Nos.7 to 32 which
according to Plaintiff constitute "Joint Family Property" belonging to
the Gopal L. Raheja HUF. The thrust of Plaintiff's case is for partition
of this "Joint Family Property" belonging to Gopal L. Raheja HUF.
wherein Plaintiff claims to be a coparcener and therefore entitled to
partition and share of 1/4th coparcenary rights in the properties, assets
and businesses of Gopal L. Raheja HUF. According to Plaintiff, right
since inception i.e. the extended Lachmandas Raheja Family was a
Joint Hindu Family and the Joint Family businesses remained with
Lachmandas Raheja and Sons HUF, all throughout and upon the final
separation in 1995-1996 between Gopal L. Raheja Group and Chandru
L. Raheja Group, the Gopal L. Raheja HUF continued to remain "Joint
Family" and dealt with the properties belonging to Gopal L. Raheja
HUF as "Joint Family Property".
19. Plaintiff's case is that Gopal L. Raheja HUF has never been
partitioned till date and there is no pleading, document or
contemporaneous conduct evidencing either a complete or partial
partition of the Gopal L. Raheja HUF at any time after 1995-1996.
According to Plaintiff, the Raheja Family was always "Joint Family" and
continued to be "Joint" even after the individual limbs separated from
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the Lachmandas Raheja one by one until 1995-1996. Hence, it is
argued by Plaintiff that there is a legal presumption that a Hindu
Family is "Joint in Estate" and the state of jointness continues until a
formal partition is proven.
20. According to Plaintiff since there has never been a partition
or a partial partition of the Gopal L. Raheja HUF properties neither it
has been pleaded that the properties and assets controlled by
Defendant No.1 having been acquired from his own estate from his self
acquired funds. Hence it is urged that until the Suit is determined
Plaintiff is entitled to interim reliefs of participating and dealing with
the Joint Family Property and businesses held and controlled by
Defendant Nos.1 to 32 and in the final analysis subject to trial, Plaintiff
is entitled to 25% share in the entire assets.
21. Plaintiff's case is resisted by Defendants on the basis of
inconsistent pleadings and definition of the "Gopal L. Raheja HUF"
curated by Plaintiff in arguments advanced across the bar, subsistence
of a 1992 oral Family Agreement within the Gopal L. Raheja Group /
HUF, fructification of the oral Family Agreement by affirmative acts on
the part and conduct of Plaintiff, bar under provisions of Section 4(1)
and (2) of the Benami Transactions Act, the Limitation Act, 1963 and
the Companies Act, 2013 and on the principles governing grant of
injunction at the interim stage.
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22. Principally, except for Defendant No.5 rest of the Defendants
have argued on the timing of pressing the Notice of Motion for interim
relief in the year 2025 when the same was filed alongwith the Suit
proceedings on 01.08.2014, though it is argued by Plaintiff that there
was a delay due to pendency of the Section 9A proceedings /
Application filed by Plaintiff between 2014 and 2023 i.e. for a period
of 8 years and 11 months and thereafter Defendant Nos.1 to 4 having
filed Application under Order VII Rule 11 of CPC for dismissal of the
Suit which remained pending for a further period of 10 months and it
is only thereafter on 12.06.2024 Plaintiff pressed the present Notice of
Motion seeking interim relief. Defendant No.5 has neither supported
Plaintiff nor opposed the Notice of Motion but has prayed for allowing
the same.
23. From the above timeline, it is prima facie seen that nothing
precluded the Plaintiff from seeking interim reliefs during pendency of
the Section 9A proceedings. It is seen that on 08.11.2014, Defendant
Nos.1 to 4 filed their limited Affidavit-in-Reply to the present Notice of
Motion wherein, inter alia, preliminary issue under Section 9A of CPC
and bar of Benami Transactions Act were raised by Defendants,
however it is seen that there was no embargo on Plaintiff to press the
Notice of Motion for ad-interim or for that matter interim reliefs or for
that matter such appropriate reliefs at that time. The period of 8 years
11 months spent in deciding the aforesaid preliminary issue raised
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under Section 9A cannot be a factor for consideration specially when
substantive interim reliefs are pressed for qua Defendant Nos.1 to 4
and 7 to 32 in the facts and circumstance of the present case.
24. The Application of Defendants under Order VII Rule 11 of
CPC was decided within 10 months between 31.07.2023 and
10.06.2024 i.e. during pendency of which it could be rightly argued
that Plaintiff did not press for interim or ad-interim reliefs in the
present Notice of Motion.
25. I say this because of the precursor facts prior to filing of the
Suit in the year 2014 and successive facts subsequent thereto being the
reason for the same. At the outset it is seen that one of the grounds
argued by Plaintiff is that a binding finding of fact has been returned
by this Court on the basis of existence of sufficient pleadings of there
being a Gopal L. Raheja HUF in the order dated 10.06.2024 in
paragraph Nos.35 and 36 while determining the Application filed by
Defendants under Order VII Rule 11 of CPC. Challenge to this order is
though pending in Appeal.
26. It is vehemently argued that contention of Defendants with
regard to the Suit Plaint referring to the "Gopal L. Raheja Group" and
not "Gopal L. Raheja HUF" was considered in the proceedings under
Order VII Rule 11 and comprehensively rejected as can be seen from
paragraph Nos. 9F, 9G, 22, 23, 24, 31 and 32 in the said Order. It is
argued that question of sufficient pleadings existing in the Suit Plaint
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to demonstrate that Suit is for Partition of Gopal L. Raheja HUF was
substantially and directly in issue and it stands already decided by this
Court in the Order dated 10.06.2024. Hence, according to Plaintiff
once that is so decided the said finding is binding on this Court while
deciding Application for interim reliefs and the same argument cannot
be re-agitated by Defendants, since the factual issue already stands
decided.
27. In that view of the matter Plaintiff has argued that prayer
clause "A" of the Suit Plaint seeking declaration that Plaintiff has an
equal and undivided share in Gopal L. Raheja HUF which prima facie
deserves to be accepted for grant of interim relief. Unfortunately
prayer clause "A" does not refer to any "HUF" at all. Prima facie, I am
of the opinion that such submission advanced by Plaintiff is therefore
completely erroneous and untenable on the face of record. It is
pertinent to note that when Application under Order VII Rule 11 of
CPC filed by Defendants was decided by Court, it had to only look into
the Suit Plaint and the Exhibits appended thereto and nothing more.
Hence, averments made in the Suit Plaint were accepted by Court and
deciphered by Court to render the finding in the order under Order VII
Rule 11 of Application.
28. However it is clear that for grant of interim reliefs having
wide ramifications such unilateral averments cannot be considered by
Court as they stand and the Affidavits-in-Replies to the Notice of
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Motion by Defendants and material placed on record will have to be
prima facie considered on the basis of assertions and denials supported
by cogent material and after weighing the same on the four (4)
parameters for grant of injunction namely (1) prima facie case made
out by Plaintiff for grant of injunction; (2) balance of convenience of
both parties (Plaintiff and Defendants) to the Suit proceedings; (3)
irreparable loss, prejudice and harm that could be caused to the party
(Plaintiff) if injunction is not granted and or to Defendants if
injunction is granted most importantly, (4) conduct of the parties only
and after considering these parameters grant of interim reliefs will
have to be considered by Court.
29. I must caution that parties have argued for interim relief on
the basis of pleadings and documentary evidence at length therefore
the aforementioned principles for grant of injunction will have to be
employed and considered. Rather I must note that Plaintiff has argued
the Motion for interim reliefs as if Plaintiff has already led evidence
and proved the same when that is not the case. It is prima facie seen
that Prayer clause "A" seeks declaration that Gopal L. Raheja / his
estate, Plaintiff, Defendant No.1 and Defendant No.5 (comprising the
Gopal L. Raheja Group) are entitled to equal and undivided share,
right, title and interest in the properties, assets and businesses of the
Gopal L. Raheja Group and management and control thereof in terms
of the 1995-1996 Family Arrangement (as seen from Exhibits C1 to
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C4) whereas Prayer clause "B" seeks partition of all properties, assets
and businesses of Gopal L. Raheja Group by metes and bounds.
However on perusal of the Suit Plaint it is seen that the Plaint is
extremely verbose and when read as a whole it is seen that the case
pleaded is that Gopal L. Raheja HUF is part of the Family Agreement of
1995-1996 and entitled to a share as part of the contracting Group.
Hence submissions made for seeking interim reliefs on the ground of
"HUF" is not be found in the prayer clauses as also in the Suit Plaint.
30. It is seen that no case whatsoever is prima facie made out by
Plaintiff that either the 1987 Family Arrangement or 1995-1996
Arrangement was in any manner partition of the Lachmandas Raheja
HUF leading to vesting of properties in Gopal L. Raheja HUF in the Suit
Plaint. If principal relief is for partition necessary averments to that
effect will have to be specifically pleaded in the Suit Plaint. However it
is not so seen. Rather it is argued to the contrary that the Suit is one
for partition of Gopal L. Raheja HUF as per the 1995-1996 Family
Arrangement. However, when the said 1995-1996 Family Arrangement
is perused below Exhibits C1 to C4 appended to the Suit Plaint, it is
prima facie seen that there are six (6) contractual parties thereto, one
of them being Gopal Raheja HUF and one being Defendant No.2 who
is not a coparcener admittedly.
31. It is seen that apart from Plaintiff, Defendant No.1,
Defendant No.5 and Gopal L. Raheja the other two contracting parties
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are Defendant No.2 (wife of Defendant No.1) and Gopal L. Raheja
HUF who are independent signatories to the said 1995-1996 Family
Agreement. These two parties have been conveniently left out by
Plaintiff while arguing for interim reliefs despite they being part of
record of Plaintiff's own case. This is prima facie similar to the case of
the 1987 Family Agreement by virtue of which one of the brother of
Gopal L. Raheja namely Suresh L. Raheja and his wife comprised in the
second group therein separated from the family businesses. Thus when
the two Family Agreements / Arrangements are read it is prima facie
discernible that nowhere it is reflected that properties were ever vested
in the Lachmandas Raheja HUF and were passed down to the sons of
Lachmandas Raheja and ultimately to Gopal L. Raheja HUF as
ancestral properties, infact separation of the fourth brother Kishore L.
Raheja and his family / group is not even brought on record by
Plaintiff despite he being part of the Family and it being pleaded on
record that he separated sometime in the year 1991 so as to support
her submission of properties belonging to Lachmandas Raheja HUF
having been precipitated down to his sons as HUF.
32. Most importantly, it is seen that the 1995-1996 Family
Agreement clearly records Gopal L. Raheja HUF as one out of the six
(6) contracting parties thereto. If the Plaintiff's case is to be prima facie
accepted as being a division between four (4) contracting parties to the
Gopal L. Raheja HUF / Gopal L. Raheja Group then Exhibits C1 to C4
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the documents of alleged partition relied upon by the Plaintiff herself
do not support the Plaintiff's case either. There is a clear reference
thereto to two the additional contracting parties that is Defendant No.2
and Gopal L. Raheja HUF who are independent entities and
shareholders.
33. It is prima facie seen that the fundamental documents of
partition i.e. Exhibits C1 to C4 referred to and relied upon by Plaintiff
reflect partition of properties between two brothers and their family
members and more specifically properties which have been controlled
by them solely but with cross holdings by members of the other group.
It is prima facie seen that Gopal L. Raheja HUF, Defendant No.1, Gopal
L. Raheja, Plaintiff and Defendant No.5 independently were
shareholders in several Companies either controlled by the family
members of Gopal L. Raheja or family members of Chandru L. Raheja.
It is also clearly evident from record relied upon by Defendants that
the HUFs were treated as independent shareholders having
independent shareholdings distinct and different from other members
and it held shares in various Companies. Prima facie the ledger
account of distinct shareholding of Gopal L. Raheja HUF has been
placed on record but if it so denied by Plaintiff then the burden of
proof will be on Plaintiff to prove to the contrary and that can only be
subject to trial. It is seen from the record placed by Defendant No.1
that the amount of approximately Rs.46 lakhs was derivated in the
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Gopal L. Raheja HUF after all transfers and at the highest Plaintiff
would have a share as coparcener in this shareholding. Such material
is placed on record in the form of separate ledger maintained in the
name of Gopal L. Raheja HUF in the books of accounts of the
Companies and prima facie cannot be disbelieved at this stage.
34. If the Plaintiff's case is to be believed that there are / were
only four (4) shareholders of the Gopal L. Raheja Group then the
documents namely Exhibits C1 to C4 relied upon by the Plaintiff
herself speak to the contrary. The averments in the Suit Plaint itself are
clearly inconsistent and self-contradictory, since they do not consider
Defendant No.2 who is a signatory to the 1995-1996 Family
Arrangement. Defendant No.2 is admittedly not a coparcener of Gopal
L. Raheja HUF. Hence, no relief based on coparcenary rights or HUF
can lie against Defendant No.2. However, if it is argued by Plaintiff
across the bar that the Suit Plaint is for partition of Gopal L. Raheja
HUF then Plaintiff ought to have claimed 1/3rd share therein and not
1/4th share as prayed for post demise of her father Gopal L. Raheja.
Hence, on the issue of coparcenary rights, case of Plaintiff clearly falls
short of pleadings rather on the basis of inconsistent pleadings the
principal prayer clauses are clearly not justified for grant of interim
reliefs.
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35. Further, on perusal of the material placed on record by
Defendant Nos.1 to 2 which is alluded to herein above while recording
their submissions it is seen that since 1995-1996, Defendant No.2 held
shares in her personal capacity pursuant to the said Family Agreement
/ Arrangement and during the period between 2005 and 2007,
Plaintiff and Defendant No.5 exited from the Defendant - Companies
and transferred their entire shareholding in favour of Defendant No.2
to 4 entirely. It is however clear that this cannot be an unilateral act or
a gratuitous act and if it is so then it will have to be proved by Plaintiff
on evidence. Prima facie case of Defendant Nos.1 and 2 is that
substantial consideration was paid to Plaintiff and Defendant No.5
which has been not only pleaded in the pleadings by Defendant No.2
but prima facie material evidence is placed on record to that effect by
Defendant Nos.1 and 2 which clearly prove the same. Though it is
denied by the Plaintiff on the ground on quantum, it will have to be so
proved by the Plaintiff once the Written Statement is filed and issues
are framed by the Court. Defendant No.5 has however agreed that
nominal consideration was paid but denies that it was equal to her
share. Even before the Suit is filed this position on behalf of Defendant
No.1 is however consistent as can be seen from the reply dated
28.01.2012 addressed by him to the letter dated 11.01.2012 received
from his father Gopal L. Raheja.
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36. Further, with regard to the above prima facie it is seen that
the Capital Account statement of Plaintiff of year ending 2007-2008
clearly shows receipt of substantial gifts / monies by Plaintiff from her
father - Gopal L. Raheja, her brother Defendant No.1 - Sandeep Raheja
and most importantly Defendant No.2 - Durga Raheja. When such
prima facie evidence is placed on record regarding specific transfers
made in favour of Defendant No.2 and for which it is averred by the
other side that consideration was paid then in that case such transfers
will have to be considered as prima facie valid, complete and binding
which have not been challenged in accordance with law or no
pleadings or explanation are given as to why such transfers were infact
made unless they are proved as illegal or to the contrary. It is clearly
seen that these transfers also included immovable properties details of
which have been given in the Affidavit-in-Reply of Defendant No.1.
37. In that view of the matter, the initial burden to prove to the
contrary will therefore lie on the Plaintiff at trial. Mere pleading of
Plaintiff will not substitute such a case which is supported by prima
facie documentary evidence placed on record by Defendant Nos.1 to 4.
38. In the present case, the timeline is also crucial. It is seen that
transfer of shares to Defendant Nos.2, 3 and 4 from Plaintiff and
Defendant No.5 have taken place between 2005-2007. Suit is filed in
the year 2014. However, it is not even pleaded in the Suit Plaint that
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such transfers were effected though the Suit Plaint is extremely
verbose and prima facie travels beyond several factual frontiers. It is
pertinent to note that it is conspicuously silent on the conduct of
Plaintiff regarding the above transfers. Though it is argued that
transfers were indeed effected on the instructions of her father - Gopal
L. Raheja as mere family gifts to a daughter, Plaintiff will have to stand
to trial for proving the circumstances under which such transfers were
made and disprove the case of reciprocity since transfer are not of
mere movable gifts but of immovable properties.
39. Further, Plaint is conspicuously silent on the fact that in
1995-1996 under the Family Agreement, Plaintiff's approximate
shareholding was a mere 5% and Defendant No.5's shareholding was
11% whereas Defendant No.1's shareholding was 30% and the reason
for Plaintiff to remain silent until 2014. This is so because Suit is filed
for partition of properties under the 1995-1996 Family Arrangement
seeking entitlement to 25% shareholding therein when the admitted
shareholding of Plaintiff and Defendant No.5 was already held @ 5%
and 11% only. Thus even on the issue of limitation, Plaintiff will have
to prove her case for remaining silent since then.
40. In paragraph No.116 of the Suit Plaint, Plaintiff has alleged
that Defendant No.1 and his wife Defendant No.2 have cheated and
defrauded Plaintiff's father Gopal L. Raheja and have deprived the
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Plaintiff and Defendant No.5 of their equal and undivided rights, share
title and interest in assets and businesses of Gopal L. Raheja and
Management and control thereof in 1995 - 1996 Family Arrangement
inter se the Gopal Raheja Group and hence the Suit is filed. The Suit is
filed in the year 2014. Prima facie on the basis of this averment itself
the Plaintiff has waited for more than 18 years to file the Suit and for
more than 29 years to press the Notice of Motion.
41. Next in paragraph No.117 of the Suit plaint, the Plaintiff has
stated that Defendant No.1 has by his acts and deed deliberately
excluded Plaintiff and Defendant No.5 from the properties, assets and
businesses of Gopal L. Raheja Group and Management thereof contrary
to the terms of a valid, subsisting and binding 1995 - 1996 Family
Arrangement inter se the Gopal L. Raheja Group. However, Plaintiff
has immediately thereafter stated that the correspondence exchange
between Plaintiff and Defendant No.1 and actions of Defendant No.1
clearly demonstrate that the properties, assets and businesses /
Management of the Gopal L. Raheja Group held by and through the
instrumentality of Defendant Nos.7 to 19 and 21 to 23 and 27 to 32
and interest in Defendant Nos.20 and 24 to 26 are been sought to be
fettered away / wasted and hence there is an urgent need to protect
the same. Save and except this sentence, there is no other averment,
inter alia, with respect to fraud, cheating or conduct of Defendant No.1
as alleged by Plaintiff. These are the only two averments with respect
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to fraud and for filing of the Suit in the year 2014. Undoubtedly,
limitation would be a mixed question of law and fact which would be
proved by the Plaintiff but on the face of record in the wake of such
averments for fraud, the relief sought for by the Plaintiff in the present
Notice of Motion seeking joint management and control of the
properties and assets which stand transferred to Defendant Nos.1 to 4
since long has been made with gross delay and latches and thoroughly
inadequate pleadings. Though Plaintiff has argued at length on the
basis of Plaintiff's right as a coparcener in the properties belonging to
the Gopal Raheja Group properties, it is Plaintiff's case that the
apparent corporate structure in terms of shareholdings of Defendant
Nos.7 to 32 is not the real structure and that the shares vest and
belong collectively to the Gopal Raheja Group irrespective of in whose
names the shares are shown to be held. However in my opinion
Plaintiff has however not made out any prima facie case for arriving at
the aforesaid conclusion whatsoever when admittedly the businesses
have been transferred to Defendant Nos.1 to 4 by Plaintiff and
Defendant No.5 since long.
42. Further it is seen that the entire case of Plaintiff is based on
the 1995 - 1996 Family Arrangement and denial of the 1992 oral
Family Arrangement propounded by the Defendant No.1 hence initial
burden of proof will be on Plaintiff to prove that the 1995 - 1996
Family Arrangement is in subsistence as on date of filing of the Suit
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proceeding in the year 2014 and in doing so disprove the transfer of
businesses and shareholdings to Defendant Nos.1 to 4 in the
interregnum. It is only when this initial burden is satisfied by the
Plaintiff that the burden will shift onto the Defendant No.1 to prove
the 1992 oral Family Arrangement.
43. In the present case, it is seen that the dispute between
Defendant No.1 and his father started for the first time in January
2012. There is a letter written by Gopal L. Raheja dated 11.01.2012
which is endorsed by Plaintiff and Defendant No.5 wherein it is
acknowledged that Gopal L. Raheja, Plaintiff and Defendant No.5 had
given Power of Attorneys to Defendant No.1 and they had sought to
revoke the same. In response to this letter, Defendant No.1 by his
reply dated 28.01.2012 gave a detailed response and referred to and
relied upon the 1992 oral Family Arrangement, pursuant to which
steps were taken by all Members of the Gopal L. Raheja family to
transfer the shares and interest standing in the names of the Group
Companies to Defendant Nos.1 to 4 over a period of time. In the
subsequent letter addressed by Gopal L. Raheja dated 28.02.2012, the
1992 oral Family Arrangement has been denied by him.
44. From the record it is seen that during the interregnum as
against the transfer of shares by Plaintiff and Defendant No.5 to
Defendant Nos.1 to 4, Defendant Nos.1 to 4 have transferred
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substantial assets reciprocally to Plaintiff and Defendant No.5. The
details of these transfers are given in paragraph No.22(j) of the
Affidavit-in-Reply dated 08.11.2014. In the Rejoinder, curiously, there
is no denial whatsoever. Though it is sought to be argued by Plaintiff
that they were mere gifts given to Plaintiff and Defendant No.5, this
submission cannot be accepted on face value since Plaintiff has
suppressed the same in the Suit Plaint.
45. In that view of the matter and the fact that in 2001 Gopal L.
Raheja had transferred all his shareholdings held by him to the joint
names of Defendant No.1 and himself including the shareholding of
Gopal L. Raheja HUF between 2001 and 2007 and transfers of all
shares and rights by Plaintiff and Defendant No.5 between 2005 -
2007, coupled with the fact that Plaintiff and Defendant No.5 received
substantial consideration and gifts both movable and immovable which
have been delineated in the Affidavit-in-Reply alluded to herein above
as also the evidence Affidavit filed in Suit No.2363 of 2012, the case of
the Plaintiff for interim reliefs as sought for in the present Notice of
Motion cannot be acceded to by the Court. In the event if the Plaintiff's
plea is considered, it will amount to grant of final reliefs at the interim
stage without any semblance of a trial which cannot be allowed by the
Court in the facts and circumstances of the present case discussed
hereinabove.
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46. The dichotomy as to whether Gopal L. Raheja HUF referred
to in 1995 - 1996 Family Arrangement is infact the same as the Gopal
L Raheja Group or is the Group HUF is once again required to be first
satisfied and proved by Plaintiff by stepping into the witness box and
only thereafter the properties, assets and businesses of the Defendant -
Companies listed in Exhibit 'B' to the Plaint can be said to be belonging
to the Gopal L. Raheja HUF as coparcenary property can be considered
for adjudication. The answer to the aforesaid questions is prima facie
in the negative on the basis of the material placed before the Court
which is discussed hereinabove and merely on the basis of pleadings of
the Plaintiff and submissions made across the bar the case of the
Plaintiff on coparcenary right cannot be accepted at this stage for grant
of substantive interim reliefs.
47. Further it is seen that except for a stray mention of Karta of
HUF or joint family, there is nothing in the Plaint to suggest that the
present Suit is one for partition of a HUF on prima facie reading of the
Suit Plaint. A plain reading of the Plaint shows that it is not Plaintiff's
case that either the 1987 Family Arrangement or the 1995 - 1996
Family Arrangement were in any manner a partition of the
Lachmandas Raheja HUF or that the 1995 - 1996 Family Arrangement
exhibited as Exhibits C1 to C4 vested the properties in the Gopal L.
Raheja HUF. However to the contrary it is pleaded in the Suit Plaint
that Gopal L. Raheja and his children constituted a Group in the 1995 -
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1996 Family Arrangement and are entitled to an equal share as part of
the contracting Group. If this be true, then reference to a non-
coparcener namely Defendant No.2 and Gopal L. Raheja HUF in the
1995-1996 Family Arrangement is prima facie fatal to the case of
Plaintiff when it is argued that the Suit is for partition of all assets and
properties amongst Gopal L. Raheja family members comprising of
Gopal L. Raheja, Plaintiff, Defendant No.1 and Defendant No.5 only.
48. It is prima facie seen and alluded to herein above that post
the 1995 - 1996 Family Arrangement transfer of shares have taken in
place in favour of various individual members namely Defendant Nos.1
to 4 from Plaintiff and Defendant No.5 and most importantly Gopal L.
Raheja himself and thus Plaintiff has failed to make out any case for
grant of interim reliefs at this stage.
49. Further case of Plaintiff that the shares were transferred
inter alia to Defendant Nos.3 and 4 even though they were minors as
fiduciaries and Trustees on the face of record cannot believed since
Defendant Nos.3 and 4 were 8 years old and 4 years old when the
transfer of shares took place in the year 2005 to them. On all the four
counts namely prima facie case, balance of convenience, irreparable
loss and conduct of the Plaintiff no prima facie case is made out by
Plaintiff as to what are the assets of the HUF or as to whether the HUF
existed and had if it did so then at what point of time. That apart the
gross delay with which the Plaintiff has come to the Court militates
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against the Plaintiff's case. Once it is seen that Plaintiff is neither a
shareholder or Director of Defendant Nos.7 to 32 entities then unless
and until the Plaintiff proves her case and succeeds in proving her case,
her case cannot be considered to interfere and meddle with the
operations of the Defendant - Companies / entities. There is no threat
also to the Plaintiff's claim because the Companies are all going
concerns and operating in the public domain either as Private Limited
Companies and Limited Liability Partnerships.
50. Attention is drawn to the recent decision of the Division
Bench of this Court in the case of Myra Philomena Collaco Vs. Lilian
Coelho and Ors.81 and paragraph No.130 of the said decision which is
relevant in the context of the dispute in the present proceedings
wherein the Court has discussed the concept of one family which reads
as under:-
"130. In contemporary times, we often hear the famous phrase
"Vasudhaiva Kutumbakam," meaning that the world is one family.
However, cases such as the present one are classic examples of
stark differences: disputes within families over property that show
no end in sight and ultimately result in delayed litigation. This is a
tendency that ought to be curtailed in larger societal interest. We
conclude with this solemn and optimistic hope."
51. In view of my above observations and findings, Plaintiff is
not entitled to any interim reliefs.
52. Notice of Motion is dismissed.
[ MILIND N. JADHAV, J. ]
Ajay
81 Appeal No.574 of 2003 in TS No.33 of 1999 - Decided on 30.12.2025.
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.01.05
12:14:13 +0530
