1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.1496 of 2009 IN Suit No.2866 of 2009 Smt.Monika Mary Mendonca & ors. ... Plaintiffs v/s. Mr.Anthony Jerome D Souza & ors. ... Defendants Mr.A.P. Steenson for Plffs. Mr.M.S. Menon with Mr.A.A. Siddique for Defts. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 7th May, 2010 P.C. : 1.The Plaintiffs and Defendant No.1 are the legal heirs of one John Jorame Manuel D Souza (John). There are certain properties left by the said John. The Plaintiffs are the 4 daughters and Defendant No.1 is the son of John. They would get an equal 1/5 th share each in the said properties. Their relationship is admitted. 2.The properties claimed by the Plaintiffs are mentioned in Schedule-1 to the Plaint. There are 5 properties shown in the Plaint. The Plaintiffs do not claim property in Schedule-5. 2 3.The parties have different contentions in respect of the other 4 properties. Their rights will have to be decided based upon their contentions in respect of each of them separately as follows:- 4.Property in Schedule-1 : This property has been allotted to MHADA in TPS Scheme-3 in 1958. The Plaintiffs as well as Defendant No.1 have had their separate structures on this property. The Plaintiffs claim that Defendant No.1 has been paid by MHADA in respect of structures found in his possession but which were shown to be in occupation of his family members and relatives. Defendant No.1 has been paid Rs.8 Lacs in a residential flat admeasuring 2200 sq. ft. as a self component. The agreement with MHADA has not been shown in the Plaint. The Plaintiffs have relied upon this agreement along with certain consent terms entered into by Defendant No.1 with the builders under the SRA Scheme of MHADA and land in BCCC Suit No.5151 of 1997. 5.Defendant No.1 claims that Plaintiff No.1 had similar structures and was similarly paid off but which has been suppressed. The parties shall have to show at the trial how and in which capacity they were in occupation of their respective structures on the land in Schedule-1. 3 6.Property in Schedule-2 : This property belonged to the father of these parties, which has been allotted under TPS-3 to the father of these parties. The father expired on 21.2.1976. Defendant No.1 claims that there were other claimants who have filed Suits being Suit Nos.546 of 1971 and 368 of 1971. If Defendant No.1 claims any rights in the property, it is for him to agitate those Suits. If he claims any right, he cannot claim it singly and entirely for himself. Whatever be the rights of the father of Defendant No.1 would be equally shared with Plaintiff Nos.1 to 4 who are his sisters. 7.Defendant No.1 claims that his father was the original owner who had leased the land to some lessees. Defendant No.1 had filed Suits in the Small Cause Court in 1972 and 1980. Three buildings have been constructed on the land. The flats have been sold on ownership basis. Plaintiff Nos.1 to 4 as well as Defendant No.1 as the heirs of their deceased father, who was the owner of the land, would have to convey the land to the Society under the Maharashtra Ownership Flats Act, 1963. The consideration received in respect of the land would have to be equally shared between Plaintiff Nos.1 to 4 and Defendant No.1. The Plaintiffs claim that Defendant No.1 is collecting 4 rents singly from the lessees in RAE Suit No.1226/4355 of 1983 filed in the Small Cause Court. They have not been allowed to take any part of the rents from that Court as their share, which has to be determined in this Suit, has not yet been determined. It is now clarified that each of the Plaintiffs would have 1/5 th share in all the assets, properties as well as income of all the properties of their father. Hence the Plaintiffs may make such application as they are advised to that end in the RAE Suit, which shall be dealt with by that Court. 8.Property in Schedule-3 : This property is claimed to be an ancestral land in paragraph 12 of the Plaint. There was an ancestral house constructed by the father of these parties, who resided therein. All the parties would be entitled to have their names entered in the record of rights in respect of this property which admittedly belonged to their father. Defendant No.1 claims that there was a partition and a writing executed by the sisters relinquishing their share. The sisters have disputed the writing. They claim that it is fabricated and forged. Defendant No.1 cannot have the full share in this property until he proves the relinquishment by his sisters. All of them would be equally entitled to 1/5 th share therein. All of them would be entitled to be entered in the record of rights 5 in respect of that house. 9.Property in Schedule-4 : The father of these parties is stated to be the owner of these lands under CTS No. 152 equivalent to CTS Nos.2598, 2600 and 2603. The Plaintiffs claim that under a mutation entry in Form-6 extract their names have been mutated in respect of these lands. Plaintiff Nos.1 to 4 and Defendant No.1 must, therefore, share this land also equally. 10.Defendant No.1 claims that in paragraph 20 of the Affidavit-in-rejoinder of the Plaintiffs, they claim to have received their share upon the sale of these lands. That contention is incorrect. What is mentioned in paragraph 20 is that the Plaintiffs have been given only a token amount of Rs.20,000/- each received in respect of this land, whereas Defendant No.1 sold the entire property fraudulently to the exclusion of the Plaintiffs and did not give the Plaintiffs their share in the final amount upon sale. 11.The Plaintiffs would be entitled to this amount at the hearing of the Suit from Defendant No.1 since the property is already sold. 12.Property in Schedule-5 : The Plaintiffs state that they do not claim any share in the property in 6 Schedule-5. Hence the following order:- ORDER (i)No order is passed at present in respect of the property under Schedule-1 which has been allotted to MHADA. (ii)The Plaintiffs would be entitled to an equal share with Defendant No.1 in respect of the sale of the property in Schedule-2. They may adopt such proceedings as they are advised in the Suits filed in the Small Cause Court, more specially in RAE Suit No. 1226/4355 of 1980. (iii)The Plaintiffs shall be entitled to have their names entered in the record of rights in respect of the house on the property in Schedule-3. (iv)The Plaintiffs shall be entitled to their 1/5 th equal share in the proceeds of the sale which may have been taken by Defendant No.1 upon sale of the property. (v)Defendant No.5 shall not sell, encumber, part with possession or create any further third party rights in respect of any of these properties pending the Suit. (vi)The Notice of Motion is disposed of accordingly. 7 (SMT.ROSHAN DALVI, J.)