1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON Notice of Motion No.4292 of 2008 IN Suit No.3281 of 2008 W I T H Notice of Motion No.1078 of 2009 IN Suit No.3281 of 2008 Falguni Dinesh Shah ... ... Plaintiff v/s. Deepak P. Shah & ors. ... Defendants Mr.A.Y. Sakhare, Sr.Advocate with Mr.A.M. Saraogi and Mr.Santosh Mishra for Plaintiff. Ms.Anjali Chandurkar with Ms.Akansha Thakkar i/by M/s.Purnanand & Co. for Deft.No.5. Mr.Rajiv Gupta for Deft.No.6. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 25th March, 2010 Date of pronouncing the order : 6th April, 2010 2 P.C. : 1. The Plaintiff, Defendant No.1 and one Dhiren Shah are the children of one Pushpakant K. Shah, who had acquired the suit flat being flat No.15, Safalya, 3rd floor, 19/20, Devidas Co-operative Housing , Nathpai Nagar, Ghatkopar (East), Mumbai 400 077 (the suit flat). The Plaintiff claims 1/3rd share in the estate of her father. She is a Non Residential Indian. Her father acquired the premises on 13.2.1989. He died intestate on 20.9.1994. The Plaintiff has not made any application for claiming her share in the estate of the deceased at any time prior to the Suit which has been filed 13 and ½ years after the death of the deceased father. 2. Defendant No.1 resided in the suit flat. He also has 1/3rd share in the estate of his deceased father. He, therefore, would otherwise hold the suit flat in trust for the estate of the deceased. He has been residing in the flat since then to the exclusion of the Plaintiff and his brother Dhiren Shah. He has been paying the maintenance bills of the Society. The Plaintiff has not made or offered to make any contribution to the Society charges. He has got the share certificate of the suit flat transferred to his name on 23.4.1996. It is common knowledge that 3 the Society would not transfer any shares in the Society without the consent of the other heirs. 3. The cause of action to claim the estate of the father of the Plaintiff would accrue on the death of the father or at-least when any act is done by any party such as to exclude the Plaintiff therefrom. The Plaintiff has knowledge of the death of her father. The Plaintiff has taken no steps to claim her share in the estate of her father being the 1/3rd share in the suit flat. The Plaintiff has allowed the shares of the suit flat to be transferred to her brother, Defendant No.1. The Plaintiff has not contributed towards the upkeep of the flat. The Plaintiff must be taken to have given up her right, if any, in the suit flat. 4. The suit flat upon transfer came to be in the exclusive name of Defendant No.1. Even the other brother Dhiren Shah has not exercised any rights over the suit flat. 5. It is not known whether the father of Defendant No.1 died testate or intestate, what other properties he left behind and how the brothers and sisters being Defendant No.1, Dhiren Shah and the Plaintiff administered the other estate of the deceased. 4 6. The Partnership Firm of Defendant No.1 being Defendant No.4 in this Suit took a loan from Defendant No.3-Bank. Defendant No.1 guaranteed the loan. Defendant No.1 mortgaged the suit flat to Defendant No.3-Bank. Defendant No.3-Bank has, upon due legal process being followed, obtained the judgment / recovery certificate in respect of the loan. Defendant No.3-Bank has taken steps in execution of such judgment / recovery certificate. Defendant No.3-Bank has taken all derivative actions under such judgment / recovery certificate. An auction sale has taken place. Defendant No.5 has been the highest bidder. A proclamation of sale has been fixed since 12.12.2007. A public notice was published in newspapers on 12.12.2008. Inspection of the suit premises was given to the intending purchasers on 1.2.2008. An auction sale was held on 5.2.2008. Defendant No.5 was declared the highest bidder. Defendant No.5 has made payment of the entire consideration amount upon the auction sale by 18.2.2008. A certificate of sale was issued in favour of Defendant No.5 on 27.3.2008. So soon as the procedure established by law for execution of the recovery proceedings was completed and the possession of the suit premises was to be handed over by Defendant No.1 to the auction purchaser, 5 Defendant No.5, the Plaintiff has been put up by her brother to sue, claiming 1/3rd share in the estate of the deceased father. 7. The Plaintiff s Suit is for declaration of her 1/3 rd undivided share, declaration that Defendant No.4- Firm, which is the Partnership Firm of Defendant No. 1, has no right to create third party rights or mortgage the flat and that the auction conducted by Defendant No.3-Bank, making an auction sale in favour of Defendant No.5, is bad. The Plaintiff, therefore, claims an injunction in this Notice of Notion restraining Defendant Nos.3 and 5 from taking physical possession of the suit flat. 8. The aforesaid chronology unmistakably shows the collusive nature of the Suit. It shows complete lack of bona fides of the Plaintiff. It shows that the Plaintiff has been put up by Defendant No.1. It, in fact, shows that the Plaintiff s claim has been barred by the Law of Limitation, as it was not filed within 3 years of the cause of action having accrued to the Plaintiff. 9. Mr.Sakhare on behalf of the Plaintiff relies upon two judgments of this Court to show that the Suit would not be barred by the Law of Limitation. 6 However, the Plaintiff has not shown when the cause of action accrued to the Plaintiff in respect of her 1/3rd undivided share in the suit flat as a part of the estate of her deceased father. The clause relating to limitation is conspicuously absent in the Plaint. 10. Reliance by Mr.Sakhare upon the judgment in the case of Vittal Daulat Lad vs. Ashok Govind Tawade, 2002 (3) BCR 475 is misplaced. In that case, the Plaintiff who claimed a share in the premises had tried to lay claim to the suit premises and had even filed N.C. complaint, though he shifted to other premises. There were criminal proceedings in which Sub-Inspector of the Police Station had sought to dispossess the Plaintiff. The Plaintiff had asserted his right in the Suit. There was a threat to infringe that right. Hence the Plaintiff was held entitled to the declaration sought. 11. In the case of Kishore Narsingh alias Hirala Shah vs. Prakash Narsingh Shah, 2001 (2) BCR 395, the judgment in the case of Vasanti P. Shetty vs. Nagaveni J. Shetty, 1996 (1) L.J. 970 was referred to. In that case, the suit property was the self acquired property of the father, who died intestate. The daughter did not file any Suit for 23 years. 7 Since she was not excluded from the enjoyment of the flat, it was held that mere non-exercise of the right by the Plaintiff from the date of her marriage was not the indication on her part to give up her rights in the suit property. There was no clear and unequivocal demand of partition and hence when the Plaintiff demanded her share and it was denied by the Defendant, the right to sue accrued. In this case, however, the Plaintiff has never exercised her right in the suit flat. She has never enjoyed the suit property. She must be taken to have given up rights in the suit property for as long as 14 years from the death of her father. In this case, the share certificate came to be transferred to Defendant No.1 unlike the case of Vasanti P. Shetty (supra) in which the property continued as before. 12. Consequently, both the aforesaid judgments relied upon by Mr.Sakhare, cannot confer rights upon the Plaintiff. In fact, the Plaint itself deserves to be rejected under Order VII Rule 11(d) of the Civil Procedure Code. 13. It would be a travesty of justice if a party, who does not claim any part of the estate of her deceased father 14 years, seeks to claim reliefs against a bona fide purchaser of the flat for value 8 and consideration upon following the procedure established by law in respect of the action taken by the other claimant or beneficiary of the estate of the deceased with the knowledge and tacit consent of such Plaintiff. 14. Both the Notices of Motion are, therefore, completely lacking in bona fides and are dismissed with costs, fixed at Rs.10,000/-. The interim order, if any, shall continue for 2 weeks. (SMT.ROSHAN DALVI, J.)