1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3212 OF 2007 IN SUIT NO.2411 OF 2007 Rajesh Nanji Shah @ Gada & Anr. ....Plaintiffs V/s. Doongarsi Mavji Shah & Ors. ....Defendants Mr.D.H. Mehta i/b T.N. Tripathi & Co. for the Plaintiffs. Mr.Tamhane i/b Tamhane & Co. for Defendant No.1. Mr.P.M. Shah i/b Anil Gala & Satish D. Rasal for Defendant Nos.2 to 4. Mr.Sanjay Jain i/b M/s.Kunduru & Kunduru for Defendant No.5. CORAM : S.J. VAZIFDAR, J. DATE : 9TH OCTOBER, 2009. P.C. :- 1. The suit is filed to challenge a Gift Deed dated 23.8.2004 executed by the two Plaintiffs and Defendant Nos.2 to 5. 2. By the said Gift Deed, these parties gifted two shops to Defendant No.1. 3. Defendant No.2 is the widow of one Nanji Shah. The Plaintiffs and Defendant Nos.3, 4 and 5 are their children. Defendant No.6 is the co- operative society in which the two shops are situated. 4. There is no dispute that the Gift Deed was executed by the Plaintiffs and Defendant Nos. 2 to 5. Nor is there any dispute that the Gift 2 Deed was registered and that all the parties admitted the execution thereof before the Registrar of Assurances. It is however submitted that the Gift Deed was executed under duress in view of the fact that Defendant No.1 who is the brother of the deceased, occupied a dominant role in the lives of these parties. Defendant No.5 a daughter of the deceased supports the Plaintiffs. Defendant Nos.3 and 4 who are the widow and two other daughters of the deceased support Defendant No.1. 5. It was submitted by Defendant No.5 and the Plaintiffs that the circumstances surrounding the Gift Deed establish that the same had been executed forcibly, under duress and/or undue influence. It was submitted for instance that Defendant No.5 executed the document less than one month after she delivered a child. That the stamp duty was paid on the date on which the deceased died would not necessarily answer the question conclusively against Defendant No.1 for it is the case of Defendant Nos.1, 2 and 3 that the deceased had himself decided to gift the shops to his brother – Defendant No.1. The Gift Deed in fact recites the same as well. It was also submitted that Defendant No.1 had sold two shop premises in the year 2002 to the deceased. This would make the Gift Deed unnatural for it is inconceivable that on one hand the deceased purchased the shops from his brother – Defendant No.1 and at the same time gifted the shops, albeit different shops, to Defendant No.1. 6. The circumstances however require the Plaintiffs’ rights to be protected. I am however, not inclined to grant anything more than an injunction. This is for the reason that there is no satisfactory explanation as 3 to why the parties waited for three years to challenge the Gift Deed if it in fact was executed under coercion. Plaintiff No.1 was about 40 years old, Plaintiff No.2 was about 35 years and Defendant No.5 was about 28 years old when the Gift Deed was executed. I will assume that they were disturbed when their father expired in the most unfortunate circumstances. That however did not prevent the children of the deceased inter-se taking action against each other. 7. I am unable to reject the case of Defendant No.1 supported by the widow of the decease and his two daughter that the deceased gifted the shops to him out of love and affection especially in view of the fact that he has only one child who is challenged. 8. In the circumstances, pending the hearing and final disposal of the suit, Defendant No.1 shall not dispose of, alienate, part with possession of or create any third party right, title and/or interest in respect of the suit premises without the leave of the Court. Defendant No.1 shall be entitled to let the shops on leave and licence basis and to appropriate the amounts to himself. Defendant No.1 shall forward a copy of the leave and licence agreement to the Plaintiffs’ advocate before executing the same. If the Plaintiffs procure a higher rate but on the other terms and conditions remaining the same, Defendant No.1 shall accept the same and enter into a leave and licence agreement with such party. This is further provided that the Plaintiffs shall indemnify Defendant No.1 against any loss that he may suffer on account of any breaches or default by the licensee procured by them. If the Plaintiffs do not procure a licensee as above and intimate the 4 advocate of Defendant No.1 within two weeks of the receipt of the notice by their advocate, Defendant No.1 shall be free to execute the said leave and licence agreement. The licensee shall however undertake to this Court not to claim any right other than as a licensee under the provisions of the Maharashtra Rent Control Act, 1999 and to hand over possession thereof forthwith upon being required to do so by the Court. A copy of the present leave and licence agreement shall be forwarded within two weeks from today to the advocates of all the parties.