1 app235.09gp.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 235 OF 2009 IN NOTICE OF MOTION NO. 3647 OF 2007 IN SUIT NO. 2656 OF 2007 WITH NOTICE OF MOTION NO. 217 OF 2010 IN APPEAL NO. 235 OF 2009 IN NOTICE OF MOTION NO. 3647 OF 2007 IN SUIT NO. 2656 OF 2007 Chander L. Chawla & Ors. ....Appellants. Vs. Bindiya Chawla & Ors. ...Respondents. ALONG WITH APPEAL NO. 103 OF 2010 IN NOTICE OF MOTION NO. 3647 OF 2007 IN SUIT NO. 2656 OF 2007 Bindiya Chawla & Ors. ...Appellants. Vs. Mr. Chander L. Chawla & Ors. ...Respondents. Mr. Gautam Ankhad with Mr. Tushar Gujjar i/by M/s. Ashwin Ankhad 2 app235.09gp.sxw ssm & Associates for Appellants in Appeal No. 235 of 2009 and for the Respondents in Appeal No. 103 of 2010. Mr. Vaibhav Sugdhare a/w Mr. Aditya Mithe a/w Ms. Zohra Kutarwadli i/by M/s. Khaitan and Jaykar for the Appellants in Appeal No. 103 of 2010 and for the Respondent No. 1 to 3 in Appeal No. 235 of 2009. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 22 NOVEMBER, 2011. P.C. :- Both these Appeals are directed against the same order passed by the learned Single Judge of this Court dated 31 March 2009 in Notice of Motion No. 3647 of 2007 in Suit No. 2656 of 2007. That Suit is filed by Bindiya A. Chawla, Plaintiff No.1 and her two minor children. Defendant No.1 is the father of Plaintiff Nos.2 and 3 and is ex-husband of Plaintiff No.1. Defendant No.2 is father of Defendant No.1. Defendant No.3 is brother of Defendant No.1 and Defendant No.4 is mother of Defendant No.1 and wife of Defendant No.2. The Plaintiffs have filed the Suit claiming following reliefs. (a) That this Hon’ble Court be pleased to declare that the Plaintiffs are entitled to share equally with the defendant 1 in his share in the H.U.F. property/joint hindu family property and other property both movable and immovable standing in the names of the 3 app235.09gp.sxw ssm defendants 1 to 4 being the suit property more particularly described in Exhibit D and E hereto. (aa) That this Hon’ble Court be pleased to declare that the Plaintiffs are entitled to their share in the HUF/joint Hindu family property and other properties both movable and immovable standing in the names of D1 to D4 being the suit property more particularly described in Exhibit “D” and “E” hereto. (b) That this Hon’ble Court be pleased to send for the deed of Gift registered on 11th December, 2006 and adjudge the same as void and cancel and set aside the same and declare the same as not binding on the Plaintiff. (c) That this Hon’ble Court be pleased to pass an order for permanent injunction restraining the defendants no. 2 to 4 from entering the Plaintiff’s matrimonial home i.e. 1st Floor, Legacy building, the legacy co- operative housing society, T.P.S., IV, 3rd floor, Bandra (w), Mumbai- 400 050 and from disturbing her peaceful possession thereof in any manner.” 2 The Plaintiffs have also claimed by prayer clause (d) an injunction restraining the Defendants from alienating the property described in Exhibit “D” and “E”, but the learned counsel appearing for the Plaintiffs stated that, that is really an interim relief and not final relief. 3 The case of the Plaintiffs in the Plaint is that the property described in Schedule Exhibit “D” and “E” is joint family property of 4 app235.09gp.sxw ssm the Plaintiffs and the Defendants. In the Suit, the Plaintiffs took out a Notice of Motion. By prayer clause (a), a temporary injunction restraining Defendant Nos. 2 to 4 entering Plaintiffs’ matrimonial home i.e. the two flats on the first floor of “Legacy Apartment” was claimed and by prayer clause (b) similar temporary injunction in relation to the property described in Exhibit “D” and “E” is claimed. By prayer clause (c), appointment of Receiver was sought on the property described at Exhibit “D” and “E”. The learned Single Judge by the order which is impugned in the Appeal has granted interim injunction in terms of prayer clause (a), but has not granted any relief in terms of prayer clause (b) though in the operative part of the order she has observed that she has granted interim relief in terms of prayer clause (b) in part. However, it is common ground before us that by prayer clause (b), interim injunction in relation to the property described in Exhibits “D” and “E” was sought and no relief in relation to any property described in Exhibit “D” and “E” has been granted. Save and except that temporary injunction is granted in relation to the flat which is described in prayer clause (a). 4 The learned Single Judge has held that the flat in Legacy Apartment consists of two flats, flat Nos. 101 and 102. The learned 5 app235.09gp.sxw ssm Single Judge has found that as per the record of the Society Flat No. 102 is jointly owned by the Plaintiff No. 1 and Defendant No.4 whereas flat No.101 is exclusively owned by Defendant No.4. She has found that there is no partition wall between flat Nos. 101 and 102 and therefore, she has granted temporary injunction restraining the Defendants from entering that flat. Therefore, Defendant Nos. 2 to 4 have filed Appeal No. 235 of 2009 challenging the order of the learned Single Judge granting temporary injunction in relation to flat Nos. 101 and 102 in the Legacy Apartment. The Plaintiffs have filed Appeal No. 103 of 2010 challenging the order of the learned Single Judge declining to grant any order in terms of prayer clause (b). 5 We have heard the learned counsel appearing for both the sides. Perusal of the averments in the plaint shows that the Plaintiffs claim that the property described in Exhibit “D” and “E” which includes the two flats in the Legacy Apartment is joint family property and therefore according to her, Defendant No.1 has share in the property and therefore, the Plaintiffs also have interest in those properties. The Plaintiffs have, therefore, claimed a decree of declaration that it is a Joint Hindu Family property and that the plaintiffs have share in that property equally with Defendant No.1. That is the relief claimed by 6 app235.09gp.sxw ssm prayer clauses (a) and (aa). But in the plaint, the Plaintiffs have not claimed any relief for partition of the property which according to them is a Joint Family property nor have they claimed a decree for separate possession of their share in the property. 6 Section 34 of the Specific Reliefs Act reads as under:- 34. Discretion of Court as to declaration of status or right- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the Plaintiff need not in such suit ask for any further relief; Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 7 Perusal of the above provision shows that a Suit can be filed in a Court claiming a declaration as to right or legal character of a person and in a Suit filed for declaration, it is not necessary that the Plaintiffs should seek any further relief. Proviso to Section 34, however, lays down that when the Court finds that further relief after seeking declaration could have been claimed by the Plaintiffs, but the Plaintiffs have omitted to seek such a relief. The Court shall not pass 7 app235.09gp.sxw ssm the decree for declaration only. In the present case on the basis of the pleadings in the plaint, the Plaintiff seeks a decree of declaration that the Plaintiffs have share in the Joint Family property and they seek decree of declaration to that effect. After seeking that decree of declaration, the Plaintiffs could have claimed the decree for partition and separate possession of the property that they have omitted to do. Therefore, the Plaintiffs do not have a strong prima facie case for getting a decree in terms of prayer clause (a) and (aa). 8 What is further to be seen is according to the provisions of Order II, Rule 2 of the Code of Civil Procedure, Plaintiff is under an obligation to seek all reliefs which can be claimed on the cause of action on which the Suit is based and if the Plaintiffs omit to seek some reliefs then unless such omission is with the leave of the Court, no fresh Suit can be instituted for those reliefs. Therefore, we find that without looking at the defence of the Defendants, even on the basis of the averments made in the plaint and the reliefs claimed in the plaint, it is obvious that the Plaintiffs do not have prima facie case in their favour. 9 What is further to be seen is that the Plaintiffs’ claim that the 8 app235.09gp.sxw ssm property which stands in the name of Defendant Nos. 2 to 4 is joint family property and in support of that case the Plaintiffs rely on a document which is styled as Memorandum of Partition dated 5 February 2001. The learned counsel appearing for the Plaintiffs however, submitted that though this document is compulsorily registrable, it has not been registered. Therefore, according to him, despite the partition the property continues to be joint. If that is so, then this document would not be admissible in evidence and cannot be relied on. We asked the learned counsel, that even assuming that it is a Joint Hindu Family Property as to how the Plaintiffs during the life time of Defendant No.1 would get any interest in the property, because there are no averments in the plaint that the Defendants are members of any co-parcenary or there is any co-parcenary property. The learned counsel could not show to us anything that in the absence of there being any averments about co-parcenary, the Plaintiff Nos. 2 and 3 will get any share in the property of Defendant No.1 by birth during lifetime of Defendant No.1. 10 Thus, looking at the matter from any point of view, it is clear that the Plaintiffs have no prima facie case in their favour. However, it is clear from the record that so far as flat No. 102 is concerned, 9 app235.09gp.sxw ssm Plaintiff No.1 is co-owner of that flat along with Defendant No.4. It is true that presently, there is no partition wall in existence dividing flat Nos. 101 and 102. From the record it is clear that flat Nos.101 and 102 presently are being treated as one flat. From the material on record it is clear that so far as flat No. 101 is concerned, Defendant No.4 is sole owner and she is 50% owner of flat No. 102. The settled law is that one co-owner cannot seek a temporary injunction or permanent injunction restraining the other co-owner from enjoying the property. Plaintiff No.1 precisely seek that relief by prayer clause (a). Therefore, accepting the case of the Plaintiff herself that flat Nos. 101 and 102 are treated as one flat, in which as per the material available on record, Defendant No.4 has 2/3 share, the Plaintiff No.1 would not be entitled to any temporary injunction against Defendant No. 4 who admittedly is co-owner of that flat. Therefore, no relief as claimed by the Plaintiffs can be granted in favour of the Plaintiffs. Therefore, we suggested to the learned counsel appearing for the Plaintiffs that if the Plaintiffs agree, steps can be taken to separate flat Nos. 101 and 102 and a suitable interim order can be made so that nobody can interfere with the possession of the Plaintiffs of one flat i.e. 101, but the learned counsel appearing for the Plaintiffs stated after taking instructions that the Plaintiffs are not willing to agree to 10 app235.09gp.sxw ssm any such arrangement. In this view of the matter, therefore, as we find that it is clear from the material on record that though Plaintiff No.1 has 50% share in flat No. 102, she cannot get a temporary injunction restraining Defendant No.4 from entering into that flat, though as part owner of flat No.102, she may be entitled to a temporary injunction restraining Defendant No.2 and 3 from entering into the flat. 11 It is contended on behalf of Defendant Nos. 2 to 4, that Plaintiff No.1 will not have 50% share in Flat 102 because her 50% share in flat No.102 gets reduced to 25% because of decree of divorce between Plaintiff No.1 and Defendant No.1. It is not necessary to examine that contention in view of the order that we propose to make. 12 However, as we find from the plaint that the Plaintiffs do not have strong prima facie case in their favour no relief can be granted to the Plaintiffs. 13 In the result, therefore, the order impugned in both these Appeals is set aside. Notice of Motion No. 3647 of 2007 is rejected. Both the Appeals are accordingly disposed of. 11 app235.09gp.sxw ssm 14 At the request of the learned counsel appearing for the Plaintiffs it is directed that despite rejection of the Motion, interim order which was operating during the pendency of the Appeal shall continue to operate for a period of six weeks from today. 15 Notice of Motion No. 217 of 2010 in Appeal No. 235 of 2009 is also disposed of. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.)