1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 717 OF 2007 APPEAL FROM ORDER NO. 717 OF 2007 APPEAL FROM ORDER NO. 717 OF 2007 IN NOTICE OF MOTION NO. 2248 OF 2006 IN BCCC SUIT NO. 2447 OF 2006 Shree Prakash Poddar & Anr. .. Appellants (Orig. Plaintiffs) Versus Madhusudan S. Poddar & Anr. .. Respondents (Orig. Defendants) Ms. Geeta Shastri, Advocate, i/b. Shri S.P.Srivastava, Advocate for the appellants. Mr. P.S.Dani, Advocate, i/b. M/s. Kiran Jain & Co., advocates for the respolndents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 8th January, 2008. DATE: 8th January, 2008. DATE: 8th January, 2008. P.C. P.C. P.C. 1. This Appeal is preferred by the original 2 plaintiffs. The respondents are the defendants. 2. To state in brief, defendant No.1 is the son of plaintiffs and defendant No.2 is the wife of defendant No.1. The dispute is pertaining to the Flat No.25 in "Shreyas" Building situated at Nariman Point, Opposite Air India Building, Mumbai. Plaintiffs Nos. 1 and 2 are aged 75 and 71 years respectively. According to them, plaintiff No.1 is the owner of the suit property on the basis of an arbitration award and it stands in the name of both the plaintiffs in the record of the Co-operative Society. The plaintiffs are living in the suit house along with the defendants and their younger son and his wife in the suit house. According to the plaintiffs, for the last about 5 years, the defendants and their children are not keeping good relations with the plaintiffs. They pick up quarrels with the plaintiffs and use abusive language. The plaintiffs have suffered mental torture and agony due to the constant harassment at the hands of the defendants and their children. Due to this, plaintiff No.2 was required to be admitted in the hospital. When she was admitted in the hospital, the defendants did not feel it necessary even to visit the hospital for making inquiry about her health. Due to these circumstances, mental torture and harassment, the plaintiffs find it very 3 difficult to reside with the defendants. Therefore, the plaintiffs filed the suit for declaration that the defendants have no right to use and occupy the suit premises and they have no right to reside in the suit premises without the consent of the plaintiffs. They also sought mandatory injunction directing the defendants to remove themselves, their children and household belongings from the suit premises. They also sought perpetual injunction restraining the defendants their children and/or agents from entering into or residing in the suit premises and/or interfering and/or disturbing the peaceful use, occupation and possession of the plaintiffs over the suit premises. The plaintiffs also took out a Notice of Motion seeking mandatory order and permanent injunction of the same nature. 3. The defendants contested the Notice of Motion by filing a reply. They denied that the plaintiffs are the exclusive owners of the property or that the defendants have no right to reside in the suit premises without the consent of the plaintiffs. According to them, the suit property was purchased for consideration of Rs.60,000/- in the year 1960 by the joint family consisting of the plaintiff No.1, his father and the grandfather. However, the share certificate was issued in the name of 4 Radhadevi Poddar, who was the widow of Jagdish Prasad Podar, the brother of plaintiff No.1. The family was doing business collectively. Due to disputes among them, the matter was referred to an arbitrator. The arbitrator divided the members of his family into two groups - Group "A" & Group "B". Group "A" consists of (1) Shriram Poddar, (2) Jankidevi Poddar and (3) Radhadevi Poddar. Shriram and Jankidevi were father and mother of plaintiff No.1 and Radhadevi was his sister-in-law. Group "B" consists of the plaintiffs Nos. 1 and 2, their two sons - Madhusudan and Manish and their wives. Madhusudan and his wife are the respondents before this Court. It is contended that as per the award passed by the arbitrator, the suit property was allotted to Group "B". It is contended that in view of this, it is the joint family property wherein the defendants have also share and they cannot be ousted from the property by mandatory or permanent injunction. 4. After hearing the parties, the learned trial Court came to the conclusion that in view of the arbitration award, the property was allotted to Group "B" consisting of the plaintiffs as well as the defendants and, therefore, the plaintiffs have failed to prove that it is their self-acquired property. The 5 trial Court noted that the learned counsel for the defendants had argued that plaintiffs could have legitimately claimed interim injunction against the defendants if the suit property was their self-acquired property. However, as, according to him, it is not the self-acquired property, but a joint family property, the plaintiff could not claim such interim injunction. Accepting this argument, the learned trial Court rejected the Notice of Motion. 5. Learned Counsel for both the parties took me through the copies of the relevant documents to support their rival contentions. As rightly argued by the learned counsel for the defendants before the trial Court, the plaintiffs could legitimately claim interim injunction against the defendants if they establish that it is their self-acquired property but not otherwise. Therefore, it becomes necessary to find out whether the plaintiffs can, prima facie, establish their exclusive title over the property or whether the property prima facie appears to be joint family property of the plaintiffs and the defendants. 6. Even though the defendants in the written statement contended that this property was purchased for a sum of Rs.60,000/- in the year 1960, the share 6 certificates issued by Shreyas Co-op. Society reveal that the share certificates giving title of the suit property were initially issued in the year 1950 in favour of one Mrs. Susheelabai Swamy who had purchased 50 shares. From time to time, the property changed the hands and on 13.2.75, the shares were transferred in the name of Radhadevi Poddar. According to the plaintiffs, this property was purchased in the year 1975. There appears substance in this contention in view of the entries pertaining to transfer of shares on the share certificate. Admittedly, there was a dispute among the family members and, therefore, on 1.6.1990, a memorandum of understanding was arrived at between the parties to that dispute and the dispute was referred to arbitration. In the memorandum of understanding, names of all the members of the family were noted down. At Sr. Nos. 1 to 3 were Shivram, Smt. Jankidevi and Smt. Radhadevi respectively. The remaining six members were the plaintiffs Nos. 1 and 2, their both sons and both the daughters-in-law. As stated earlier, the parents and sister-in-law of plaintiff No.1 were put in Group "A" and the plaintiffs and their sons and daughters-in-law were put in Group "B" in the memorandum of understanding executed by the parties. 7. For properly appreciating the award passed by 7 the arbitrator, it will be necessary to carefully peruse the memorandum of understanding. The office premises at Kalbadevi, Mumbai, and the residential flat at Calcutta were shown in Schedule "1". The suit property is shown in Schedule "2". In the memorandum of understanding,the parties noted as follows :- "WHEREAS Shri Shivram Poddar the Head of the Family started business and later on his sons namely now Late Jagdish Prasad Poddar and Shri Shreeprakash Poddar also joined hands with their father in business activities and with the joint efforts of all the three persons referred above, the business flourished and various assets, movable and immovable, were acquired in the names of different members of the family till the year 1982." Thereafter the next but one para of the memorandum of understanding reads as follows ;- "AND WHEREAS in regard to the movable properties fully described in schedule ‘1’ and immovable properties fully described in schedule ‘2’, the parties have realised that it is almost impossible to ascertain the exact ownership of each of these properties, and the parties have 8 after a careful study of the history of these properties accepted that Shri Shivram Poddar, Smt. Radha Devi Poddar and Shri Shreeprakash Poddar are the owners of these properties. The parties accept that these properties were acquired before 1982 and that a mutually acceptable distribution of these properties would go a long way in solving the family dispute." (emphasis supplied) If these two paragraphs are read together, it becomes clear that the suit property was not the ancestral property in the hands of Shivram. Shivram started his business and his sons Jagdish and plaintiff No.1 Shreeprakash joined him in the business activities and with the joint efforts of all the three persons, the business flourished and various assets including the suit property came to be purchased before the year 1982. After careful study of the history of these properties, the parties had also accepted that Shivram Poddar, Smt. Radha Devi Poddar and Shreeprakash Poddar were the owners of the properties. As pointed out earlier, the property appears to have been purchased in 1975 in the name of Radhadevi, wife of deceased Jagdish Prasad, but as Jagdish Prasad was no more alive when the memorandum of understanding was executed, his widow Radhadevi was 9 shown as party no.3 and this is how she was shown as one of the owners of the property. As per the arbitration award dated 30-8.1990, the suit property was allotted to the members of Group "B" i.e. the plaintiffs, their sons and daughters-in-law. It should be borne in mind that dispute was between Group "A" and Group "B" and while passing the award, the arbitrator had considered their rival claims and not the claims of the members within Group "B" because there was no dispute among the members shown in Group "B" at that time. In view of this, it appears that even though the suit property was allotted to Group"B", still as per the terms of the memorandum of understanding, it was clearly understood that within Group "B", the suit property belonged to the plaintiff No.1 alone and not to all the members within that Group. As pointed out earlier, the suit property was not the ancestral property nor it was purchased by the father of the plaintiff No.1 alone and it had not come to the hands of the plaintiff No.1 as legal heir of his father or in the partition of the joint family property. Therefore, it is, prima facie, clear that the suit property was the self-acquired property of plaintiff No.1 Shreeprakash Poddar. It is material to note that the suit property appears to have been purchased in 1975. In 2006, when the suit was filed, the age of defendant No.1 Madhusudan was shown as 51 10 years and the age of his wife - defendant no.2 was shown as 44 years. If in 2006, defendant No.1 was 51 years old, he must have been aged hardly 20 years when the suit property was purchased in the year 1975. Taking into consideration his age at that time, and taking into consideration the contents of the memorandum of understanding, it can prima facie be held that there was no contribution of defendant no.1 in the purchase of suit property. 8. Taking into consideration the documentary evidence on record, as pointed out above, it is difficult to agree with the learned trial Court that the plaintiffs have failed to prove their exclusive title over the suit property. It is also difficult to accept the contention of the defendants that it is the ancestral or the joint family property of the plaintiffs and the defendants. 9. The learned Counsel for the respondents vehemently contended that when the property was purchased by the grand father and it has come down to the father of the defendants, it becomes the ancestral property in the hands of the plaintiff No.1 and therefore, defendant no.1 has share in the property. As pointed out earlier, it was never the joint family 11 property. The property was purchased out of the earnings of the business run by Shivram and his two sons by their efforts. So it can, at the most, be said that father and two sons had collectively purchased that property, but it had never become the joint family property or the exclusively property of the father. This aspect was accepted in the memorandum of understanding when it was said that after taking into consideration the history of the properties, Shivram, Radhadevi and Shreeprakash were found to be the owners of this property. It was not said that it was found to be the joint family property. 10. From the record, it is clear that the plaintiffs are the owners of the property and defendants do not appear to have any right or title over the suit property. It is true that parents maintain their children and children have also right to live with their parents, but that right is available to the children till the attainment of majority and thereafter they can live in the house of parents only with the consent of parents and not as a matter of right. The defendants are not joint owners of the suit property. They are living in the suit house only with the consent of their parents and if the plaintiffs deny the consent, the defendants cannot claim to have right to reside in the 12 suit house. As pointed out earlier, even the learned defence counsel argued before the trial Court that the plaintiffs could legitimately claim interim relief in the form of injunction if they can show their exclusive ownership of the property. As pointed out earlier, it appears that the plaintiffs are the exclusive owners of the property and the defendants cannot reside in the suit house without consent of the parents. Therefore, the plaintiffs are entitled to interim injunction pending the suit. 11. It may be noted that the learned Counsel for the respondents vehemently contended that if the interim injunction is granted, it will amount to passing a decree in favour of the plaintiffs and therefore, such interim relief should not be granted. Normally, such interim order of injunction should not be passed if the effect of the same is tantamount to passing decree in the suit. However, taking into consideration the peculiar facts of the present case, the Court has to pass interim orderof injunction. The plaintiffs are the owners of the suit property. The defendants, who are the sons and daughters-in-law of the plaintiffs are living in the suit house with their consent. But due to the conduct and behaviour of the defendants, the life of 13 the plaintiffs is said to have become miserable and they find it very difficult to live in the house along with the defendants.Normally parents would like to live with their children and particularly in the old age they would love to live with children and grandchildren. It must be very painful for them to ask the children and grandchildren to leave their house and get separated. In the old age, when they really need help, support, service and love of the children, they must be very reluctant to ask them to leave their house,unless they are compelled by the circumstances or behaviour of the children. In given circumstances, to refuse such a relief would also amount to injustice to the old parents aged about 75 years and 71 years. 12. Taking into consideration the contentions of the defendants and the fact that the suit itself is pending, in my considered opinion, it would be necessary to protect the interest of the defendants, if in case after decision of the suit, they are found to have some share. It may be noted that before the trial Court the plaintiffs had offered 1/3rd share in the market value of the property to the defendants, but this offer was not accepted. Serious attempt was made before this Court also for an amicable settlement among the parties taking into consideration the relationship. However, it 14 appears that the defendants are not ready to accept any formula. Finally, I asked the parties as to what rent this property would fetch. According to the defendants, the property may fetch rent of Rs.60,000/- per month, while according to the plaintiffs, it may fetch upto Rs.3 lacs. The learned Counsel for the plaintiffs-appellants, after taking instructions from the plaintiffs, makes a statement that the plaintiffs stand by their assessment and they are also willing to deposit 1/3rd of the approximate rent with the trial Court. 13. In view of the aforesaid circumstances, I pass the following order :- (i) The Appeal is allowed. The impugned order is set aside. The Notice of Motion is granted in terms of prayer clauses (a) and (b). (ii) The plaintiffs shall deposit an amount of Rs.1,00,000/- per month, counted from the date when the defendants remove themselves from the suit property till disposal of the suit. (iii) The amount which may be deposited by the plaintiffs shall be invested in fixed deposit 15 with some nationalised bank or Post Office by the trial Court and the said amount may with interest thereon be paid to the plaintiffs or the defendants depending on the result of the suit. 14. At this stage, the learned Counsel for the respondents makes a request to stay this order for a period of 8 weeks. In the interest of justice, the operation of this order shall remain stayed for a period of 8 weeks. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)