-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2461 OF 2006 NOTICE OF MOTION NO.2461 OF 2006 NOTICE OF MOTION NO.2461 OF 2006 IN IN IN SUIT NO.2096 OF SUIT NO.2096 OF SUIT NO.2096 OF 2006 2006 2006 1. Nitin Gandhi & Anr .. Plaintiffs. Vs 1. Miss Olive Vaz & Anr .. Defendants. Mr.H.J.Thakkar, advocate, with Mr.Y.V.Divekar, for the plaintiffs. Mr J.Reis, Advocate i/b Mr.Santosh Shetty, for defendant no.3 Mr.Dinyar Madon, senior counsel, with Mr.P.N.Modi with Mr Sandeep Parikh i/b Sean Wassoodew, for defendant nos 1(a), 1(b) and 2. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 25th APRIL, 2008 DATE : 25th APRIL, 2008 DATE : 25th APRIL, 2008 ORAL ORDER: 1. Heard learned counsel for the parties. 2. The plaintiffs have taken out this Notice of Motion for the following reliefs : "(a) Pending the hearing and final disposal of the suit, the 2nd Defendant be restrained from carrying on development of the said plot of land bearing Plot No.482, CTS No.1409 admeasuring 534.7 sq.mtrs lying and situate at 13th Road, Chembur, Mumbai-400071, till the plot is partitioned and portion coming to the share of 1st Defendant ascertained and given to her and the 2nd Defendant be restrained from carrying out the development on the land coming to the share of the plaintiffs and creating third party rights on the said land and building that to be -2- erected." 3. Ad-interim relief, as prayed, was rejected by the learned Single Judge vide order dated 11th August, 2006. That order was confirmed in an appeal, bearing Appeal No.681 of 2006, by the Division Bench vide order dated 15.09.2006. During pendency of this motion, admittedly, construction of a building on the suit property is almost complete and now, finishing work is at the verge of completion and in view thereof, I have heard learned counsel for the parties mainly on the second part of the prayer made by the plaintiffs, seeking injunction restraining the defendants from creating third party rights on the said land and the building that has been erected. 4. The plaintiffs are claiming to be an assignees of the suit property. They claim their title on the basis of a Deed of Assignment made by one Allen Vaz, the brother of original defendant no.1- Olive. Allen died on 20.11.1995. Allen and Joacquim are the brothers of Olive and they are the children of the deceased Joseph and Mary. Joseph was a lessee of the suit property whereas defendant no.3- society is the owner. A Deed of Lease, executed in favour of Joseph, is dated 9.9.1956. Joseph and Mary died in 1951 and in -3- 1985 respectively, leaving behind Olive, Joacquim and Allen. Olive, being a nominee shareholder, was admitted as a member of the society after the death of Joseph and Mary. Joacquim died on 25.06.1988, leaving behind a son, two daughters and a wife. Allen died on 20.11.1995, leaving behind Cheryl and Joseph, the daughter and the son, and the wife Francina. The heirs of Joacquim had executed a Deed of Release dated 4.2.2005 releasing their 1/3rd share in favour of Olive and Francina in the suit property. It is against this backdrop, the plaintiffs, who claim rights on the basis of the Deed of Assignment dated 20.7.1995, although initially claimed 1/2 share in the suit property, having realised that Allen had only 1/3rd share in the suit property, are seeking a declaration only to the extent of 1/3rd undivided leasehold interest in the suit land and have also prayed for partition by metes and bounds and separate possession of the portion of the assigned suit plot by Allen. 5. I have heard learned counsel for the parties at considerable length and with their assistance, have perused the entire records placed before this Court. Mr.Thakkar, learned Senior counsel for the plaintiffs, at the outset, submitted that the plaintiffs have acquired their right under the registered Deed of -4- Assignment dated 20.7.1995 executed by Allen, one of the co-sharers, assigning his right, title and interest in the leasehold suit plot in their favour. He placed reliance upon several documents including a Family Arrangement dated 2.6.2005 to contend that the right of Allen is acknowledged by the defendants and, therefore, the plaintiffs are having right in the suit property and they are entitled for interim reliefs, as prayed in the Motion. He submitted that merely because Olive was nominated by her parents in the society records does not mean she has become exclusive owner of the suit property. He submitted, the right of Allen and Joacquim in the suit property remained unaffected. He submitted that in any case Allen, through whom the plaintiffs claim right in the suit property, cannot be stated to have lost right in the suit property. In reply to the arguments advanced by the learned counsel for the defendants, he submitted that a question of limitation, being a mixed question of law and facts cannot be gone into at this stage. Without prejudice to this contention, he invited my attention to Article 65 of the Indian Limitation Act, 1963 to contend that a suit for possession based on title is governed by this Article and, the suit for possession of immovable property, if filed within 12 years, cannot be stated to be barred by limitation. He submitted, in the present -5- case, the limitation started to run in 1993-1994 when Olive had denied Allen’s right in the suit property stating that she alone is the owner of the entire property, being a nominee of her parents. In view thereof, he submitted that suit is well within time since it was filed within 12 years from the date of such assertion by Olive. He also invited my attention to section 18 of the Limitation Act to contend that time and again Olive had acknowledged the right of Allen in the suit property. He then submitted that the Deed of Assignment was perfectly legal and for its execution, consent of the Collector of Bombay was not necessary. In support of this contention, he placed reliance upon a letter dated 4/6-2-1939. He then submitted that the society had consented by its letter dated 25.10.2006 signed by Honorary Secretary of the society on its letter-head, which is sufficient compliance insofar as consent of the society is concerned. He then submitted that the judgment in Zoroastrian Cooperative Housing Society Ltd vs District Zoroastrian Cooperative Housing Society Ltd vs District Zoroastrian Cooperative Housing Society Ltd vs District Registrar, Co-operative Societies (Urban) and ors, Registrar, Co-operative Societies (Urban) and ors, Registrar, Co-operative Societies (Urban) and ors, (2005) 5 SCC 632 (2005) 5 SCC 632 (2005) 5 SCC 632 has no application to the facts of the present case and the same cannot be taken into consideration at this stage to contend that the plaintiffs are not entitled to become members of the society and hence, the suit cannot be decreed in their -6- favour. 6. On the other hand, Mr.Madon learned senior counsel for the defendant nos. 1(a),1(b) and 2, submitted that the plaintiffs have no right to the suit propriety since prior written permission from the society prior to execution of the Deed of Assignment was not obtained. The letter relied upon by the plaintiffs of the society dated 25.10.2006 purported to have been written by the society, is fabricated document and, in any event, has no legal efficacy. He then submitted that the land which was allotted to the society, being B-1 tenure, requires the permission of the Collector for transfer and such permission was not obtained by the plaintiffs. Mr.Madon submitted that under any circumstances, the plaintiffs are not entitled to become members of the society in view of the judgment of the Supreme Court in Zoroastrian Zoroastrian Zoroastrian Cooperative Housing society case Cooperative Housing society case Cooperative Housing society case and, therefore, the suit in any event cannot be decreed since the plaintiffs can never become members of defendant no.3-society. He submitted that the suit deserves to be dismissed as barred by limitation. He invited my attention to Article no. 113 of the Limitation Act to contend that the suit was not filed within 3 years from the date when Olive denied the right of Allen in -7- 1993-94. He submitted that provisions of Article 18 will not have any application since there was no acknowledgment within the period of three years from the date of assertion by Olive. He then submitted that the suit is not maintainable since the leasehold property cannot be partitioned at the request of lessee and it can only be partitioned with the expressed consent of the lessor. He submitted that Francina, the widow of Allen, who had executed the Development Agreement dated 2.7.2005, has not been joined as defendant in her individual capacity but, she has been joined only in her capacity as the executrix of the Will of Olive. After her death, no reliefs have been claimed in respect of the portion of the land which Francina claims and no relief has been claimed against Francina. He further submitted that the plaintiffs have not challenged the Development Agreement dated 2.7.2005 despite being aware of the same. He submitted, without setting aside the Development Agreement, no reliefs can be granted to the plaintiffs and in the absence of challenge to the Development Agreement, the suit is liable to be dismissed. Next, he submitted that the plaintiffs have valued the entire property at Rs.4,00,000/- as stated in paragraph 12 of the plaint and, therefore, the plaintiffs right, if any, can easily be compensated in monetary terms if -8- they succeed in the suit. Lastly, he submitted that the balance of convenience is in favour of these defendants. 7. I have perused the Deed of Assignment dated 20.7.1995, the Deed of Lease dated 9.9.1996, the Development Agreement dated 2.7.2005, the Release Deed dated 4.2.2005, Power of Attorney dated 31.12.2004 and the Family Arrangement dated 2.6.2005. All these documents and more particularly the Family Arrangement dated 2.6.2005 and the Release Deed dated 4.2.2005, prima facie, in my opinion, demonstrate that Allen had right in the suit property. In the Family Arrangement dated 2.6.2005, clause 5 states that the Property Register card presently reflects the name of Allen Vaz and Olive. Olive, Francina, Cheryl and Joseph are the parties to the Family Arrangement in which they had agreed to make applications forthwith to the City Survey Authorities/ concerned authorities for deleting the name of Allen Vaz from the property registered Card/Records of Rights and for bringing the name of Francina, in order that the same would stand in the joint names of Olive and Francina. Clause (3) in the Family Arrangement provides that Cheryl and Joseph did not claim any shares, rights, title or interest in or to the said property and they released the same in -9- favour of Francina alone in order that the said property would belong in equal shares to Olive and Francina. The property described in the recitals (a) and the suit property is one and the same. These two clauses, in my opinion, clearly demonstrate, that apart from the right created in favour of Olive and Francina by the Release Deed dated 4.2.2005, the branch of Allen has 1/3rd right in the suit property. By Release Deed admittedly, the property was released by the heirs of Joacquim in favour of Olive and Francina. If the contention of the defendants that Francina got right in the property only by Release Deed was correct, there was no reason for Cheryl and Joseph to release their right in favour of Francina. Even other documents, in my opinion, support the contention of the plaintiffs that Allen also has 1/3rd right in the suit property. 8. Sofar as question of limitation is concerned, it being a mixed question of law and facts, I examined the same only to satisfy my conscience whether prima facie case is made out by the plaintiffs that Article 65 is attracted in the present case. Under Article 65, a suit for possession of immovable property or any interest therein based on title requires to be filed within twelve years when the possession of the defendant becomes adverse to the plaintiffs. The -10- plaintiffs, in the present suit, as observed earlier, claim right/interest in the suit property through Allen, who at the time of execution of the deed of assignment, had 1/3rd share in the suit property. It appears that the right of Allen was denied by Olive in 1993-94, as reflected in case NO.CCR/746 of 1993 that was filed before Cooperative Court, Mumbai. In paragraph 15 of the dispute, Allen, being the original disputant, had stated that on Sunday the 18th July, 1993 at about 10.30 am Olive challenged his right and authority to interfere with the dealing in respect of the disputed property stating that it belonged to her (Olive) and only to her and to no one else. Thereafter, the Release Deed and the Family Arrangement were executed in 2005 wherein the right of Allen’s branch, prima facie, appears to have been acknowledged by Olive and, in view thereof, and considering the provisions of Section 18 of the Limitation Act, prima facie, I am satisfied that the suit is within limitation. 9. There is no dispute that Joseph and Mary were the original lessees of the suit land. Clause 16 and clause 17 of the lease Deed dated 9.9.1956 executed by the society, make it clear that the lessees should take prior written permission from the society prior to -11- assigning, under-letting or parting with possession and selling the suit property. Admittedly, such permission had not been obtained by Allen prior to the execution of the Deed of Assignment dated 20.7.1995. The letter dated 25.10.2006 purported to have been written by the society to plaintiff no.1, granting such permission, prima facie, does not appear to have been issued by the society. It is signed by the Secretary, who, according to the society, was not a Secretary on the date when the letter was issued and, therefore, in my opinion, at this stage it cannot be relied upon. It appears that the society in respect of another plot is contesting the right of the plaintiffs to become members of the society. In these circumstances, the society could not have addressed the letter dated 25.10.2006. Similarly clause 18 of the Lease Deed dated 9.9.1956 contains a covenant on the part of the lessee to observe, abide and bound by the rules and regulations and the bye-laws of the society. Bye-law 7 (a) permits only Roman Catholic to be the members of defendant no.3-society. In view thereof, and considering the judgment of the Supreme Court in Zoroastrian co-operative Housing Zoroastrian co-operative Housing Zoroastrian co-operative Housing society case society case society case (supra) it is open for the society to restrict membership to the persons of a particular religious group. The contention of the society that the plaintiffs can never become their members, prima -12- facie, appears to be correct and,therefore, in my opinion, they are not entitled for the reliefs as prayed in the Motion. The questions raised by the defendants as to whether the leasehold property can be partitioned without the consent of the society?; whether not adding Francina in her individual capacity as a party defendant in the suit itself is sufficient to dismiss the suit?; and whether the absence of prayer seeking to set aside the Development Agreement is sufficient to dismiss the suit?, could be considered at later stage. Taking overall view of the matter, in my opinion, balance of convenience is not in favour of the defendants. No injury or irreparable loss would be caused to the plaintiffs and even if they suffer it can easily be compensated in monetary terms. Under the Development Agreement dated 2.7.2005 Francina is entitled for four flats and monetary consideration of about forty lakhs. Keeping that in view, in my opinion, the interest of justice would be met if the offer made by Mr Madon, learned senior counsel, that the defendants are prepared to keep two flats in the building available subject to the outcome of the suit, is accepted. He submitted that possession of the two flats will, however, remain with the defendants with a right to let out the said flats either on leave and licence basis or on lease to any third party. Having -13- regard to the overall facts and circumstances of the case and submissions of the learned counsel for the parties, I am satisfied that the Motion can be disposed of by the following order. (a) The defendants shall not dispose of two flats in the building, that has been constructed on the suit property, and shall keep them available until disposal of the suit. The defendants shall inform the plaintiffs the particulars of the two flats, that would be kept available, within 12 weeks from today. The defendants are allowed to let out those flats to any third party on leave and licence basis or on lease, as the case may be, subject to the right of the plaintiffs to claim mesne profits if the suit is decree in their favour. They shall file an undertaking in this court within a period of four weeks from today stating that they shall not dispose of the two flats, as aforestated, till disposal of the suit and subject to the directions, that would be issued in the event the suit is decreed. The Notice of Motion is accordingly disposed of. No costs. (D.B.Bhosale, J.)