1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1932 OF 2008 IN SUIT NO. 1400 OF 2008 Sudesh Kumar Ramchandra Agarwal ...Plaintiff Vs. Mahesh Rameshchandra Agarwal & Ors. ...Defendants Mr. S.M. Kazi, Advocate for the Plaintiff Mr. Ramesh Jain, Advocate for Defendants CORAM : SMT. ROSHAN DALVI, J. DATED : 15TH MARCH, 2010 P.C. : 1. The parties are essentially siblings and the wife of one deceased brother. Their father owned and possessed one flat No.2/2A at Nightingale Co-op. Hsng., Society situated at 581/582 CTS No.504 and 507, Village Kurla II Opp: Gupta Glass Factory, LBS Marg, Kurla (West), Bombay- 400 071. 2. After the death of their father on 11th September 2001, the brothers would be equally entitled to the said flat. The Defendant No.1 was residing in the suit flat. The brothers as well as the sister executed Consent Affidavit dated 3rd August 2004, about 4 years after the death of their father, 2 showing that their father was the legal owner of the flat and a member in the Society and that their brother, Defendant No.1 had made application to the Society to transfer the said flat and the shares attached thereto to his name. They all stated that they have no objection for such transfer of the flat and the shares to his name. This statement was made on affidavit. Accordingly all the brothers and sister voluntarily consented to the transfer of the flat and the shares in the name of the Defendant No.1. 3. It is their case that they did not give up their legal right in the shares. They only allowed the transfer of the flat and the shares in the name of their brother. This would be in the nature of a nomination by which the brother in possession would continue to possess the flat and the Society would transfer the share certificate to the name of the Defendant No.1. The shares came to be transferred to Defendant No.1 on 14th August 2005. 4. It is the case of the Plaintiff and Defendants 2 to 5 that they have not transferred their right, title and interest in the flat to the Defendant No.1. In any event the transfer is without consideration and accordingly void. 5. The Defendant No.1 executed a Deed of Exchange on 5th December 2005 with his maternal uncle one Shyam Kishore Gupta under which the flat of Shyam Kishore Gupta was taken over by the Defendant No.1 and he gave over possession of his father’s flat to the said Shyam Kishore Gupta. The shares of Defendant No.1 came to be transferred to his maternal uncle on 5th January 2006. 3 6. The Plaintiff came to know of this transaction in about 2008 when the Plaintiff issued a notice to the Chairman of the Society in which the flat of the maternal uncle was and which was taken over by the Defendant No.1 on 19th March 2008 informing the Society of their right, title and interest therein in view of the execution. 7. The Defendant No.1 contends that the said exchange is a registered document and has not been challenged. The Plaintiff as well as the Defendants 2 to 5 were and are entitled to a specific portion of their father’s property. They have not given up their right, title and interest therein. They have only allowed the flat and shares to be transferred in the name of the Defendant No.1. They are entitled to be paid off the value of their share in their father’s property by Defendant No.1. The Defendant No.1 sought another flat in exchange. He is in possession of the exchanged premises. The Plaintiff, therefore, claims right, title and interest in such exchanged premises. 8. It may be mentioned that both the flats are in Kurla. Both are about 500 sq. ft., in area. The parties would be entitled to an equal share in the premises of their father. Defendant No.1 continues to possess and occupy the exchanged flat. He cannot obtain exclusive title in the said flat unless he pay off the value of the shares of his siblings in his father’s property. 9. Prima facie case of all the brothers having rights initially in the property left by their father, and consequent upon the Deed of Exchange in the 4 exchanged premises, is made out. 10.The Plaintiff has only sued for declaration that the Defendant No.1 does not have right, title and interest in the exchanged flat and for injunction restraining the Defendant No.1 from transferring the suit property. 11.The right of the Plaintiff as also the other Defendants would have to be secured. However the Plaintiff has paid Court Fees only 1/6th value of the exchanged flat. If Defendants 2 to 5 also claim reliefs in respect of the same flat, they would also be liable to pay Court fees upon claiming such right, title and interest. 12.Pending the suit Defendant No.1 shall not sell, dispose off, alienate, encumber, part with the possession or create any 3rd party rights in respect of the flat No.10-A/3 of Building No.3 of Satya Jivan Co-op. Hsng. Society Limited, situated at 297 LBS Marg, Opp: Bank of Maharashtra, Kurla (West), Mumbai-400 070. 13.It is clarified that the relationship of the parties, the properties in dispute, the action of giving consent by the Plaintiff and other defendants as well as the transaction of Defendant No.1 with his maternal uncle are admitted. The Defendants shall file their written statements, if any, within 30 days. 14.Suit to be on board on 3rd May 2010. (SMT. ROSHAN DALVI, J.)