1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1996 OF 2007 IN SUIT NO.1449 OF 2007 Parmeshwari Devi Ruia ...Plaintiff Versus Krishnakumar Nathmal Murarka & Ors. ...Defendants WITH CHAMBER SUMMONS NO. OF 2007 IN SUIT NO. 1449 OF 2007 Parmeshwari Devi Ruia. ..Plaintiff. V/s. Krishnakumar Nathmal Murarka & Ors. ..Defendants. And Surendra K. Shah. ..Applicant/ Intervenor. 2 Mr.D.J.Khambatta, Sr.Counsel with Mr.Gautam Ankhad with Mr.Arun Siwach & Mr.B.R.Palav i/b Amarchand & Mangaldas & Suresh A.Shroff & Co. for Plaintiff. Mr.R.A.Shah with Ms.Daksha Dadewal i/b Mansukhlal & Hiralal for Defendant No.1. Dr.Virendra Tulzapurkar, Sr.Counsel with Ms.Alpana Ghone & Mr.Ravi Gandhi i/b Kanga & Co. for Defendants 2 & 3. Mr.Milind Vasudeo with Mr.Prashant Beri i/b Beri & Co. for Defendant No.21. Mr.A.S.Chandurwala with Mr.N.S.Rodrigues i/b Desai & Diwanji for Defendants 22 to 26. Mr.Arif Bookwala, Sr.Counsel with Mr.Jariwale & Mr.Hetal Thakore i/b Thakore Jariwale & Associates for Applicants/Intervenors. ......... CORAM : A.M.KHANWILKAR, J. AUGUST 6, 2007. ORAL ORDER : 1. By consent, the Notice of Motion was heard for final disposal. Accordingly, this order will dispose of the Notice of Motion finally. 3 2. The Plaintiff has relied on the family tree of Murarka Family at Exhibit `A’, correctness whereof was not in dispute. The same reads thus: “EX-”A” MURARKA FAMILY TREE Bai Janki (Exp.:18/5/56) Bai Narmada (Exp.:19/12/64) Bai Shivbai (Exp.20/1/79) Widow of Gajanand (Exp.) Widow of Bhagwandas (Exp.) Widow of Jaydayal (Exp.) ! ! ! Nathmalji Murarka (Exp.:8/10/92) Prahladrai Murarka (Exp.2/1/80) ! Wife : Narmada Exp.:3/6/91 ! ------------------------------------------- ! Radheshyam (D5) ! ! ! ! ! ! ! ! ! ! ! Wife Savitri (D-6) ! ! ! ! ! ! Mannibai Kishni Kashibai Basudeo ! Pawankumar (D-7) (Exp.) (Exp.) (Exp.) D-8 ! ! ---------------------------------------------------------------------------------------------------------- Kailash-D9 ! ! ! ! ! ! ! ! Laxmibai Parmeshwari Vimla Ginni Krishnakumar Chanda Usha Santosh Exp. Plaintiff D-17 D-18 D-1 D-19 D-20 D-21 16/11/06 ! ! Harshvardhan-D10 ! -------------------------------------------------- ! ! ! ! ! ! Sajjan Sanjay Pushpa Saroj Manju Kalpana D-11 D-12 D-13 D-14 D-15 D-16” 3. The Plaintiff, Defendant No.1 and Defendant Nos.10 to 21 are the heirs and legal representatives of Nathmal Murarka. The said 4 Nathmal Murarka expired on 8th October 1992. The said Nathmal had one son(Defendant No.1) and seven daughters(Laxmibai, Plaintiff and Defendant Nos. 17 to 21). At the relevant time, all were married. 4. According to the Plaintiff, Nathmal inherited property from his mother Jankibai. The said Jankibai had two sister-in-laws - Narmadabai B.Gangabhishen and Shivbai J.Ghasiram. By a Deed of Conveyance dated 21st November 1947, certain land with structures standing thereon earlier called `Krisna Kunj’ at 24, Nepean Sea Road, Mumbai bearing Cadastral Survey No.1/590 of the Malabar and Cumballa Hill Division was transferred by one Shivprasad Vaid in favour of the said Jankibai, Narmadabai B.Gangabhishen and Shivbai J.Ghasiram in equal shares for a consideration of Rs.1,00,218.12/- (Rupees One Lakh Two Hundred Eighteen & Paise Twelve Only). According to the Plaintiff, the said Jankibai, through whom the Plaintiff claims right in respect of the said property, was 1/3rd owner thereof by virtue of the Deed of Conveyance dated 21st November 1947. 5 5. The said Jankibai, however, died intestate on 18th May 1956, leaving behind her only child Nathmal as her only heir and legal representative in respect of her estate, effects, properties and credits. According to the Plaintiff, the estate of Jankibai, including the suit property, devolved entirely and exclusively upon the said Nathmal. According to the Plaintiff, the said Nathmal also died intestate on 8th October 1992, leaving behind his son Defendant No.1 and seven married daughters i.e. The Plaintiff, Defendant Nos. 17 to 21 and late Smt.Laxmibai Ramgopal Modi (Defendant Nos.11 to 16 being her only heirs) as his heirs and legal representatives. According to the Plaintiff, the said Nathmal's estate included a haveli situated at Podar Gate, Navalgarh, District Jhunjhunjunu, Rajasthan, which also devoled entirely upon Plaintiff, Defendant No.1 and 17 to 21 and late Smit. Laxmibai Ramgopal Modi in equal shares. 6. For the purpose of present order for grant of interim relief during the pendency of the Suit, we are concerned only with above referred property at Nepean sea Road. 6 7. As aforesaid, besides Jankibai, there were other two co-owners having equal shares in the suit property being Narmadabai B.Gangabhishen and Shivbai J.Ghasiram. Defendant No.5 is the grandson of Narmadabai and is entitled to 1/3rd share in the suit property. Defendant No.6 is the wife of Defendant No.5, and Defendant No.7 is the son of Defendant Nos.5 and 6, who represent one branch of co-owners. Defendant No.8 is the son of Shivbai J.Ghasiram, and along with his three sisters, was entitled to 1/3rd share in the suit property being co-owners thereof. That Defendant Nos.11 to 16 are the legal heirs of late Smt.Laxmibai Ramgopal Modi (the elder sister of the Plaintiff), who expired on 16th November 2006. Defendant Nos. 17 to 21 are the younger sisters of the Plaintiff and granddaughters of Jankibai, who are also entitled to the estate of Jankibai. 8. It is the Plaintiff’s case that the suit property is the ancestral house of the Plaintiff and Defendant Nos.1 and 5 to 21. The Plaintiff resided in the said property from 1947 until her marriage in 1954. Even after marriage, the Plaintiff continued to visit the other members 7 of the family who resided in the said property and also to keep, remove and check her cupboard and personal belongings lying at the ancestral home. It is stated that until recently upto 2004 the Plaintiff used to visit the ancestral home on Holi, Diwali and Raksha Bandhan to tie Rakhis on, inter alia, Defendant No.1. It is stated that the Plaintiff could not visit the ancestral house from 2005 due to her ill-health, old age and broken shoulder, which restricted her movements. It is stated that after the death of Plaintiff’s father in 1992, the affairs of the said property in relation to 1/3rd Jankibai’s estate including the payment of the municipal taxes and collection of rents from two tenants, namely Mr.Soli Irani and Mr.Kyal were under the control and management of Defendant Nos.5 and 8. It is stated that recently, in January 2007, the Plaintiff was shocked to see that her ancestral house on the suit property has been demolished. In that connection, Plaintiff made enquiries initially from the watchman on the said property, who, in turn, informed that the same has been demolished by Defendant No.3. Thereafter, on or about 18th January 2007, the Plaintiff called Defendant No.1 over telephone when Defendant No.1 informed that the bungalow has been sold. The Plaintiff made enquiries about the 8 papers and documents, but Defendant No.1 gave evasive replies to the Plaintiff. It is stated that the Plaintiff then caused search of the records in respect of the suit property with the Sub-Registrar of Assurances, Mumbai. During the search, the Plaintiff came across the Deed of Indemnity dated 20th January 2004 and the Deed of Conveyance dated 31st December 2005, which is executed to convey the suit property in favour of Defendant No.2. It is the Plaintiff’s case that thereafter, Plaintiff attempted to get in touch with Defendant No.1, but it was of no avail. The Plaintiff then through her husband, tried to contact Defendant No.3, who directed the Plaintiff to call the Murarkas. It is stated that Defendant Nos.5 and 6 then informed the Plaintiff that Defendant No.1 was aware of the details of the entire transaction and asked her to speak to him. Defendant No.7 informed the Plaintiff to stay away and not get involved in the matter. The Defendant No.8 also did not part any information to the Plaintiff and instead asked her to contact Defendant No.1. The Plaintiff states that simultaneously, she exercised right under the Right to Information Act to obtain information and documents in relation to the said property by addressing letters dated 18th January 2007 to the Mumbai Municipal 9 Corporation. It is the Plaintiff’s case that on receipt of the information, the Plaintiff, for the first time, learnt that Defendant No.1 had misled various authorities including this Hon’ble Court by filing false affidavits, collusive consent terms and by making representations that are ex facie false and erroneous. It is the Plaintiff’s case that Defendant Nos.2 to 10 in collusion with Defendant No.1 and on the basis of misrepresentations, purported to illegally and fraudulently sell/dispose of the suit property including 1/3rd share of Jankibai’s estate in the said property to Defendants 2 to 4. 9. The thrust of the Plaintiff’s case is that the Defendant No.1 has intermeddled with and misappropriated the estate of the said Jankibai and of the said Nathmal by claiming that he was the sole representative and legal heir of the estate and properties of Jankibai so as to deprive the Plaintiff and other sisters of their share in the Jankibai’s estate. The Plaintiff appears to have sent letters to the Assistant Municipal Commissioner as well as Municipal Commissioner and Senior Police Inspector of local Police Station highlighting the fact that Defendant No.1 was not the sole and absolute owner in relation to 10 Jankibai’s estate and share in the suit property. The Plaintiff appears to have obtained documents under the provisions of the Right to Information Act even from this Hon’ble Court in February 2007 in relation to the proceedings in which Consent Terms came to be filed and Conveyance Deed was executed transferring right and interest in the suit property in favour of Defendants 2 to 4. In Paragraph 9 of the Plaint, the Plaintiff has set out all the relevant events in chronological order to assert that fraud has been perpetrated upon the Plaintiff and other heirs of the said Nathmal Murarka as also upon this Hon’ble Court. The assertion of fraud on this Hon’ble Court is in relation to the proceedings instituted by M/s.Vivek Enterprises (Defendant No.2 herein) in this Court being Suit No.1092 of 1981. The said Suit was filed for specific performance of an Agreement dated 26th December 1977 purportedly executed between Shivbai and Defendant No.2 herein, whereby, Shivbai offered to sell the suit property to Defendant No.2 for a total consideration of Rs.5,00,000/- (Rupees Five Lakhs) on behalf of herself and (a) Krishnakumar Nathmal Murarka (Defendant No.1), (b) Nathmal G.Murarka (father of Plaintiff, Defendants 1, 17 to 21 and late Smt.Laxmibai Ramgopal Modi), (c) Radheshyam 11 Prahladrai Murarka (Defendant No.5), (d) Pawankumar Radheshyam Murarka (Defendant No.7). In the said Suit, a Notice of Motion No.1108 of 1981, seeking interim relief of appointment of the Court Receiver and restraining the Defendants therein from alienating and disposing of the said property, was filed. The same was signed by one Mr.Rajendra Khemchand Kothari (Defendant No.22) in his capacity as partner of Defendant No.2. It is stated that the said Rajendra Khemchand Kothari is still a partner of Defendant No.2. The said Notice of Motion was eventually dismissed after contest, on 13th November 1981. At the same time, however, the Defendant No.2 (Plaintiff therein), was granted liberty to register Lis Pendens Notice in terms of order dated 13th November 1981. As per the liberty granted by this Court, Defendant No.2 registered Lis Pendens Notice, which was once again signed by Rajendra Khemchand Kothari in his capacity as partner of Defendant No.2. The late Mrs.Shivbai (who was alleged to have entered into the Agreement for Sale by herself and on behalf of the others) died intestate on 20th January 1979. She left behind Defendant No.8 herein and three married daughters. However, none of the heirs of Shivbai were brought on record or joined as 12 parties in Suit No.1092 of 1981. In the said Suit, a joint written statement was filed by all the five Defendants opposing the Suit inter alia stating – (a) no agreement had been entered into by the late Mrs.Shivbai; (b) there was no valid, binding or concluded agreement at any date between the parties and (c) the late Mrs.Shivbai could not have negotiated to sell entire property as she was only a co-owner and did not have authority to sell on behalf of the other co-owners. 10. Significantly, even Nathmal, predecessor of the Plaintiff and Defendant No.1 who was impleaded as Defendant No.2 in the said Suit died intestate on 8th October 1992, leaving behind the Plaintiff, Defendant Nos.1, 17 to 21 and late Smt.Laxmibai as his legal heirs and representatives. Out of legal heirs of Nathmal, only Defendant No.1 was already party to Suit No.1092 of 1981. None of the other heirs of Nathmal were brought on record in the said suit filed by Defendant No.2. It is the case of the Plaintiff that she was not aware of the said litigation. It is stated that on 7th January 1993, the Advocate for the Defendants therein furnished the names of heirs of Nathmal who had expired on 8th October 1992. Inspite of that, no steps were 13 taken to bring on record even the legal representatives of Nathmal (Defendant No.2 in that Suit). In other words, neither the heirs and legal representatives of Shivbai having 1/3rd share nor all the heirs and legal representatives of Nathmal (except Defendant No.1 who was already named as Defendant in the said Suit) were brought on record. It is also seen that on 7th June 2001, the Suit No.1092 of 1981 was dismissed on account of non appearance of the Plaintiff therein (Defendant No.2). As the Suit was dismissed, the Defendants in the said Suit applied to the Sub-Registrar for the deletion of the Lis Pendens Notice, which was accordingly dismissed on 14th August 2001. However, after the lapse of 3½ years, Notice of Motion No.3579 of 2004 was moved by the Plaintiff (Defendant No.2 herein) in that suit, praying- (a) to set-aside the order dated 7th June 2001 dismissing the suit and to restore the same on file; (b) for condonation of delay of three years and six months in filing the Notice of Motion; and (c) pending the hearing and final disposal of the Suit, the suit Defendants be restrained by an order of injunction from selling, disposing or encumbering the said property. 14 11. Even this Notice of Motion was signed by Rajendra Khemchand Kothari (Defendant No.22) in the capacity as partner of Defendant No.2. On 15th December 2004, an order, in terms of Consent Terms signed by the Advocates for the parties, was passed in the said Notice of Motion No.3579 of 2004 and the Notice of Motion was made absolute in terms of prayer clauses (a), (b) and (c). In terms of the said order, the Suit No.1092 of 1981 stood restored. However, the Defendant No.1 along with suit Defendants (i.e. Defendants 5 and 7 herein) filed Notice of Motion in that Suit being Notice of Motion No.44 of 2005, for setting aside the order dated 15th December 2004 passed in the earlier Notice of Motion No.3579 of 2004 and to restore the said Notice of Motion to the file to its original number for expeditious hearing. The said Motion was filed by the Defendant No.1 and Defendant Nos. 5 and 7 herein on the ground – (a) collusion between Advocates for Plaintiff and Defendant No.3; (b) M/s.Kapadia & Co. was representing only Defendant No.3 in the said Suit and none of the other Defendants and (c) that the signature on the Consent Terms in the said Suit did not appear to be of the Advocate for suit Defendant No.3 Mr.Shantilal Kapadia. 15 12. Significantly, Defendant No.1 herein filed reply to the said Notice of Motion asserting that upon the death of Nathmal, his heirs and legal representatives were not brought on record in the Suit No.1092 of 1981. Even so, the said Suit No.1092 of 1981 came to be finally disposed of in terms of the Consent Terms dated 25th February 2005 arrived at between Defendant No.1 and 5 to 8 on one hand and Defendant Nos.3 and 4 who represented to be the partners of Defendant No.2 on the other hand. According to the Plaintiff, neither of these Defendants (Defendant Nos. 3 and 4) were partners of Defendant No.2 at the relevant point of time. Moreover, Defendant Nos.8 and 6 herein, who were not even parties to Suit No.1092 of 1981, also signed the Consent Terms as Defendants 2 and 3 in the said Suit, even though they were not Defendant Nos.2 and 3 to the Suit No.1092 of 1981. As mentioned earlier, Defendant No.8 and his three sisters belong to branch of Shivbai, which branch was not made party to the original Suit. In terms of the Consent Terms, the Development Agreement dated 25th February 2005 was entered into between the suit Defendants (Defendant Nos.1, 5 and 7 herein) along 16 with Defendant Nos.6 and 7 as alleged owners of the suit property granting development rights therein in favour of Defendant Nos.3 and 4 as partners of Defendant No.2 for a consideration of Rs.4,75,000/- (Rupees Four Lakhs Seventy-five Thousand). Besides, an irrevocable Power of Attorney dated 25th February 2005 was also executed authorising Defendant Nos.3 and 4 and two sons of Defendant No.3 to carry out certain activities and exercise powers in relation to the development of the said property. It is the Plaintiff’s case that to give legitimacy to the transaction, Defendants 1 to 8 abused the process of this Hon’ble Court and sought a collusive decree from this Hon’ble Court in terms of the Consent Terms vide order dated 3rd March 2005. It is the case of the Plaintiff that when the Notice of Motion No.44 of 2005 in Suit No.1092 of 1981 came up for hearing on 16th March 2005 before this Hon’ble Court, the parties to the Notice of Motion continued to prevaricate and did not disclose the status of Defendant Nos.6 to 8 in the Consent Decree dated 3rd March 2005. Instead, it was submitted that in view of the disposal of the Suit by Consent Decree dated 3rd march 2005, the Notice of Motion did not survive, for which reason, the Notice of Motion was disposed of on that date. 17 13. According to the Plaintiff, the Defendant Nos.1 and 5 to 8 also made false representations to the authorities under the Urban Land (Ceiling and Regulation) Act, 1976, while applying for permission under that Act by filing false affidavit of Defendant No.1 that he was the only legal heir to succeed the property left behind by Jankibai and Nathmal. Besides, material documents were suppressed by Defendant Nos.1 and 3 and reliance was placed only on the copy of the Property Registration Card, DP Records and Power of Attorney dated 25th February 2005 so as to cause misrepresentations to the authorities for obtaining ULC permission. 14. The Plaintiff asserts that the Defendants 1 to 8 continued their fraud on this Hon’ble Court by filing further Notice of Motion No.2796 of 2005 in Suit No.1092 of 1981 which was taken out by Defendant No.3 in the name of Defendant No.2 to bring on record modified Consent Terms dated 24th August 2005. As per the modified Consent Terms, the consideration amount in respect of the suit property was increased from Rs.4,75,000/- (Rupees Four Lakhs Seventy-five Thousand) to 18 Rs.18,59,00,000/- (Rupees Eighteen Crores Fifty-nine Lakhs). Once again, Defendant Nos.6 and 8 herein, who were not party Defendants in the aid Suit No.1092 of 1981 have signed the said Consent Terms. Once again, this Court was persuaded to pass order in terms of the modified Consent Terms on 17th October 2005 to decree the Suit in terms thereof. It is stated that presumably in terms of the modified Consent Terms dated 24th August 2005, a Deed of Conveyance dated 31st December 2005 was executed by Defendant No.1, 5 to 8 in favour of Defendant Nos.3 and 4 as partners of Defendant No.2. Later on, the Deed of Rectification dated 15th January 2006 was filed by the parties to the Deed of Conveyance dated 31st December 2005 as the Cadastral Survey Number of the plot was wrongly stated as 590 instead of 1/590. 19 15. The Plaintiff, therefore, sent legal notice on 24th January 2005 addressed to Defendants 1 to 4 calling upon them to issue public notice to the effect that Conveyance Deed dated 31st December 2005 allegedly executed in favour of Defendant No.2 and the Deed of Indemnity dated 20th January 2004 executed by Defendant No.1 were fraudulent documents and that the entire transaction was void ab-initio. 16. It is the Plaintiff’s case that the Defendant, having realized that it did not have the ULC permission in March 2007, the Defendant No.3 in the name of Defendant No.2 applied for permission for re- development under Section 22 of the ULC Act. It is the Plaintiff’s case that false statements have been made by Defendant No.3 in the Deed of Indemnity dated 8th Mach 2007 and in the affidavit in support of the said application dated 8th march 2007 submitted to ULC Authorities and on which basis, he succeeded in getting the ULC permission on 29th March 2007. 17. In Paragraph 12 of the Plaint, reference is made to the relevant clauses of the Deed of Indemnity dated 20th January 2004 being clause 20 Nos. (2) to (5). The Defendant No.1 made representation in the Deed of Indemnity that – (i) he is the only heir and legal representative in respect of the estates of the said Jankibai and the said Nathmal; (ii) his father the said Nathmal has not left any legal heir or representative in respect of his estate; and (iii) after the death of the said Jankibai, he was paying taxes etc. to the Government, Mumbai Municipal Corporation and other authorities. According to the Plaintiff, each of the statements are false to the knowledge of Defendant No.1. For, the said Nathmal died intestate, leaving behind one son (Defendant No.1) and seven daughters (Plaintiff, Defendants 17 to 21 and late Smt.Laxmibai). Significantly, the fact that Nathmal died leaving behind one son and seven daughters, is admitted by Defendant No.1 in the Development Agreement dated 25th February 2005 at recital 5(d) and clauses 6 and 7 thereof. This presupposes that the Defendants were fully aware that the heirs of Nathmal also had share in the property and estate of Jankibai. Moreover, at the time of death of Jankibai in 1956, Defendant No.1 was only 10 years old, for which reason, it was inconceivable that he would have paid taxes from 1956 onwards. The Defendant No.1, on such misrepresentations, fraudulently got the 21 name of Jankibai, which existed on the Property Card since 1947 deleted and got inserted his name into the Property Card, to the exclusion of the other heirs of the said Nathmal namely, the Plaintiff and Defendants 11 and 17 to 21. 18. In Paragraph 13 of the Plaint, the Plaintiff has adverted to the circumstances which establish the fact that representations made in the Deed of Indemnity dated 20th January 2004 and the Development Agreement dated 25th February 2005 are misleading, contradictory and ex facie false. The same was done with malafide intention of cheating and defrauding the Plaintiff and depriving her of her rights in the said Nathmal’s estate (which includes the said Jankibai’s 1/3rd share in the said property), which she is entitled to under the provisions of the Hindu Succession Act, 1956. At least six strong circumstances are adverted to in Paragraph 13 of the Plaint to allege that the said documents were fraudulent. 19. In Paragraph 14 of the Plaint, the Plaintiff has dealt with the circumstances which would spell out the fact that the Consent Terms 22 and Decree dated 3rd March 2005 was nullity, non est, collusive and obtained by perpetrating fraud on this Hon’ble Court and the Plaintiff. 20. In Paragraph 15 of the Plaint, the Plaintiff has adverted to seven circumstances to assert that the modified Consent Terms dated 24th August 2005 and the Decree dated 17th October 2005 were vitiated by