1 NMS-3540-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3540 OF 2010 IN SUIT NO.2973 OF 2005 Warren Douglas Miranda ..Plaintiff Vs Scarlet Savio D’Souza and ors. ..Defendants -- Ms.Eventa A. Gonsalves, for plaintiff in support of Motion. Mr.S.U.Kamdar, Senior Advocate with Mr.S.R.Kumbhat, for defendant no.1. Mr.Piyush M. Shah, for defendant no.3. Ms.Poonam Mittal, for defendant nos.4 to 7. -- CORAM : R.G.KETKAR, J. RESERVED ON : 15 th JULY, 2011 PRONOUNCED ON : 5 th AUGUST, 2011. 2 NMS-3540-10.odt P.C: By consent of the parties, Notice of Motion is heard finally. The plaintiff has taken out this Notice of Motion (i) for seeking permission to pay to the defendant nos.1 and 3 a sum of Rs. 16,25,000/- being their 25% share in the Kalina Property and more particularly described in the Schedule at Exhibit - “B” to the plaint and ordering defendant nos.1 and 3 to release their 25% share in the said Kalina Property in favour of the plaintiff; (ii) for ordering the consideration payable to the defendants No.1 and 3 towards their 25% share in the Kalina property to be kept deposited to the credit of the Suit No.2973 of 2005 to be paid over to the defendants or adjusted on passing of the final decree in the said suit and finalisation of accounts; and (iii) for appointing of the Court Receiver under Order XL, Rule 1 of the Code of Civil Procedure, 1908 (for short “C.P.C.”) in respect of flat no.4 Shahina Apartments, 1 st Floor, Off. Pali Road, Near Pali Market, Bandra (West), Mumbai (for short “suit flat”). 2] In support of this Motion, Warren Douglas Miranda has made affidavit dated 10 th December, 2010. It is contended that the plaintiff 3 NMS-3540-10.odt has instituted suit in respect of the estate of Morgen Lawrence Miranda and Silvester Adam Miranda, since deceased. Said Silvester had left behind the property described in Schedule at Exhibit “B” to the plaint namely piece and parcel of land bearing C.T.S. No.6238, admeasuring 259.6 sq. metres with structure standing thereon bearing house no.125, Kalina, Santacruz (East), Mumbai (for short “Kalina property”). Kalina property comprises land and bungalow standing thereon of ground plus one upper floor and was constructed in the year 1955. The plaintiff and defendant nos.4, 5, 6 and 7 are in exclusive use and occupation and possession of Kalina property. Presently, the plaintiff and defendant nos.4, 5, 6 and 7 are residing at Canada and in their absence Kalina property is kept locked. 3] It is the case of plaintiff that the plaintiff and defendant nos.1 to 7 are heirs and legal representatives of Silvester Adam Miranda, since deceased under the Indian Succession Act, 1925 (for short “the Act”). Said Silvester, paternal grand father of the plaintiff passed 4 NMS-3540-10.odt away at Mumbai on 13 th September, 1963 leaving behind his widow Rose Marceline, three sons namely Morgan Lawrence Miranda, Bonaventure Miranda and Gregory Miranda and four daughters namely Elsie Miranda, Maisie Miranda, Dora w/o.Cyril Gomes and Violet Miranda. Said Rose Marceline widow of Silvestor passed away intestate at Mumbai on 22 nd February, 1965 leaving behind her three sons and four daughters mentioned hereinabove as her only heirs and legal representatives. 4] The two sons of said Silvester namely, Morgan and Bonaventure were bachelors and they died on 8 th August, 2005 and 14 th May, 2004, respectively. The three daughters of said Silvester namely Elsie, Maisie and Violet were spinsters and they passed away intestate at Mumbai on 19 th May, 2001, 23 rd June, 1998 and 19 th August, 2004, respectively. One of the sons of Silvester namely Gregory married married Carole – defendant no.4. Said Gregory died on 19 th December, 1999 leaving behind his widow Carole, two daughters namely Sheryl – defendant no.5, Marlene Pinto – 5 NMS-3540-10.odt defendant no.7, son Brenden – defendant no.6 and plaintiff Warren. 5] It is contended that Dora, daughter of Silvester Adam Miranda passed away intestate at Mumbai on 18 th January, 1994 leaving behind her widower Cyril Gomes – defendant no.2, daughter Ginger Gomes – defendant no.3, daughter Scarlet Savio D’Souza – defendant no.1. Defendant no.10 Savio D’souza is husband of defendant no.1 who died pending the suit. During the pendency of the suit, defendant no.2 – Cyril Gomes has passed away leaving behind defendant no.1 Scarlet and defendant no.3 Ginger as his only heirs and legal representatives. The family tree of said Silvester Adam Miranda is annexed at Exhibit “A” to the plaint. 6] It is the case of the plaintiff that under the provisions of the Act each of the children of said Silvester will be entitled to get 1/7 th share in the estate. As Bonaventure, Elsie, Maisie and Violet (sons and daughters of Silvester) having passed away unmarried and intestate without leaving any lineal heirs, the collective share of aforesaid four 6 NMS-3540-10.odt persons i.e.4/7 th or 57.14 share in the estate of the deceased Silvester will devolve on the then surviving heirs of deceased Silvester namely Morgen, Gregory and Ms.Dora. Thus, the estate of the deceased Silvester will devolve on his three children Morgan, Gregory and Dora in equal shares i.e.1/3 share each or 33.33% each. The share of Gregory Miranda has devolved on his widow and the defendants no.4 to 7. The share of said Dora will devolve on her husband - defendant no.2 and daughters - defendant nos.1 and 3. It is the case of the plaintiff that Morgen died on 8 th August, 2005 leaving behind his last Will and testament dated 19 th July, 2005 bequeathing his entire estate solely to the plaintiff to the exclusion of all other legal representatives. The said Will is duly registered with the Sub-Registrar of Assurances at Mumbai and copy of the said Will is annexed at Exhibit “C” to the plaint. It is the further case of the plaintiff that by Deed of dated 26 th July, 2005, the deceased Morgan has gifted his 1/3 rd undivided share, right, title and interest in the said Kalina property solely to the plaintiff. The said Gift Deed is duly registered with the Sub-Registrar of Assurances at Bandra, Mumbai. The copy of the Gift Deed is 7 NMS-3540-10.odt annexed at Exhibit “D” to the plaint. In the circumstances, plaintiff claimed that he is entitled to 38.88% share in the Kalina property. 7] It is further case of the plaintiff that deceased Morgan held a Bank Account with Bank of India, Turner Road, Bandra Branch being Saving Account No.609. In or about January, 2005, defendant no.1 had withdrawn about Rs.45 lacs from the said account. The said amount was withdrawn by defendant no.1 by way of pay slips. It is the case of the plaintiff that defendant no.1 has siphoned away about Rs.90 lacs belonging to deceased Morgan from the said account and has utilised the said amount for purchasing various investments in Mumbai and Goa. It is alleged by the plaintiff that defendant no.1 had purchased the suit flat out of the funds belonging to said deceased Morgan. The suit flat is part of estate of Morgan. The plaintiff being solely beneficiary under the Will is solely entitled to the suit flat. In paragraph 23 of the plaint, the plaintiff has given shares in the estate of deceased Silvester as under :- 8 NMS-3540-10.odt Plaintiff 38.90% Defendant no.1 16.66% Defendant no.2 (deleted) Defendant no.3 16.66% Defendant no.4 11.11% Defendant no.5 5.55% Defendant no.6 5.55% Defendant no.7 5.55% It is in these circumstances, the plaintiff instituted suit for declaration that the plaintiff is entitled to estate of deceased Morgan Lowrence Miranda as his sole beneficiary and legatee under the Will dated 19 th July, 2005 exhibit “C” among other prayers. 8] During the pendency of the suit, plaintiff took out Notice of Motion No.3310 of 2005 in Suit No.2973 of 2005 and by consent of the plaintiff and defendant no.1, Notice of Motion was disposed of whereunder the Court directed defendant no.1 to file undertaking 9 NMS-3540-10.odt within two weeks from the date of the order in this Court undertaking that it is she, who his in possession of the suit flat and that without seeking leave of the Court, she will not part with possession, alienate, transfer or create third party interest in the suit flat. The plaintiff was also directed to file undertaking within two weeks from the date of the order undertaking that the plaintiff is in possession of the structure standing on Kalina property and without seeking leave of the Court, she will not part with possession, transfer, alienate or create any third party rights in that property. 9] Defendant nos.1 and 10 have filed written statement as also counter claim both dated 10 th August, 2006. Defendant nos.1 and 10 have contended that Will dated 19 th July, 2005 and Gift Deed dated 26 th July, 2005 have been obtained in suspicious circumstances after kidnapping deceased on 25 th June, 2005 and he died on 8 th August, 2005 within 19 days of the execution of Will and 12 days of execution of Gift Deed. The testator was buried in suspicious circumstances without informing any relative including defendant nos.1 and 10. In so 10 NMS-3540-10.odt far as the suit is concerned, defendant nos.1 and 10 have denied the assertions made by the plaintiff. In the counter claim, defendant nos. 1 and 10 have challenged the Will dated 19 th July, 2005 and Gift Deed dated 26 th July, 2005 and have prayed for cancellation of registration to the Registrar of Assurances. 10] Now, the plaintiff has taken out present Chamber Summons seeking permission to make payment of Rs.16,25,000/- to defendant nos.1 and 3 being their 25% share in the Kalina property and for direction to defendant nos.1 and 3 to release their 25% share in that property and for further direction that consideration payable to defendant nos.1 and 3 towards 25% in the Kalina property be ordered to be kept in the credit of the above suit to be paid over to defendant nos.1 and 3 or adjusted on passing of final decree in the above suit and finalisation of Accounts and for appointment of Court Receiver in respect of the suit flat. 11] The learned counsel for the plaintiff strenuously contended that 11 NMS-3540-10.odt defendant no.1 in her counter claim has contended that defendant nos.1 and 10 have 25% share in the Kalina property. Defendant no.1 is entitled to 11.11% share in the property. Even accepting the claim of defendant no.1 and 3 (on account of death of defendant no.10) that they have 25% share in Kalina property, plaintiff and defendant nos.4, 5,6 and 7 are collectively entitled to 75% share. This is evident from disclosure made by defendant nos.1 and 10 in their written statement and counter claim. She submitted that taking advantage of absence of plaintiff and defendant nos.4, 5, 6 and 7, Kalina property was burgled several times in the month of July 2009. 12] The plaintiff had to incur expenses of Rs.10,000/- per month for security charges. As against this, defendant nos.1 and 3 were never in possession of Kalina property or in part thereof. Defendant nos.1 and 10 valued Kalina property at Rs.53,34,000/- as on 10 th August, 2006 and the present market value of the property is about Rs.65 lacs. Defendant nos.1 and 3 are holding the suit flat and the market value of the suit flat is Rs.1,50,00,000/- approximately. Defendant 12 NMS-3540-10.odt nos.1 and 3 are using the suit flat free of cost without contributing any amount towards estate of the deceased Morgan. She, therefore, submitted that in the interest of justice, the plaintiff may be permitted to pay to defendant nos.1 and 3 their 25% share in Kalina property and they may be directed to sign and execute the Release Deed in favour of the plaintiffs in lieu of their 25% share. Defendant nos.4 to 7 have no objection to the said arrangement. Mr.Eventa Gonsalves, learned counsel for the plaintiff also relied upon the judgment of the Apex Court in the case of Badri Narain Prasad Choudhary and ors. Vs. Nil Ratan Sarkar, AIR 1978 SC 845. 13] Defendant no.1 has filed affidavit-in-reply opposing this Motion. It is contended that in so far as prayer clause “C” of the Notice of Motion seeking appointment of Court Receiver in respect of suit flat is concerned, the same prayer was made in earlier Notice of Motion No. 3310 of 2005 and by consent of the parties, the said Motion was disposed of by order dated 13 th June, 2007. The prayer for appointment of Court Receiver in respect of suit flat was not granted. 13 NMS-3540-10.odt No change of circumstances from the date of passing order dated 13 th June, 2007 are brought on record and consequently, plaintiff is not entitled to prayer clause “C” of the Motion. It is further contended that the present Notice of Motion is wholly misconceived as the shares of the parties are not determined. Unless and until the shares of the parties are determined by passing a preliminary decree, the prayers made in the Motion cannot be granted. 14] Defendant no.3 has also filed affidavit-in-reply inter alia contending that the prayers in the Notice of Motion cannot be granted at this stage unless and until the suit is finally decided. Apart from that, the purported Will dated 19 th July, 2005 and the purported Gift Deed dated 26 th July, 2005 are challenged by filing counter claim and unless and until the validity of the said Will Deed and Gift Deed is not decided, no interim relief can be granted. 15] Mr.Kamdar, learned Senior Counsel contended that defendant no.1 is ready and willing to buy the shares of the plaintiff and 14 NMS-3540-10.odt defendant nos.4 to 7. Ms.Gonsalves obviously opposed the said submission. Mr.Kamdar has also submitted that by prayer clause (b) of the present Notice of Motion, the plaintiff is praying that the consideration payable to defendant nos.1 and 3 towards their 25% share in the Kalina property be deposited to the credit of the suit to be paid over to these defendants or adjusted on the passing of final decree and realisation of accounts. Thus, on one hand, defendant nos.1 and 3 have to relinquish their 25% share in the Kalina property, the consideration for such relinquishment will not be paid over to these defendants but will be deposited subject to adjustment on passing of final decree and finalisation of accounts. He therefore submitted that the plaintiff is not entitled to any other relief in this Motion. 16] I have considered the rival submissions made by the learned counsel for the parties. It is not in dispute that the preliminary decree determining the share of the parties is not yet passed. On one hand, the plaintiff has prayed for direction to defendant nos.1 and 3 to 15 NMS-3540-10.odt release their 25% share in the Kalina property in presenti, on the other hand, the consideration for such relinquishment will be payable to defendant nos.1 and 3 in future subject to adjustment on passing of final decree and finalisation of accounts. Apart from that, defendant no.1 is ready and willing to buy share of the plaintiff and defendant nos.4 to 7. In view of this, prayer clauses (a) and (b) cannot be granted. In so far as prayer clause (c) of the Motion is concerned, earlier Notice of Motion No.3310 of 2005 was disposed of by this Court on 13 th June, 2007 by consent of the parties. In view of this, prayer clause (c) cannot be granted. 17] In so far as reliance placed by the learned counsel for the plaintiff on the judgment of the Apex Court in the case of Badri Narain Prasad Choudhary (supra) is concerned, in my opinion, the same does not advance the case of the plaintiff. In that case, defendant – respondent was tenant of the suit premises. The defendant – respondent purchased 3/16 share in the suit premises for Rs.2250/- by a sale deed 25 th March, 1957. The plaintiff-appellants who were 16 NMS-3540-10.odt members of a joint Hindu family governed by Mitaksara Law purchased remaining 13/16 share in the suit premises for Rs.9000/- by sale deed dated 27 th April, 1957. They asked respondent to partition and separate their share. The respondent did not agree. In view of this appellant instituted Suit No.64 of 1959 on 8 th August, 1959 for partition of the suit property. On 14 th August, 1961, the learned trial Judge decreed the suit and held that the defendant was not a permanent tenant but a tenant from month to month only. He further held that the dimensions and area of the suit premises being very small, it could not be conveniently partitioned and therefore, it was necessary to have recourse to Section 3(2) of the Partition Act, 1893 (for short “said Act”). He fixed the valuation of the suit premises at Rs.11,250/- and directed that the suit premises being incapable of partition shall be put to sale between the plaintiffs and the defendant, and the same shall be sold to that party who offers to pay the highest price above the valuation made by the learned trial Judge. 18] The suit premises was repeatedly auctioned between the 17 NMS-3540-10.odt parties. In the last auction held in June, 1965, the plaintiff offered highest bid of Rs.50,000/-. The defendant was given the option to purchase the property at that price and deposit the sale money by 19 th July, 1965. The defendant failed to do so and therefore, the Court ordered that the plaintiff’s bid of Rs.50,000/- is accepted. 19] Aggrieved by this decree, the defendant preferred Appeal to the High Court. The plaintiff filed cross-objection. The High Court was of the view that the averments in paragraphs 8 and 10(c) of the plaint made out a case to be dealt with under Section 2 of the said Act and therefore, equity had to be worked out between the parties by allowing the defendant to purchase the share of the plaintiffs under the provisions of Section 3(1) read with Section 2 of the said Act. The High Court worked out valuation of the plaintiff’s share as Rs.9,000/- and that of defendant’s share as Rs.2,250/- and further allowed the defendants to purchase plaintiff’s share for Rs.9,000/-. The High Court allowed Appeal of the defendant and dismissed cross-objection of the plaintiff. The Apex Court came to the 18 NMS-3540-10.odt conclusion that Sections 2 and 3 of the said Act are not applicable and at the same time, there was concurrent finding of fact recorded by the courts below that the suit premises is so small that it cannot be conveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth. 20] In so far as the present case is concerned, as noted earlier, the preliminary decree is yet to be passed and the shares of the parties are yet to be determined. That apart, so far no finding is recorded that the Kalina property cannot be conveniently and reasonably partitioned by metes and bounds. In view thereof, the reliance placed by learned counsel for the plaintiff on the judgment of the Apex Court in the case of Badri Narain (supra) is misconceived. 21] In the result, no case is made out by the plaintiff for grant of any interim relief. Notice of Motion is dismissed. [R.G.KETKAR, J.]