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.3101 OF 2006 NOTICE OF MOTION NO.3101 OF 2006 NOTICE OF MOTION NO.3101 OF 2006 IN IN IN SUIT NO.2618 OF 2006 SUIT NO.2618 OF 2006 SUIT NO.2618 OF 2006 1. M/s Kalpataru Homes Ltd, 2. Mr Shyam Agarwal,.. .. Plaintiffs. Vs 1. Mr Dennis Nunes, 2. Mrs Louisa Coutto, .. Defendants. Mr Pradeep Sancheti i/b Yasmin Bhansali, for the plaintiffs. Mr. Atul Damle, for defendant nos 3 and 4. Mr Pesi.N.Modi, i/b Vigil Jaris for defendant no.6. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 15.04.2008 DATE : 15.04.2008 DATE : 15.04.2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. The plaintiffs have taken out this Notice of Motion for the following reliefs. (a) That pending the hearing and final disposal of the present suit this Hon’ble Court may be pleased to appoint the Court Receiver, High Court, Bombay or any other fit and proper person be appointed as Receiver of the said property being CTS No.198, Survey No.28, Hissa No.7 at village Kondivita, Andheri (East) Mumbai-400 059 and which property is more particularly described in the schedule at Exhibit -"A to the Plaint with all powers under Order 40, Rule 1 of the Code of Civil Procedure including the power to hand over the possession to the plaintiff no.1 at the costs and expenses of the Defendants. (b) That pending the hearing and final disposal of the suit the defendant nos 1 and 2 and 3 to 6 by themselves, their servants, agents and/or persons claiming through them or under them be restrained by an order and injunction of this Hon’ble Court from in any manner directly or indirectly disposing off, alienating, encumbering and parting with possession or otherwise creating third party rights in any manner whatsoever of the suit property bearing CTS N.198, Survey No.28, Hissa No.7 at village Kondivita, Andheri (East), Mumbai-400 059 and which property is more particularly described in Schedule at Exhibit-A to the plaint or any part thereof." 3. In the suit, the plaintiffs have prayed for a declaration that agreements dated 25.6.2006 and 17.7.2006 are valid, subsisting and binding upon defendant nos 1 and 2. They have also prayed for a decree of specific performance of the said agreements. 4. The plaintiffs claim that defendant nos 1 and 2, by a hand-written letter dated 25.6.2006, had agreed to sell their shares in the suit property to Shyam Agarwal - plaintiff no.2. They had also agreed to execute a sale agreement either in favour of Shyam Agarwal - plaintiff no.2 or his nominee. This letter is signed by defendant nos.1 and 2. An agreement for sale was accordingly executed on 17.7.2006. Admittedly, the agreement was signed only by defendant no.2. It appears, defendant no.4 also had signed the agreement as a witness. Both these documents were purportedly executed by defendant nos.1 and 2, as sole owners of the suit property, and it is so stated in the letter dated 25.6.2006 and in the agreement for sale dated 17.7.2006. As against this, all the defendants now claim that they all are owners of the suit property and they have executed a Deed of Conveyance in favour of defendant no.6 on 11.9.2006. In view thereof, though an ad-interim order was passed on 13.9.2006 it did not operate, since the property was already transferred to defendant no.6. Defendant no.6, therefore, claims that he is the owner of the suit property by virtue of the conveyance deed dated 2.9.2006 and that he is in possession of the suit property. A statement was made on behalf of defendant no.6, which is recorded in the order dated 30.7.2006, that he would maintain status-quo with regard to the suit property till the hearing of the motion. 5. The suit property was originally owned by Philip D’Mello, who died leaving behind him his daughter Mercelina. Marcelina and her husband died in 1911 and 1903 respectively, leaving behind three sons, namely, Diago, Pascal and John. Pascal died issueless in 1911 and while Diago died in 1921 leaving behind defendant no.5. John and his wife died, leaving behind three daughters, namely, Rose Nunes, Juliana and Mercelina. The plaintiffs claim that the suit property was exclusively owned by Rose Nines and Juliana whereas, according to the defendants, after the death of Philip and Mercelina the property devolved upon his two sons, namely, defendant no.5 and the father of Rose Nunes, Juliana and Mercelina. According to the defendants, defendant no.5 has 50 % share in the property whereas Rose Nunes, Juliana and Mercelina together have 50 % share in the property. Defendant nos 1 and 2 are the sons and the daughter of Rose Nunes, whereas defendant nos 3 and 4 are the son and the daughter of Mercelina. Though this genealogy is not admitted by the plaintiffs, the plaintiffs could not and did not dispute the relationship between the parties. It is against this backdrop, the defendants claim that defendant nos 1 to 5 are the joint owners of the suit property and they have executed conveyance in favour of defendant no.6. 6. Mr Sancheti, learned counsel for the plaintiffs submitted that there is no revenue record, such as, Property Register Card to show that apart from Rose Nunes and Juliana, the other defendants are also having right in the suit property. He submitted that when both the agreements, namely, the letter dated 25.6.2006 and the agreement for sale dated 17.7.2006 were executed the names of Rose Nunes and Juliana only were appearing in the Property Register Card and, in view thereof, it cannot be stated that the other defendants also have a right in the suit property. He then invited my attention to several other documents placed on record to contend that the conveyance executed in favour of defendant no.6 is illegal and that the agreements executed in their favour are binding even on defendant no.6 as provided for under section 19 of the Specific Reliefs Act,1963. He then submitted that balance of convenience is in favour of the plaintiffs and if the injunction, as prayed, is not granted, they will suffer irreparable loss. Lastly, he submitted that the plaintiffs are entitled for specific performance atleast in respect of 50 % of the property. 7. On the other hand, Mr.Modi, learned counsel for defendant no.6, submitted that a Memorandum of Understanding dated 3.10.2005, executed by defendant nos.1 to 5 in favour of defendant no.6, was prior in time. He further submitted that defendant no.6 had paid the purchase price immediately on execution of the conveyance. The convenience executed in favour of defendant no.6, according to him, is registered document. Next, he submitted that taking the relationship between defendant nos 1 to 5 into consideration it cannot be stated that defendant nos 1 and 2 only were having exclusive right in the suit property when the said agreements were executed in favour of the plaintiffs. After inviting my attention to the relevant documents including a decree in Special Civil Suit No.4233 of 1966, he submitted that the suit property was belonging to all the defendants and in any case defendant nos 1 and 2 could not have claimed exclusive right over the same and, therefore, a decree, as prayed, in the present suit cannot be granted. The plaintiffs, even if succeed, at the most, would be entitled for compensation in the suit or could be compensated in monetary terms since the main relief prayed in the suit is discretionary in nature. 8. I perused the decree in Special Civil Suit No.4233 of 1966, wherein defendant nos 1,2 3 and 4 along with Juliana were the plaintiffs and defendant no.5 herein was the sole defendant. The plaintiffs therein had prayed for a declaration that all the properties including the property in the present suit are the properties belonging to their joint family consisting of the plaintiffs and the defendants therein, and they being the sole surviving heirs and legal representatives, are entitled to one-half share each in the suit property. The suit was decreed and they were declared as the sole owners having one-half share each in the suit property. That decree had not been challenged at any point of time by the parties to the said suit. It is binding on all. It may be true that even after the decree the names of other defendants were not entered in the Property Register Card, but that, by itself, in my opinion, does not create exclusive title in favour of Rose Nunes and Juliana, as tried to be contended by the learned counsel for the plaintiffs. The said decree clearly demonstrates that defendant nos 1 to 5 were the owners of the suit property. 9. A perusal of the agreements, namely, the agreement dated 25.6.2006, which is in the form of a letter and the agreement for sale dated 17.7.2006, it appears that though defendant nos 1 and 2 both had signed the letter, the agreement was signed only by defendant no.2. The letter dated 25.6.2006 does not confer any right on the plaintiffs. By that letter, defendant nos 1 and 2 had simply agreed to execute an agreement for sale. The plaintiffs cannot, in any case, enforce any right on the basis of the letter against defendant no.1 who is not party to the agreement for sale dated 17.7.2006. It appears that defendant no.3 holds Power of Attorney of defendant no.4 and that defendant no.3 had signed the agreement for sale as a witness and, therefore, it was submitted that defendant nos. 3 and 4 also had knowledge about the transaction between the plaintiffs and defendant nos. 1 and 2. They, according to Mr Sancheti, did not object to the transaction and, in fact, by signing as a witness had approved the same. My attention was, therefore, invited to the agreement dated 17.7.2007 to submit that the plaintiffs are entitled for decree, atleast in respect of 50% of the property, that is, the share of defendant nos. 1 to 4. In my opinion, this submission is devoid of any merit in view of the decree passed in the suit no.4233 of 1966. Merely because defendant nos. 1 to 4 have 50% share in the suit property does not mean the plaintiffs, on the basis of the agreements dated 25.6.2006 and 17.7.2006, can claim rights/reliefs either in respect of the entire suit property or 50% thereof. The plaintiffs cannot claim that defendant no.3 on her behalf and on behalf of defendant no.4 had agreed to sell their share to the plaintiffs. She, at the most, can be stated to be a witness to the agreement for sale. However, a careful scrutiny of the agreement shows that page no.10 of the agreement was not signed by defendant no.3 as a witness and her signature appears as a witness only on a duplicate page no.10 of the agreement wherein, except defendant no.3, no other party to the transaction had signed it. Even names of the plaintiffs also do not appear on the duplicate page 10 of the agreement for sale. In my opinion, the document is inchoate and it cannot be relied upon at this stage for granting reliefs, as prayed, in the motion. Defendant nos 1 and 2 cannot claim to be the sole owners of the suit property and, therefore, in my opinion, they had no right to execute the agreement for sale in respect of the entire property. Even if it is assumed that the agreement is binding on the share of defendant no.2, taking overall view of the matter and considering the balance of convenience which, in my opinion, is in favour of defendant no.6, this is not a fit case to grant interim reliefs, as prayed in the motion. A relief of specific performance being discretionary in nature, even if the plaintiffs are held to be entitled for, they could be compensated in monetary terms. In the circumstances, the Motion is dismissed. . The order of status-quo,as prayed, to remain operative for a period of eight weeks from today. (D.B.Bhosale, J.) (D.B.Bhosale, J.) (D.B.Bhosale, J.)