acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1202 OF 2007 IN SUIT NO. 868 OF 2007 Manoj Dev …Plaintiff. Vs. Gautam @ Sukhendu Bikash Manoj Dey & Anr. ....Defendants. ---- Mr. Nusrat Shah a/w Mr. Pravin Contractor, A.K. Gupta, Sayed Zia, Ema Almeida and Narayan Swamy i/b M/s Shroff & Co., for the Plaintiff. Mr. Rajendrakumar R. Mahagaonkar, for Defendant no.1. ---- CORAM: S.J. VAZIFDAR, J. DATED: 12 TH AUGUST 2009. P.C.: 1. This is the Plaintiff’s Notice of Motion for an order restraining his son Defendant no.1 from, inter alia, disturbing his possession in respect of three immovable properties, from entering upon the said properties and from disposing of, selling, alienating or otherwise dealing with the said properties. 2. This is an unfortunate dispute between the Plaintiff and his wife Defendant no.2 on the one hand and their son Defendant no.1 on the 1 other. Defendant no.3 is Govind Chaya Co.Op. Hsg. Scy.Ltd. and Defendant no.4 is the Punjab National Bank. The suit as against Defendant no.4 is allowed to be withdrawn. 3. The suit is filed, inter alia, for a declaration that the Plaintiff is the absolute owner of the three immovable properties mentioned in Exh.’A’/Schedule 'A’ to the Plaint; that Defendant no.1 does not have any right, title and interest therein and that a purported Gift Deed in respect of one of the properties is void and liable to be set aside. The Plaintiff has further sought an order restraining Defendant nos.3 and 4 from giving effect to the Gift Deed. The Plaintiff has also sought a direction for the return of Rs.9,00,000/- from Defendant no.1. 4. The three immovable properties are i) a shop/flat admeasuring 400 sq.ft.; ii) a farm house/property admeasuring 3 acres in Thane District; ⅓ and iii) a flat admeasuring 650 sq.ft. in Kolkata. 5. As far as the farm house in Thane and the flat at Kolkata are concerned, there is no defence whatsoever. The Plaintiff is the owner of the farm house and the flat at Kolkata. Defendant no.1 had absolutely no right whatsoever therein. That his name may find place in the documents of title is only for convenience. Defendant no.1 has not even sought to produce any evidence disclosing any right in these two properties. 2 6. Faced with this it was contended that Defendant no.1 being the only son of the Plaintiff and Defendant no.2 is their natural heir and obvious successor to the properties of his parents and is entitled therefore to use and enjoy the same as a matter of right without the consent of his parents. 7. That such a contention was even raised is surprising as his parents are still alive. The submission requires merely to be stated to be rejected. 8. It was then contended across the bar that Defendant no.1 had maintained these properties. Even assuming that to be so he would at the highest be entitled to recover any amounts that he may have spent without intending to do so gratuitously. There is nothing to suggest that any rights were created in favour of Defendant no.1 in respect of the said properties by virtue of his allegedly having spent any amounts towards the maintenance thereof. 9. An order restraining Defendant no.1 from entering upon these two properties may appear drastic at the interlocutory stage. It is, however, not only justified but imperative. The offer made on behalf of Defendant no.1 to permit his parents the use of the said properties is meaningless as the properties belong to his father. There is no question therefore of his permitting his parents to use the properties. In fact the learned counsel appearing on behalf of Defendant no.1 after taking instruction from Defendant no.1 made a statement that Defendant no,1 has no interest in 3 the flat at Kolkata and that he has not placed locks on the door of the flat. If that is so Defendant no.1 can have no objection to the reliefs sought in respect of the said shop. Needless to say that this order would not effect the rights, if any, of any third party in respect of the flat. 10. The only property in respect whereof anything requires to be considered is a shop/flat admeasuring 400 sq.ft. on the third floor of Defendant no.3-Society. It is not disputed that the Plaintiff has executed the Gift Deed in respect of his shop/flat in favour of Defendant no.1. Nor is it disputed that the Gift Deed has been registered. 11. I am unable to reject at this stage the Plaintiff’s case that the Gift Deed and other related documents were obtained by Defendant no.1 from him under pressure and coercion. 12. It is clear from the record that there were disputes between the Plaintiff and Defendant no.2 on the one hand and Defendant no.1 on the other prior to the execution of the Gift Deed dated 20.09.2006 and which was also registered on the same day. According to the Plaintiff he was also the owner of a flat at Borivli where he and his wife the 2nd Defendant and his son the 1st Defendant and his wife were residing. Defendant no.1 whose name was also included in the record of the Society, however, declined to give his no objection to the sale of the flat unless he was paid a one third of the sale proceeds. The Plaintiff therefore had no option but to accede to the demand of Defendant no.1. Thereafter parties decided to 4 register the documents in respect thereof in the office of the Sub- Registrar on 20.12.2006. In addition to the above, Defendant no.1 also produced other documents relating to the said Gift Deed. The Plaintiff states that he had no knowledge about the contents of these documents and the legal effect thereof and was forced to sign the same by Defendant no.1 and due to pressure he signed the Gift Deed and registered the same. 13. There is little doubt that the disputes had arisen between the Plaintiff and his son the 1st Defendant prior to execution of the Gift Deed and the registration thereof. It is also important to note that the Plaintiff on the very next day i.e. 31.12.2006 lodged a complaint with the police station stating, inter alia, the above facts. 14. In the circumstances, prima facie, it is difficult to reject the Plaintiff’s case that the Gift Deed was not executed voluntarily and without coercion. The Plaintiff’s right in respect of the said shop therefore also requires to be protected. 15. It was submitted regarding the flat at Kolkata that this court has no jurisdiction to entertain and try this suit. However, Plaintiff has obtained leave under Clause XII of the Letters Patent to sue the Defendants in this court in respect of the properties situated outside the jurisdiction of this court and the same has not been revoked. In the circumstances, this submission is rejected. 5 16. In the circumstances, the Notice of Motion is disposed of in the following terms: i) Defendant no.1 is restrained from entering upon or dealing with the flat at Kolkata and the farm house and land surrounding it and referred to at items 2 and 3 of Exh.`A’/Schedule `A’ to the plaint. Defendant no.1 shall also not in any manner whatsoever prevent the use of these properties by the Plaintiff or Defendant no.2. ii) Defendant no.1 shall be entitled to continue in possession of the shop/flat described in item 1 of Schedule`A’ to the plaint pending the hearing and final disposal of the suit. He, however, shall not sell, alienate, encumber, or create any third party right, title and/or interest in respect of the said premises. iii) The Prothonotary & Senior Master shall appoint a valuer from the panel of the Court Receiver for the purpose of determining the compensation as per the prevailing market rate for use and occupation of the said shop/flat premises on leave and license basis. iv) Defendant no.1 shall deposit 50% of such valuation in this court on or before the 10th day of each month commencing from 10.10.2009. Defendant no.1 shall be entitled to continue in possession subject to the amounts being so deposited. 17. This order is stayed up to 30.09.2009 only in respect of the shop/flat. Defendant no.1, however, shall be entitled to remove his 6 belongings or articles from the farm house on or before 30.09.2009. In the meantime, Defendant no.1 has agreed not to obstruct the use of the farm house by the Plaintiff and Defendant no.2. His statement in this regard is accepted. 7