1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3925 OF 2009 IN SUIT NO. 2713 OF 2008 Suman Deepak Pandey ...Plaintiff Vs. 1. Gulabchand Awadhnarayan Upadhyay & Ors. ...Defendants Mr. R.K. Bali i/b. Bali & Asso., for Plaintiff Mr. Amarendra Mishra for Defendants 1 to 3 CORAM : SMT. ROSHAN DALVI, J. DATED : 28TH APRIL, 2010 P.C. : 1. The parties are siblings. The Suit is filed for administration of the estate of their deceased father and partition thereof. The Plaintiff claimed a 1/4th share therein. Several properties were claimed by the Plaintiff in the Suit. However the Plaintiff and Defendant No.1 entered into Consent Terms on 27th April 2009. 2 2. Under the Consent Terms the Defendant No.1 was to transfer the property being land under Survey No.6, Hissa No.3A admeasuring 5130 sq. mtrs., at village Katemanivali, Tal: Kalyan, District: Thane to the Plaintiff and to hand over vacant possession of the said property upon completion of sale of the Suit property within 150 days of the execution of the Consent Terms. The sale was to be completed under clause 7 of the Consent Terms. The transfer is contemplated under clause 8 and handing over the vacant possession is stipulated in clause 9 thereof. The time stipulated was specifically agreed to be the essence of the contract. 3. The Consent Terms also provided what was to be done in default of such transfer. In case of default, under clause 8, it was agreed that the Preliminary Decree would be passed in favour of the Plaintiff granting her 1/4th undivided right, title and interest in the Suit property. Defendant No.1 defaulted in taking any action under the CTS within the time specifically stipulated. 4. The Plaintiff seeks to enforce the Consent Terms since there has been a breach in completion of sale, transfer and handing over vacant possession within the time stipulated. The Plaintiff is, therefore, entitled to a Preliminary Decree under clause 8 of the Consent Terms to the extent of her 1/4th right, title and interest in the estate of her deceased father. 5. Defendant No.1 claims that he bonafide tried to honour the Consent Terms, 3 but could not, in view of another claim. His Advocate has drawn my attention to what the Defendant did bonafide to effect clauses 7,8 and 9 of the Consent Terms. The Consent Terms is dated 27th April 2009. Order in terms of the Consent Terms came to be passed on 2nd May 2009. The 150 days period mentioned in the Consent Terms would expire on 9th September 2009. The very first act the Defendant did was to issue a public notice. The public notice was issued initially in Free Press Journal on 6th August 2009. Defendant No.1 has annexed a photocopy of the public notice. The affidavit of Defendant No.1 shows that that public notice appeared in Free Press Journal on 6th August 2009. 6. The public notice is wondrous. It is unlike any public notice which is given in newspapers by parties in respect of immovable properties claimed by them. It is given by the Advocate of Defendant No.1, one K.K. Pande. 7. The public notice shows that Defendant No.1 looks after the properties of his late father and one property is agreed to be given to his sister and if any person has any objection in the said property they are called upon to show their right, title and interest with documentary evidence within 14 days of the publication of the notice to the Advocate for Defendant No.1 whose contact numbers are mentioned in the notice. The notice further states that no claims would be accepted and that the Defendant No.1 shall execute the document in favour of his sister after a period of 14 days from the date of publication. 8. One Rajendra Prasad Pande is stated to have given a reply to the notice on 4 14th August 2009. It shows that he came across the public notice in Free Press Journal of 6th August 2009 and was surprised to read the contents. He states that the proposed transfer has no legal base and that the father of the parties had “given” the property to him during his life time for valuable consideration. It states that the agreement was still alive, legally enforceable and acted upon “since for long period”. He claims possession of the property. He alleges fraud and he claims to rely upon his agreement. 9. Thereafter correspondence contained in letters dated 25th August 2009, 29th August 2009, 2nd September 2009 and 25th September 2009 ensued. 10.Defendant No.1 had given 14 days notice. The claimant was to produce documentary evidence. The Advocate for Defendant No.1 states that no documentary evidence is produced. The public notice states that no claims will be accepted if right, title and interest with documentary evidence is not produced. 11.Until now the documentary evidence is not shown to be produced by the claimant. Defendant No.1 has not taken any further steps. Defendant No.1 has not transferred the property in favour of his sister as notified in public notice. Defendant No.1 has breached the Consent Terms. 12.Defendant No.1 has not acted at all upon the Consent Terms right from 27th April 2009 until 6th August 2009 which is for a period of more than101 days. Even thereafter aside from entering into correspondence, Defendant No.1 has done nothing. The Plaintiff is entitled to the Preliminary Decree 5 as agreed between the parties. 13.It is seen that the act of the Defendant No.1 is not only completely lacking in bonafides, but is malafide. There was no reason for Defendant No.1 to give any public notice. No such public notice is ever given upon execution of Consent Terms between a brother and sister in respect of the property of the deceased father. 14.A brother who enters into Consent Terms and agrees to give his sister one of the many properties of his father is implicitly expected to give the property on which there could be no claim of another. The brother is not expected to offer one property to his sister in settlement of her claim to 1/4th estate of her father and then ascertain other claimants under a public notice. The very act of giving the public notice smacks of malafides. The fact that it is given after 101 of the 150 days period allowed to Defendant No.1 for transferring the property to the Plaintiff and for handing over vacant possession after completing the sale, when time was specifically made of essence, shows further malafides. The very correspondence through his Advocate is a further act completely laking bonafides. 15.It may be mentioned that the Advocate of Defendant No.1 is one K.K. Pande who gave this public notice. The claimant is one R.P. Pande. The nexus, if any, between the Advocate and the claimant, which is rather apparent in their names, may also be seen, if further inquiry is made. However the Court is not required to make any such inquiry. 6 16.It is seen that the relationship between the parties is admitted. The fact that there is at least one property specifically agreed to be given to the Plaintiff shows that it is admitted that it forms part of the estate of the father of Defendant No.1. The Suit for partition and administration of the estate of the deceased which is filed, itself shows that the Plaintiff would be entitled to a Preliminary Decree upon her relationship being admitted, unless the properties are proved to be separate properties of the Defendants. 17.The Consent Terms further show the admission of the Plaintiff’s ¼ share in the estate of her deceased father. It is only because the Plaintiff was to obtain one property exclusively for herself upon settlement with her brother that she gave up her rights in the other Suit properties. The rights of the Plaintiff have merged in the Consent Terms. The order of the Court has been passed in terms of the Consent Terms. The Consent Terms require to be executed. The Executing Court cannot go behind the Consent Terms. 18.Breach of the Consent Terms is not only seen, but admitted. The breach is justified. The justification is dishonest. The execution must, therefore, follow. 19.In execution the Court is required to pass a Preliminary Decree. Upon the Preliminary Decree being passed further accounts in respect of the properties of the deceased would have to be made. The Suit properties are shown in Exhibit-B to the Plaint. Further properties, not known to the 7 Plaintiff, are to be ascertained by the Court Commissioner for which the Defendant No.1 would have to make the necessary disclosures. Hence the following order: 1. The Notice of Motion is made absolute in terms of prayer clause (a). 2. Preliminary Decree of partition of the Suit properties shown in Exhibit-B to the Plaint is passed. 3. Defendant No.1 shall declare the assets and properties of his deceased father which were left by him at the time of his death. 4. The Plaintiff shall be entitled to a 1/4th share in the estate, assets and properties left by her deceased father shown in Exhibit-B to the Plaint as also in all the properties which may be declared by Defendant No.1 as the properties of their father and such other properties, as from time to time be shown to be of her father. 5. The Commissioner for taking accounts shall take accounts in respect of all the properties of the deceased father shown in Exhibit-B to the plaint and further properties disclosed by Defendant No.1. 6. The Commissioner for taking accounts shall make a report to Court in respect of the accounts within 12 weeks from today. 7. Notice of Motion disposed off accordingly. (SMT. ROSHAN DALVI, J.)