1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.174 OF 2009 IN NOTICE OF MOTION NO.142 OF 2008 IN SUIT NO.131 OF 2008 Sudha Girdhar Motwane & Anr. ..Appellants. (Original Deft. Nos.1a & 4) Vs. Yogesh @ Yogi Nanik Motwane & Ors. ..Respondents (No.1 – Orig. Plaintiff, Nos.2 to 6, Orig. Deft. Nos.2, 3, 5 & 6) Mr.Janak Dwarkadas, Senior Counsel with Mr.Harish Pandya, Mr.Sharan Jagtiani, Mr.Vishal Maheshwari i/b. Khaitan & Co. for the Appellants. Mr.S.H. Doctor, Senior Counsel with Mr.J.P. Sen, Ms.Ankita Singhania i/b. Bachubhai Munim & Co. for Respondent no.1. Mr.Venkatesh Dhond, Senior Counsel with Ms.S. Srikrishna i/b. Federal Rashmikant for Respondent nos.2 to 6. CORAM : B.H. MARLAPALLE AND S.J. VAZIFDAR, JJ. DATED : 24TH JULY, 2009 JUDGMENT : (Per S.J. Vazifdar, J.) Admit. With the consent of the parties the Appeal is heard finally. 2 2. This Appeal is directed against the interlocutory order dated 12.1.2009 passed by the learned Single Judge thereby allowing Notice of Motion No.142 of 2006 filed by the Plaintiff in Suit No.131 of 2008. At the outset, we make it clear that the reasoning set out herein is our prima-facie finding essentially in support of the question of possession of Flat No.3 on the 2nd floor of the family property pending the hearing of the suit and as granted in favour of the Plaintiff by the impugned interlocutory order. 3. Appellant nos.1 and 2 are Defendant Nos.1(a) and 4 respectively. The Original Defendant no.1 having expired after the suit was filed his widow was impeded as Defendant no.1(a). Respondent no.1 is the Plaintiff. Respondent nos.2 to 6 are Defendant nos. 2, 3, 5, 6 and 7. It would be convenient however to refer to the parties as they are arrayed in the suit. The Plaintiff and Defendant nos.1, 2 and 3 are brothers. Defendant no. 4 is the son of Defendant no. 1. Defendant nos. 5 and 6 are the Plaintiffs sons. Defendant no.7 is the son of Defendant no.3. 4. The Plaintiff and Defendant nos.1, 2 and 3 along with the estate of their mother are the co-owners as tenants in common in equal shares of the suit property which comprises of land together with the structures standing thereon. Defendant nos. 1, 2 and 3 are the executors and trustees of the will of their late mother dated 26.4.1991 3 by which she bequeathed her one fifth undivided share in the suit property to Defendant nos. 4 and 7 each having a one third share and Defendant nos. 5 and 6 among them having a one third share of her one fifth share in the said property. Thus the Plaintiff and Defendant nos.1, 2 and 3 have a 1/5th share each in the suit property. Defendant nos.4 and 7 have a 1/15th share each and Defendant nos.5 and 6 together have a 1/15th share in the suit property. 5. The suit is filed for partitioning and dividing the said property by meets and bounds. One of the structures of the suit property is a building with a ground and three upper floors. Each floor consists of a flat admeasuring about 3000 sq.ft. The flat on the second floor is the subject matter of this Notice of Motion. 6. Defendant nos.1(a) and 4 have filed this appeal against the interlocutory order passed by the learned single Judge appointing a Court Receiver of the flat on the second floor with a direction to put the Plaintiff in possession thereof as an agent without any security and compensation after removing Defendant no.4 and his servants and belongings therefrom. The Plaintiff however has been directed to continue to bear the property tax and maintenance charges of the building. Defendant no.4, his family, servants and agents have also been restrained from entering upon or using the said flat or any part 4 thereof for any reason. 7. The order appears drastic at the interlocutory stage. The facts however establish that it is an eminently fair and just order. Indeed, to refuse the order would only reinforce the very strong impression carried by Defendant no.4 that he would be able to take advantage of the laws delays without having a vestige of a right to continue to occupy the said flat. Defendant no. 4 has neither a legal nor an equitable right to continue to remain in possession of the said flat. Mr.Dwarkadas was unable to indicate any ground legal, factual or equitable which justified Defendant no.4’s continued occupation of the said flat. Unable to answer on merits our various questions pertaining to Defendant no.4’s entitlement to occupy the said flat, he had to fall back on the constant refrain: “But I have been in possession since 1998.” 8. It is not necessary to trace the title of the Plaintiff, Defendant nos.1, 2 and 3 and their deceased mother in respect of the said property. Suffice it to state, that by a registered conveyance dated 8.2.1991 a family company Motwane Pvt.Ltd. conveyed the said property to them and thereby each of them had a one fifth undivided share therein as tenants in common. 9. According to the Plaintiff he along with his family had settled in USA since 1977 but had every intention of returning to India with his 5 family after retirement. Sometime in the middle of 1993, the Plaintiff proposed to his mother and Defendant nos. 1, 2 and 3 that additions and alterations be made to the structure which then consisted of a ground plus two upper floors so as to provide four flats, one for each brother and that their mother would stay with Defendant no.1 on the ground floor. The proposal having been accepted additions and alterations were made to the structure including the construction of an additional third-floor at a cost of approximately Rs. 25,00,000 of which the plaintiff paid approximately Rs. 17,00,000/-. 10. Their mother however expired on 29.7.1994 before the additions and alterations could be completed. 11. According to the Plaintiff, in August 1994 a family understanding/arrangement was reached among the four brothers whereby it was agreed that on the completion of the work of additions and alterations to the said structure Defendant Nos. 1, 2 and 3 and the Plaintiff would be entitled to occupy exclusively along with their respective families the flats on the ground floor, first floor, the newly constructed third-floor and the second floor respectively. The flat on the second floor is the subject matter of the above Notice of Motion. 12. We have little difficulty in accepting the Plaintiff's case thus far as regards at least the exclusive use and occupation by the brothers of the said flats as stated by the Plaintiff. There is no dispute 6 that Defendant nos. 1, 2 and 3 and their family members have since the completion of the construction been in use and occupation of the flats on the ground, first and third floors exclusively. There is nothing to suggest that at this time the Plaintiff was not in a like manner allotted exclusively for his use and occupation a flat in the said structure. The only other flat is the flat on the second floor. None of the Defendants have even claimed to have been in use or occupation of the said flat at this point of time. It is also pertinent to note that Defendant nos. 2 and 3 have not disputed the Plaintiffs similar entitlement qua the second floor flat at any time even to date. Indeed, Mr. Dwarkadas did not seriously contend that the Plaintiff had never been in use and occupation of the second floor. 13. Mr.Dwarkadas’s main contention is that the Plaintiff relinquished his rights therein as well as in the entire suit property in favour of the other three brothers. 14. According to the Plaintiff, Defendant no. 1 and his wife Defendant no.1(a)/Appellant no.1 in the year 2000 requested him to allow their son Defendant no.4 / Appellant no.2 and his wife to temporarily occupy a portion of the second floor flat on account of the constant friction between Defendant no.1 and his wife on the one hand and Defendant no.4 and his wife on the other. The Plaintiff accordingly permitted Defendant no.4 and his wife to occupy a portion of the said 7 flat after putting up a temporary partition wall to separate that portion from the rest of the second-floor flat. The Plaintiff has further averred that Defendant no.4 and his wife used the said portion of the flat until about November/December, 2006 when they moved back to live with Defendant no.1 in the ground floor flat to which Defendant no.1 was entitled to as per the above family arrangement/understanding. However, since December 2006, without the knowledge or consent of the Plaintiff Defendant no.1 and his wife started using the said portion of the second floor flat as their residence and Defendant no. 4 and his wife moved back to the ground floor flat. It is further averred that sometime in the year 2002, Defendant no.4, without the knowledge of the Plaintiff, and unauthorizedly started using the remainder of the second floor flat. 15. From the correspondence it appears that the Plaintiff had been requesting Defendant no.4 for some time to vacate the flat as he desired to occupy the same. Defendant no.4 however, avoiding doing so. 16. According to Defendant no.4 on 24.11.2006, the Plaintiff tried to take possession of the said flat illegally and forcibly, but that he prevented him from doing so. The Plaintiff denied the same. It is not necessary to deal with the rival contentions as to what transpired on that date. By the present proceedings, the Plaintiff has in any event 8 taken recourse of due process of law for regaining possession of his said flat. 17. In the year 2003, Defendant no.3 requested the Plaintiff to permit his servants to use a part of the second floor flat until other arrangements were made for them. The Plaintiff acceded to the request. Defendant no.3 has raised no dispute as to the Plaintiff's entitlement to the second floor flat and has agreed to remove his servants therefrom. 18. As noted earlier, there is little doubt that the Plaintiff was in possession of the said flat on the second floor in the same manner in which his brothers have been in possession of their respective flats on the other floor. Mr.Dwarkadas's main contention however was that the Plaintiff relinquished his share in the entire suit property and at about the same time Defendant No. 4 entered into possession of the said flat on the second floor. 19. It is necessary now to see the circumstances in which according to Mr.Dwarkadas the said relinquishment took place. He stated that the Plaintiff along with his family including his sons, Defendant Nos. 5 and 6, shifted to USA in 1977 and came to India only to visit the family on certain occasions. He stated that the Plaintiff had created a lot of difficulties for the family while he was in USA by incurring various debts and even involving the said company as a 9 guarantor in respect thereof. For instance, the Plaintiff had filed an application for voluntary bankruptcy. A decree had also been passed by a Court in USA against the Plaintiff. According to Mr. Dwarkadas, in order to enable the Plaintiff and his family to overcome these difficulties "our family had extended certain financial help to them." It is pertinent to note that the allegation is not that Defendant no.1 alone rendered the said assistance to the Plaintiff but that the family did so. Mr. Dwarkadas reiterated the averments in the affidavit in reply to the above Notice of Motion to the effect that in consideration of the said financial assistance the Plaintiff relinquished his interest in the family properties including the suit property as evidenced by two letters dated 2.5.1996 and a letter dated 30.9.1997. 20. It is necessary to set out the letters verbatim as they form the fundamental basis of the Appellants defence. 21(A). The letter dated 2.5.1996 reads as under :- “May 02, 1996 Mr.Girdar Motwane Mr.Gopal Motwane Mr.Kiran Motwane 127, Mahatma Gandhi Road, Fort, Bombay – 400 023 India Re: Relinquishing of my interest in assets. Gentlemen, 10 This has reference to my discussion with Mr.Girdhar Motwane on May 01, 1996, in New York City. It may not be prudent to elaborate on the discussion itself in writing. I will leave that for him to do. In view of the fact that I am indebted to all of you for certain amount of money. I wish to relinquish my interest in the following assets; 1. Real Property at Gyan Ghar, Khar. 2. Real Property in Lucknow. 3. Real Property in Nasik. 4. Shares of Motwane Private Limited and all related Companies. I leave it entirely to you to determine the extent of the debt and the choice of any or all of the above assets. Please have the relevant papers prepared as soon as possible and mail them to me at the above address, for my signatures. I would like to point out that there are certain shares of Motwane Private Limited owned by Jai and he is now a Major. I do not anticipate any problem in getting him to sign. Thank you, Sincerely, Sd/- Yogesh Motwane” (B). By another letter also dated 2.5.1996 the Plaintiff resigned from the Board of Directors of the family company as well as certain other family companies. 22. The Plaintiff contended that this letter as well as the other letter dated 2.5.1996 were written and given by him to Defendant no.I when he was in New York on the basis of certain misrepresentations but on the strict understanding that the same were not to be effective or acted on and were, in fact not acted upon. 11 23. We are not inclined at this stage to proceed on the basis that the letters were written based on any misrepresentation. This must await the trial. However, as we will demonstrate shortly, the rest of the contention has been established. The Plaintiff also relied upon a letter dated 9.5.1996 by which he allegedly withdrew the letter dated 2.5.1996. This letter is disputed. We will ignore the same for the purpose of this order. 24. The letter dated 30.9.1997 which was also addressed by the Plaintiff to all his brothers reads as under :- “September 30, 1997 Girdhar Motwane Gopal Motwane Kiran Motwane 127 Mahatma Gandhi Road, Bombay Re: Gaurav Motwane moving into the vacant apartment. Gentlemen, This has reference to the telephone conversation I had with Mr.Girdhar Motwane on Sunday, September 28, 1997 on the referenced subject. In view of the discussion I had with Mr.Girdhar Motwane on May 02, 1996 and the subsequent demand of relinquishment of my claim to assets, I feel it may be best that the matter be decided by all of you. (emphasis supplied) Thank you. Lots of love, Sd/- 12 Yogi Motwane.” 25. We are in agreement with the learned Judge that neither of these letters establishes a relinquishment by the Plaintiff of his rights in respect of the suit property. The conduct of the parties both prior to these letters as well as subsequent thereto establishes that the letters were in any event admittedly in fact not acted upon. Even if the matter rested with the letters merely being addressed by the Plaintiff, it would not have established the Appellants contention regarding the relinquishment by the Plaintiff of his rights in the said property. There is not a single fact that supports the relinquishment. Every fact indeed militates against it. Further, none of the letters nor anything else creates any right in Defendant nos.1 or 4 in the second floor flat. 26. The letter dated 2.5.1996 refers to the Plaintiff having relinquished his interest in four properties. It is admitted even in the affidavit in reply filed by Defendant no.1 that the Plaintiff did not in fact relinquish his rights in respect of the properties mentioned at serial Nos. 2, 3 and 4 therein. In fact, when the lands at Lucknow and Nashik were sold the Plaintiff was admittedly given his share of the sale proceeds. The Appellants also admitted that the Plaintiff has not relinquished his rights in respect of the shares of the said company. 27. The Plaintiff had addressed the said letter also dated 2.5.1996 to the Chairman and the Board of Directors of the said Family 13 Company wherein he stated that he had discussions with Defendant no. 1 in New York city and as desired he tendered his resignation from the Board of Directors of the said company and all related companies. He requested the Chairman and the Board of Directors of the company to forward their letter accepting his resignation. Defendant no.1 admitted in his affidavit that the Plaintiff's resignation from the said company was not accepted. 28. There is in fact further evidence to indicate that none of the Defendants including Defendant No.1 had considered the Plaintiff as having relinquished his share in the suit property. The Plaintiff has referred in paragraph 1 of the plaint to a plan of the suit property and annexed a copy thereof as Exhibit-B to the plaint. The said plan is dated 25.7.2002. It refers to the Plaintiff as one of the owners. It is signed by the co-owners including Defendant No.1 himself. 29. It is thus established that there had been no relinquishment by the Plaintiff of his rights in respect of three out of the four properties referred to in the letters. 30. Mr.Dwarkadas however sought to explain this by stating that the relinquishment in respect of the properties other than the suit property was not acted upon in order to assist the Plaintiff in overcoming his financial difficulties. There is nothing on record which establishes these qualified admissions by Defendant no.1. 14 31. Defendant no.1 contended that the Plaintiff's relinquishment of his right in the suit property was accepted and acted upon by the family members. 32(A). The other two brothers and members of their family however do not support Defendant no.1 in this regard. Nor do we find anything on record which even remotely suggests that the parties acted differently in respect of the suit property and the other properties referred to in the letter dated 2.5.1996. (B). What is even more important to note is that the letters dated 2.5.1996 and 30.9.1997 were addressed not merely to Defendant no.1 but to the other two brothers as well viz. Defendant nos. 2 and 3. Defendant nos. 2 and 3 however have stated that they did not receive the said letters. This fact was pressed into service by the Plaintiff in support of his contention that there was in fact no relinquishment by him in respect of the said properties including the suit property. Though not by itself when considered together with the other facts and circumstances this fact also assumes importance in supporting the Plaintiff's case. 33. Let us now assume that the letter dated 2.5.1996 was also received by Defendant nos.2 and 3. That in fact makes matters worse for the Appellants. (A)(i). For even assuming that the Plaintiff had relinquished his 15 rights in the suit property that would not by itself entitle Defendant no. 1 or Defendant no. 4 to the Plaintiffs share therein to the exclusion of the other brothers. Nor would the same entitle Defendant no. 1 or Defendant no. 4 to occupy the second-floor flat exclusively. It is important to note that in this letter the Plaintiff relinquished his interest in the said properties not in favour of Defendant no.1 but in favour of the family. He therefore by the said letters left it entirely to his three brothers and not merely to Defendant no.1 to determine the extent of his debt as well as the choice of any or all of the above assets. It is not the Appellant's case, nor was it the case of Defendant no.1 that the other brothers in turn left these matters to the decision of Defendant no.1. Thus, any decision including regarding the extent of the Plaintiff's debt and the choice of any or all the assets was to be a joint decision of the other three brothers and not merely of Defendant no. 1. In fact, Mr.Dwarkadas did not even contend to the contrary. (ii). What is important to note then is the fact that there admittedly has been no determination by any of the other brothers regarding the extent of the Plaintiff's debt. Nor has there been any deliberation leave alone any decision or understanding arrived at between the other brothers regarding the choice of any or all the assets referred to in the said letter. 16 (B). Further, still it is important to note that no papers were prepared and forwarded to the Plaintiff for his signature as stated in the letter. None of the parties including Defendant no.1 even approached the Plaintiff for taking steps pursuant to and in furtherance of the letter dated 2.5.1996. (C). It is not even the case of Defendant nos.1 or 4 that Defendant no.4 was in use and occupation of the flat prior to 30.9.1997, to wit prior to the alleged relinquishment. Why then must Defendant no.4 alone be permitted to use the flat to the exclusion of all others? Mr.Dwarkadas was unable to offer any explanation. 34. These facts also indicate that in any event the relinquishment has not only not been acted upon, but no steps for the enforcement or implementation therefore have even been taken. 35. Mr.Dwarkadas's entire case regarding the right of Defendant no.4 to occupy the second floor flat rested on the letters dated 2.5.1996 and 30.9.1997. The letter dated 2.5.1996 naturally does not contain anything conferring any rights exclusively upon Defendant no.4 in, to, upon or in respect of the flat. The subsequent documents and correspondence does not indicate the creation of any such right in favour of Defendant no.4 either. Indeed, even assuming that the letter dated 2.5.1996 constituted a relinquishment by the Plaintiff of his rights in respect of the suit property in general and the 17 said flat, in particular, it would not ipso facto follow that any rights much less exclusive rights, were created in favour of or conferred upon Defendant no.1 or the members of his family including Defendant no.4. That would depend upon the further agreement to be reached between the other three brothers as suggested in the letter itself. Mr. Dwarkadas did not even contend that there was any understanding between the other three brothers in this regard pursuant to or in furtherance of the letter dated 2.5 .1996. 36. The doubt if any in this regard is removed by the fact that even in his affidavit in reply Defendant no. 1 did not contend that the Plaintiff either by the said letter dated 2.5.1996 or otherwise created any rights exclusively in favour of Defendant no.1 or Defendant no.4. Defendant no.1 did not even contend that he alone extended financial help to the Plaintiff. In his affidavit he admitted that it was the family that extended the financial help to him. Nor did Defendant no.1 contend that the Plaintiff relinquished his interest in the said property only in his favour or in favour of his son, Defendant no. 4. He stated that the Plaintiff relinquished his interest in the suit property in favour of the remaining co-owners. In fact in paragraph 21 of his affidavit Defendant no. 1 stated that the Plaintiff relinquished his right in the suit property and that the same was accepted and acted upon by the family members. Mr. Dwarkadas was unable to show us anything from 18 the record which even remotely suggested that pursuant to the alleged relinquishment by the Plaintiff of his rights in the suit property it was agreed between the remaining brothers that the second-floor flat would be occupied