1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.235 OF 2003 Ms.Jayashree K. Chaudhary .. Plaintiff versus Mrs.Vimal P. Shinde & Ors. .. Defendants Mr.Jitendra Shukla alongwith Ms.Meghana Desai i/by M/s.G.H.Shukla & Co for the plaintiff. None for the defendants. CORAM : A.S.OKA, J. DATE : 10th November 2009. ORAL JUDGMENT: . The suit has been listed under the caption “Undefended suits for exparte decree”. The 1st and 3rd defendants are the real sisters of the plaintiff and the 2nd defendant is the step-sister of the plaintiff. The case made out in the plaint is that the plaintiff and 1st and 2nd defendants were jointly in possession of a tenanted premises (suit premises) more particularly described in paragraph 2 of the plaint. The case made out by the plaintiff is that the mother of the parties Smt.Shantabai was the original tenant in respect of suit premises and the rent receipt stood in her name. It is pointed out that the 2nd defendant is born to the said Shantabai from her first husband. The plaintiff and the 1st and 3rd defendants are the daughters of said Shantabai born from the second husband. It is contended that a dispute 2 arose between the plaintiff on one hand and 1st and 2nd defendants on the other hand. It is alleged that at the intervention of the 3rd defendant, the said disputes were resolved and a writing was executed on 26th August 2002 by the parties. According to the case of the plaintiff, the 1st defendant accepted a sum of Rs.1,00,000/- under the said document. The said document records that the plaintiff has paid a sum of Rs.50,000/- to the 2nd plaintiff and balance amount of Rs.50,000/- was to be paid by the plaintiff to her subsequently. The case made out in the plaint is that after the said settlement was arrived at, the 1st defendant left the suit premises. Thereafter on the request made by the 1st defendant, the plaintiff allowed the 1st defendant to temporarily occupy the suit premises till she acquired accommodation elsewhere. As the 1st defendant declined to vacate, the present suit has been filed for declaration that the 1st defendant is lawfully bound by the obligations incorporated in the writing dated 26th August 2002. The 2nd prayer is for mandatory injunction directing the 1st defendant to vacate the suit premises and thereafter not to interfere with the possession of the plaintiff. 2. The learned counsel appearing for the plaintiff states that he is not pressing prayer clause (c). 3. None of the defendants have filed written statement. The plaintiff has tendered on record her affidavit-in-lieu of examination-in-chief alongwith the documents. The original writing dated 26th August 2002 is placed on record 3 alongwith the English translation thereof. 4. Perusal of the record shows that in the notice of motion taken out by the plaintiff, an ad-interim order was passed on 20th January 2003 in terms of prayer clause (b) thereof by which the 1st defendant was directed to vacate the suit premises within one week. In the said order, this Court noted the statement made by the learned advocate for the plaintiff that she was willing to pay a sum of Rs.50,000/- within one week from the said date to the 2nd defendant. This Court observed that though the 1st defendant has received a sum of Rs.1,00,000/- from the plaintiff, she has not vacated the suit premises. There is a further order passed in Notice of Motion No.884 of 2003 on 13th March 2003, by which forcible dispossession of the 1st defendant from the suit premises was ordered. The learned counsel appearing for the plaintiff states that in terms of the said order dated 13th March 2003, the 1st defendant has removed herself from the suit premises. A statement to that effect has been made in paragraph 16 of the affidavit-in- lieu of examination-in-chief. 5. Reliance has been placed by the plaintiff on the writing dated 26th August 2002. By the said writing, the 1st defendant purported to relinquish her right, title and interest in respect of suit premises in consideration of receipt of an amount of Rs.1,00,000/-. Thus, the said document records relinquishment of rights in respect of immovable property by the 1st defendant. In view of section 17 of the Indian Registration Act, 1908 the 4 said document is a compulsorily registrable document and therefore it cannot be read in evidence in absence of registration. However, the said document can be read in evidence for collateral purposes in as much as the said document records that the 1st defendant handed over the possession of the suit premises to the plaintiff. 6. In affidavit-in-lieu of examination-in-chief, it is asserted that at the time of execution of the said document, a sum of Rs.1,00,000/- was paid by the plaintiff to the 1st defendant. This assertion in the plaint and in the affidavit-in -lieu of examination-in-chief has gone unchallenged. Apart from that even in the legal notice dated 2nd November 2002 which is duly served to the 1st defendant, an assertion regarding payment of Rs.1,00,000/- has been made. There is no reply to the said notice sent by the 1st defendant. The receipt dated 24th January 2003 has been produced evidencing payment of balance amount of Rs.50,000/- to the 2nd defendant by the plaintiff. The said receipt has been duly proved by the affidavit. 7. Thus, the plaintiff was placed in exclusive possession of the suit premises. In the circumstances, though the plaintiff is not entitled to relief in terms of prayer clause (a) in as much as the writing cannot be read in evidence as an evidence of relinquishment, the plaintiff is entitled to a decree in terms of prayer clause (b). By interim order the 1st defendant has been already dispossessed. As the plaintiff has proved that the 1st defendant had earlier vacated the suit premises, by way of final relief, a decree in 5 terms of prayer clause (b) will have to be passed. 8. Hence, I pass the following order: : O R D E R : (a) The suit is partly decreed. Prayer clause (a) is rejected. (b) There will be a decree in terms of prayer clause (b). (c) The prayer clause (c) is not pressed. (d) The 1st defendant shall pay costs of the suit to the plaintiff. (e) The plaintiff will be entitled to refund of court fees as per the rules. (A.S.OKA,J)