1 276-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.276 OF 2010 Sheetal Nimesh Doshi ..Appellant Vs. Bhupendra Manilal Doshi ..Respondents ......... Mr.Jayesh Bhatt, for appellant. Mr.J.V.Parmar, for respondent. ......... CORAM: R.G.KETKAR, J. DATE : 1st JULY, 2010. P.C. : Heard Mr.Bhat, learned counsel for the appellant and Mr.Parmar, learned counsel for the respondent. 2] This appeal is directed against the judgment and decree dated 5 th December, 2009 passed by the learned Judge of the City Civil Court, Mumbai in Short Cause Suit No.4142 of 2007. By that judgment, the trial court decreed the suit instituted by the plaintiff and directed the appellant herein to remove herself her belongings and clothes from the suit premises i.e.15/D, Kalpak Estate, 301- A, S.M.Road, Antop Hill, Mumbai. 3] Admit. Mr.Parmar waives service for the respondent. Call for Record and Proceedings of the case. 276-10 .sxw 2 276-10 4] Printing is dispensed with. Appellant shall file private paper book and decree forms within one year from today. 5] Hearing of the appeal is expedited. [R.G. KETKAR, J.] 276-10 .sxw 3 276-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.591OF 2010 IN FIRST APPEAL NO.276 OF 2010 Sheetal Nimesh Doshi ..Applicant Vs. Bhupendra Manilal Doshi ..Respondent ......... Mr.Jayesh Bhatt, for applicant. Mr.J.V.Parmar, for respondent. ......... CORAM: R.G.KETKAR, J. DATE : 1st JULY, 2010. P.C. : Heard Mr.Jayesh Bhatt, learned counsel for the applicant (hereinafter referred as “defendant”) and Mr.J.V. Parmar, learned counsel for the respondent (hereinafter referred as “plaintiff”). 2] Rule. Rule is made returnable forthwith. By this application, the defendant prays for stay to the execution of the impugned judgment and decree dated 5 th December, 2009 passed by the learned Judge of the City Civil Court, Mumbai in Short Cause Suit No.4142 of 2007. By that judgment, the trial court decreed the suit instituted by the plaintiff and directed the defendant herein to remove herself, her belongings and clothes from 15/D, Kalpak Estate, 301-A, 276-10 .sxw 4 276-10 S.M.Road, Antop Hill, Mumbai 400 037 (for short “suit premises). 3] The plaintiff instituted suit against the defendant for mandatory injunction to remove herself, her belongings and clothes from the suit premises. The plaintiff instituted suit inter alia contending that he had acquired the suit premises on ownership basis under the registered agreement dated 18 th June, 1998. The suit premises was acquired under the an agreement in the joint name of his wife Devika and himself, so that after the death of the plaintiff, his wife Devika would have shelter of her own. His wife Devika had no independent income of her own and she was house wife. The entire consideration of the suit premises was paid by him. The suit premises is reflected in his books of accounts as his own assets and the same is also reflected in the income tax returns. The plaintiff claims that he is paying the maintenance charges of the suit premises as also paying electricity bills. 4] The wife of the plaintiff Devika left a Will dated 21 st June, 1998 thereby bequeathing her half share in the suit premises to the plaintiff. He filed probate petition No.878 of 2006 and obtained probate on 12 th December, 2006. Thus, he became the sole owner of the suit premises. The defendant got married to the plaintiff’s son namely Nimesh on 6 th February, 1999 and came to reside in the suit premises along with her husband. The occupation of the defendant in the suit premises was merely as a member of family of the plaintiff without having any independent right, title or interest in the suit premises. It is his further case that after marriage, the plaintiff advised his son to look for a separate accommodation in view of the lifestyle of the defendant and her husband. Out of the wedlock, the defendant has got a son by name Dhavnil. The relations of the 276-10 .sxw 5 276-10 defendant and her husband were not cordial and, during the last few years, in fact, were strained. His son Nimesh had filed M.J.Petition No.A-88 of 2006 against the defendant for divorce on the ground of cruelty and adultery. The defendant had also filed petition No.C-4 of 2006 against her husband Nimesh and the plaintiff for maintenance and injunction. She also filed F.I.R. No.53 of 2006 under Section 498-A read with Sections 406 and 34 Indian Penal Code with Antop Hill Police Station. She made an application in the court of Addl. Chief Metropolitan Magistrate, 11 th Court, Kurla, Mumbai for return of property. The behaviour of the defendant was such that it is not only difficult but impossible to keep her in the suit premises. The suit premises is his self- acquired property and it is for him to allow or not to allow the defendant to reside in the suit premises. 5] The defendant resisted the suit by filing written statement and contended that the suit premises was acquired jointly in the name of her mother-in-law and the plaintiff by agreement of sale dated 18 th June, 1998. The suit premises was acquired after disposing off the family flat at Carmichael, Kemps Corner. Therefore, after the death of her mother-in-law, the share in the said flat came to her husband and after she got married with the son of the plaintiff, she is entitled to reside in the suit premises. Even, her son Dhavnil has acquired rights in the share of her mother-in-law. She further contended that whereas the suit premises was acquired on 18 th June, 1998, the plaintiff alleged that hardly within three days i.e. on 21 st June, 1998 his wife Devika bequeathed her half share in favour of the plaintiff. The plaintiff, however, filed probate in the year 2006 i.e. nearly after eight years after the death of his wife. It was further asserted that the defendant had filed a petition against the plaintiff and his family members in 276-10 .sxw 6 276-10 the Family Court. The Family Court granted order of status-quo. The plaintiff filed written statement in the said petition wherein, there is no whisper about the alleged Will left by the wife of the plaintiff. The plaintiff also filed petition No.B-5 of 2006 in the Family Court against the defendant and her husband for mandatory injunction directing the defendant to remove herself and her husband from the suit premises. Even in that petition, the plaintiff did not refer to the alleged Will of his wife. The defendant, therefore, submitted that the plaintiff and other family members fabricated the alleged Will somewhere in the year 2006 and obtained probate on the basis of fabricated Will. On the basis of the probate, the plaintiff is claiming to be the absolute owner of the suit premises. 6] Mr.Jayesh Bhatt, learned counsel for the defendant, submitted that the suit premises was purchased after disposing of the family flat at Carmichael, Kemps Corner. The said premises was purchased in the joint names of the plaintiff and mother-in-law of defendant. After the demise of her mother-in-law, the husband of the defendant has acquired right in the suit property. It, therefore, became her matrimonial home. The plaintiff cannot claim to be exclusive owner of the suit premises. He further submitted that the suit premises was acquired on 18 th June, 1998 and a Will is alleged to have been executed by the wife of the plaintiff Devika on 21 st June, 1998. No reference is made in respect of this alleged Will in the earlier proceedings. Even the probate proceedings were taken out in the year 2006, that is to say, nearly after eight years. He, therefore, submitted that the plaintiff fabricated the Will and on the strength of the Will obtained probate. Though the learned single Judge of this court rejected Misc. Petition No.3 of 2009 on 11 th December, 2009, the defendant has carried the matter in appeal. He, therefore, prayed for stay to the execution 276-10 .sxw 7 276-10 of the judgment and decree. 7] On the other hand, Mr.Parmar, learned counsel for the plaintiff, supported the impugned judgment. He submitted that the plaintiff is the exclusive owner of the suit premises. The defendant has no right to remain in the suit premises as it is not her matrimonial home. The suit premises was in the joint names of the plaintiff and his wife. His wife Devika executed a Will on 21 st June, 1998 and bequeathed her half share in his favour. He obtained probate of the Will. The challenge raised by the defendant is turned down by the learned single Judge observing that she has no locus-standi to challenge the grant of probate in favour of the plaintiff. The learned single Judge held that the defendant had no caveatable interest even to file caveat in the probate proceedings. 8] I have considered the rival submissions of learned counsel for both the sides. It has come on record that the defendant has filed Petition No.C-4 of 2006 against her husband Nimesh and the plaintiff herein for maintenance and injunction. In that petition, she took out interim Notice No.14 of 2006 praying inter alia for injunction restraining the plaintiff herein from dealing with and/or disposing of and/or creating third party rights of whatsoever nature in respect of the suit premises and/or dispossessing the defendant herein and her son Dhavnil from the suit premises. The said interim Notice was taken out on 3 rd January, 2006. On 10 th August, 2007 the defendant gave in writing to the effect that since she has not claimed any substantial relief against the plaintiff herein, but claimed relief only against her husband, she is not pressing any relief against the plaintiff herein. Pursuant thereto, the learned Judge of the Family Court deleted the name of the plaintiff by order dated 10 th August, 2007. By 276-10 .sxw 8 276-10 subsequent order dated 6 th September, 2007 the learned trial Judge directed the parties to maintain the status-quo. The learned Judge of the Family Court recorded in the said order about the fact that the defendant herein is not claiming any specific relief against the plaintiff. The submission made by Mr.Bhatt that the plaintiff herein is also bound by order of status-quo, prima facie, in my opinion, has no substance. 9] On the basis of material on record, the trial Judge held that the plaintiff is the exclusive owner of the suit premises. The challenge made by the defendant to the probate is also turned down by the learned single Judge of this court. The evidence on record, prima facie, indicates that the plaintiff is the exclusive owner of the suit premises. Relying upon the judgment of the Apex Court in the case of S.R.Batra & another Vs. Smt. Taruna Batra, AIR 2007 SC 1118 the learned trial Judge held that the right of wife can be only against her husband and not against her father-in-law and other relatives. Prima facie, I do not find any substance in the contentions raised by the defendant that the suit premises is her matrimonial home. Mr.Bhatt submitted that the defendant is staying along with her son Dhavnil and if stay is not granted, even Dhavnil will have to leave the suit premises as Dhavnil is in her custody. On the other hand, Mr.Parmar submitted that the plaintiff is ready and willing to maintain Dhavnil and at present Dhavnil is residing in a hostel at Andheri. Having regard to the fact that the litigations are pending between the parties and their relations being strained, it would be neither desirable nor expedient to grant stay to the impugned judgment and decree. It is not in dispute that the suit premises was acquired on 18 th June, 1998. The defendant married Nimesh, son of plaintiff on 6 th February, 1999. Prima facie, the defendant cannot claim to have personal knowledge about the 276-10 .sxw 9 276-10 transaction of 18 th June, 1998. In my view, no case is made out for grant of stay. However, in order to protect the interest of the defendant, I direct that the plaintiff shall not create any third party interest in any manner whatsoever in the suit premises during the pendency of the appeal. It is, however, expressly made clear that the defendant has filed proceedings challenging the order of learned single Judge dated 11 th December, 2009 in Misc. Petition No.3 of 2009. In case the defendant obtains any suitable order in that proceeding, liberty is granted to her to apply to this court for modification of this order. 10] Subject to what is stated above, Rule is discharged with no order as to the costs. On oral application made by the learned counsel for the defendant, the operation of this order shall remain stayed for a period of eight weeks from today. [R.G. KETKAR, J.] 276-10 .sxw