- 1 - VKS IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2892 OF 2009 IN SUIT No.1724 OF 2009 Shirley Felcida Vinaykumar Sumitra .. Plaintiff versus Julie D Silva .. Defendants. Rahul Rao i/b I.V. Rao, for the Plaintiff Pradeep Thorat for the Defendant. CORAM: S. C. DHARMADHIKARI, J DATED: 5th December, 2009 P.C. 1. The Plaintiff has filed this suit for declaration that the Defendant has no right title or interest in the flat which is more particularly described in prayer clause (a) of the plaint. She has also claimed a declaration that her nomination form and the alleged will dated 28th March, 2000 does not create any right title or interest in favour of the Defendants and therefore, she should be directed to hand over the vacant and peaceful possession of the said flat. 2. Prayer clause (d) of the plaint is for Receiver and prayer clause (e) is for injunction. These are the interim prayers for which the instant motion has been filed. - 2 - 3. It is stated that on 19th December, 1971, the Plaintiff married one Jerald Dennis Sumitra. They stayed together initially at Bangalore. Thereafter a daughter Sharon was born. The family shifted to another premises. But later on as the Plaintiff has her family employed in the Gulf, she moved to the Gulf for employment. From l978 onwards she noticed that her husband Dennis who was educated only upto VIIth Std, so also alcoholic did not have any stability in life. He could not hold onto a a job. Therefore, the Plaintiff had to work and look after the family. She has stated in the plaint that from her earnings she had purchased the suit flat. The transfer agreement is in joint names viz the Plaintiff and Dennis. The flat was purchased in the year l986 and was given on leave and license basis. The said Denis returned to India in l994 and thereafter resided at several places. He expired on 17th October, 2008. The Plaintiff was visiting India. She was not residing with Dennis, but elsewhere. It is her case that after the demise of said Dennis, the Defendant who is none but a mistress of the said Dennis has no right title, interest in the property. The alleged will, nor nominations in her favour confer any right and the property should be handed over to the Plaintiff. 4. Although at the interim stage, a statement was - 3 - made that the Defendant does not desire to part with possession or create third party interest in the property, that was to enable the Defendant to file a reply affidavit. A reply affidavit has been filed by the Defendant in which her case is that the Plaintiff has not joined her daughter Sharon as party Defendant to the suit and therefore, the suit is bad for non joinder of necessary parties. Further it is stated that since February, l997 the Defendant is in exclusive use and occupation, so also the possession of the suit flat. She is paying the maintenance charges, electricity bills and other outgoings. She has stated that the Plaintiff was never in use and occupation, so also possession of the flat. Whenever the Plaintiff came to Mumbai, she resided at her sister’s place at Borivali. The Defendant claims to have a title to the property on the strength of a Nomination form filed by the deceased and the registered will dated 28th March, 2000 of the said Denins. 5. However, in para 9 of the affidavit in reply, the Defendant stated that the flat has been purchased by the Plaintiff as well as Dennis jointly from their joint earnings. She denies the plaintiff’s case in the plaint. All that she would urge is that the Plaintiff was abroad and therefore, never resided in the suit property. On a query from the Court, it is stated by Shri.Thorat, appearing for the Defendant that the will has not - 4 - been probated by the Defendant. The attention of Shri.Thorat was also invited to the statement made in para 9 with regard to the purchase of the property jointly by the Plaintiff and said Dennis. He submits that the Defendant has been maintaining the flat and once she is ready and willing to continue the ad interim arrangement till the suit is head, nothing more needs to be done. This is not a case where the Court Receiver should be appointed. 6. From the Annexure to the plaint, it is apparent to me that the flat has been purchased by the Plaintiff and said Dennis. The extract from the accounts have been produced. Although these are the joint accounts, receipts are also given jointly yet, there is no denial of the fact that the deceased Dennis was not having financial stability. The fact the Plaintiff was working abroad, is also undisputed. The fact that the Defendant and Dennis did not have any matrimonial relationship is also undisputed. 7. The Plaintiff in para 10 & 11 of the plaint has stated thus, “10. On account of financial circumstances and as the said Mr. Dennis was in India without doing any work and without any earnings of his own, the Plaintiff was forced to work at Dubai till September 2008. From February 1992 to February, 1999, the said Flat No.C/410 was given on leave and license to various parties and the said Dennis was enjoying the - 5 - said income derived from giving the said flat on account of leave and license basis to various parties. Thereafter, the flat was kept locked. The said Dennis never lived in the said flat as since his return in l994, he had been living various with the Plaintiff’s mother, his brother and elsewhere. The Plaintiff craves leave to refer to any rely upon the various Leave and License Agreements as and when produced. 12. The Plaintiff, in or about 2008, learnt that the said Dennis was carrying on an illicit affair with the Defendant. The Plaintiff also came to know that the Defendant though was married to one Alex Joseph on 13th January 1974 according to Cristian Catholic faith and was residing in her own tenement at Room No.5, in Chawl No.B, Balaji Bhavan, situated at Pipeline, Behind Super Steel Corporation. Mohili Village, Sakinaka, Kurla, Mumbai 400 072. The Plaintiff learnt that taking advantage of the Plaintiff being abroad, the Defendant would often come and stay overnight with the said Dennis in the suit flat and had also begun posing as his lawfully wedded wife. The Plaintiff also was informed by some of the members in the said Society that the Defendant in connivance and collusion with the said Dennis was attempting to take over dispose off/part with the said Flat No.C/410 and deprive the Plaintiff of her lawful right over the said Flat No.C/410. The Plaintiff wrote to the said Society that she is the owner of the said Flat No.C/410 and Society should not permit the said Dennis to part with possession, sell or alienate - 6 - the said flat to any one without the Plaintiff’s consent. On account of Denni’s affair with the Defendant, the Plaintiff preferred to say away from the said Dennis at her sister’s flat stated herein above although, the said Dennis was living alone in the suit flat.” 8. Even in the rejoinder, the Plaintiff has reiterated the averments. 9. To my mind considering the aforementioned undisputed factual position and that save and except the nominations and unprobated will, there are no documents of title with the Defendants, then it is just and convenient that the Court Receiver, High Court, Bombay is appointed as Receiver of the suit flat. The Plaintiff has made out a strong prima facie case. The Plaintiff has prima facie proved her title to the property. She has demonstrated as to how the Defendant has no right title and interest in the property. Considering the stand in the affidavit in reply and taking into account the strained relationship between the parties, it would be desirable to appoint a Receiver. It has been pointed out on behalf of the Plaintiff that an attempt was made to alter the records of the society by entering name of the Defendant, however, on account of the pending litigation the society has not taken any final decision. To prevent the society from taking any extreme steps, it would be fair and just to appoint a Court Receiver. - 7 - Presently the Court Receiver will not dispossess the Defendant. Court Receiver to enter into an agency agreement with the Defendant. The Defendant will continue in occupation as an agent of the Receiver on the terms and conditions determined by him. In the above facts and circumstances the Notice of Motion is made absolute by the following order. ORDER a) The Court Receiver, High Court, Bombay, is appointed Receiver of Flat No. C/410, fourth floor, Raj Towers Co.Operative Housing Society Ltd, I. C. Colony, Borivali(W), Mumbai 400 103. However, the Court Receiver after taking possession of the suit flat not to dispossess the Defendant therefrom. The Defendant would have to execute an agency agreement with the Court Receiver within a period of 15 days from the date the Court Receiver takes possession. b) Needless to state that in default by the Defendant, the Court Receiver should seek further directions from the Court. c) Till the Court Receiver takes possession, the ad interim order passed by this Court on this - 8 - Notice of Motion, shall continue. d) The Notice of Motion is made absolute in the aforesaid terms. e) No order as to costs. ( S.C. DHARMADHIKARI, J)