1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.378 OF 2009 IN NOTICE OF MOTION NO.670 OF 2008 IN SUIT NO.507 OF 2008 Sakinaben Fakir M. Sayani and ors. ...Appellants v/s Amirali Fazalbhoy and ors. ...Respondents Mr D.D. Madon, Sr. Counsel i/b M/s Mahimtura and Co. for Appellants. Mr C. D Souza for Respondent Nos.1 and 3. Mr Arif Bookwala, Sr. Counsel i/b M/s Kunduru and Kunduru for Respondent Nos.4 and 5. Mr Chetan Kapadia with Mr Asif Khatri i/b M/s Khatri Legal Venture for Respondent Nos.6 to 13. CORAM : D.K. DESHMUKH AND R.V. MORE JJ. DATE : 28TH APRIL 2010. 2 P.C. :- 1] Admit. Head finally by consent of the parties. 2] By this appeal, the appellants who were original plaintiffs, challenge the order dated 11th December 2008 passed by the learned Single Judge of this Court in notice of motion No.670 of 2008. The relevant facts are that the subject matter of suit No.507 of 2008 is a piece of land in which the father of the plaintiffs had 50 % share. He acquired that share as sole proprietor of M/s Morinaga Traders alongwith defendant No.3 by a deed of conveyance dated 18th March 1963. 3] The plaintiffs principal grievance in the suit is in relation to the document i.e. Development agreement dated 8th August 2007 executed by the defendant Nos.1 to 3 in favour of defendant Nos.4 and 5. The defendant Nos.4 and 5 by that document have been given right to develop 50 % share which 3 was held by the father of the plaintiffs, which is inherited by them after the death of their father. The plaintiffs also challenge the power of attorney, which according to them, has been executed in favour of defendant Nos.4 and 5 by defendant Nos.1 to 3. The case of the plaintiffs is that they alongwith defendant Nos.6 to 13 have 50 % share in the property and therefore, the defendant Nos.1 to 3 had no authority in law to confer development rights of their share in the property on defendant Nos.4 and 5. The notice of motion was opposed by defendant Nos.1 to 5. The motion has been disposed off by the learned Single Judge of this Court by order which we have referred to above. The learned Single Judge dismissed the motion. Appeal is against that order. 4] The learned counsel appearing for plaintiffs submitted that perusal of the document dated 8th August 2007 by which development rights have been conferred on defendant Nos.4 and 5 itself shows that their deceased father Fakir Mohammed Sayani was the owner of 50 % share in the property. 4 The defendant Nos.1 to 3 claimed entitlement to transfer development rights in the property in favour of defendant Nos.4 and 5 on the basis of agreement to sell dated 1st August 1967. The learned counsel submits that the plaintiffs dispute the validity and very existence of that agreement but even if it is assumed that such an agreement was executed by their father, it was only an agreement to sell 50 % share in the immovable property and therefore, unless and until there is a registered sale deed executed by the owners of the 50 % share in the property in favour of defendant Nos.1 to 3, they have no right to transfer to anybody development right in the land. The learned Single Judge, however, ignoring this basic aspect of the matter, has declined to grant temporary injunction only because he found that the plaintiffs had not paid property tax in relation to their share in the land and had not shown this land in their wealth tax return. The fact that the land was not shown in the wealth tax return is disputed. However, it is submitted on behalf of the plaintiffs that even 5 assuming that the property tax was not paid by the plaintiffs and that they did not show this land in their wealth tax return, still unless there is a registered sale deed executed by the owners in favour of the defendant Nos.1 to 3, they will not have authority in law to transfer any right in the immovable property in favour of the defendant Nos.4 and 5. 5] We have heard the learned counsel appearing for defendants. The learned counsel submits that it was represented to defendant Nos.4 and 5 that the defendant Nos.1 to 3 are entitled to transfer the development rights in their favour and they have taken development rights and they have taken several steps pursuant to these rights. The learned counsel appearing for defendants supported the order passed by the learned Single Judge. 6] We have perused the entire record. Principally, in the suit, the document dated 8th August 207 conferring development rights in relation 6 to the property on defendant Nos.4 and 5 by the defendant Nos.1 to 3 is under challenge. The power of attorney which is also subjected to challenge is a consequence of the agreement conferring development rights. In our opinion, paragraph 1(b) of that agreement makes the position absolutely clear. It reads as under :- b) By the agreement dated 1st August 1967, Fakirmahomed Hajibhai Sayani the then sole proprietor of M/s Morinaga Traders (being the Vendor therein) agreed to sale, transfer and assign to Mahomedali G. Fazulbhoy all the rights, title and interest to the extent of 50 % undivided shares in the said property including all and every right in the land and the development of the property Survey No.95B, Hissa No.2 (part) and 3 (part) and Survey No.9A, Hissa No.3 (part) and 9B and since then the said Fakirmahomed Hajibhai Sayani and/or his heirs and legal representatives 7 have no rights of whatsoever nature in respect of their undivided shares in the said property and during the life time of Mahomedali G. Fazulbhoy he was an absolute owner and in exclusive use, occupation and possession of the entire property more particularly described in the scheduled hereunder written. Perusal of the above quoted recital shows that Fakirmahomed Hajibhai Sayani was the owner of 50 % undivided share in the property and he had entered into an agreement dated 1st August 1967 agreeing to sell to Mahomedali G. Fazulbhoy his 50 % undivided share in the property. Thus, it is acknowledged that Fakirmahomed Hajibhai Sayani was owner of the 50 % undivided share in the immovable property and what he had entered into on 1st August 1967 was an agreement to sell that share. It is nowhere claimed that he executed any sale deed of his share in the immovable property in favour of the defendant Nos.1 to 3 or their predecessors-in-title. 8 In the absence of this recital, the recital in the agreement that because of the agreement to sell dated 1st August 1967, legal representatives of Mahomedali G. Fazulbhoy became absolute and exclusive owners of the property is contrary to law. Similarly, the recital that because of execution of the agreement to sell dated 1st August 1967, Fakirmahomed Hajibhai Sayani and his legal representatives lost their right, title and interest in the land is also totally unacceptable. It is thus clear that in the absence of any registered sale deed executed by Fakirmahomed or his legal representatives, defendant Nos.1 to 3 will not get any right in property. It is settled law that by agreement to sell, no right in property is created. The defendant Nos.1 to 3 therefore had no authority in law to transfer development rights in the land in favour of defendant Nos.4 and 5. In our opinion, therefore, as defendant Nos.4 and 5 had no authority to carry on any development of the 50 % share of the plaintiffs and defendant Nos.6 to 13, they were 9 entitled to a temporary injunction for protection of those rights. 7] In the result therefore, the appeal succeeds and is allowed, the order impugned in the appeal is set aside. Notice of motion is granted in terms of prayer clause (b) excluding the bracketed portion. The defendant Nos.4 and 5 are also restrained from carrying on any development work in relation to 50 % share of plaintiffs and defendant Nos.6 to 13 in relation to the suit land on the basis of development agreement dated 8th August 2007 and power of attorney executed by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 of the same date during the pendency of the suit. This order will not come in the away of the Slum Development Authorities proceeding further in accordance with law in relation to the development of slum. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. 10 Certified copy expedited. (JUSTICE D.K. DESHMUKH) (JUSTICE R.V. MORE)