1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.1365 of 2008 . in Suit No. 770 of 2006 Padmini Hiralal Jain & Anr. .. Plaintiffs v/s. Ashok kumar Mishrimal Jain & Others ..Defendants And Pepibai Mishrimal Jain & Ors. ..Applicants Mr.A.S.Khandeparkar i/b. Mr.B.Brijesh for the plaintiffs. Dr. Birendra Saraf with Ms. Neeta Solanki i/b. Kiran Jain & Co. for the Applicants None for the defendants CORAM : R.Y.GANOO, J. DATED : 1st July , 2010 P.C. : 1. The plaintiffs have filed suit against the defendants for enforcement of the suit agreement. The applicants claim to be heirs of Mishrimal Jain and according to the applicants said Mishrimal Jain held shares of Parel Mahatma Co-operative Housing Society Ltd. , and therefore the transaction purported to have been entered into by the defendants 2 in favour of the plaintiffs is not proper as the defendants had no rights. In any case, the applicants are to be brought on record so that they can put up their claims as heirs of Mishrimal Jain. 2. The share certificate standing in the name of defendant Ashok was produced whereas the applicants have produced the share certificate standing in the name of Mishrimal Jain. Said Mishrimal is no more. Notice was issued to the society, and on behalf of the society, the Secretary of the society had appeared through an advocate and had made a statement that the society treats that said Mishrimal Jain has one share and Ashok- defendant has four shares. If this is the position then the applicants would be able to succeed to the rights held by Mishrimal in regard to one share. The fact that the applicants are heirs of Mishrimal is not seriously disputed. 3. Learned Counsel appearing on behalf of the applicants submitted that the suit transaction is sham and the applicants intend to join this suit to place before the Court correct facts and assist the court in order to arrive at the decision. According to him the presence of the applicants is necessary as they are heirs of Mishrimal who had right 3 in regard to the shares of the society and consequently rights in the flat. 4. Counsel for the plaintiffs opposed it by contending that some of the applicants have acted as attesting witness for agreement to sale between plaintiffs and defendants and that the transaction was to the knowledge of the applicants. Hence, they have no right to object to the suit transaction. 5. If the society treats Mishrimal as holder of one share, rights of the applicants in their capacity to one share to the rights concerning to the said share in the society and shop 3/2/19 has to be accepted. If this be so, if the transaction is entered into in regard to the shares of the society and shop no.3/2/19, the applicants have every right to get themselves joined in the suit and attend to the matter. Whether the applicants want to support the plaintiffs or the defendants shall be decided by the applicants at the time of trial. Their presence in the trial court is required so that correct facts can be placed before the court and the court will be able to decide the dispute between the parties. Hence the order. 4 ORDER i) Chamber Summons is made absolute in terms of prayer clause (a). There shall be no order as to costs. ii) Plaintiffs shall amend the plaint on or before 20.7.2010, serve upon the applicant copy of the plaint as well as other proceedings which are pending as of today, on or before 3.7.2010. Plaintiffs are permitted to carry out amendment in the motion so as to show the present applicants as party defendant as per amendment in the plaint. Learned Counsel for the applicants waives service of writ of summons. iii) If any motion is pending, the same shall come up on board for hearing in due course. [R.Y.GANOO, J.]