1 nms293-11 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.293 OF 2011 IN SUIT NO.210 OF 2011 Monarose Pereira ....Plaintiff V/s. Shailesh Mafatlal Pareikh & Ors. ....Defendants Mr.Denzil D’Mello for the Plaintiff. Mr.P.K. Samdani, Senior Counsel with Mr.Zal Andhyarujina and Mr.H.C. Mehta i/b Mehta & Co. for Defendant No.8. CORAM : S.J. VAZIFDAR, J. DATE : 14TH JUNE, 2011. P.C. :- 1. The plaintiff seeks a declaration that she has a one half undivided share in the suit property, which comprises of land admeasuring 792.4 square meters together with a dwelling house standing thereon and a declaration that a deed of conveyance dated 16.9.1988, four conveyances all dated 1.2.1999 and a deed of conveyance dated 11.8.2009 are null and void and liable to be set aside and cancelled and for an order cancelling the same. The plaintiff has also sought a permanent injunction restraining defendant No.8 from carrying on any further construction and/or erecting any structure on the suit property without her permission and from creating any third party rights therein or disposing of the same. 2 nms293-11 2. The plaintiff’s case is that one Francis Xavier Gonsalves and Mrs.Rose Romoulda Gonsalves, who died on 28.7.1965 and 1.10.1983 respectively, were the parents of one Patrick Gonsalves, Gregory Gonsalves and Mrs.Sheila Pereira. Patrick Gonsalves died a bachelor intestate on 10.10.1970. Gregory Gonsalves died intestate on 9.6.1988. Mrs.Sheila Pereira died intestate on 25.8.2005. Defendant Nos.9 to 13 are the wife and children of Gregory Gonsalves. The plaintiff is the daughter of the said Mrs.Sheila Pereira. The said Francis Gonsalves, Mrs.Rose Gonsalves and Patrick Gonsalves having died intestate, the suit property which belonged to Francis Gonsalves devolved upon Gregory Gonsalves and Mrs.Sheila Pereira in equal share. The plaintiff accordingly claims a 50% share in the suit property. 3. Upon the death of Mrs.Rose Gonsalves, the name of Gregory Gonsalves and defendant Nos.9 to 13 were entered in the property card pertaining to the suit property. This, according to the plaintiff, was illegal in as much as her mother Mrs.Sheila Pereira had a 50% share in the property. 4. By a conveyance dated 16.9.1988, Gregory Gonsalves and defendant Nos.9 to 13 transferred the property to defendant Nos.1 to 3 and continued to reside in the structure thereon as the tenants of defendant Nos.1 to 3. The conveyance was lodged for registration forthwith and was registered on 6.3.1998. 5. As stated above, Gregory Gonsalves died on 9.6.1988. The correspondence carried on by the plaintiff’s mother between the period 3 nms293-11 7.1.1991 to 5.10.1992 is of vital importance. This correspondence has persuaded me to reject the notice of motion on the ground that though she was aware of the above transactions and had stated therein that she would be adopting appropriate proceedings to establish her alleged right in the suit property, she did not do so during her life time. She died on 25.8.2005. The correspondence indicates that she was aware of the above transactions and in any event ought to have been aware of the same. The correspondence further indicates that she rested content by demanding her share in the sale proceeds from the said Gregory Gonsalves and defendant Nos.8 to 13. The plaintiff’s mother therefore, permitted indeed enabled the said Gregory Gonsalves and defendant Nos.9 to 13 to hold out to the word that they were entitled to deal with the property, as the only owners thereof. The third parties acted on such representation and altered their position to their prejudice irretrievably. I will refer to the correspondence in some detail after narrating the further transactions in respect of the suit property. 6. As stated above, by the conveyance dated 16.9.1988, the said Gregory Gonsalves and defendant Nos.9 to 13, sold the property to defendant Nos.1 to 3. The conveyance stated that the said Francis Gonsalves died leaving behind him his wife Mrs.Rose Gonsalves and said Gregory Gonsalves as his only heirs. I will presume for the purpose of this judgment that the plaintiff’s mother Mrs.Sheila Pereira was the daughter of the said Francis Gonsalves and Mrs.Rose Gonsalves and that therefore, the statement in the conveyance was wrong. 7. Defendant Nos.2 and 3 sold their respective 1/3rd shares in the 4 nms293-11 property to defendant Nos.4 to 7 by four deeds of conveyance all dated 1.2.1999. Thereupon, defendant Nos.1 and 4 to 7 remained the owners of the said property. These conveyances were registered on 4.3.1999. 8. The plaintiff’s mother died on 25.8.2005 without filing any proceedings. 9. On 29.3.2008, the names of defendant Nos.1 to 3 were entered in the said P.R. Cards on the basis of the conveyance dated 16.9.1988. On 29.3.2008, the names of defendant Nos.2 and 3 were deleted and the names of defendant Nos.4 to 7 were entered on P.R. Cards on the basis of the said four registered conveyances dated 1.2.1999. 10(A). In or about 2008, defendant No.8 – M/s. R.P. Builders desired purchasing the suit property. A search report submitted by their advocate did not indicate the name of either the plaintiff or her mother as having any interest in the suit property. Defendant No.8 cause to be published notices in three newspapers inviting objections to their proposed purchase of the suit property. The public notices expressly stated that the existing deeds of conveyance declared the said Mrs.Rose Gonsalves and Gregory Gonsalves to be the sole heirs of the said Francis Gonsalves. (B). By a registered deed of conveyance dated 11.8.2009, defendant Nos.1 and 4 to 7 sold the property to defendant No.8. Defendant Nos.9 to 13 surrendered their tenancy/occupancy rights to defendant No.8. (C). Certain persons, known as “Imla Maliks” had rights in respect of the structure on the suit property. One of them had filed Civil Suit No. 1921 of 1988 against Gregory Gonsalves and defendant Nos.1 to 3 in the 5 nms293-11 Bombay City Civil Court. I was informed that the suit has been settled. Defendant No.8 filed Suit No.495 of 2010 in this Court against the another Imla Malik. This suit was settled in terms of the consent terms dated 25.2.2010. (D). By registered deeds of conveyance dated 20.12.2008, 21.9.2009 and 14.12.2009 three other Imla Maliks sold their rights as Imla Maliks to defendant No.8. 11. Defendant No.8 thereafter on 1.4.2010 obtained a commencement certificated. It is only after the construction activities commenced by the demolition of the existing structures that the plaintiff for the first time raised the claim by her advocate’s letter dated 19.6.2010 addressed to defendant Nos.1, 3 and 8 to 13. It is not necessary to refer to the correspondence that ensued between the advocates of the parties in any detail, as the same pertains to the period after the disputes started. 12. Thus the property was first transferred in favour of defendant Nos.1 to 3, thereafter to defendant Nos.4 to 7 and ultimately to defendant No.8. Defendant No.8 in turn has created third party rights in respect of portions of the construction which is now in an advanced stage. The construction appears to have come upto the fourth floor. 13. I will presume for the purpose of this judgment that the plaintiff is the daughter of the said Francis Gonsalves and Mrs.Rose Gonsalves, although the defendants do not admit the same. I will also presume therefore, that ordinarily she has a half share therein having inherited the same from her mother Mrs.Sheila Gonsalves. The question is whether in 6 nms293-11 the facts of this case any interim reliefs ought to be granted. 14. As I mentioned earlier, the correspondence addressed by the plaintiff’s mother from 7.1.1991 to 5.10.1992 and her conduct before she died is of vital importance. Her conduct would govern the rights of the plaintiff as she claims through her mother. 15(A). The plaintiff’s mother by her advocate’s letter dated 7.1.1991 addressed to defendant Nos.9 to 13, admitted having learnt that they had dealt with the property without her knowledge ; that the board had been put up on the property wherein her name was not mentioned and that the names of defendant Nos.1 and 3 appeared in respect of the property ; that she was not aware of the manner in which the property had been dealt with and that defendant Nos.9 to 13 were not entitled to deal with the same. Defendant Nos.9 to 13 were called upon to furnish the details of the amounts received or to be received. The plaintiff’s mother stated that in the event of defendant Nos.9 to 13 failing to comply with the requisitions, she would be left with no alternate but to take steps to recover her share in the property. (B). The plaintiff’s mothers advocates by another letter dated 7.1.1991 called upon defendant Nos.1 and 3 to furnish the information regarding the manner in which they had dealt with the property. (C). The plaintiff’s mothers advocates by a letter dated 12.4.1991 addressed to defendant Nos.1 and 3 stated that there was a meeting between the plaintiff’s mother and her advocates, defendant Nos.1 and 3 and defendant No.9. It was alleged that defendant No.9 admitted that she had made a false affidavit stating that she and her children were the only 7 nms293-11 persons entitled to claim ownership of the property ; that the parties had agreed to arrived at a mutual settlement and that the plaintiff’s mother would not take any criminal action. The letter makes strong allegations regarding other co-owners acting illegally and fraudulently. It is important to note that the letter further states that the plaintiff’s mother advocates would write to the Sub Registrar of Assurances and all other concerned authorities regarding the same and take necessary action against defendant Nos.1 and 3 in helping the said defendant No.9 to commit a fraud and to use up the property. Legal proceedings were threatened in the event of the plaintiff’s mother not receiving the positive response within two weeks. (D). A similar letter also dated 12.4.1991 was addressed to defendant No.9. Moreover, in the said letter, it is stated as under :- “It now appears that you have decided to swallow the entire amount of the illegal sale without considering my client’s right”. (emphasis supplied) The letter further states :- “My client hereby gives you final opportunity to give my client all her legitimate dues in her properties which have been clandestanely sold by you and moneys of which you have misappropriated failing which my client will take necessary criminal actions against you for fraud, cheating, perjury and mis-appropriation.” (emphasis supplied) It is therefore, clear that the plaintiff’s mother was aware of the sale of the property by the said conveyance dated 16.9.1988 in favour of defendant Nos.1 to 3. The same further establishes the knowledge of the plaintiff’s mother regarding the conveyance dated 16.9.1988. This is clear from the words “sold by you and moneys of which you have 8 nms293-11 misappropriated”. These words indicate that the plaintiff’s mother was aware of the sale by the conveyance dated 16.9.1988. No other explanations for this statement has been offered or even suggested by Mr.D’Mello. She took no steps whatsoever to enforce or even protect her alleged rights. (E). The contents of the above letter also indicate that the plaintiff’s mother by this time sought her share from the sale proceeds and did not contest the sale/conveyance as such. This is further established by a letter dated 18.4.1991 addressed by the plaintiff’s mother advocates to defendant Nos.10, 11, 12 and 13, the children of defendant No.9 and Gregory Gonsalves, wherein it is stated as under :- “Your mother (Defendant No.9) further agreed that she with the knowledge and connivance of her four daughters had made false affidavits stating that except your mother and her four daughters there was no other person entitled to the Ownership of the properties either sold by you all or which you have agreed to sell. Your mother agreed that she has committed such a mistake and promised my client that she would be given ½ share in the properties already sold and which are pending sale, and for that purpose your mother agreed to have another meeting with my client along with Mr.Shailesh Pareikh on 2nd April, 1991” ................................................................................................. “Your mother had also agreed in the meeting that she could show all the papers and documents whereby she has sold various properties without my client’s knowledge and consent to various parties and appropriated the moneys. It now appears that you along with your mother have decided to swallow all the share of my client by making false statements. My client has so far refrained from taking any stern steps considering the fact that you are related to my client, but your act of cheating and mis-appropriating have gone too far and now my client is not going to take it lying down.” (emphasis supplied) By this letter, the plaintiff’s mother further stated that she would 9 nms293-11 be writing to the survey authorities as well as the Registrar of Assurances and all other concerned authorities about the alleged illegal acts with a request to take necessary action. Despite the above letters and despite the fact that there was not even a response to the same by the concerned defendants, the plaintiff’s mother took no action whatsoever to safeguard her alleged interest in the suit property. (F). The plaintiff’s mother advocates by a letter dated 5.10.1992 addressed to defendant Nos.9 to 13 stated that the plaintiff’s mother had reliably learnt that they had “dealt with the aforesaid properties”. The letter reiterated the contents of the earlier letters. The letter alleges as under :- “However you Mrs.Mary Elisbeth Gansalves had a meeting with my client along with one Mr.Shailesh Mafatlal Pareikh wherein you had agreed that my client was entitled to ½ share in all the properties which have either been sold or which are intended to be sold, and you had agreed to give to my client her legitimate share. Further inspite of your promise you have failed to give my client her just share. On behalf of my client you are finally called upon to intimate to my client or to me as her advocate the manner and quantum for which you have agreed to dispose off the aforesaid properties.” (emphasis supplied)s 16. The plaintiff’s advocates also addressed a letter dated 7.10.1992 to defendant Nos.1 and 3. The above correspondence indicates that the plaintiff’s mother was aware of the fact that the property had been sold by the conveyance dated 16.9.1988. Despite having stated that she would do so, the plaintiff’s mother took no steps whatsoever to protect her rights either by filing the proceedings in the Court or by making any representation to the concerned authorities especially the Registrar of Assurances and the Revenue Authorities. Thus despite being aware of the 10 nms293-11 alleged illegal acts qua her alleged alleged share in the property, the plaintiff’s mother permitted the record to remain as it was and the transaction to stand. As a result thereof, further interests were created in favour of the third parties. Even assuming that there were any illegal transactions, the plaintiff’s mother by her conduct had permitted and enabled the same thereby irretrievably affecting the rights of the aforesaid purchases. The plaintiff’s mother died only in the year 2005. By this time, the rights had been created in turn by defendant Nos.1 to 3 in favour of defendant Nos.4 to 7. The plaintiff’s mother was being advised by an advocate. The above correspondence was addressed by the advocate. There is nothing to suggest that the plaintiff did not make enquiries or take search of the public records. The presumption in fact is that she did. This is in view of the fact that the advocate’s letter stated that representations would be made to the said authorities including the Registrar of Assurances. Even assuming that the same was not done, it ought to have been done. The plaintiff’s mother was therefore, aware of or in any event ought to have been aware of the above transactions in respect of the suit property. 17. The only logical explanation for the plaintiff’s mothers conduct in not challenging the conveyance of 16.9.1988 is that she accepted the same and restricted her claim to a share in the sale proceeds. This appears to be so on a reading of the letters addressed on her behalf. No other explanation was offered by Mr.D’Mello. If she succeeds in establishing her title, she may well have a claim for the same against defendant Nos.9 to 13, subject of course to all other contentions including 11 nms293-11 as to limitation. 18. The contention that the plaintiff’s mother was not living in the property is irrelevant. The suggestion that as she was not living in the property cannot by any stretch of imagination in these circumstances indicate that she was unaware of the above transactions. Indeed, the letters clearly suggest that she was fully aware of them. 19. The plaintiff’s mother expired of 25.8.2005. Even thereafter the plaintiff did nothing till the present suit was filed. The present suit was filed over five years after the death of the plaintiff’s mother. In these circumstances, the interests of innocent third parties cannot be made to suffer. 20. It should be clear from what I have stated earlier that my refusal to grant any interim reliefs is not on the ground of the delay of at least twenty one years. 21. In the circumstances, it is not necessary to deal with the other contentions raised by Mr.Samdani based inter-alia on the fact that the conveyances were registered, on the ground of limitation and on section 41 of the Transfer of Property Act. 22. The notice of motion is therefore, dismissed. There shall however, no order as to costs.