1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION IN NOTICE OF MOTION NO. 2202 OF 2004 IN TESTAMENTARY PETITION NO. 17 OF 1984 IN TESTAMENTARY PETITION NO. 12 OF 1983 WITH NOTICE OF MOTION NO. 438 OF 2002 Harshad Jethalal Shah & Anr. .. Petitioner. vs. Vasundra Raje Nimbalkar & Ors. .. Defendants. AND Bhavesh Nareshchandra Amin & Anr. .. Respondents. AND Maanish Kantilal Patel & Anr. .. Applicants. Mr. Virag Tulzapurkar with Ms. S. Srikrishna i/by P.C. Mankad for the applicants. Mr. T.N. Subramanian, Mr. Paresh Shah i/by Shah & Sanghavi for plaintiffs. Mr. A.Y. Bookwala, Ms. Madhvi Diwan i/by Manisha Kapadia 2 for Defendant No.2 (c). Mr. N.G. Thakker, Sr. Counsel, Mr. Gaurav Joshi Mr. A.V. Joshi i/by Mulla & Mulla for Respondents. Mr. D. R. Patil, Representative of the Court Receiver present. CORAM : S.U.KAMDAR, J. CORAM : S.U.KAMDAR, J. CORAM : S.U.KAMDAR, J. DATE : 8th July, DATE : 8th July, DATE : 8th July, 2005. ORAL ORDER : . By the present notice of motion the applicants are challenging clause 4 of the consent terms dated 15.4.2004 executed by and between the plaintiffs and the defendants. By prayer (b), (c) and (d) of the motion, the plaintiffs are claiming that they should be put back in possession of a property being bungalow and immovable property situated at Vishwas Colony, R.C. Datta Road, Sayaji Gunj, Division, Vadodara City of an area of 15,807 sq. ft. The plaintiffs have also prayed various interim injunctions against the parties from transferring, alienating, encumbering, dealing with and/or selling the said properties and/or from carrying on any construction thereon. Some of the material facts in the back ground of which the aforesaid reliefs are made are briefly enumerated as under :- 3 2. One Shalini Devi Ghatge died on 12.8.1982 leaving behind her last Will and Testament dated 4.8.1982. Under the said last will, Shalini Devi bequeathed an immovable property which is the subject matter of the present motion to the defendants. On the other hand, there was another will of the said deceased Salini Devi Ghatge dated 6.1.1982. It is the case of the applicants that the said property which was bequeathed to defendants was sold by the defendants under two agreements for sale dated 2.9.1982 to the applicants and in part performance thereof, the applicants were put in physical possession of the said property. It is their case that the defendant no. 1 has executed the said agreements for sale for himself and on behalf of the defendant no. 2 as his constituted attorney. Both the said wills were subject matter of two petitions in this Hon’ble Court, namely, Testamentary Petition NO. 12 of 1983 for letters of administration with the will annexed of Yeshwantrao Ghatge who was husband of Salini Devi and another Testamentary Petition No. 21 of 1983 for Letters of Administration with will annexed dated 6.1.1982 of Salini Devi. The plaintiffs in the present proceedings are the executors of the said last will and testament dated 6.1.1982 of the deceased Salini Devi. During the pendency of the said probate petition, a notice of motion was taken out being 4 notice of motion no. 786 of 1983 and notice of motion no. 910 of 1983 by the plaintiffs. By the aforesaid motions it was prayed that the Court Receiver, High Court, Bombay should be appointed in respect of the estate of the deceased including the property at Baroda. The applicant no.1’s father and the 2nd applicant’s husband who was also constituted attorney was respondent no. 3 in the said notice of motion no. 786 of 1983. In the said notice of motion various orders were passed. It is the case of the applicants that the said orders were passed without notice to the respondent no. 3 in the said Notice of Motion. In the aforesaid proceedings, the Court Receiver, High court, Bombay was appointed by an order dated 19.9.1983. In pursuant to the said order on 19.10.1983 the Court Receiver visited the suit property to take possession thereof. It is the case of the applicants that at the time of taking possession, the applicants were in actual physical possession of the said premises and did not hand over the possession of the suit property to the Court Receiver. Consequently on 25.10.1983 the plaintiffs made an application to this Court for forcible possession of the said property and by an order dated 25.10.1983 this Court directed the Court Receiver to take forcible possession of the said Baroda property from whomsoever is found in possession thereof. It is the case of the applicants that pursuant to the said order of 5 forcible possession, the applicants handed over physical possession of the said properties to the Court Receiver, High Court, Bombay and Receiver was in possession thereafter. In the meantime, it was found that the Receiver’s possession was interfered with by the applicants and thus the Court Receiver filed a complaint and consequently a criminal case was instituted being Criminal Case No. 2343 of 1984 in the Court of Judicial Magistrate, Baroda. By an order and judgment dated 23.3.2001, the said complaint was dismissed essentially on the ground that the accused no. 1 who was the father of the applicant and the mother of the respondent no. 1 have already expired and thus it cannot be established that in fact whether he interfered with the possession of the Court Receiver or not. It is the case of the applicants that sometime in or about 2002 when the Court Receiver published an advertisement inviting third parties for offering agency of the Court Receiver in respect of the said property he took out a notice of motion being Notice of Motion No. 438 of 2002 in Testamentary Petition No. 12 of 1983 seeking to applicant him as an agent of the Court Receiver in respect of the said property. The said notice of motion is pending. The said notice of motion was to appoint the applicants as agent of the Court Receiver in respect of the said Baroda property. Though the said motion is pending but practically it has become infructuous 6 by virtue of the fact that the Court Receiver, High Court, Bombay is already discharged in the said proceedings. 3. It is the case of the applicants that on 15.4.2004 collusive and fraudulent consent terms were filed by the plaintiffs and the defendants in Testamentary Petition No. 12 of 1983 in this Court. It is their further case that the applicants were not given notice of the said consent terms to be filed in the proceedings in spite of the fact that the plaintiffs and the defendants were aware that the applicants are claiming rights in the said property. It is the case of the applicants that under clause 2 of the consent terms, the Court Receiver, High Court, Bombay is discharged and under Clause 4 thereof the Receiver has been asked to give possession of the estate of the deceased Yeshwantrao Ghatge to the defendants. By an order dated 15.4.2004, the said consent terms are taken on record and the said Testamentary Petition is disposed of. It is the case of the applicants that no order has been passed by this Court in terms of the consent terms and thus the consent terms is not superimposed with the impremature by the Court as the order of the Court. It is his further case that similar consent terms which were fraudulent in nature were filed also in Testamentary Petition No. 23 of 1983 and in the said proceedings by an order 7 dated 15.4.2004 the said consent terms are taken on record. Clauses 1, 2 and 3 of the consent terms inter alia provide for issuance of a probate of the last will and testament of Shalini Devi dated 4.8.1982 and alleged will dated 6.1.1982 has been given up and/or stood revoked. By clause 4 of the said consent terms it is provided that an agreement for sale in respect of Baroda property in favour of respondent nos. 1 and 2 has been reaffirmed and it is provided under clause 4 thereof that the said property will be conveyed in favour of the respondent nos. 1 and 2. By the said order dated 15.4.2004 this Court has directed for issuance of probate of the said Shalini Devi’s last will and testament dated 4.8.1982. However, it is the case of the applicants that no orders were passed by this Court in terms of the consent terms and thus the consent terms did not form part of any order of this Court. 4. It is the case of the applicants that subsequent to the passing of the order dated 15.4.2004 and subsequent to the tender of the consent terms on the record of the Court, the defendants fraudulently represented to the Court Receiver that there is an order of the Court directing the Court Receiver to hand over possession of the suit property to the defendants. It is the further case of the applicants that the plaintiffs 8 have colluded with the defendants in defrauding the Court Receiver and misrepresenting him to hand over possession since there was no order in terms of the consent terms. However, on the basis of the representation made before the Court Receiver, High Court, Bombay, the Court Receiver has handed over the possession to the defendants by a possession receipt dated 21.4.2004 and the defendants have in turn put the respondents in possession of the suit property. It is the case of the applicants that in the aforesaid fraudulent manner the applicants who were in actual and physical possession of the property before the Court Receiver took possession thereof, have been dispossessed which is not in accordance with the due process of law and thus the applicants be restituted the possession thereof. 5. Thus, in the aforesaid circumstances, the present notice of motion is moved by the applicants firstly claiming that the said clause 4 of the consent terms which inter alia provides for handing over possession of the said property by the Court Receiver to the defendants and the defendants to the respondents is nullity and that the same should be set aside. In any event, it has been submitted that the applicants should be restituted by the principle of restitution as covered by the provisions of Section 144 of the CPC and 151 of the CPC and the Court must put the applicants back in possession of 9 the said property by restitution and restore the situation as existed prior to the date of the Court Receiver took possession of the said property. 6. When I put to Mr. Tulzapurkar, the learned counsel for the applicants that how the motion is maintainable in terms of prayer clause (a) which inter alia provides for setting aside the consent terms as a nullity because the said prayer is not in the nature of inter locutory reliefs but it requires to file a substantive suit, the learned counsel has stated and which I record that he is not pressing prayer clause (a) of the motion. However, in so far as remaining prayers are concerned, it is his case that irrespective of the fact whether he insists on prayer (a) or not, still he is entitled to press the remaining prayers on the principal of restitution. 7. The learned counsel Mr. Tulzapurkar appearing on behalf of the applicants has inter alia contended as under :- (i). Firstly it is contended that the applicants are entitled to be put back in possession of the said property on the principal of restitution. It is his case that the order of the Court cannot harm or injure any party to the proceedings or prejudice substantive rights of the parties unless it determines finally the dispute between the parties. 10 It is his case that in the present case the rights of the parties were never determined nor can ever be determined because of the fact that the testamentary jurisdiction does not decide any dispute as to the title of the property and thus he is entitled to the restitution of the said property because the Court Receiver took possession from him and once the Court Receiver is discharged he should be put back in possession unless the Court finally decides the rights in the present case. It has been contended by him that the principal of restitution is based on justice and equity. It has been further contended that the inter-locutary orders are always subject to the final order and in aid of the final reliefs and thus as soon as the dispute is finally determined the interim orders must come to an end. It is his case that in the present case when the testamentary petition was finally determined and a probate was issued, the rights of the applicants and/or of the other parties were not determined and, therefore, he should have been put back in possession of the said property relegating the parties to recover the possession of the property from the applicants by instituting a substantive proceeding and the same could not have been done in a surreptitious and fraudulent manner as has been done by the plaintiffs, defendants and respondents colluding together. 11 (ii) Secondly it has been contended by the learned counsel for the applicants that by virtue of the fact that the testamentary jurisdiction does not determine any right, title or interest in the property even if the consent terms are treated as orders of the Court still it cannot be considered that it has recognising the rights of the respondents in respect of the agreement for sale which they are claiming to be in their favour of such property and thus the respondents are not entitled to possession of the said property. It is the applicants who are entitled to the possession of the property because the applicants were dispossessed from the premises by use of force by the Court Receiver pursuant to the orders passed by this Court. iii) Thirdly, it has been contended by applicants that it is now settled law that the possession of an individual cannot be disturbed and/or he cannot be dispossessed from the premises without due process of law. The applicants were in settled possession of the said property in part performance of the said two agreements for sale dated 2.9.1982 and, therefore, the possession of the applicants ought not to have been disturbed. It has ben contended that disturbing the possession of the applicant by utilizing the mode of the Court Receiver and handing over possession thereof to the respondents herein is 12 without due process of law and thus, the applicants are entitled to be put back in possession of the said property. iv) Fourthly it has been contended by the learned counsel for the applicants that the plaintiffs and the defendants have played fraud in collusion with each other. It has been contended that there were no orders passed by this Court to hand over possession of the property by the Court Receiver to the defendants and the defendants and the plaintiffs jointly in correspondence with the Court Receiver have made misrepresentation to hand over possession of the said property to the defendants. It has been wrongly represented to the Court Receiver that there exists any such order because there was no order passed in terms of the consent terms and there was no order to hand over possession by the Court Receiver to the defendants. It has been contended that the Court Receiver, High Court, Bombay, ought to have made a report to the Court seeking directions about whom the possession should be handed over once the petition has come to an end rather than believing in the false representation of the plaintiffs and the defendants and handing over the possession thereof to the defendants herein. It has been contended that such an act on the part of the plaintiffs and the defendants is fraudulent act and it amounts to 13 practising fraud on Court and such party should not be assisted by the Court and the Court must do complete and substantial justice. It has been thus contended that the Court Receiver should be directed to take back possession from the respondents of the said property and hand back the same to the applicants herein. v) Fifth and the last contention advanced by the learned counsel for the applicants is that the respondents are in unlawful possession of the property and have been wrongfully developing the said property. My attention has been drawn to the various ad-interim orders passed in this proceedings by S.K. Shah J. under which the injunction was continued from time to time and on 2.12.2004 while adjourning the matter till 13.1.2005 the Court has stated that in the meantime the earlier order of ad-interim order granted on 5.8.2004 to continue. It has been brought to my attention that on 13.1.2005 when the matter appeared, the injunction was not continued under the impression that the order dated 2.12.2004 inter alia provides in the meantime the injunction to continue means that the injunction will be continued till the order is set aside and/or the motion is finally heard. It has been thus contended that the plaintiffs, defendants and the respondents have wrongfully contended before the learned Single Judge that the said ad-interim 14 orders have come to an end on 13.1.2005. It has been brought to my notice that a contempt petition was filed inter alia on the ground that in spite that the ad-interim order being continued from even after 13.1.2005 the construction work has been commenced by the respondents and, therefore, the respondents are guilty of contempt. I am informed that the said contempt petition was heard by the learned Single Judge who has by his order and judgment dismissed the said contempt petition by inter alia holding that the ad-interim order was only upto 13.1.2005 and is not continued thereafter. 8. The learned counsel for the applicants has in support of the aforesaid contentions relied upon various judgments of the Apex Court which I now separately enumerate as under :- 9. In support of his first contention pertaining to the restitution the learned counsel has relied upon the judgement of the Madras High Court in the case of P. Narayana Pillai v. S. Nagamoney, reported in 1970 Madras Law Journal Reports, page 161. Particularly he has relied upon the following portion of the judgment. "All that has happened is that the obstruction offered by her client was directed to be removed, that that order was 15 set aside in appeal and that there was a declaration that the tenant was entitled to remain in possession till the value of the improvements be paid. If, after that, it is the claim of the landholder, or any one claiming under the landholder, that the tenant is liable to be evicted, the duty of the person is to take proper steps, under the law, for such eviction. Our order appointing that party as a receiver, cannot be taken advantage of, to prevent the redelivery of the property, to the person from whom the receiver took delivery, on any pretext, for that would precisely offend the principle stated by Cairns, L.C. above, viz., an injury to one of the suitors would be committed indirectly, as a consequence of an interlocutory order of the Court. Hence, we have no hesitation, whatever, in holding that, whatever else might be the rights inter se between the parties, our receiver must hand over the possession which he obtained from the appellant, by virtue of our orders, back to the party who parted with that possession and then pursue his remedies at law, whether by way of further execution of any decree already in existence, or by way of the institution of a fresh suit, as advised." 16 He has thereafter relied upon the judgment of the Apex Court in the case of Mrs. Kavita Trehan and another v. Balsara Hygiene Products Ltd., reported in AIR 1995 SC 441 and particularly paragraphs 13, 14 and 15 thereof which read as under :- "13. The Law of Restitution encompasses all claims founded upon the principle of unjust enrichment, ’Restitutionary claims are to be found in equity as well as at law’. Restitutionary law has many branches. The law of quasi-contract is "that part of restitution which stems from the common indebitatus counts for money had and received and for money paid, and from quantum meruit and quantum valebat claims." (See ’The Law of Restitution’ - Goff & Jones, 4th Edn. Page 3). Halsbury’s Law of England, 4th Edn. Page 434 states : "Common Law, any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi contract or restitution. For historical reasons, quasi contract has 17 traditionally been treated as part of, or together with, the law of contract. Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two strands are in the process of being woven into a single topic in the law, which may be termed "restitution"." Recently the House of Lords had occasion to examine some of these principles in Woolwich Equitable Building Society v. Inland Revenue Commissioners, 993 AC 70. "14. In regard to the law of restoration of loss or damage caused pursuant to judicial orders, the Privy Council in Alexander Rodger Charles Carnie v. The Comptoir D’Escompte De Paris, (1869-71) 3 AC 465 at 475 stated: "....one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case." In Jai Berham v. Kedar Nath Marwari, AIR 1922 PC 269 at 271, the Judicial Committee referring to the above passage with approval added : "It is the duty of the Court under S. 144 of the Civil Procedure Code to "place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or 18 reversed." Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved." In Binayak Swain v. Ramesh Chandra Pahigraph, (1966) 3 SCR 24 at 27: (AIR 1966 SC 948 at p. 950), this Court stated the principle thus: "...... The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has ben done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at