IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.670 OF 2008 IN SUIT NO.507 OF 2008 Sakinaben Fakir Mohammed Sayani & Ors. .. Plaintiffs Versus Amirali Fazalbhoy & Ors. .. Defendants Mr.D.D.Madon, Sr. Counsel a/w Mr.Rohan Rajadhyaksha, Mr.Nilesh Tated i/by Mahimtara & Co for the plaintiffs. Mr.Clive D’Souza i/by Legal Associate for the defendant nos.1 to 3. Mr.Arif Bookwala, Sr. Counsel a/w Mr.Venkatakrishna Kunduru & Hira Iyer i/by Kunduru & Kunduru for defendant nos.4 and 5. Mr.Snehal Shah a/w Mr. Raj Mehta i/by R.K.M.Legal for intervenor-Society. Mr.Harinder Toor i/by Shiralkar & Co for the defendant nos.7 to 11 and 13. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 11th December 2008. : 11th December 2008. : 11th December 2008. JUDGMENT: . This Notice of Motion is taken up for final hearing. With a view to appreciate the submissions, it will be necessary to briefly refer to the facts of the case. 2 2. According to the case of the plaintiffs, late Fakir Mohammed Sayani (hereinafter referred to as the deceased) during his life time was carrying on business in the name and style of M/s.Morinaga Traders as the sole proprietor thereof. By a registered Deed of Conveyance dated 18th March 1963, the land bearing survey No.95-B, Hissa No.2 (part) and Hissa No.3 (part) (redesignated as Hissa No.3/1), survey No.9A, Hissa No.3 (part) and survey No.9B of village Andheri, Taluka Andheri, Bombay Suburban district admeasuring 12,600 sq yards was conveyed and sold by one P.H.Baliwala and others in favour of said M/s.Morinaga Traders and the 3rd defendant. The land bearing survey No.9B and the land bearing survey no.95B, Hissa No.3/1 are hereinafter referred to as the suit property. The deceased expired on 26th December 1987. The 1st plaintiff is the widow of the deceased. The 2nd and 3rd plaintiffs are the sons of the deceased. The 4th and 5th plaintiffs are the daughters of the deceased. The plaintiff and the 6th to 13th defendants represent the estate of the deceased. The case of the plaintiffs is that the 3rd plaintiff shifted to United States in the year 1999 and the 2nd plaintiff shifted to United States in the year 2003. 3 3. According to the case of the plaintiffs, in August 2007 the 1st defendant met the 1st plaintiff and made certain representations in respect of the suit property and showed wilingness to pay good price. It must be stated here that the 1st defendant happens to be a partner of the 3rd defendant-Firm. The 2nd defendant is the wife of the 1st defendant. In November 2007, the 1st plaintiff informed the 5th plaintiff and her husband of her meeting with the 1st defendant. The case of the plaintiffs is that the age of the 1st plaintiff is 75 years. A specific case made out in the plaint is that the 1st plaintiff does not know to read or write in English language except to sign. It is stated that the 4th plaintiff stays with the 1st plaintiff at the same place but due to her business, she is not available at the residence. The case of the plaintiffs is that they are entitled to one half share in the suit property. A specific case made out in the plaint is that during the meeting of the 1st plaintiff with the 1st defendant in August 2007, the 1st defendant pointed out that the suit property was fully encroached upon and he was in a position to give a good value to the suit property. The 1st defendant suggested to the 1st plaintiff that since the 2nd and 3rd plaintiffs were abroad they should execute a power of attorney in favour of the 1st 4 plaintiff. The case of the plaintiffs is that relying upon the said representations made by the 1st defendant, the 1st plaintiff obtained a power of attorney from 2nd and 3rd plaintiffs and handed over the same to the 1st defendant. According to the plaintiffs when the 4th and 5th plaintiffs came to know about the execution of the power of attorney, they were of the view that the 1st plaintiff ought not have executed the power of attorney and advised the 1st plaintiff to obtain legal advice. It is stated that after making enquiries the 1st plaintiff realised that false representations were made by the 1st defendant and therefore she decided to cancel power of attorney. Reliance has been placed on letter dated 20th November 2007 addressed by the advocate for plaintiffs to the 1st and 2nd defendants in which it is contended that the 1st and 2nd defendants had mislead the 1st plaintiff. By the said notice, the advocate for the plaintiffs purported to cancel and terminate the power of attorney and called upon the 1st and 2nd defendants to hand over the custody thereof to the plaintiffs. 4. Reference has been made in the plaint to the public notice dated 30th November 2007 published by the advocate for plaintiffs by which the plaintiffs claimed 5 to be owners of one half share in the suit property. The 1st and 2nd defendants through their advocates addressed a letter dated 07th December 2007 admitting that the plaintiffs were owners of the undivided one half share in respect of the suit property. In the said letter the 1st and 2nd defendants contended that the 1st plaintiff desired that undivided share in the suit property shall be sold and therefore power of attorneys were got executed. The 1st and 2nd defendants stated in the said letter that the 1st plaintiff persuaded the 1st defendant to pay a sum of Rs.20,000/- towards earnest for sale of right, title and interest of the deceased in the suit property. 5. The case of the plaintiffs is that the 1st plaintiff had not entered into any transaction as suggested by the 1st and 2nd defendants in the said communication and has not received a sum of Rs.20,000/- or any other amount from the 1st and 2nd defendants. The contention of the plaintiffs is that the receipt relied upon by the 1st and 2nd defendants was forged and fabricated. There is a reference in the plaint to further correspondence and public notice published in the newspaper. Initially, the plaintiffs filed this suit for declaration that they alongwith 6th to 13th 6 defendants were entitled to undivided one half share in the suit property and for declaration that there does not exist any agreement between the plaintiffs and the defendants or any of them relating to aforesaid share of the plaintiff. A declaration was also claimed that the receipt in sum of Rs.20,000/- was forged and fabricated. A prayer was also made for partition and separate possession of the suit property. During the pendency of the suit, on the basis of the information disclosed by the 1st defendant during the course of hearing of application ad-interim relief, the plaint was amended. An amendment was carried out to the plaint on the basis of the inspection given by the 1st defendant of agreement dated 01st August 1967 allegedly executed by the deceased in favour of Mahomodali G Fazalbhoy and receipts dated 10th September 1967, 12th October 1967 and 28th December 1967 in the amount of Rs.05,000/-, Rs.15,000/-, Rs.28,800/- allegedly signed by the deceased. It was disclosed to the plaintiffs that a development agreement dated 08th August 2007 was executed between the Fazalbhoy and Company, proprietary concern of the 1st defendant of one part and the 4th defendant (a proprietary concern of the 5th defendant) of the other part. By amending the plaint, a contention was raised that the purported agreement dated 01st 7 August 1967 allegedly executed by the deceased in favour of Mohammedali Fazalbhoy was a forged and fabricated document and no such document was executed by the deceased. The plaintiffs contended that the receipts dated 10th September 1967, 12th October 1967 and 28th December 1967 were never executed by the deceased and alleged signatures appearing on the said receipts were forged. It is contended that the alleged consideration mentioned in the said agreement dated 01st August 1967 was inadequate in as much as in the year 1963 a part of the original property admeasuring 100 sq yards was sold at the price of Rs.03,000/-. It was contended that no steps were taken on the basis of the alleged agreement to delete the names of the deceased and and his legal representatives from the records of rights. The plaintiffs have contended that the alleged development agreement dated 08th August 2007 between the proprietary concern of the 1st defendant and the 4th defendant as well as a power of attorney of the same date were false and fabricated and antedated. It is contended that the said documents are not properly stamped. By an amendment to the plaint, a declaration is claimed as regards the said agreement dated 01st August 1967, three receipts and the development agreement and power of attorney dated 08th August 2007. 8 6. In the notice of motion various reliefs have been claimed by the plaintiffs such as appointment of court receiver, temporary injunction restraining the 4th and 5th defendants from relying upon the aforesaid documents and from entering into, developing, negotiating with the tenants, parting with possession, encumbering, dealing with, disposing of or creating any third party interests in respect of the suit property or any part thereof. 7. The 4th and 5th defendants filed a reply raising various contentions. It was contended that the suit suffers from delay and latches as declaration as regards documents dated 1967 has been prayed for after lapse of 40 years. A reference has been made to representations made by the 1st defendant to the 5th defendant regarding the exclusive title of the 1st defendant. It is contended that the agreement dated 01st August 1967 and receipts executed by the deceased were shown to the 5th defendant. It was contended that the suit property has been declared as a slum area under section 4(1) of the Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 under a notification dated 14th October 1977. It is contended that after the execution of development 9 agreement, the 4th defendant approached the slum dwellers occupying structures on the suit property. It is stated that the slum dwellers have formed two proposed co-operative housing societies and the 4th defendants have been appointed as developers for for developing the suit property. Separate development agreements and power of attorney have been executed by the two proposed co-operative housing societies (proposed co-operative housing societies of the slum dwellers). It is contended that out of 520 slum dwellers, 430 slum dwellers have executed individual agreements with the 4th defendant. It is contended that the 4th defendant has since acquired the rights claimed by a protected tenant. It is contended that neither the deceased nor his proprietary concern filed any returns including wealth tax returns claiming ownership of one half undivided share in respect of suit property. It is contended that the deceased during his life time never paid taxes in respect of the suit property and none of the plaintiffs have paid taxes in respect of the suit property. It is contended that taxes with regard to the suit property were exclusively paid by 3rd defendant. The contention of the 4th defendant is that several steps on the basis of the development agreements have been already taken. 10 8. There is a further affidavit filed by the constituted attorney of the plaintiffs on 24th July 2008. Apart from the said further affidavit, there are additional affidavits filed on record. The constituted attorney of the plaintiffs have filed an affidavit in rejoinder to the reply filed by the 4th and 5th defendants. It is contended that the revenue record of the suit property still reflects that M/s.Morinaga Traders is a co-owner of the suit property and is entitled to one half share in the suit property. Various factual contentions raised in the reply filed by the 4th and 5th defendants have been denied in the rejoinder filed by the constituted attorney of the plaintiffs. There is an additional affidavit dated 13th September 2008 filed by the constituted attorney of the plaintiff pointing out that the 5th plaintiff has informed the executive engineer of the slum rehabilitation authority about the pendency of the suit and requested not to grant any permission for re-development of the suit property without the consent of the co-owners. Reliance was placed on a reply issued by the slum rehabilitation authority recording that no proposal for slum rehabilitation scheme has been received by the authority. There is further additional 11 affidavit in reply filed by the 4th and 5th defendants on 16th September 2008 enclosing therewith a notification dated 14th December 1997 under section 4(1) of the said Act of 1971 declaring the suit property as a slum area. It is contended that after the declaration of the suit property as a slum area, the competent authority can proceed with the compulsory acquisition under section 14 of the said Act of 1971 as a consequence of which the property would vest in government free of all encumbrances and thereafter, the only remedy of the owners would be to receive compensation under section 17 of the said Act of 1971. According to the defendants the compensation will be Rs.3,00,000/-. An additional affidavit is rejoinder has been filed by the constituted attorney of the plaintiff. 9. It must be stated here that a chamber summons was taken out by one Milap Nagar Co-operative Society (proposed) praying that the said proposed society be impleaded as a party defendant. It was contended in the chamber summons that 320 members of the said society have given individual consent to the 4th defendant to develop the property. When the chamber summons was placed for hearing on 22nd October 2008, in view of the statement on behalf of the 4th and 5th defendants that 12 there was no approval granted by slum rehabilitation authority to the scheme proposed by the said defendants, the chamber summons was not entertained by granting liberty to the applicant/intervenor to file a fresh chamber summons as and when the development scheme was sanctioned by the slum rehabilitation authority. 10. I have heard the detailed submissions made by the learned counsel appearing for the parties. The learned senior counsel appearing for the plaintiffs has taken me through the pleadings and the documents on record. He submitted that admittedly the plaintiffs have one half share in the suit property and the suit property was held by the proprietary concern of the deceased and the 3rd defendant as tenants in common. He submitted that admittedly there is no conveyance executed either by the deceased or by plaintiffs for transferring their right, title and interests in the suit property. He submitted that the 4th defendant is not a bonafide purchaser of the suit property. He invited my attention to the recitals in the development agreement dated 08th August 2007. He pointed out that the recitals show that the deceased was entitled to one half undivided share in the suit property and that there is no conveyance or sale deed executed by the deceased 13 in favour of the proprietary concern of the 1st defendant. Inviting my attention to the letter dated 17th August 2007, he pointed out that within few days of development agreement the 4th defendant requested the 1st defendants to get the name of M/s.Morinaga Traders deleted from revenue record of the suit property. He, therefore, submitted that the 4th defendant was fully aware before the execution of the development agreement as regards the rights of the deceased and consequently the rights of the plaintiffs. He invited my attention to documents relied upon by the 4th defendant. He submitted that the agreement dated 01st August 1967 is an unregistered agreement which is a fabricated document and there is no material on record to show that the said agreement was acted upon. Inviting my attention to the three receipts allegedly signed by the deceased, he submitted that the receipts do not bear the revenue stamp. He pointed out that none of the 1st to 3rd defendants have filed any reply to the notice of motion and have failed to deny the contents of the plaint and especially the relevant averments made as regards the said agreement and the said receipts. He submitted that as the 1st to 3rd defendants have not come forward to deny the allegations made in the plaint, at this stage, this Court will have to proceed on the footing that the 14 said agreement of the year 1967 is not a genuine document. He submitted that the alleged signatures of the deceased on the disputed documents differ from the admitted signatures of the deceased. He disputed the case made out by the 4th defendant that the 4th defendant has secured consent of more that 70% of the slum dwellers. He submitted that a strong prima facie case is made out by the plaintiffs as admittedly they have one half share in the suit property and neither the plaintiffs nor their predecessor in title has conveyed the share by executing a registered document. 11. The learned senior counsel appearing for the 4th and 5th defendants submitted that from the year 1967 onwards, the deceased never paid any taxes or outgoings in respect of the suit property. Inviting my attention to the receipts relied upon by the said defendants he submitted that the receipt dated 12th October 1967 discloses that out of the sum of Rs.15,000/- a sum of Rs.10,000/- was paid by a cheque. He pointed out that a sum of Rs.28,800/- subject matter of receipt dated 28th December 1967 was also paid by a cheque. He stated particulars of the cheque such as the cheque number and the bank on which the cheque was drawn have been incorporated in the said receipts. He submitted that 15 this aspect itself proves that the receipts are genuine and the deceased has received the said amounts by cheque. He invited my attention to the bills of the municipal taxes issued by the Bombay Municipal Corporation and contended that the taxes were never paid by the deceased. He submitted that the plaintiffs have not adduced any evidence to show that from 1967 onwards any outgoings were paid by the deceased. He has placed reliance on the minutes of the meeting of the proposed co-operative society of the slum dwellers and agreements for development executed in favour of the 4th defendant. He submitted that the case made out by the plaintiffs that the 1st plaintiff has no knowledge of English and her knowledge is confined to signing in English is false. He submitted that the agreement of the year 1967 has not been challenged by the deceased during his life time. He, therefore, submitted that no case was made out for grant of any interim relief. 12. The learned senior counsel appearing for the plaintiffs pointed out that the minutes recorded in in the meeting of proposed society of the slum dwellers shows that at highest there was a consent of only 487 slum dwellers for the development of property by the 4th defendant. He pointed out that the tax bills issued by 16 the Municipal Corporation are in the names of the predecessors of the deceased and the 3rd defendant. He submitted that a clear case is made out for grant of interim relief. 13. I have given careful consideration to the submissions. It seems to be an admitted position that the deceased as the sole proprietor of M/s.Morinaga Traders and the 3rd defendants acquired the suit property by a Deed of Conveyance dated 18th May 1963. Reliance has been placed by the contesting defendants on agreement date 01st August 1967 allegedly executed by the deceased in favour of the said Mohammedali (the father of the 1st defendant). The purported agreement is an agreement for sale where agreed consideration recorded is Rs.50,000/-. It is recorded that sum of Rs.01,000/- was paid as earnest money. The agreement provides that the balance consideration shall be paid to the vendor on completion of the purchase as provided in the agreement and a sum of Rs.200/- will remain deposited till the property was transferred in the name of the purchaser in the records. It is true that the signature of the deceased on the said document has been disputed by the plaintiffs. Similarly, alleged signatures of the deceased on the three receipts dated 17 10th September 1967, 12th October 1967 and 20th December 1967 have been disputed by the plaintiffs. The receipt dated 10th September 1987 is of a cash amount of Rs.05,000/- against the agreement dated 01st August 1967. The receipt dated 12th October 1967 is in the sum of Rs.15,000/- out of which a sum of Rs.10,000/- has been purportedly paid by a cheque No.793450 drawn on Canara Bank. The last receipt is in the sum of Rs.28,800/- which is purportedly paid by cheque No.793459 drawn on Canara Bank. All the three receipts refer to the agreement dated 01st August 1967 and the fact that the amounts were paid against the said agreement. The receipts disclose that a total amount of Rs.38,800/- was paid to the deceased by the two cheques in the amounts of Rs.10,000/- and Rs.28,800/- respectively. Therefore, prima facie, it is very difficult to accept the case of the plaintiffs that the receipts are forged and fabricated. As pointed out earlier, the receipts specifically refer to the agreement dated 01st August 1967. 14. Even according to the case of the plaintiffs, the deceased Fakir Mohammed Sayani died on 26th December 1987. There is nothing in the annexures to the plaint and various affidavits on record to show that that any 18 taxes or outgoings were paid by the deceased in respect of suit property from the year 1967 onwards till his death. Copies of the income tax returns and/or wealth tax returns of the deceased or M/s.Moringana Traders of have not been placed on record. There is no document placed on record to show that after 1967 till his death on 20th December 1987, any rights were exercised by the deceased as the co-owner having one half undivided share in the suit property. The plaintiffs have not produced a single receipt showing payment of municipal taxes, revenue assessment or any other outgoings in respect of the suit property. Prima facie it appears to me that from 1967 onwards till his demise, the deceased never exercised his rights as a co-owner of the suit property. As pointed out earlier, the three receipts which are produced alongwith agreement of 01st August 1967 cannot be altogether discarded as the said receipts show that a sum of Rs.38,800/- was received by the deceased by two separate cheques. It is apparent that the deceased was alive for a period of more than 20 years from the date of execution of alleged agreement on 01st August 1967. There is no material on record to show that the deceased continued to claim that he was owner of one half share of the suit property. Moreover, there is no material on record to show that after the demise of the deceased in 19 the year 1987, the plaintiffs have paid any taxes or outgoings and have exercised any rights in respect of the suit property. 15. As against this the 4th defendant seems to have taken several steps on the basis of the development agreement and power of attorney. The suit property has been declared as a slum area in the year 1997. There is material on record to show that the two proposed co-operative housing societies formed by the slum dwellers have executed the development agreements in favour of the 4th defendant. There is prima facie material on record to show that the 4th defendant has obtained consent of large number of slum dewellers for redevelopment of the property. Whether