1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.166 OF 2007 IN SUIT NO.762 OF 2007 MUKESH V PANJWANI ..PLAINTIFF VS. PHILOMENA D'SILVA & ORS. ..DEFENDANTS Mr.Shailesh Shah with Ms Maya Sarkar i/b M.Munim & Co. for the Plaintiff. Mr. I.S.Bhagaria i/b M.P.Mhatre for Defendant No.13 Mr. Shashikumar Pandey for Defendants No.1 to 12 CORAM: SMT ROSHAN DALVI, J. DATED: 10th February, 2009 P.C.: 1.The Plaintiff has sued under two Memoranda of Understanding (MOU) executed by and between the Plaintiff and Defendants No.1 to 4 & Defendants No.5 to 11. Defendants No.5 to 11 are the heirs and legal representatives of two children of one Ursula D' silva. The other heirs of John D'silva were one Peter, Mary & Lessie. John D'silva was admittedly the owner of the suit property under CTS 2 No.1061. The property had one cottage called West Sea View and open land. Upon the death of John D'silva the property register card showed the names of his heirs and legal representatives. These were his wife Mary Simplicia, his son Peter and his daughters Mary and Lessie. The name of Ursula D' silva does not find any place in the extract of the property register card produced by the Plaintiff from public records. 2.This extract has been obtained in 1998. The Plaintiff claims through Ursula D' silva. Ursula D' silva had two children Cedrick and Odwil, Defendant No.1 to 11 are their children. 3.If Ursula D' silva is not shown as one of the heirs and legal representative of John D' silva in the property register card by inheritance her children cannot claim a share in such property. Consequently her children's children cannot claim such share and consequently the Plaintiff who claims through them cannot have any right or interest in the suit property. 4.It is interesting to note that the Defendant No.12 has relied upon a note signed by Ursula D'silva dated 09.11.1930, stating that she had received from her father Rs.2000 in cash and hence she declared that her heirs have no further interest or claim against him or his estate, both moveable and immoveable. This is a note executed more than 30 years 3 prior to the filing of the suit. The original note has been produced in court. It is on brown full scape double sheet lined paper which is cut into half. It is unmistakebly a genuine old original document. 5.Once it is seen that Ursula D'silva had given up her right, title and interest in the suit property which was a property initially of her father John D'silva her name could not and did not appear in the property register card. 6.It is the case of the Defendants that Peter D'silva has full interest in the suit property and he gifted the suit property to his wife Violet Mary who in turn executed a Will in favour of Defendant No.12 and one Nelson, her cousin and who in turn sold the property to Defendant No.13. The Plaintiff claims that Defendant No.13 cannot have any interest in the suit property until the Will of Violet Mary is probated. We are not concerned with the Will of Violate Mary because the Plaintiff claims only through children of Ursula D' silva whose title has to be seen. That having not been shown the Plaintiff''s claim cannot sustain. 7.Besides Defendant No.13 has shown that the Plaintiff had knowledge about the full title of Peter since 1997. The Plaintiff was given a right of way from one end of the suit property into the adjoining land belonging to John's brother 4 Joseph. This Right of way is dated 26.11.1997 granted by Peter. The said document is registered under No.3822 alongwith a declaration of Peter executed on the same day and registered under No.3833. The Right of way document shows a Gift Deed dated 23.10.1996 executed by Peter in favour of his wife Violet Mary reflecting the full interest of Peter in the said property which came to be vested in Mary who bequeathed the same to Defendant No.12. 8. Two MOUs in this suit executed by the Plaintiff initially with Odwil and the heirs of Cedric are therefore in respect of right, title and interest that the Vendors did not have. The Plaintiff therefore gets none. Hence the Plaintiff cannot restrain Defendant No.12 and Defendant No.13 from dealing with selling or transferring the suit property. Consequently the Notice of Motion is dismissed. No order as to costs. 9.Ad-interim order dated 22.10.2008 shall continue for two weeks. (Roshan Dalvi, J)