1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.72 OF 2010 IN SUIT NO.3241 OF 2009 Mohammed Yakub Haji Ahmed Behlim .. Plaintiff Vs. Abid Ali Abdul Sattar Behlim and Ors. .. Defendants Mr.A.J.Almeida i/b M/s.A.Bharat and Co. for the plaintiff Mr.A.P.Wachasunder i/b M/s.Meghraj and Associates for the defendant nos.1 to 6 Mr.A.A.Joshi with Ms.Sarika Mehra i/b L.J.Law for defendant no.8 Mr.N.P.Pandit, A.G.P. for defendant no.9 CORAM : S.C.Dharmadhikari, J. DATE : September 29, 2010 P.C. : 1. This notice of motion is filed for the following interim injunction: (a) Pending the hearing and final disposal of the suit, “ defendant no.8, their servants, agents and/or any person claiming under or through them be restrained by an order of injunction of this Hon ble Court from creating any third party ’ right or interest of whatsoever in nature in respect of the undivided half share purchased by the defendant no.8 under 2 the deed of conveyance dated 6th May, 2009, being Exhibit D ‘ ’ to the plaint and/or from changing the present status of the building and from accepting the surrender of tenancy / tenancies and / or from creating new tenancy / tenancies, from making any alteration and / or from damaging the suit property, the flats and the building on the suit property and from damaging the beams and / or column/s of the flats and the building on the suit property. (b) pending the hearing and final disposal of the above suit, the defendant no.9 be restrained by an Order of injunction of this Hon ble Court from entering the name of the defendant ’ no.7 and 8 and / or from making any change in the present Property Card in respect of the suit property. (c) Ad-interim and interim relief in terms of prayer clause (a) and (b) may kindly be granted.” 2. The plaintiff claims to be joint owner with his deceased brother Abdul Sattar Haji Ahmed Behlim of a property bearing plot No.648 admeasuring 529 sq.yards along with the building known as Rajasthan House and more “ ” particularly described in Exhibit 'A' to the plaint. 3. It is stated that the said Abdul Sattar Haji Ahmed Behlim expired on 12.4.68 3 in the State of Rajasthan leaving behind his wife and defendant nos.1 to 6 as his only heirs and representatives. Later on, the wife also expired. It is stated she expired in 2004. 4. Defendant no.7 is a private limited company incorporated under the Companies Act, 1956 carrying on business as a developer. It acquired the undivided half share of the plaintiffs brother. That share has been transferred to defendant no.8 and that is how the defendant no.8 has been impleaded and afore quoted interim relief claimed against defendant no.8. Defendant no.8 is a firm registered under the Indian Partnership Act, 1932 and is running Restaurant and Bar in the said property. 5. It is not necessary to refer to all the allegations with regard to acquisition of the suit property inasmuch as the conveyance, copy of which is enclosed at Exhibit 'B' to the plaint itself shows that the plaintiff s deceased brother ’ and the plaintiff are the joint purchasers of the suit property. The property was purchased in an auction and the conveyance describes the parties as tenants in common. It is common ground that in this conveyance there is no right reserved of Pre-emption and the property has been held right throughout as tenants in common or in any event as joint ownership. It is stated that there was a building under construction when the property was acquired and later on the construction was completed. The details thereof are set out in para 4 of the plaint and it is then contended that the plaintiff exclusively has been managing the property collecting rent, since 1957 so 4 also paying tax in relation thereto. It is stated that the plaintiffs and the deceased brother started an eating house business or Hotel in the suit property in 1957. It is stated that the license was obtained in joint names and there was no partition of the suit property. After the death of Abdul Sattar Haji Ahmed Behlim (brother) in 1968, defendant no.1 to 6 as his heirs applied for letters of administration in respect of undivided half share of the deceased in respect of the suit property and this court granted the said letter of administration. 6. It is stated that plaintiff and wife of the deceased brother had inducted one Mohammed Umer Abdul Ghafoor Khatri as conductor of Hotel business but the said Mohammed Umer Abdul Ghafoor Khatri permitted one Kartar Singh and Waman S. Nikam to conduct hotel without the permission of the plaintiff and widow of the brother. Therefore, a suit was filed in this court in which the application for interim injunction was moved and the court permitted the conductor to carry on business but on terms. 7. In the present suit, what the plaintiff is aggrieved by is that when defendant nos.1 to 6 are fully aware that plaintiff is joint owner of the property and has one half undivided share, right and interest therein, then, they could not negotiate for sale of the same with the defendant no.7, to the exclusion of the plaintiff. Therefore, the conveyance executed by defendant nos.1 to 6 in favour of defendant no.7 on 13.2.07 is not valid and binding upon him. 5 8. The plaintiff alleges that the defendant nos.1 to 7 further conveyed half portion of the suit property, which is undivided, in favour of defendant no.8 by deed of conveyance dt.6.5.09. 9. On the own showing of the plaintiff both these conveyances are duly registered. In relation to the letter of administration and a prior conveyance in favour of defendant no.7 what is alleged by the plaintiff is that he was not aware of the same until copy thereof was obtained by applying under the Right to Information Act, 2005. The plaintiff states that he has given a caution notice to the public saying that even if such a conveyance is executed that would not bind him because he holds title as a joint owner of the suit property. 10. It is on such pleadings that Mr.Almeida, the learned counsel appearing for the plaintiff would urge that there is a customary right of preemption which is traced to the Religion of the parties. The parties are governed by Mohammedan law. It is urged that it is the Muslims who have brought the concept of preemption in this country and therefore, the plaintiff is asserting that right. Assuming without admitting that such a right cannot be asserted, yet, as a joint owner of the suit property, the alienation by defendant no.1 to 6 and further by defendant no.7 does not bind the plaintiff to the extent of his share in the suit property. For all these reasons, this is a fit case for grant of interim reliefs or else there will be complications, if defendant no.8 alienates the property further. 6 11. On behalf of the contesting defendant no.8, Mr. Joshi submits that the suit is hopelessly time barred and he submits that if the plaintiff is asserting the right of pre-emption then, apart from it being a weak right, the period of limitation prescribed in law and particularly by Article 97 of the limitation act, 1963 is one year. The time begins to run in the circumstances set out in the Limitation Act itself. 12. In the present case, the conveyance is registered. According to the plaintiff, if the conveyance is registered, then, within one year from the date of registration, the suit to enforce the right should have been filed. In the instant case, the first conveyance is dt.13.2.07 is registered but the suit is filed on 17.11.09. Therefore, the claim is ex-facie time barred. It is then contended that in any event, the plaintiff has not chosen to challenge the conveyance between defendant no.1 to 6 and defendant no.7. Instead, he confirms that by a public notice dt.11.2.08. Therefore, if the challenge to the conveyance of 2007 is time barred or in any way belated then, the plaintiff cannot succeed against defendant no.8. In such circumstances, and when the plaintiff claims one half share in the property what the defendant nos. 1 to 6 have done is to transfer their half share in favour of defendant no.7 and 8, then, no interim relief be granted. Reliance is placed by both sides on some decisions of the Supreme Court with regard to the right of pre- emption. 7 13. With the assistance of the learned counsel appearing for the parties, I have perused the plaint and the annexures. I have also perused all the affidavits filed on record and the decisions brought to my notice. 14. Prima facie, the suit is filed for a declaration that the plaintiff has a right of pre-emption ins respect of the suit property but Mr.Joshi appearing on behalf of the defendant no.8 is right in contending that the plaint is silent about this right completely. The right has not been traced to any custom and setting out the details thereof. If it is customary right then it was incumbent upon the plaintiff to plead that custom as prevailing in Mohammedan / Muslim Community residing in this part of the country. Relying upon an abstract right of pre-emption in Muslims would not be of any assistance to the plaintiff. In the plaint, there is assertion of the right of the plaintiff as a joint owner. There is nothing in the conveyance dt. 24.8.56 nor is any custom pleaded based upon which a right of pre-emption can be claimed. In other words, the particular customary rights as prevailing is neither referred to nor its details are set out therefore prima facie the right of pre-emption is doubtful. 15. As far as challenge to the conveyance dt.13.2.07 is concerned, it is clear that the plaintiff and the deceased brother during their life time claim as joint owners of the property after the death of the deceased brother on 12.4.68. On the own showing of the plaintiff, he and widow gave a portion of the suit property and particularly shop no.2 and 3 on the ground floor wherein 8 Hotel business, namely, New Rajasthan Hotel was conducted on conducting basis by one Mr.Khatri. That Mr.Khatri inducted Kartar Singh and Waman S. Nikam to conduct the hotel without the consent and permission of the plaintiff and widow of the deceased. Therefore, the suit was filed to recover possession of the premises. 16. There is absolutely no complaint made when the plaintiff became aware of the fact that after the widow of the deceased expired in the 2004 that defendant no.1 to 6 were attempting to deal with the property. The plaintiff has remained silent and has allowed defendant no.1 to 6 to execute the conveyance dt.13.2.07 Annexure F to the plaint. The recitals of the said ‘ ’ conveyance show that the heirs have transferred their undivided right, title and interest in the suit property in favour of the defendant no.7 for a consideration of Rs.60 lacs. On repeated queries from the court as to how the plaintiff objected to this transfer, it is stated that barring issuing a public notice there was no correspondence or complaint. All throughout there are some pleas raised with regard to this conveyance. In para 12 of the plaint, there is no declaration claimed that it is null, void and not binding on the plaintiff. No relief of such nature is claimed even as far as conveyance dt. 6.5.09 is concerned. That also conveys one half share of the deceased to defendant no.8. If there is an allegation of wrongful collusion or fraud committed on the plaintiff and his rights as joint owner of the suit property are affected adversely, then the least that was expected was a declaration with regard to this conveyance. That relief is also not claimed far from 9 laying any foundation for the same. In fact in para 15 of the plaint what is stated is that the plaintiff was ready and willing to exercise the first option of purchasing the one half undivided share of the deceased brother. However, whether this right of first option flows from the joint conveyance dot.24.8.56 or otherwise is not clear from any of the averments in the plaint. Para 15 in fact is no pleading at all in that behalf. Para 16 of the plaint proceeds on the basis as if this is a suit for specific performance and therefore, damages in lieu of specific performance are claimed. 17. I have invited the attention of Mr.Almeida to the fact that there is no objection raised to the letters of administration issued by this court on the strength of which the further acts have taken place. If the defendant no.1 to 6 rely upon these letters of administration for transfer their undivided right, title and interest in the suit property and that at this stage, fact of plaintiff being joint owner means that he takes prompt and expeditious steps. He allows the alienation in favour of defendant no.7 to be carried further. Now, the position is that defendant no.1 to 6 have completely divested themselves of their half share which is undivided but that risk is taken not only by defendant no.7 but through him by defendant no.8 as well. In such circumstances, belated claim of the plaintiff on the basis of his alleged right of pre-emption or otherwise will dis entitle him from claiming any discretionary and equitable relief. 18. In such circumstances, there is no alternative but to dismiss this notice of 10 motion. It is accordingly dismissed but with a clarification that all dealings and transactions by defendant no.8 hereafter shall be subject to final orders and directions in the suit and it will not be possible for defendant no.8 to claim equities at that stage. At his risk defendant no.8 firm may deal with the property but subject to outcome of the suit. 19. In the view that I have taken it is not necessary to deal with the decisions cited save and except observing that in so far as the law of pre-emption and its origin in India is concerned and particularly according to Muslim law, there is no dispute or quarrel with that principle. Ultimately, it is the application of that right to the facts of each case that would be crucial and relevant. Therefore at this stage, it is not necessary to go into that aspect in any detail. Notice of Motion dismissed. No costs. ( S.C.Dharmadhikari, J. )