: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1153 OF 2009 IN SUIT NO.450 OF 2009 Dinshaw K. Jassawalla & Ors. .. Plaintiffs V/s. Porras Jassawalla & Ors. .. Defendants ..... Mr. D.D. Madon, Senior Counsel a/w. Cyrus Ardhesir, Levi Rubens & Ms. Manisha Virkhare i/by Vigil Juris or the plaintiffs. Mr. M.P. Vashi for defendant Nos.1 and 2. ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 24th AUGUST, 2009. P.C. : 1. This is an unfortunate litigation between the father, mother and the son. Plaintiff No.1 and 2 are husband and wife. Plaintiff No.3 is their daughter. Defendant No.1 is their son and the other defendants constitute the family member of the defendant No.1. 2. The suit is filed for possession of a flat / premises. 3. Mr. Madon, Senior Counsel appearing for the plaintiffs contended that so far as interim reliefs are concerned, they are for protecting the rights of plaintiff Nos.1 and : 2 : 2. Plaintiff No.3 is the married daughter who is residing with her husband elsewhere. 4. Inviting my attention to the plaint averments and the annexures thereto, it is urged by Mr. Madon learned Senior Counsel that the plaintiff Nos.1 and 2 have disinherited the 1st defendant son from any share in the suit premises. The defendant No.1 with his family are residing in a portion of the property. It is stated that the flat is admeasuring about 1740 sq. feet. It is stated that the property was purchased by plaintiff Nos.1 and 2 and was later on by a Gift Deed in favour of the 3rd plaintiff daughter, the right, title and interest in respect of suit flat is gifted to the plaintiff No.3. The deed of gift and the rectification deed are both registered. This is because an unpleasant decision was taken to dis-inherit the 1st defendant son. 6. Mr. Madon has invited my attention to the averments in the plaint and has stated that the reasons for the dispute between parents and the son have been set out. The police complaints have been all referred to so also the correspondence between advocates. It is urged that the son has gone to the extent of stating that there is an oral partition. However, during the lifetime of the parents, the son cannot claim any right, title or interest in the property. There has been no partition in as much as the : 3 : partition presupposes a right of the son. The parents have disinherited him for his conduct and abusive behavior towards them. That apart, despite the flat being occupied by them, it is not as if the plaintiffs have not provided the defendant of any means of livelihood. The business which was conducted exclusively by the plaintiff No.1 has been handed over to the son. In these circumstances, the suit had to be filed for possession and at this interim stage the plaintiffs are seeking reliefs in terms of prayer clause (a) of the notice of motion. Alternatively and without prejudice Mr. Madon submits that the plaintiffs are seeking reliefs against a son who has not been making contribution or paying sums towards maintenance and other charges. He is occupying the portion presently with his family without paying any sums. Mr. Madon submits that the plaintiffs have sought a relief for payment of Rs.5,000/- per day from the son on the basis that the plaintiffs cannot during the lifetime of the plaintiffs and when he is residing jointly in the parent's house with them, claim any legal right or character. He is residing simpliciter as a member of the family and, therefore, considering the law laid down by this Court in the case of Conrad Dias V/s. Joseph Dias reported in AIR, 1995 Bom.-210, interim relief be granted. 7. On the other hand, Mr. Vashi points out that the son is residing with his family in a small portion of 800 : 4 : sq.ft. There is no obstruction or hindrance of any nature from the son. There are separate entrances. It is not as if the plaintiffs are prevented from entering the flat. The defendant is carrying on business and it is not as if the plaintiffs can oust him straight away. The allegations of misbehavior are of 2006. The suit is filed in the year 2008. Now, virtually final reliefs are sought at this interim stage. The parent are seeking a decree against the defendants for possession. 8. The motion seeks relief of a mandatory nature. It is not as if mandatory orders cannot be granted at interlocutory stage. However, an order of Temporary injunction in a mandatory form, can always be made but there must be a strong prima-facie case made out for that purpose. In the affidavit in support of the notice of motion all that is relied upon is a notice dated 5th February, 2009 wherein it is stated that the stand of the son is false. The son was given time to vacate the premises but he has not vacated the same. The son is relying upon a false case of oral partition. The son's behavior and conduct is such that it is not possible for the parents to stay with him. On the other hand, the son has been stating very clearly that the suit is filed at the instance of the sister who has been given another flat in which his name appears in the record as a Nominee. The defendant No.1 is willing to withdraw or forgo his : 5 : nomination. Then reliance is placed by the son on affidavits of other family members who have not found anything objectionable in his conduct. Mr. Vashi relies upon the affidavit filed by defendant No.1 s uncle who is none other than the real brother of the plaintiff No.1. 9. Having gone through the entire material at this prima- facie stage, what I find from the record is that the suit is essentially based on the judgment of this Court in the case of Conrad Dias V/s. Joseph Dias reported in AIR, 1995 Bom.-210. case. What is apparent from the judgment of Conrad Dias V/s. Joseph Dias case is that it was directed against the judgment and decree in suit No.6487 of 1988 on the file of City Civil Court at Bombay dated 17th June, 1994. The judgment is rendered in a First Appeal directed against this judgment and decree. The plaint averments were that the plaintiff and defendant who are father and son were residing on 2nd floor of the suit premises. The plaintiff was working in Reserve Bank of India and on transfer, was forced to stay at Banglore. He has authorized his uncle to look after the suit property. The uncle was unwell and died in the year 1982. In 1992, the plaintiff gave power of attorney to the defendant to look after the maintenance of the property. The defendant was not maintaining the property but attempting to alienating and, therefore, the power of attorney was revoked. The relationship was strained and that is how the decree was : 6 : sought against the son by the father. 10. The son who was the appellant before this Court filed the written statement and raised several pleas including that of jurisdiction of this Court. He relied upon the fact that there is an understanding between father and son and that he is paying taxes of the suit property. Thereafter, he asserted that he is in possession in his own right. He raised the plea of adverse possession on the basis that the plaintiff is permanently residing in Banglore. Upon these pleas, issues were drawn, evidence led and the trial Court decreed the suit. The son s appeal was thereafter placed before this Court and all the findings that the learned Judge has rendered are on the basis that the evidence led by the father is convincing enough so as to oust the son from the premises. During the lifetime of the father the son cannot claim any rights in the property and that is how accepting the case of the father that the son s presence is a nuisance and harassment, that decree was upheld. 11. It is not as if these observations would have no bearing at the interlocutory stage. However, at this interlocutory stage when a temporary injunction in a mandatory form is claimed so as to oust the son from the premises, then, very strong prima-facie case must be made out. Reliance is placed only on what transpired in the : 7 : year 2006-07 so as to show strained the relationship. Beyond that and by stating that the son is not behaving properly, nothing is placed on record which would enable me to hold that the presence of the son in a portion of the premises is prima facie a continued source of nuisance. The son is residing with the parents in the same premises but there is a separate portion carved out for him. That portion is separated from the portion in possession of the parents. There are separate entrances. The entrances to the premises is not obstructed or interfered with. The dispute appears to be on account of the fact that the sister has been given this flat by the parents. The son is carrying on business and it is not as if he is not provided for. 12. In the above circumstances, while the son cannot claim the rights in the property during the lifetime of his parents, interest of justice would be sub-served if he is restrained from entering upon the portion in parent s possession and in any manner obstructing or interfering with their use of the said exclusive portion including their right to park vehicles and remove them from the premises / building. The son should occupy the premises which are earmarked in the sketch annexed to the plaint as occupied by him but he shall not in any manner induct any third party therein or part with possession thereof. No rights or interest can be created by him naturally being : 8 : the son and the property belonging to his parents, but to ensure that he does not part with possession of any portion of the premises, this order is passed. Further the son should pay to the parents a sum of Rs.5,000/- per month towards his share of maintenance of the property till such time as he occupies the portion carved out for him. The first payment shall be made by him on 10th September, 2009 and he shall continue to pay this sum on 10th of each month. Any two defaults would enable the parents to move for interim relief in terms of prayer clause (a) of the notice of motion. Further, the son should abide by all terms and conditions and any attempt on his part to obstruct or interfere with the parents possession would entail not only in his ouster from the premises but proceedings under Contempt of Court Act, 1971 would be initiated against him. Neither the payment nor the receipt confers any rights on the son in the property. If the son is parking any vehicle in the premises / building, he should park it in such a manner so as to not obstruct or interfere with the parking spaces meant for vehicles of the plaintiffs. With the above directions the notice of motion is disposed off. (S.C. DHARMADHIKARI, J.)