- 1 - 19.nms.458.10 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.458 OF 2010 IN SUIT NO. 411 OF 2010 Smt.Bhagawanti Sajan Manghnani ..Plaintiff -Versus- Smt.Kamala Jethanand Gehani & Ors. ..Defendants .......... Mr.Pravin Samdani, Senior Counsel a/w. Mr.Chirag Balsara, Mr.Jayesh Vyas i/b Divya Shah Associates for the Plaintiff. Mr.D.D.Madon, Senior Counsel a/w. Mr.Md.Waquar, Ahmed i/b Law Charter for Defendant Nos.1 to 5. Mr.Snehal Shah a/w. Mr.Rajesh Talekar i/b M/s.K.Ashar & Co. for Defendant No.7. .......... CORAM : S.J. VAZIFDAR, J. DATE : 17TH AUGUST 2011. P.C. 1 The suit is filed for a declaration that the plaintiff has an undivided 10% share in the suit property namely office premise admeasuring about 3600 sq.mtrs. The property initially belonged to a firm which was dissolved on 1st May 1979 and the partners entered into an agreement of co- ownership in respect of the suit property. Under this agreement, the plaintiff had a 10% share in the suit property. - 2 - 19.nms.458.10 2 According to defendant nos.1 to 6, the plaintiff executed a gift deed dated 4th September 2003 by which the plaintiff inter alia gifted her share in the property to the second defendant- Trust. The third defendant however admits that the plaintiff retained to herself the right to the income from the property to the extent and in respect of her 10% share in the property. The plaintiff’s case is that the gift deed was executed under coercion and undue influence and is therefore void. The plaintiff further alleges that it was agreed between the parties that the gift deed was not to be acted upon. 3 It is not necessary to consider the rival contentions regarding the validity of the gift deed at this stage. Suffice it to state that the matter requires further consideration. This is especially in view of the fact that the alleged gift deed was not registered and a subsequent leave and licence agreement referred to the plaintiff’s 10% share in the property. The supplementary agreement extending the leave and licence agreement entered into two years thereafter also recorded the same. Further the plaintiff was not only a party to the leave and licence agreement and the supplementary agreement but also executed the same. - 3 - 19.nms.458.10 4 The defendants alleged that this was done inadvertently. It is difficult at this stage to express any final view in this regard without further evidence. 5 The interests of all the parties requires protection. No purpose would be served by keeping the property vacant. At present, a leave and licence agreement exists in favour of defendant no.7 – the Axis Bank. The agreement is due to expire in the year March 2014. It is also desirable that the property is exploited to the benefit of all the parties pending the hearing and final disposal of the suit. In view of the stand taken by the concerned defendants themselves, there is no warrant for prohibiting the plaintiff from withdrawing her 10% share unconditionally. 6 In the circumstances, the Notice of Motion is disposed of by the following order : (i) Defendant No.7 and every subsequent licensee, if any, shall pay over directly to the plaintiff 10% of the net licence fee, payable. (ii) The plaintiff and the other co-owners shall be liable to pay their proportionate shares that may be payable in respect of the compensation to any authorities or any third parties including and in respect of taxes and dues of the society. - 4 - 19.nms.458.10 (iii) The defendant nos.1 to 6 shall be entitled to execute future leave and licence agreements future but only pursuant to the authority conferred upon them by this order and without prejudice to the rights and contentions of the plaintiff in respect of the suit property. (iv) Defendant Nos. 1 to 6 shall finalize the leave and licence agreement only in favour of the party that offers the best terms and conditions. The plaintiff shall be at liberty to bring offers in this regard. The plaintiff shall however, bring the offers at least two weeks before the expiry of any leave and licence agreement. However, in the event of a leave and licence agreement being terminated earlier than the scheduled date, defendant nos.1 to 6 shall not finalize a fresh leave and licence agreement until the expiry of four weeks after written notice of the earlier termination, is served upon the plaintiff’s advocate. (v) The defendants shall not dispose of, alienate, encumber part with possession of or create any third party rights in the property limited to the extent of 10% therein, without the leave of the Court. (vi) The plaintiff shall be entitled to withdraw the amounts deposited by defendant no.7 in her account maintained by defendant no.7 forthwith but without prejudice to all her rights and contentions. -