1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.2385 of 2007 IN Suit No.1664 of 2007 Smt.Raymathbi Sabirali Kadri. .. ..Plaintiff v/s. Shri Shaukat Dawood Rakhangi. .. ..Defendant Mr.Inder Prakash Tripathi i/by Mr.C.K.Tripathi for plaintiff. Mr.S.S.Kudalkar for defendant. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 28 th March 2008 P.C. : 1. The parties are brother and sister. The plaintiff, who is the sister of the defendant, has sued the defendant for specific performance of the document titled “Sale Deed”. The document is in respect of a small structure of ground floor at P.W.D. Vasahat, G.M. Bhosale Road, Worli, Mumbai 400 018 (suit premises). The plaintiff claims to have purchased the suit premises from the defendant. The plaintiff claims to have paid Rs.1,25,000 /- and Rs.1,13,000/- out of the total agreed consideration of Rs.3,50,000/- for the purchase of the suit premises. 2. The plaintiff produced the original document in court. The 2 document shows two signatures at the foot of each page of the document from pages 1 to 6. Page 7, which has the execution clause, is signed only by the plaintiff. It is not shown to have been signed by the defendant. Nevertheless, it is notarized on 4.6.2004. 3. The receipt clause of the document, which is on page 8, shows receipt of a sum of Rs.1,25,000/- paid at the time of the execution of the document and a further sum of Rs.1,13,000 /- paid earlier. It further shows the balance amount of Rs.1,12,000 /- , payable by the plaintiff to the defendant. 4. It is the case of the plaintiff that after receipt of the part consideration, the defendant, her brother, backed out. Hence, she has sued him for specific performance and other ancillary reliefs. 5. The execution of the document is denied. The Advocate for the defendant drew the court's attention to the execution clause, which indeed does not show the signature of the defendant, though the execution clause shows the signatures of the two witnesses and the notarization appears on the same page. The plaintiff's Advocate contended that this is despite the fact that the defendant has signed at the 3 foot of every other page of the document and then took the document for notarization and returned it to the plaintiff, leaving the execution clause blank. The plaintiff being illiterate could not understand the purport of the notarization and the execution clause. This case is not a specific case of the plaintiff in this Suit. 6. However, the receipt of the amount paid under the receipt clause shows the signature of the person receiving the amount and which bears the name of the defendant. This shows the receipt of the amount. The receipt is admitted. 7. It is contended by the defendant that this was received by him from his sister when his premises was demolished in 2004. When precisely the premises was demolished is not shown. The defendant has produced three scanned photographs, showing his premises. The plaintiff has also produced one photograph of the suit premises. The premises is identified by both the parties and is seen in the photographs produced by them. The premises is shown to be a ground floor structure. 8. It is contended on behalf of the plaintiff that the defendant wanted to put up a loft and did not want to put the plaintiff into possession of the structure after he sold it to her. The 4 demolition shows only the loft being demolished. The ground floor structure is not demolished. The structure duly identified by the parties for which the consideration is received by the defendant is, therefore, seen. This is an intrinsic evidence which would be considered at the time when the Suit reaches hearing. In the meantime, the rights of the plaintiff in the suit property require to be protected. 9. It is contended on behalf of the defendant that he has been granted damages for illegal demolition of his premises and hence, he be allowed to reconstruct his premises. The affidavit- in-reply does not show any such fact. No additional affidavit has been filed. The court called upon the defendant to show the order of the grant of damages or an order allowing reconstruction to the defendant. The defendant produced certain papers before his Advocate but has been unable to show this fact. Hence, the following order:- O R D E R (i)The defendant shall not dispose of, alienate, encumber, transfer, part with possession or create any third party right in the suit premises which is the ground floor structure shown in the photographs of the plaintiff as well as the defendant tendered to the court. 5 (ii)The defendant shall not carry out any additions or alternations within the suit premises or by way of putting up any loft on the mezzanine floor, during the pendency of the suit. 10. Three scanned photographs signed by the defendant's Advocate and one photograph signed by the plaintiff's Advocate, identifying the suit premises by respective parties are taken on record. 11. The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)