1 S.2027.2010.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2027 OF 2010 Shanta Balaji Babar, Hindu, Adult, aged 56 years, Room No.280, Tanaya Society, Sagar Nagar, Park Site, Vikhroli, Mumbai – 400 079. Plaintiff Versus 1. Shivani, Widow of Ganesh Babar, Hindu, Adult, aged about 31 years, 2. Puru Ganesh Babar, Aged 2 years, through her mother and natural guardian Shivani Ganesh Babar, residing at A/103, Bldg., No.69, Tilak Nagar, Tulsi Niwas C.H.S., Chembur, Mumbai – 400 089. Defendants Mr. S.K. Shukla for Plaintiff. Mr. Mahesh Menon for Defendants. Mrs. Shanta Balaji Babar, Plaintiff, present Mrs. Shivani Ganesh Babar, Defendant No.1, present CORAM : S.J. KATHAWALLA, J. DATE : 10th January 2011 PC :- 1. The Suit as filed by the Plaintiff is for a decree of declaration in favour of the Plaintiff, declaring that the Plaintiff is entitled to 1/3rd share of the movable and immovable properties of the deceased Late Mr. Ganesh Balaji Babar and that this Court may direct the Defendants to give the Plaintiffs 1/3rd share in the properties of the deceased to the Plaintiff. The Plaintiff is the mother of the deceased, the Defendant No.1 is the widow of the deceased and the Defendant No.2 is the minor daughter of the deceased. 2 S.2027.2010.doc 2. The parties to the Suit have arrived at a compromise by filing Consent Terms dated 5th January, 2011, the original of which is marked (X) for identification. A joint Petition dated 10th January, 2011, is taken out by the Plaintiff and the Defendant No.1 seeking leave of this Court to allow the Plaintiff to enter into a compromise with the Defendant No.1 for self and on behalf of her minor child (Defendant No.2) in terms of the Consent Terms. The Defendant No.1 has filed two Affidavits both dated 10th January, 2011, in support of appointment of the Defendant No.1 as the guardian of the minor, Defendant No.2 and seeking leave of this Court. 3. Under Clause 2 of the said Consent Terms, the parties to the Suit have declared that late Mr. Ganesh Balaji Babar was a Hindu by religion and therefore his estate is governed by the provisions of Hindu Succession Act, 1955 (as amended) and that as per the said Act, the parties hereto, i.e., Plaintiff, 1st Defendant and the 2nd Defendant being his mother, widow and daughter respectively, are the only heirs and legal representatives and therefore entitled to 1/3rd (one-third) share of his entire estate. 4. Under Clause 3 of the said Consent Terms, the Defendants have forfeited and relinquished in favour of Plaintiff all the Defendants' right, title and interest in respect of the property viz. Plot No.10, admeasuring 234.51 square meters being part of Survey No. 180/6 situated at Harsool Taluka, District Aurangabad, Maharashtra and bounded as under: On East : 12 Meter Road On West : Plot No. 9 On North : Survey No. 18/P On South : 15 meter D.P. Road. (hereinafter referred to as “Aurangabad Property”) 5. Under Clause 4 of the said Consent Terms, the Plaintiff has stated that the Plaintiff is having knowledge that, her son-in-law, namely, Mr. Pradeep Gawli, is presently occupying/residing in the Aurangabad property by doing construction at his own costs and it is mutually agreed by the parties to the 3 S.2027.2010.doc Consent Terms that, it shall be sole responsibility of the Plaintiff to handle all the affairs, issues, litigations, etc., in respect of the Aurangabad property with Mr. Pradeep Gawli and the Defendants herein shall not have any liability or responsibility of whatsoever nature to clear the same, from the date of the Consent Terms. The Plaintiff has agreed to indemnify and keep indemnified the Defendants against all expenses which the Defendants may have incur on account of any claims, demands, etc., (relating to past, present and future) that may arise in respect of the Aurangabad Property. 6. Under Clause 5 of the said Consent Terms, the Defendants have confirmed that with effect from the date of the Consent Terms, the Defendants will have no right, title or interest of whatsoever nature in respect of the Aurangabad Property or any part thereof and that the Plaintiff shall bear and pay the liabilities, (past, present and future) in respect of the Aurangabad Property and shall not claim any part thereof from the Defendants at any time. 7. Under Clause 6 of the said Consent Terms, the Plaintiff has forfeited and relinquished in favour of the Defendants all the Plaintiff’s right, title and interest in respect of the residential flat viz., Flat No.A/103, admeasuring 850 square feet or thereabout in “A” Wing of Building No.69, Tulsi Niwas, Chembur, Mumbai -400 089, (hereinafter referred to as the “Tulsi Niwas flat”). The Plaintiff has confirmed that the Defendants are in quiet, vacant, peaceful and physical possession of the Tulsi Niwas flat and every part thereof. The Plaintiff has confirmed that with effect from the date of the Consent Terms, the Plaintiff will have no right, title or interest of whatsoever nature in respect of the Tulsi Niwas flat or any part thereof. The Defendants have also agreed to bear and pay the liabilities, (past, present and future) in respect of the Tulsi Niwas flat and not claim any part thereof from the Plaintiff at any time. 8. Under Clause 7 of the said Consent Terms, the Plaintiff has forfeited and relinquished in favour of the Defendants all the Plaintiff’s right, title and interest in respect of residential flat, viz., the Flat No.A/503 in building No.86 admeasuring 319 square feet or thereabout in Navrang Co-operative Housing 4 S.2027.2010.doc Society Limited, Road No.13, Tilak Nagar, Chembur, Mumbai -400 089, (hereinafter referred to as the “Navrang flat”). The Plaintiff has confirmed that the Defendants are in quiet, vacant, peaceful and physical possession of the Navrang flat and every part thereof. The Plaintiff has confirmed that with effect from the date of the Consent Terms, the Plaintiff will have no right, title or interest of whatsoever nature in respect of the Navrang flat or any part thereof. The Defendants has agreed to bear and pay the liabilities, (past, present and future) in respect of the Navrang flat and shall not claim any part thereof from the Plaintiff at any time. 9. Under Clause 8 of the said Consent Terms, the Plaintiff has forfeited and relinquished in favour of Defendants, all the Plaintiff’s right, title and interest in respect of the Office premises, viz., office premises No.510, 5th Floor, Damji Shamji Trade Centre, Kirol Road, Near Vidyavihar Bus Depot, Vidyavihar (West), Mumbai-400 086, (hereinafter referred to as “Vidyavihar office premises”). The Plaintiff has confirmed that the Defendants are in quiet, vacant, peaceful and physical possession of the Vidyavihar office premises and every part thereof. 10. Under Clause 9 of the said Consent Terms, the Plaintiff has confirmed that the Plaintiff has no right, title and interest in respect of two motor vehicles, viz. :- i) Honda City bearing Registration No. MH-03-BG-1000 and ii) Maruti WagonR bearing Registration No.MH-03-AM-5951 both standing in the name of Defendant No.1. 11. Under Clause 10 of the said Consent Terms, the Plaintiff has forfeited and relinquished in favour of Defendants all the Plaintiff’s right, title and interest in respect of the any bank balance, shares or investments or any other immovable, movable property standing in name of Late Mr. Ganesh Balaji Babar. The Plaintiff has forfeited and relinquished in favour of Defendants, all the Plaintiff”s right, in respect of M/s. SGE Projects Private Limited. 5 S.2027.2010.doc 12. Under Clause 11 of the said Consent Terms, the Plaintiff has undertaken and declared that, from the date of the Consent Terms, the Plaintiff, neither her successors nor any person claiming on her behalf shall have right, title or interest of whatsoever nature in the above immovable and movable properties including properties, as mentioned in Clauses No.5, 6, 7, 8 and 9 of the Consent Terms and the Plaintiff has given her consent for transferring the respective properties in the name of the Defendants, exclusively without any consent or permission of the Plaintiff in writing. The Plaintiff has further agreed not to create any sort of disturbance or interference in the said properties and valuables in which the Plaintiff has relinquished her share in favour of the Defendants, from the date of the Consent Terms. It is further agreed by the Plaintiff that, from the date of the Consent Terms the Defendants shall be exclusive & lawful owner in possession of the respective properties in which the Plaintiff has relinquished her rights/share as mentioned above and will have legal right to enjoy the same on ownership basis. The Plaintiff has agreed and confirmed that the Defendants shall be entitled to continue all businesses of Late Mr. Ganesh Balaji Babar and the Plaintiff or any person claiming through the Plaintiff shall have no claim of whatsoever nature, in respect thereof, at any time in future. 13. Under Clause 12 of the said Consent Terms, the parties to the Suit have agreed and undertaken to execute all necessary papers and documents in order to give effect to the clauses stated hereinabove. 14. Under Clause 13 of the said Consent Terms, the Defendants agree to withdraw Regular Civil Suit being Regular Civil Suit No.128 of 2010, filed before the Court of Civil Judge (Senior Division) Aurangabad and also to withdraw the Writ Petition No.2017 of 2010, filed in the High Court of Judicature at Mumbai (Aurangabad Bench), Maharashtra, within 30 (thirty) days from the date of filing of the Consent Terms. 6 S.2027.2010.doc 15. Under Clause 14 of the said Consent Terms, the Plaintiff has agreed and undertaken to withdraw Partition Suit, being Suit No.116 of 2010, filed by the Plaintiff before the Court of Civil Judge (Junior Division), Aurangabad, within 30 (thirty) days from date of filing of the Consent Terms. 16. Under Clause 15 of the said Consent Terms, the parties to the Suit have declared and confirmed that the deceased, Late Mr. Ganesh Balaji Babar, did not own any other properties, apart from those mentioned in the Consent Terms. The parties to the Suit have confirmed that apart from their respective entitlements under the Consent Terms, either parties have no claim of whatsoever nature against each other, on any account whatsoever. 17. Under Clause 16 of the Consent Terms the parties declare that before the filing of the Consent Terms, the parties hereto have not executed any papers and documents which affect their respective rights in the properties referred to hereinabove, in favour of any other person/s. 18. The Learned Advocate for the Defendants has also issued a certificate dated 10th January, 2011, provided under Order XXXII Rule 7 (1A) of the Civil Procedure Code, 1908, wherein he has certified that the compromise between the Plaintiff and the Defendant No.1 for self and for her minor child is in his opinion for the benefit of the minor. The said certificate is hereby marked (Y) for identification. 19. In view thereof I pass the following Order :- (a) All undertakings given by the Plaintiff and the Defendant No.1 are accepted by the Court. Leave is granted to the Plaintiff to enter into a compromise with the Defendant No.1 for the minor child of the Defendant No.1 i.e. Defendant No.2, in terms of Consent Terms dated 5th January, 2011, subject to the following :- 7 S.2027.2010.doc (i) The Defendant No.1 shall not part with possession or create any third party rights, in respect of the minor’s share in the properties mentioned in Clause Nos.5 to 9 of the Consent Terms, until the minor, i.e., Defendant No.2, completes the age of 21 years otherwise by obtaining prior permission of the Court. As regards the vehicles mentioned in Clause 9 of the Consent Terms, the Defendant No.1 may dispose of the same provided however, 50% (Fifty per cent) of the proceeds thereof shall be invested in the name of the minor, Defendant No.2, till she completes the age of 21 years; (ii) It is clarified that the Defendant No.1 shall be entitled to sell, transfer or otherwise dispose off properties in the business of SGE Projects Private Limited, as a director thereof in the usual course of business, without requiring to obtain leave of this Court in that respect. (iii) It is further clarified that there is no necessity for the Defendant No.1 to give notice of any application that may be made by the Defendant No.1 to this Court, pursuant to filing of the Consent Terms or to obtain consent of the plaintiff as regards any steps taken by the defendant no.1 for implementation of the consent terms; 20. The Plaintiff shall be entitled to refund of Court fees as per rules. 21. The Suit is disposed of accordingly. (S.J.KATHAWALLA, J.)