1 nms2463-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2463 OF 2009 IN SUIT NO.1717 OF 2009 Smt.Chaudhary Shehnaz Abdullah and Anr. .. Plaintiffs Vs. Chaudhary Abdul Majid Shahadat and Ors. .. Defendants Mr.M.V.Holamagi for the plaintiff Mr.D.D.Madon, Sr.Advocate a/w Mr.Z.A.Zariwala i/b M/s.Thakore Jariwala and Associates for defendant no.1 Mr.S.R.Saudagar for defendant no.3 Mr.Virag Tulzapurkar, Sr.Advocate a/w Mr.Simil Purohit, Mr.Dhawal Mehta and Ms.Jasmine Sheth i/b M/s.Wadia Ghandy and Co. for defendant no.8 Mr.Rajendra Bhandari for defendant no.2 CORAM : S.C.Dharmadhikari, J. DATE : December 8, 2010 P.C. : 1. By this Notice of Motion, the plaintiff is seeking interim relief of appointment of Court Receiver and Interim Injunction. 2. The matter was placed before me on earlier occasion at which point of time, request was made by defendants advocate that the motion has yet ’ not been disposed of, the Ad interim order dt.30.07.09 has been operative till date which causes prejudice to them. It is in such circumstances and giving final opportunity to Mr.Holamagi, learned counsel appearing on behalf of the 2 nms2463-09 plaintiffs to file affidavit in rejoinder and to make oral submissions, the matter was stood over on two occasions. 3. Mr.Holamagi, thereafter filed the affidavits purportedly to deal with the allegations and statements in the affidavit in reply and reiterate the statements and allegations in the plaint. After all affidavits were filed, the matter was heard and reserved for orders till today. 4. The suit is filed by the plaintiff Shehnaz Abdullah Chaudhary and Baby Ayesha Abdullah Chaudhary claiming as heirs and legal representatives of late Chaudhary Abdullah Shahadat for an order and decree that they have a share in the property of the deceased and they are entitled to the same and therefore, this court should pass appropriate orders and directions. 5. Interim reliefs are sought in furtherance of the aforementioned final reliefs. The plaintiff no.1 states that she is wife of late Abdullah Shahadat Chaudhary (deceased Shahadat) and plaintiff no.2 is the minor daughter of the deceased. The plaintiffs proceed to state that late Abdullah Shahadat Chaudhary acquired various properties in Bombay and the same are listed at Annexure A to the plaint. ‘ ’ 6. Mr.Holamagi states that as far as property mentioned as firstly, secondly, thirdly, fourthly are concerned, that is a huge plot of land and presently, being developed by defendant no.8. As far as item no.2 at page no.38 of the 3 nms2463-09 plaint paper book is concerned, that shop is in possession of defendant no.1. Item no.3 is in possession of defendant no.3. There is a flat at item no.4 which is in possession of defendant no.2 and 3. The shop at item no.5 is in possession of defendant no.2 and similarly, the land at Karjat at item no.6 is in possession of defendant no.2. Mr.Holamagi invited my attention to the allegations in the plaint and submitted that the family tree shows that under principles of Mahommedan Law, distribution of shares is in terms of section 137 to 139 and he submits that it cannot be disputed that the plaintiffs husband who was the elder son and joint owner of Late Shri Shahadat Hasmullah Chaudhary is entitled to the family property. He submits that Shahadat expired on 16.03.1994. The plaintiff no.1 married Late Abdullah Shahadat Chaudhary on 20.07.2003 in accordance with Muslim religious rights and Nikkah was registered. From this marriage, a daughter was born who is plaintiff no.2 and she was born on 29.10.05. Presently, she is aged about 4 years and more. She is a minor daughter and is presently looked after by the plaintiff no.1. Mr.Holamagi submits that today the plaintiff and defendant nos.1 to 7 are the joint owners and entitled to all the rights in the property. Mr.Holamagi submits that it is not as if the plaintiff alone wants to claim the share but benefit can be given to the other defendants who are entitled to a share in the property of the late Abdullah Shahadat Chaudhary. However, a valuable property has been allowed to be taken away by the builders and despite protective orders in suit no.4007 of 2002, ultimately, the builder has put up construction which is substantial. Once such substantial construction has been made and the 4 nms2463-09 builder is propounding a document extending benefits to persons as per the shares of the branches named therein, there is no reason why the plaintiff should be deprived of a share or benefits in the development. 7. Further, valuable shop premises are being used by other defendants exclusively. Mr.Holamagi, invites my attention to the fact that Suit Nos.4007 of 2002, 1960 of 2004 and 1961 of 2004 are pending in this court in which both plaintiff and defendants are parties. However, present suit is required to be filed because there is no guarantee and assurance that the other defendants would protect the entitlement of the plaintiff. Mr.Holamagi has invited my attention to para nos.13 to 15 of the plaint and has submitted that a prima facie case has been made out. The Balance of convenience is also in favour of the plaintiffs and irreparable harm and injury would be caused to them incase this court does not grant interim relief in terms of the prayers of the Notice of Motion. 8. This Notice of Motion is opposed by the defendant no.1 who has filed an affidavit in reply. It is pointed out in his affidavit that the suit is for administration of the estate of the deceased. In fact it is for the administration of the estate of the deceased Shahadat who expired in 1994. Suit is filed in the year 2009 and it is hopelessly time barred. Such a claim is exfacie untenable and no interim relief can be granted. 9. Reliance is placed upon a decision of this court reported in 2008 (4) ALL 5 nms2463-09 MR 339 in the case of Kobad Rustomji Noble Vs. Miss. Nelly Rustomji Noble. Thereafter, it is contended that the defendant no.1 is not aware of the marriage performed by Abdullah Shahadat Chaudhary with the plaintiff no.1 and that from the said marriage a daughter was born, namely, plaintiff no.2. It is stated that Shahadat Hasmulla Chaudhary had an approx. 16% undivided share, right, title and interest in the property which is at Chakala, Andheri and during his life time that property has been given to defendant no.8. As far as item no.2 is concerned, this is what is stated in pages 18 and 19 of the affidavit in reply. 18. With reference to paragraph 14 of the plaint, it is denied “ that the plaintiffs are left with no means to survive as alleged. It is denied that they are left to starve and are not able to maintain themselves as alleged. The plaintiff have not deliberately included the flat situate at Sheriar Baug Building, B-Block, 2nd Floor, Flat No.5, Ramchandra Bhatt Marg, Mumbai 400 109 admeasuring over 1000 sq.feet on the list of properties belonging to the late Shri Shahadat Hasmullah Chaudhary. The plaintiffs are presently in possession of the said flat and I am being deprived of my share, use, occupation and possession thereof. I submit and pray that Court Receiver High Court, Bombay be appointed as the Receiver of the said flat at Sheriar Baug which belongs to estate of late Shahadat Hasmullah Chaudhary as well as the flat listed in items 3 and 4 of the Schedule Exhibit A to the plaint. ‘ ’ 19. It is denied that the plaintiff no.1 is a restricted and parada Nasheen as alleged. It is denied that the family 6 nms2463-09 properties are huge as alleged or at all. It is denied that the plaintiffs are entitled to any maintenance from out of any of the property listed in Exhibit A to the plaint. It is denied ‘ ’ that the survival has become impossible for the plaintiffs as alleged. It is denied that there is no means whatsoever for the plaintiffs as alleged.” 10. Thereafter, when Mr.Holamagi relied upon Annexure C to the plaint, and ‘ ’ the affidavit in reply wherein defendant no.1 has stated that the business of A.S.Steel Corporation belongs to defendant no.2 and defendant no.2 and his family members are partners therein. It is then stated that Haji Shaukat and Sons is also a partnership firm but it does not belong to any of the parties to the suit. A.M.Steel Enterprises is also not an entity belonging to any of the parties to the suit. Same is the position with regard to M/s.Rahimtulla & Bros. Defendant no.1 states that there is no such firm as Maaz Steels. There is a firm named as M/s.Maaz Exports which has been established in the year 1996 as sole proprietory concern of defendant no.1. M/s.Dew Steels is a sole proprietory firm of Shabnam Abdul Majid Chaudhary, wife of defendant no.1 and Preeti Exports equally is also a firm where defendant no.1 and his wife are partners. 11. It is stated that the Suit No.4007 of 2002 had to be filed because late Abdullah Shahadat Chaudhary mismanaged and colluded with defendant no. 8 and entered into documents without any authority attempting to dispose of the property. This is the stand taken in his affidavit of 11.10.10. There 7 nms2463-09 is another affidavit which has been filed by defendant no.1 in which allegations have been made that the plaintiffs have illegally and unauthorizedly sold and disposed off large plots of land situated at Village Parsa Imad and Village Rewa, District Sidhharth Nagar, U.P. which belongs to late Abdullah Shahadat Chaudhary and/or members of the family of late Abdullah Shahadat Chaudhary including defendant no.1. The plaintiffs have disposed off lands in the said village standing in the name of late Abdullah Shahadat Chaudhary as well. In respect of the transactions entered into by the plaintiffs, they have received large amount of money amounting to almost Rs.1,00,00,000/- is the allegation in the affidavit. It is stated that there are several bank accounts of late Abdullah Shahadat Chaudhary which have not been disclosed. 12. As far as defendant no.2 is concerned, an affidavit in reply has been filed and it is stated that the marriage between plaintiff no.1 and late Abdullah Shahadat Chaudhary is denied. It is stated that late Shahadat Hasmullah Chaudhary was having various properties in Mumbai and his native place at Sidharth Nagar, Uttar Pradesh. List of the properties belonging to Late Shahadat have been set out in the affidavit filed by defendant no.2 and it is stated that Late Shahadat had orally partitioned the properties mentioned in para 3 of this affidavit prior to his death in 1994 and that is how the properties are in possession of the respective defendants. 13. It is stated that the property at Serial No.6 of Exhibit-A of the plaint is a 8 nms2463-09 land at Karjat, Dist.Raigad. That was purchased by defendant no.6 from Mr.Yeshwant Krish Roundare by registered sale deed dated 9.01.01 and it is the self acquired property by defendant no.2. It is stated that the flat no. 201-A at Rajput Villa Co-op.Housing Society Ltd. was purchased in the name of the deceased mother and she expired on 28.09.2007 leaving behind defendant no.2 Chaudhary Mohd.Farooq Shahadat and Illiyas Shahadat Chaudhary. His mother executed gift deed on 26.12.06 in favour of the defendant no.2 and a suit being suit no.1437 of 2007 has been filed by defendant no.2 against Illiyas Shahadat Chaudhary for permanent injunction in the Bombay City Civil Court and that suit is pending. It is in such circumstances that the flat is claimed by defendant no.2 and he denies all the allegations in the plaint. He states that all the properties except Andheri property are divided during the life time of the late Shahadat. 14. There is then an affidavit filed by defendant no.8 and defendant no.8 has stated that the development agreement dt.22.1.02 was executed with the co- owners of the property and that has been signed by Mr.Abdullah Shahadat, the late husband of the plaintiff no.1 and father of the plaintiff no.2. He signed this agreement not only for himself but also on behalf of his mother, Gaffurnisa Shahadat and also his brothers and sisters viz. Defendant nos.1 to 7 as their Constituted Attorneys. It is then alleged that pursuant to this development agreement several steps have been taken by the defendant no.8 and my attention is invited by Mr.Tulzapurkar, learned Senior Advocate appearing for defendant no.8 to Annexure A to the affidavit dt.15.07.09 ‘ ’ 9 nms2463-09 filed by defendant no.8 wherein the name of Abdullah Shahadat is appearing as party of 3rd part. He has also invited my attention to clauses of this development agreement and particularly clauses 21 and 22 thereof. It is contended by Mr.Tulzapurkar that this immovable property admeasures 13863.67 sq.m and is situated at Chakala, Andheri (East), Mumbai. It was owned by Haji Shahadat & Sons, Shahadat Shaukat and Co and Premier Iron and Metal Industries. It is stated that both Haji Shahadat and Sons and Shahadat Shaukat and Co. had 50% share and the Shahadat Branch and Shaukat Branch has been set out with the details in the note/statement submitted by Mr.Tulzapurkar. He submits that there were suits filed filed by Shahadat against Shaukat for dissolution of accounts of the firm Shaukat Shahadat and Co. being Suit No.1350 of 1980 and there was a suit filed by Shaukat Shahadat and Co. against Shahadat being suit No.3170 of 1985 for a declaration that the firm was the co-owner of the suit property and that Shahadat had no individual right in the suit property and suit no.843 of 1985 which is filed by Shahadat against Shaukat for declaration that Shahadat was entitled to 1/6th share in the suit property. He submits that these three suits concern the same property and after pointing out as to how there was a power of attorney dated 25.4.95 executed by all heirs of Shahadat, appointing husband of plaintiff no.1 as true and lawful attorney. Therefore, consent terms dated 15.4.98 were filed in Suit No.1350 of 1980 and all the three suits came to be disposed of in terms thereof. He submits that pursuant to the consent terms, development agreement dated 22.1.2002 was executed and it is stated that even in the suit filed by defendant nos.1 to 3 10 nms2463-09 being suit No.4007 of 2002 late Abdullah Shahadat has confirmed the transaction with the defendant no.8 under this development agreement. Mr.Tulzapurkar has placed heavy reliance on an affidavit, copy of which is annexed to the affidavit in reply of defendant no.8 affirmed on 15.7.09 in this motion. Mr.Tulzapurkar has invited my attention to the fact that the share of parties has been computed in terms of the development agreement. Now Shahadat branch is entitled to 0.63% of the gross sale proceeds and plaintiff nos.1 and 2 shall be entitled to 0.63% of the gross sale proceeds accruing from the development of the suit property of defendant no.8. Mr.Tulzapurkar on instructions states that the share of Abdullah husband of plaintiff no.1 was paid by defendant no.8 as amounting to Rs.15,29,421/- being a substantial part of the total share quantified at Rs.21,97,980/-. Abdullah has brought back in this court Rs.10.0 lacs. Mr.Tulzapurkar submits that the balance amount of rs.6,68,559/- will be brought in court by defendant no.8 without prejudice to the right and contentions of defendant no.8. Further, Mr.Tulzapurkar submits that defendant no.8 are willing to give an undertaking that they will file six monthly accounts in this court. 15. Mr.Tulzapurkar submits that the plaintiffs do not have a higher right in the Chakala property than Abdullah who is their predecessor in title. Once Abdullah has affirmed the agreement with defendant no.8 as heirs of Abdullah, plaintiffs cannot disown the transaction. For all these reasons, he submits that defendant no.8 who is only concerned with the Andheri / Chakala property should not be restrained from completing the construction, 11 nms2463-09 more so, as six buildings have already been constructed pursuant to the development agreement dt.22.1.2002. Two more wings are stated to be in contemplation and shown in the plans. In these circumstances, at this stage, any interim order would seriously prejudice the rights of defendant no.8 in the property. He submits that this court at the ad interim stage has clarified that the order of status quo will not affect in any manner the Andheri property and the development by defendant no.8 and therefore, this motion should be dismissed as against defendant no.8. 16. Mr.Saudagar has appeared and filed an affidavit on behalf of defendant no.3. Defendant no.3 has filed a written statement as well. It is stated by defendant no.3 that the plaintiff has transferred flat no.5 in Sherier Baug Building B Block, 2 “ ” nd Floor, Ramchandra Bhatt Marg, Mumbai 400 009 in her name without consent of the other heirs of the deceased Shahadat H. Chaudhary. The deceased was tenant of flat no.5. Therefore, flat no.5 should be included in the schedule to the plaint. It is stated that the plaintiff has wrongly mentioned flat no.A-201, Bage-e-Rehmat Building, Rajput Villa Co-operative Housing Society Ltd., 17 Meghraj Sethi Marg, Agripada, Mumbai 400 008 but the same belongs to the mother of defendant no.3 and under registered gift deed dt.28.6.02 the flat is gifted to defendant no.3. These facts are known to the plaintiff and all legal heirs and representatives of Shahadat H. Chaudhary. It is stated that property at Sr.No.3 of Exhibit A is in possession of defendant no.3 who is earning his ‘ ’ bread and butter from the said shop and gift deed is claimed in respect of 12 nms2463-09 flat at Serial No.4. It is stated that as far as shop at Serial No.5 is concerned, that is in possession of defendant no.2 who has entered into Leave and License Agreement and earning Rs.40,000/- per month but is not ready to give accounts. It is stated that the farm at Serial No.6 is occupied by defendant no.2. 17. It is claimed by defendant no.3 that as per Muslim Personal Law, all the heirs of the deceased are entitled to the estate left by the deceased as shown in Exhibit B except Flat No.A-201. However, defendant no.3 ‘ ’ confirms that A.S. Steel Corporation is a partnership firm between deceased husband of plaintiff, defendant no.2 and 3 and defendant no.2 is presently conducting business of this firm but not rendering any accounts. He has also given his clarification with regard to the other properties. 18. Mr.Holamagi, on the earlier occasion tendered affidavits in rejoinder of the plaintiff dealing with all these affidavits and Mr.Madon tendered a sur- rejoinder on behalf of defendant no.1. 19. As far as preliminary objection raised by Mr.Madon is concerned, it will not be possible to hold at this stage that the suit claim is time barred. Prima facie, the suit is filed by the plaintiff for a declaration that they are the heirs and legal representatives of the deceased, Abdullah Shahadat Chaudhary. He has expired as stated in the plaintiff on 16.05.06. He had married plaintiff no.1 in July 2003 and plaintiff no.2 was born in November 13 nms2463-09 2005. 20. It is not that the plaintiffs are stating that they are entitled to the estate of the late Shahadat H. Chaudhary who expired on 16.03.94. It is their claim that the husband of the plaintiff no.1 and father of plaintiff no.2 had a share in the estate of Shahadat H. Chaudhary. That share, after his death vests in the plaintiffs. Plaintiffs are sought to be excluded from claiming that and other shares, right and interest in the property of their predecessor in title, Abdullah Shahadat Chaudhary. The said Abdullah expired on 16.5.06 and exclusion from the estate is pleaded thereafter. 21. In these circumstances, at this stage itself, it will not be possible to agree with defendant no.1 that the suit claim is time barred and on that ground no interim relief can be granted in plaintiffs favour. The law laid down in the decision of the learned single Judge must be seen in the backdrop of the peculiar facts brought to her notice. It is in such circumstances that in that suit, she held that the claim is time barred. 22. On merits of the claim, Mr.Holamgi has pressed for Court Receiver and has submitted that Court Receiver, High Court, Bombay be appointed in the light of the allegations made by the plaintiff against defendant nos.1 to 7 and defendant no.8 and the allegations made by the defendants inter se. He brings to my notice the fact that even defendants are not ad idem as far as the dealings and the transactions in relation to the property and the 14 nms2463-09 business at Annexure A and C to the plaint. He submits that Mr.Madon ‘ ’ ‘ ’ has stated that the defendant no.8 s clarification on affidavit does not bind ’ defendant no.1 and particularly his right, title and interest in the pending suits. Therefore, the estate being bound by the development agreement is not a consistent stand between the parties. 23. In these circumstances, Mr.Madon submits that nothing that has been submitted by Mr.Tulzapurkar and stated by defendant no.8 on affidavit should be construed as being agreed to by all parties. 24. This according to Mr.Holamagi is reason enough to appoint a Receiver. Mr.Holamagi submits that the plaintiff no.1 is a widow and plaintiff no2 is minor who are not paid by their share by the other defendants. They have usurped the business as also the properties. Even the payments as per the share of the plaintiffs in the profits or the gains of the immovable property have not been released in plaintiff s favour. For all these reasons, in ’ addition to interim injunction being granted, Mr.Holamagi submits that the plaintiff should be paid a sum of Rs.30,000/- per month for her subsistence and to enable her to contest the pending litigation. This version of Mr.Holamagi has been refuted by defendant nos.1 to 7 who have relied on their respective affidavits and have stated that the plaintiff herself is guilty of suppression of material facts in relation to the estate as she has not disclosed as to how she has been residing at the Sherier Baug Building, B- Block, in flat no.5 or that how the properties in the State of U.P. belonging 15 nms2463-09 to Shahadat have been used or utilized and dealt with by her. For all these reasons, she is not entitled to any discretionary and equitable relief. 25. Mr.Tulzapurkar submits that the plaintiff is not entitled to any such relief because their share has been already paid and in fact a sum of Rs.10.0 lacs is lying in the court and defendant no.8 is willing to deposit a further sum as stated by him. 26. Having perused the materials brought to my notice and considering the rival submissions at great length, I am of the opinion that the relief sought by the plaintiff of appointment of Court Receiver of the properties cannot be granted. The properties have been in possession of the defendants as set out in the affidavit. It is not as if anything other than the allegations in the plaint has been brought to my notice necessitating the conclusion that the estate might be dissipated or wasted in any manner. Therefore, the interim injunction would be adequate protection, more so, when undertakings have been given by defendant no.8. 27. Defendant no.8 is developing a major chunk of the properties namely valuable piece of land at Chakala, Andheri, Mumbai. Once the share of the plaintiff s predecessor in title at this stage is clear then without prejudice to ’ the rights and contentions of all parties, no interim injunction also needs to be granted in relation to the said property at the instance of the plaintiff. It has been clarified that, from