1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.237 OF 2008 IN NOTICE OF MOTION NO.3101 OF 2006 IN SUIT NO.2618 OF 2006 M/s.Kalpataru Homes Ltd. & anr. Appellants vs. Dennis Nunes and anr. Respondents Mr.V.A.Thorat, Senior Advocate along with Mr.V.R.Dhond and Ms.Yasmin Bhansali i/b.M/s.Yasmin Bhansali & Co. for the Appellants. Ms.Jalpa Trivedi for Respondent Nos. 1 & 2. Mr.J.P.Dubey for Respondent Nos. 3 & 4. Mr.Pesy Mody i/b.M/s.Vigil Juris for Respondent No.6. CORAM : S.B.MHASE & R.V. MORE,JJ. DATED : 23rd September, 2008 P.C. Heard the learned senior counsel and counsel for the respective parties. 2. This Appeal takes exception to the Order dated 15.04.2008 passed by the learned Single Judge in Notice of Motion No.3101/2006 in Suit No.2618/2006. The learned Single Judge initially granted status-quo on 13.09.2006. However, after hearing both the sides rejected the above Notice of Motion. The Appellants are the original plaintiffs in the above Suit. The Suit is filed for declaration that agreements dated 25.06.2006 2 and 17.07.2006 are valid, subsisting and binding upon respondents 1 and 2-original defendants 1 and 2. The plaintiffs have also prayed for a decree of specific performance of the said agreements. The abovesaid Notice of Motion was taken out by the plaintiffs for appointment of Court Receiver as a Receiver of the suit property namely, CTS No.198, Survey No.28, Hissa No.7 at village Kondivita, Andheri (East), Mumbai-400059. The plaintiffs also claimed interim injunction restraining defendants 1 to 6 by themselves, their servants, agents and/or persons claiming through them or under them from disposing off, alienating, encumbering and parting with possession or otherwise creating third party rights in any manner whatsoever in the suit property. 3. In short, the plaintiffs case is that defendants 1 and 2 by handwritten letter dated 25.06.2006 had agreed to sell their shares in the suit property to plaintiff no.2. Subsequently an agreement for sale was also executed on 17.7.2006. Both the above documents were purportedly executed by defendants 1 and 2 as the sole owners of the suit property and it is so stated in the above documents. Thereafter the plaintiffs also gave public notice on 29.07.2006 in Free Press Journal and Navshakti Times followed by the present Suit in the month of September, 2006 for the reliefs stated hereinabove. 3 4. Mr.Thorat, the learned senior counsel for the Appellants took us through the documents dated 25.06.2006 and 17.7.2006 and pointed out that agreement to sell was executed by defendants 1 and 2 by posing themselves as owner of the suit property. He has also invited our attention to the Memorandum of Understanding executed by defendants 1 to 5 in favour of defendant no.6 on 03.10.2005 and submitted that the Memorandum of Understanding is antedated. He further submitted that the Conveyance dated 11.09.2006 by the respondents 1 to 5 in favour of respondent no.6 is illegal inasmuch as much prior to the above Conveyance, agreement in favour of plaintiff was executed on 17.07.2006 by the respondents 1 and 2. He further submitted that the revenue record of the suit property did not disclose the names of respondents 3 to 5 and, therefore, agreement to sell was rightly executed which is binding on the respondents 1 to 5. He lastly submitted that though the Special Civil Suit No.4233/1966 is decreed declaring that the respondents 1 to 4 have 50% share and respondent no.5 has 50% share in the suit property, however, this decree was never acted upon. In the above facts and circumstances he claims that the learned Single Judge committed error in dismissing the plaintiffs above Notice of Motion. 4 5. Per contra, Mr.Mody, the learned counsel for Respsondent No.6 supported the impugned order. He relied upon the decree in the Special Civil Suit No.4233/1966 and submitted that respondents 1 to 5 are the owners of the suit property and respondents 1 and 2 could not have executed agreement to sell in favour of the plaintiffs. He submitted that all the owners of the property namely, the respondent 1 to 5 executed Deed of Conveyance in favour of respondent no.6 on 11.09.2006 and respondent no.6 was also put in possession of the same. He also submitted that prior to the execution of the Deed of Conveyance the Memorandum of Understanding was executed on 3.10.2005 by the respondents 1 to 5 in favour of respondent no.6. He also submitted that the entire purchase price was paid to respondents 1 to 5 immediately on execution of the Conveyance. In the facts and circumstances, the plaintiffs cannot claim any interim relief in the above notice of motion and therefore no interference is called for. 6. Having heard the learned senior counsel and the counsel appearing for the respective parties and having gone through the impugned order along with the Petition and the annexure thereto, we are of the considered opinion that the Appeal is devoid of any substance. The suit property was originally owned by Philip D’Mello who died leaving behind him his daughter Mercelina. 5 Mercelina and her husband died in 1911 and 1903 respectively, leaving behind three sons, namely, Diago, Pascal and John. Pascal died issueless in 1911 and while Diago died in 1921 leaving behind defendant no.5. John and his wife died leaving behind three daughters, namely, Rose Nunes, Juliana and Mercelina. The respondents 1 and 2 are the son and daughter of Rose Nunes and respondents 3 and 4 are the son and daughter of Mercelina. Though this genealogy is not admitted by the plaintiffs, they could not and did not dispute the relationship between the parties. 7. Special Civil Suit No.4233/1966 was filed by the respondents 1 to 4 and Juliana against respondent no.5 The respondents 1 to 4 prayed for declaration that all the properties including the suit property are the properties belonging to the joint family consisting of respondent 1 to 4 and respondent no.5. The respondents 1 to 4 claimed one half share in all the property including the suit property. This Suit was decreed and respondents 1 to 4 were declared as the owner having 50% share in the suit property and respondent no.5 was declared to be owner of remaining 50% share. This decree is binding on the respondents 1 to 5. This decree had not been challenged at any point of time by any of the parties to the suit. Thus, the respondents 1 and 2 are not the exclusive owner of the suit property 6 and the respondents 1 to 5 are the owners and tenants in common. Merely because names of only respondents 1 and 2 are shown in the record of rights of the suit property, it cannot be said that respondents 3 to 5 had no concern with the suit property. It is to be presumed that the names of respondents 1 and 2 are shown to the suit property for themselves and on behalf of respondents 3 to 5, and therefore the respondents 1 and 2 could not have agreed to sell the entire suit property to the plaintiff no.2. 8. We have perused the documents dated 25.06.2006 and 17.7.2006. The document dated 25.6.2006 is a letter signed by respondents 1 and 2. The document dated 17.7.2006 which is styled as an agreement for sale is signed only by respondent no.2. In our considered opinion, the letter dated 25.6.2006 does not confer any rights on the plaintiffs inasmuch as by their letter, the respondents 1 and 2 had simply agreed to execute an agreement for sale. The document dated 17.7.2006 is signed only by respondent no.2 and, therefore, the plaintiffs at any rate cannot enforce their so-called right against respondent no.1 on the basis of letter dated 25.6.2006. Taking overall view of the matter and especially the share of respondent no.2, we are of the opinion that the balance of convenience lies in favour of respondent no.6 inasmuch as the Deed of Conveyance is 7 executed by all the owners i.e. respondents 1 to 5 in favour of respondent no.6 which is registered and purchased price is also paid and possession of the property is also handed over to the respondent no.6. 9. Mr.Thorat, the learned senior counsel for the Appellants tried to point out that the agreement to sell dated 17.7.2006 was signed by respondent no.3 as a witness who holds Power of Attorney of respondent no.4 and, therefore, respondents 1 to 4 had knowledge about the agreement to sell. In our view, this submission has no merit as respondent no.3 by no stretch of imagination can be said to be the party to the agreement to sell merely because he signed as a witness on the document of agreement to sell. 10. In the facts and circumstances mentioned above, we are of the considered view that the learned Single Judge has taken correct approach and rightly dismissed the above Notice of Motion. There is no reason to interfere with the impugned order. The Appeal is devoid of any merit and the same is summarily rejected. 11. Mr.Thorat, the learned senior counsel for the Appellants makes oral prayer for directions of maintaining status-quo for a further period of four weeks from today. 8 3. The parties are directed to maintain status-quo for a period of four weeks so as to enable the Appellants to follow alternate remedy. [R.V.MORE,J.] [R.V.MORE,J.] [R.V.MORE,J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]