1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3533 OF 2009 IN SUIT NO.2225 OF 2009 Rama Paddu Poojari and another Plaintiff versus The Hon.Secretary, Chetana Apartment Co-op. Hsg.Society Limited and another Defendants Mr.R.D.Suryawanshi for plaintiff. Mrs.Poornima Tulsidas Poojari, defendant no.2 present in person. CORAM : S.J.KATHAWALLA, J. DATE : 9th February 2011 PC : 1. On 31st January 2011 this Court passed a detailed order inter alia setting out the conduct of the defendant no.2 and directing the Notice of Motion to be placed before this Court on 7th February 2011, high on board. On 7th February 2011 Mr.A.R.Sheikh, Advocate appeared on behalf of defendant no.2 and requested that since the papers had just been received by him that morning, the matter be placed on board on 9th February 2011 i.e. today. Today, when the matter is called out, the defendant no.2 appears in person and informs the Court that she needs time to engage an advocate. 2. As recorded in the order dated 31st January 2011 the suit is filed by the plaintiff inter alia for a declaration that the plaintiff is the absolute owner of the suit property i.e. Flat No.D-8, admeasuring about 364 sq.ft. area on the first floor of the building `Chetana Apartments Co-operative Housing Society Limited' situated at Jangal Mangal Road, S.P.S. Marg, 2 Kanjur Village, Bhandup (W), Mumbai-400 078, along with 5 shares bearing nos.261 to 265 under share certificate no.53 which is more particularly described in the schedule of the property annexed at Exhibit-A to the plaint. 3. The plaintiff no.2 is the son of the plaintiff no.1 and the defendant no.2 is the daughter-in-law of the plaintiff no.1 and the wife of plaintiff no. 2. Admittedly, the said flat was purchased by plaintiff no.1 in the name of his son plaintiff no.2 and his daughter-in-law defendant no.2 herein. The plaintiff no.2 and/or the defendant no.2 have admittedly not contributed a single farthing towards the purchase price of the said flat. It is alleged by the plaintiffs that thereafter defendant no.2 who has completed her graduation, made the plaintiff no.2 execute a gift deed in her favour whereby plaintiff no.2 gifted his 50% share in respect of the said flat in favour of the defendant no.2. It is further alleged that after the gift deed was executed by the plaintiff no.2, he was pushed out of the suit flat and a complaint under section 498A of the Indian Penal Code was filed by the defendant no.2 against the plaintiffs and an application for maintenance is also filed under section 125 of the Criminal Procedure Code. Both the proceedings are pending till date, before the appropriate Courts. 4. When this Notice of Motion was taken up for hearing on 12th January 2011, the same was adjourned on 14th January 2011. On 14th January 2011, since the parties involved are closely related, the matter was kept on 17th January 2011 in chamber to explore the possibility of an amicable settlement. On 17th January 2011, the plaintiff no.2 as well as the defendant no.2 were interviewed in chamber. At that time, this Court noted that the plaintiff no.2 is a simpleton. The defendant no.2 admitted that the gift deed which the plaintiff no.2 has executed is witnessed by her mother and her brother. However, she refused to give the name of the Advocate who had prepared the said gift deed. At the request of the defendant no.2, the matter was adjourned to 21st January 2011. For the reasons set out in the said order dated 31st January 2011, the parties 3 could not settle the matter. At the request of defendant no.2 the matter was adjourned to 27th January 2011. On 27th January 2011 time was sought on the ground that the defendant no.2 is unwell. The matter was therefore adjourned to 31st January 2011. On 31st January 2011, an application was made by the defendant no.2 making allegations against her advocate and expressing her desire to change the advocate and therefore sought an adjournment. At that time my attention was drawn by the advocate for the plaintiff to the order of this Court dated 31st July 2009 wherein it is recorded that when the matter was taken up for interim reliefs, the defendant no.2 remained present and expressed her desire to change the advocate. The earlier order restraining the defendant no.2 from creating any third party rights in respect of the suit flat was, therefore, continued and the Notice of Motion was directed to be placed for hearing and final disposal on 2nd September 2009. In any event, on 31st January 2011, the advocate for the defendant no.2 was discharged and the matter was adjourned to 7th February 2011. As set out earlier, on 7th February 2011, the advocate for the defendant no.2 sought time until today. Today, the said advocate has not appeared before this Court and the defendant no.2 is seeking time on the ground of appointing another advocate. 5. I am more than convinced that the defendant no.2 is adamant not to proceed with the hearing of the Notice of Motion. As stated hereinabove, the defendant no.2 has admitted that she has not contributed a single farthing towards purchase price of the suit flat. She has also admitted that the suit flat was originally in the name of the plaintiff no.2 (i.e. her husband) and herself. She has admitted that by a gift deed, the plaintiff no.2 has transferred his 50% share in the suit flat in her favour. She has also admitted that the gift deed is witnessed by her mother and her brother. As recorded in the order dated 31st January 2011, she has refused to give the name of the advocate who has prepared the gift deed. I am prima facie convinced that the plaintiff no.2 who is a simpleton has been made to execute the gift deed in favour of 4 the defendant no.2 by the defendant no.2 and her family members. The defendant no.2 is at present in sole occupation and possession of the suit flat. In view of the conduct of the defendant no.2 and her family members which is recorded in my order dated 31st January 2011 and the injunction order granted hereinabove at the ad-interim stage restraining the defendant no.2 from creating any third party rights in respect of the suit flat would not be adequate to protect the suit property. I, therefore, appoint the Court Receiver, High Court, Bombay as the Receiver of the suit flat. However, the Court Receiver shall only take symbolic possession of the suit flat without disturbing the possession of the defendant no.2. Until the Court Receiver takes possession of the suit flat, there shall be an injunction restraining the defendant no.2 from selling, disposing off, alienating, encumbering, parting with possession and/or creating any third party rights in respect of the suit flat. This is also a fit case to expedite the hearing of the suit. Since no reliefs are claimed against defendant no.1 and since the defendant no.2 has already filed her written statement, place the suit for framing of issues on 21st February 2011. Parties and the Court Receiver to act on an ordinary copy of this order duly authenticated by the registry of this Court. (S.J.KATHAWALLA, J.)