vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3693 OF 2003 NOTICE OF MOTION NO.3693 OF 2003 NOTICE OF MOTION NO.3693 OF 2003 IN SUIT NO.4510 OF 1994 Shree Anand Sat Sangh ... Plaintiff V/s. Anilkumar Sundarlal Saraf & Ors. ... Defendants Mr.S.V. Naphade with Mr.N.R. Gandhi for Plaintiff Mr.P.S. Dani i/b Ms.P.G. Bhatia for Defendant Nos.2 & 3 CORAM: SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, J. J. J. DATED: MARCH 23, 2006 MARCH 23, 2006 MARCH 23, 2006 P.C.: P.C.: P.C.: . The present suit has been filed for a declaration that the plaintiff is the owner of the suit premises. The plaintiff has claimed ownership on the basis that the suit premises were gifted to it vide a gift deed entered into with it by the erstwhile owner Mrs.Gangadevi Sunderlal Saraf. It is the case of the Plaintiff that the erstwhile owner of the premises had gifted the suit premises to it prior to executing her will for which a probate petition is pending in this Court. The will is dated 6.7.1990. According to the plaintiff, it was gifted the property much earlier and the suit property was being used by the plaintiff. 2. The suit is filed for declaring the plaintiff as the owner of the suit premises, based on the premise that there was a gift deed. The present Motion has been : 2 : taken out by the Defendant under Order 7 Rule 13 of the Code of Civil Procedure. According to the Defendants, there is no cause of action made out in the plaint and therefore, the suit must be dismissed. It is contended that if the plaintiff was gifted the immoveable property, there should have been some document under which the gift was made. Such a document would necessarily have to be registered as it is a prerequisite under the Registration Act. The learned Counsel appearing for the defendants submits that if there is no gift deed in favour of the plaintiff, the question of declaring the plaintiff as the owner of the premises does not arise and hence, the suit must fail. He contends that if the cause of action itself is not disclosed in the suit, the plaint must be rejected under Order 7 Rule 13 of the Code of Civil Procedure. 3. The learned Counsel appearing for the Plaintiff candidly admits that there is no gift deed. However, he submits that the will must be construed to mean that the suit premises were being donated to the plaintiff by a declaration made under the will. Para 10 of the will reads as under: "10. I declare that I have donated the ground floor premises including hall, kitchen, adjoining room and bed room of the building Saraf House, 39, Turner Road, Bandra, to a Charitable Trust known as Anand Sat Sangh (Shree Anand Sat Sangh) and my sons, daughter, : 3 : daughters-in-law, grand children and husband has no right, title or interest in the said ground floor which I have donated of my own will for holding Sat Sangh, Seminars, lectures, etc. and Shree Anand Sat Sangh shall have full right on the said ground floor and my children, grand children have no right to take possession or removal of Shree Anand Sat Sangh and interfere in the activities of the said Sat Sangh." 5. It is submitted on behalf of the defendants that this paragraph must be interpreted to mean that the gift was being made through the will. The deceased Gangadevi donated the suit property to the plaintiff which fact is recorded in her will. Accordingly plaintiffs are in exclusive use and possession of the suit premises. 6. The entire pleadings in the plaint show that the plaintiff was insisting that the gift of the suit property was made prior to the execution of the will. Therefore, the construction attempted to be placed by the learned Counsel for the Defendants that the property was being donated through the will is in my view, without merit. Once it is admitted that there is no gift deed at all, the suit based on such a gift having been made cannot be sustained. Therefore, the Motion must be made absolute in terms of prayer clause (a). Order 7 Rule 11 of the Code of Civil Procedure is very clear that the plaint must be rejected when it does not disclose the cause of action. In my view, the present plaint does not disclose any cause of action. Therefore, the Motion is made absolute in terms of prayer clause (a). : 4 : 7. Motion is disposed of accordingly.