1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3414 OF 2008 IN SUIT NO.2819 OF 2007 Mrs.Reshma V. Rawool & Ors. ...Plaintiffs Vs. Dattatray Chandrakaant Hadpadkar & Ors. ...Defendants Mr.S.P.Kanuga i/b. M.K.Banatwala & Co for Plaintiffs Mr. A.A. Joshi i/b. Nitin Musle for Defendant No.1 Mr. H.Bhave i/b. Bhave & Co for Defendant No.2 Mr.Rajesh Khobragade with Ms. A.R.Lambay i/b. Lambay & Co for Defendant No.6 CORAM: SMT.ROSHAN DALVI, J. DATED: 15 TH DECEMBER, 2008 P.C. 1. The Suit is essentially by three sisters against their brother, Defendant No.1 in respect of the suit property which is the main estate of their deceased father. The Plaintiffs, Defendant No.6 and Defendant No.1 are stated to be the heirs and legal representatives of their deceased father. This Suit is filed and the claim is made in respect of each of the Plaintiffs' 1/5 th share in the suit property. Based upon such a claim the development of the suit property under the 2 Development Agreement between Defendant No.1 and Defendant No.2 has come to be challenged. 2. In this Notice of Motion the Plaintiffs have prayed for the relief of injunction against Defendant No.1 from occupying the allotted flat in the newly constructed building and creating any third party rights therein, for appointment of Court Receiver in respect of the suit property, for obtaining a list of the tenants of the suit property and an injunction against Defendant Nos.1 and 2 from selling the flats agreed to be sold by them to intending buyers in the newly constructed building. 3. It is an admitted position that the building is fully constructed and awaiting occupation certificate. It is of ground plus six upper storeyes. The grandfather of the Plaintiffs had purchased the suit property. He admittedly gifted the suit property to the Plaintiffs' father under a Gift Deed dated 5th January 1955. 4. It is the case of the Defendant Nos.1 and 2 that the father of the Plaintiffs executed a Will, which came to be registered on the date of its execution. That Will is not yet probated. However, the Defendants have produced the registered Will dated 14 th March, 1983 along with the 3 original registration slip bearing No.632 of 1983. The Will is signed by the Testator and attested by four witnesses. The four witnesses are the Plaintiffs and their one deceased sister. Under the Will, the suit property has been bequeathed only to Defendant No.1, the brother of the Plaintiffs. 5. It is the case of the Defendants that on the same day and alongside the execution of the Will four daughters of the Testator executed a Declaration declaring that they do not claim any right, title and interest in the said immovable property and that they are aware that the immovable property along with the structure standing thereon is bequeathed by their father to their brother and that they have no objection for the same. They further declared that their brother would be the sole owner of the said property after the death of their father and that they will not claim any right over the said property forever. The declaration is executed by the four daughters after being interpreted and explained to them by their Advocate Mr. R.S. Kedar. The Will has also been executed by the same Advocate. The same address of the Advocate is on both the documents. Whereas the Will was registered on the same day, the declaration was not. 6. However, the declaration dated 14 th March 1983 has been 4 got registered on 6th March 2007. The original declaration shows an endorsement purportedly signed by the Testator showing “I accept above” and his name Chandrakaant D. Hadpadkar. Mr. Kanuga drew my attention to the fact that that signature is completely different from the signature on the Deed of Gift executed in 1955, which shows the signature of the father as well as the grandfather of the Plaintiffs. These two signatures do appear to be different. 7. In fact in this case since a Will is executed by the father on the same day, it is important to see the two signatures of the same persons on the two documents executed on the same day. The two signatures of the father do appear to be different. This is because, as argued by Mr. Kanuga himself, to get the declaration registered at the time of the execution of the Development Agreement, the signature of the Testator appears to have been put and Defendant No.1 appears to have got the documents registered as his heir and legal representative. That was an unnecessary exercise. That was perhaps required to be done before the Development Agreement was executed, because the registered Will was not probated and hence Defendant No.1 could not show his sole ownership rights to execute the development agreement alone. The development agreement has been executed soon thereafter on 10 th April 2007 and has been registered on 10th 5 April 2007. 8. Since this Will has been attested by as many as four witnesses and since all of these four witnesses are the daughters, who have been excluded from the estate of their father, it is material to compare their signatures. Defendant No.1 has produced the original documents. A comparison of the four signatures shows that they are identical and signed in the same ink. The slants of the signatures are identical and so are the diagonal strokes at the end of three of the four signatures. 9. The father of the Plaintiffs expired on 24 th September 1999. The property registered cards of the suit property came to be amended on 10 th April 2001 to show Defendant No.1 as the sole owner of the suit property. The Plaintiffs did not apply for their names being brought on record as owners after the death of their father in view of the execution of the Will and the declaration that they had executed. 10. As late as in April 2007 Defendant No.1 entered into the Development Agreement with Defendant No.2, which the Plaintiffs have sought to challenge. Having come to know about the development of the property the Plaintiffs claimed their equal share in the suit property for the first time. The 6 very first notice issued by the Plaintiffs mentions about their right and entitlement in their father's estate. It also mentions that the suit building is in a dilapidated condition and that it appears that the Defendant No.1 has approached Defendant No.2 to redevelop the property. This notice was addressed to Defendants 1 as well as 2. Defendant No.2 replied to the notice on 15 th May 2007 mentioning about the registered Will of the father of the Plaintiff dated 14 th March 1983 as well as the declaration of the Plaintiffs renouncing their right in the suit property. It also mentions that they have knowledge of the said fact. The Plaintiffs had never put up their claim on the said property since 1999. 11. The three Plaintiffs were the three daughters of the deceased. The fourth daughter had expired. She had not sent the notice along with the three surviving daughters. After receipt of the reply of Defendant No.2, the daughter of the deceased sister sent her notice, actually made out as a reminder, dated 3 rd July 2007 similarly to Defendants 1 and 2. She was given a similar reply on 7th July 2007. 12. She alone filed the present Suit initially. There were mediation proceedings for settlement of their dispute. She was shown the original documents. She appears to have verified the claim with regard to the Will and the declaration 7 with her relatives and more particularly one uncle Dinesh Rawool. She settled her dispute and desired to withdraw the Suit. The present Plaintiffs were initially joined as Defendants 6,7 and 8 in the Suit. They sought to be transposed as party Plaintiffs. They have been allowed to be transposed. They have paid Court fees valuing their shares in the suit property. They have amended the plaint as well as the Notice of Motion and seek reliefs as aforesaid. 13. Their case as much the same as that of the original Plaintiffs. The defence of the Defendants against these Plaintiffs is also similar. 14. It is argued on behalf of Defendants 1 and 2 that in view of the fact that the building was admittedly dilapidated (this fact having been mentioned in the initial notice sent by the Advocate of the present Plaintiffs dated 30 th April 2007). Defendant No.1 sought to develop the property by reconstructing the building. There are ten tenants in the suit building occupying ten rooms. Defendant No.1 occupied four rooms totally admeasuring 754 sq. ft. carpet area only. Defendant No.1 was to receive a consideration of Rs.45 lakhs and one flat on the third floor of the new construction admeasuring 1004 sq. ft. carpet area and two car parking spaces under stilts admeasuring 105 sq. ft. carpet area. 8 Defendant No.1 was to settle with the family of unauthorised occupants occupying an unauthorised structure in the suit property by payment and to settle with the ten tenants by making them agree to take rooms of the same area as permanent alternate accommodation and Rs.8000/- per month from Defendant No.2 as expenses towards temporary alternate accommodation pending the construction. Defendant No.2 has shown the Court Rs.13 lakhs paid to the family of unauthorised occupants which is stated to be paid by him out of the consideration amount paid to him. 15. The property has been fully constructed. The Plaintiffs' action is highly belated. In fact it is seen to be barred by the law of limitation in view of the fact that the father of the parties expired in 1999 and the claim of 1/5 th share upon succession was required to be made within a period of three years. No such claim was made. No division of property was applied for. 16. Mr. Kanuga argued that Defendant No.1 was a co-owner who occupied the property on behalf of all the co-owners and the right of the co-owner would commence only from the date such occupation became hostile to the other co-owners. This argument is misconceived in view of the fact that the Plaintiffs' claim is upon succession and not upon joint 9 ownership or co-ownership by virtue of purchase of the suit property by them along with their brother, Defendant No.1. In any event it is seen that the Plaintiffs have made a claim of their 1/5 th share each as the daughters of the deceased father only after the property was sought to be developed and has been almost entirely reconstructed. 17. The Plaintiffs' legal rights as the heirs of their deceased father is not seen. Hence the Plaintiffs have not made out any prima facie case for grant of any equitable reliefs. 18. Notice of Motion is dismissed. No order as to costs. 19. The Advocate for Defendant No.6 states that the Plaintiffs must pay the Court Fees paid by the Defendant No.6 as the original Plaintiff, as per the order of Justice Kanade dated 25 th August 2008 as modified on 24 th November 2008. That order has already been passed. The Defendant No.6 may execute that order. (SMT. ROSHAN DALVI, J.)