1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4297 OF 2008 IN SUIT NO.2237 OF 2007 Shamlal Tikamdas Chhabria .... Plaintiff - Versus - Mrs. Mohini Dolatram Chhabria .... Defendant ALONG WITH NOTICE OF MOTION NO.4099 OF 2008 IN SUIT NO.3255 OF 2008 1. Mrs. Mohini Dolatram Chhabria 2. Mr. Sunil Dolatram Chhabria 3. Mrs. Uma Sunil Chhabria .... Plaintiffs - Versus - 1. Mr. Shamlal Tikamdas Chhabria 2. Mrs. Shakuntala Shamlal Chhabria .... Defendants Sarvasri Virag Tulzapurkar, Senior Counsel a/w Birendra Saraf and F. Dubhash i/b M/s. Wadia Ghandy & Co. for the Plaintiff in N/M No.4297 of 2008 and the Defendants in N/M No.4099 of 2008. Sarvasri P.K. Dhakephalkar, Senior Counsel a/w Niranjan Pandit i/b M/s. Joy Legal Consultants for the Defendant in N/M No.4297 of 2008 and the Plaintiffs in N/M No.4099 of 2008. 2 CORAM: SHRI A.V. NIRGUDE, J. DATED : MARCH 03, 2009 ORAL ORDER: 1. Both these motions can be disposed of by this common order. I would refer the parties by their names for avoiding confusion. 2. The plaintiff in Suit No.2237 of 2007 is one Shamlal whereas he and his wife are the defendants in Suit No.3255 of 2008, filed by one Mrs. Mohini Dolatram Chhabria, who is the defendant in Suit No.2237 of 2007. 3. The facts leading to the litigation are as under: Both these suits are filed in respect of a flat situated in a building known as Sterling Apartments, Peddar Road, Mumbai- 400 026. The Sterling Apartments is a co-operative housing society. The flat has four bed-rooms with bath attached, hall, kitchen and servant's quarters approximately admeasuring 2400 square feet. Shamlal is the brother of Mohini's husband Dolatram. Shamlal and Mohini jointly purchased the suit flat in 1971. Both have undivided equal share in the suit flat. They are joint members of the society in respect of the suit flat. Mohini has a son and a daughter-in-law. Mohini also has two grandchildren, 3 the children of his son Sunil. Shamlal too has a wife, son and a daughter-in-law and two married daughters. 4. When the suit flat was purchased in 1971, both these families occupied the entire flat as a joint family. At that time, even the mother of Shamlal was alive. In or about 1980 Shamlal left Mumbai for Iran, leaving behind his three school going children in Mumbai, whereas in those days Mohini's daughter was 23 years old and the son was 21 years old. Shamlal and his wife stayed in Tehran for most of the times and Shamlal authorised Mohini's son, his nephew, Sunil, to handle his business affairs in Mumbai. Both these families used two bed-rooms each, whereas the living room and the kitchen and rest of the flat was in the common use of all the family members. Shamlal's mother occupied one of the bed-rooms which is marked “X” in the map annexed to the plaint in Suit No.2237 of 2007. This was one of the bed-rooms that Shamlal utilised for his family. Shamlal and his wife frequently came to India and stayed in the suit flat and utilised these bed-rooms also. Shamlal's mother expired in 1993. However, Shamlal's children completed their education, including college education in Mumbai and they throughout lived in the suit flat, using the two bed-rooms including the bed-room “X”. In the meantime, the daughters in the family got married in between 1983 to 1991. On the other hand, Shamlal's son Vishal also got married in 1996 and left India with his wife in 1998, migrating to 4 Dubai. After 1998, it is clear, Shamlal and his wife continued to stay abroad at Iran; his son Vishal and his family also left Mumbai and migrated to Dubai. Shamlal's daughters were all married off and had left the suit flat. The only persons who stayed in the suit flat were Mohini, her son, her daughter-in-law and their two grandchildren. Despite all these, the two bed-rooms which Shamlal used exclusively remained with Shamlal. 5. It is the case of Shamlal that prior to 2004, Mohini's daughter-in-law made a request to Shamlal that he should allow her son Rahul to occupy the bed-room “X”. Shamlal, in view of absence of his family members in Mumbai, allowed him to do so. It is his case that it was a temporary indulgence and was not to create any right in favour of Mohini and her family members. Thus, since 2004 Mohini's family could occupy three bed-rooms in the flat. 6. In August, 2006 Shamlal came to Mumbai and within a few days his son Vishal also came to Mumbai. Shamlal and his wife occupied one bed-room out of their two bed-rooms and asked Mohini to handover the key of bed-room “X” so that Shamlal's son Vishal could occupy the same. Accordingly, she handed over the key of bed-room “X” and Vishal could use the bed-room “X”. After a few days, Shamlal and his son left India and at that time Mohini again requested for the key of bed-room 5 “X” with a promise that whenever they would come back to India, she would handover the key to them. However, on 15-6- 2007, when Vishal's wife Pooja came to India and asked for the key of bed-room “X”, Mohini refused to handover the key. Vishal's wife suffered inconvenience as long as she stayed in the suit flat. Shamlal then recorded these facts through his Advocate's letter dated 20-6-2007 and sent it to Mohini and demanded the key to the bed-room “X” and asked Mohini not to use the two bed-rooms he and his family had exclusively used. On the other hand, Mohini and her son filed a suit against Shamlal and his wife in the Bombay City Civil Court for declaration that they are in exclusive possession and occupation of three bed-rooms, including the bed-room “X” and sought injunction against Shamlal and his family. It is their case that in 1981, an oral family arrangement was arrived at between the two families and three bed-rooms were given to Mohini's family for their exclusive use. This suit ultimately came to this Court being Suit No.3255 of 2008 and, as stated above, in this suit Mohini and her son took the above mentioned notice of motion and sought temporary injunction against Shamlal and his wife that they should not disturb the possession, use and occupation of the suit flat. They also sought temporary injunction to restrain Shamlal and his wife from interfering in their exclusive use, possession and enjoyment of three bed-room, including the bed- room “X”, etc.. 6 7. After having heard the submissions of both the sides and after having gone through the plaints, the affidavits and the annexures thereto, the question that arose for my consideration is whether Mohini and her family are able to make out a prima facie case that due to certain family arrangement, which according to them, took place orally in 1981, they were allowed to use three bed-rooms in the suit flat. The answer is in the negative. 8. As said above, it is a common ground that both these families jointly owned the flat, at least till 1981 both of them shared the entire flat. It is also a common ground that even after 1981, though Shamlal and his wife migrated to Iran, their three children stayed put in the suit flat. Shamlal's mother was also staying in the suit flat till her death in 1993. The children grew up in this flat and the daughters were married off at appropriate time i.e., some time in 1980 and 1990's. In these background, it is very difficult to believe the case of Mohini and her family that in 1981 there was a family arrangement, etc.. Admittedly, there is no document recording any such alleged arrangement. It is very difficult to believe this theory also because Shamlal would ever concede his 50% share in the suit flat only because he and his son had migrated abroad. Shamlal still had his daughters in India. It is clear and admitted fact that Shamlal and his son periodically 7 visited Mumbai and stayed in the suit flat. It is but natural that in such a situation both these families would try to occupy equitable area for their use and enjoyment. Out of the four bed-rooms, each family would obviously have two bed-rooms each for their use. 9. As said above, it was Mohini, her son, her daughter-in-law and their two children were the only permanent members of the family who were occupying the suit flat. In such a situation, it was obvious that Mohini's branch of the family would request Shamlal to handover the key of one of the bed-rooms he had in the flat and it is also obvious that out of love and affection and out of urge to accommodate them, Shamlal would permit Mohini to use one of his bed-rooms. What is pertinent to note here is that until today Shamlal is still using one of his bed-rooms exclusively and Mohini has no objection to this position. So, the case of Shamlal is more believeable and with the result, Mohini would fail to make out her case. 10. The learned counsel appearing for Mohini urged the Court not to disturb the present status quo, at least in respect of the bed- room “X”. He said the dispute between the parties is required to be resolved only through a full-fledged trial because the case of both the parties depend on oral promises given to each other. He submitted there is gross delay in filing of Shamlal's suit as well as in taking out the notice of motion. He also submitted that 8 Shamlal took out the notice of motion belatedly as a counter-blast to Mohini's suit and the notice of motion. He suggested that Shamlal's action is an after-thought. He then asserted that unless Shamlal makes out a very strong prima facie case, the Court should not disturb the present status quo and cause ouster of Mohini and her family from the bed-room “X”. 11. But I am not inclined to accept these contentions. In my view, prima facie no proprietary rights are required to be decided in the suit. The parties apparently hold equal rights to the suit flat. As on today, I think, the parties should be directed to use the existing flat as they used earlier. They should be asked to use two bed-rooms for each family. Refusing to pass an equitable order in favour of Shamlal would, in my view, amount to gross and irreparable loss to him. In my view, Shamlal makes out a very strong prima facie case for getting control of the bed-room “X” back to him. Even the balance of convenience lies in his favour. The flat belongs to him to the extent as it belongs to Mohini. Shamlal should be able to use and enjoy the same as and when he wants it. He is now an aged person. If he wants to come back to Mumbai, he should be able to utilise equal portion of the suit flat. He should be able to entertain his daughters in the flat any day and he should be able to accommodate his son in it on his visit to India from Dubai. I think he is also entitled to use the flat as much as the other branch of the family uses and enjoys it. I 9 think he cannot be asked to wait until the trial for getting his bed- room “X” back to him. 12. Mrs. Mohini, the defendant in Notice of Motion No.4297 of 2008 in Suit No.2237 of 2007 shall handover the key of the bed-room “X” to Shamlal, the plaintiff in the said motion, forthwith. She shall also remove all her articles from the said bed-room so as to make it habitable and she and her family members shall not disturb Shamlal's use and occupation of this room. The Notice of Motion No.4297 of 2008 is allowed in above terms. On the other hand, Mohini's Notice of Motion No.4099 of 2008 in Suit No.3255 of 2008, stands dismissed. 13. At the request of the learned Advocate for the defendant/Mohini, the effect of this order is kept in abeyance and the earlier order shall continue for a period of two weeks from the date of signing of this order. Sd/- 23/3/09 (A.V. Nirgude, J.) ss/M9nmg4297.8