1 NMS.1960/10-S.1812/95 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1960 OF 2010 IN SUIT NO. 1812 OF 1995 Sharadchandra Gajanan Gupte (since deceased through LRs.) ...Plaintiffs Vs. Pramila Manohar Gupte (since deceased through LRs.) & Ors. ...Defendants Mr. V. P. Vaze for Plaintiffs Mrs. Laxmi Mankar i/b. Nanu Hormasji & Co., for Defendants 1A,1B & 1C. Mr. Umesh Shetty for Defendant No.4 Mr. A. Bookwala, Sr. Counsel i/b. Vaizhali R. Bhilare for Defendant No.5 CORAM : SMT. ROSHAN DALVI, J. DATED : 17TH SEPTEMBER, 2010 P.C. : 1. In this Suit filed in 1995 the Plaintiff has moved this Notice of Motion in 2010 for the usual relief of injunction restraining the alienation of the suit property and the development and construction thereon. Plaintiff claims 1/4th share and the right, title and interest in respect of the suit property which is plot No.545 in Survey No.E-40 at 17th road, Khar (West), Mumbai-400 052 admeasuring 607.9 sq. mtrs. 2. It is the Plaintiff’s case that his father was the absolute owner of the said 2 NMS.1960/10-S.1812/95 plot. It is the admitted fact that the father has purchased the said suit plot of land under a Sanad dated 7th August 1945. It is the Plaintiff’s case that his father died intestate leaving behind inter alia the suit plot in which the Plaintiff, the deceased husband of the Defendant No.1 and Defendants 2 and 3 have equal undivided share. 3. It is also the Plaintiff’s case that the parties resided as members of HUF on another plot also owned by the deceased and left behind him being plot No.541 near the suit property. 4. The parties, therefore, resided near the suit plot of land. Plot No.541 came to be sold in 1972 jointly by the aforesaid 4 siblings and a building has come to be constructed on the said plot. The Plaintiff claims that the suit plot of land remained as before until immediately prior to the suit. If the suit plot of land did belong to the Plaintiff’s father who expired in 1962 and the Plaintiff and his siblings continued to have an equal right, title and interest therein, the Plaintiff must show how the 4 joint owners to whom the property devolved by succession dealt with the property. The Plaintiff is not shown to have paid any property taxes in respect of the plot or otherwise administered the said property. 5. The Defendant Nos.1A and 1B who are the heirs and legal representatives of the deceased brother of the Plaintiff have produced 2 declarations in respect of the suit property. One declaration is signed by the father and mother of the parties dated 27th August 1952 stating that the properties stood in their joint names and that they desire to transfer it in the names of 3 NMS.1960/10-S.1812/95 their son and daughter-in-law being the husband of Defendant No.1 and Defendant No.1. They also stated that other two sons have no objection to the transfer. The Plaintiff and Defendant No.2 are the other 2 sons. The Plaintiff and Defendant No.2 made a separate declaration on the same day referring to the application of their parents and recording their no objection/consent to the transfer in favour of Defendant No.1 and her husband. Consequently it is contended by the Defendants that the property was agreed to be transferred and stood transferred since from 1952. 6. The husband of Defendant No.1 applied for the copies of the documents filed with the City Survey Officer on 29th August 1952, two days after the property was sought to be transferred and the consent of the Plaintiff obtained thereon. Defendant No.1 has produced the Photostat copies of the aforesaid documents registered with the City Survey Officer. 7. The Defendant No.1 sought to transfer the suit property to Defendant No.4 under the conveyance entered into by and between these parties. The original documents more specially the Sanad of 1945 came to be handed over by Defendant No.1 to Defendant No.4. The Defendant No.4 has produced the original Sanad. 8. It is contended on behalf of the Plaintiff that the said declaration does not amount to a transfer and hence the property cannot be stated to have been transferred inter vivos by the parents of the Plaintiff. The Plaintiff, therefore, claims that he continues to have ¼ share in the said property. The fact remains that whatever be the Plaintiff’s claim, he has neither 4 NMS.1960/10-S.1812/95 enforced his rights not incurred his obligations in respect of the suit property since 1952. This is evidenced by the complete absence of contribution of the Plaintiff towards the property taxes in respect of the suit property. 9. Since it is the case of the Defendants that the father of the parties himself sought to transfer the said property in his life time which was accepted by the Plaintiff, I called upon the parties to produce the original documents for my perusal. Defendant No.4 has produced the Sanad. Defendant No.1 has produced the copy of the letter dated 29th August 1952 addressed to the City Survey Officer requesting to supply copies of the aforesaid documents being the extract of the property register and the certified copies of the aforesaid declaration/statements. Defendant No.1 has also produced the actual Photostat copies. 10.Defendant No.1 has further relied upon the extract of the property register in respect of City Survey No.E-40 which is equivalent to Plot No.545 admeasuring 607.9 Sq.Yds. The property register card shows a transfer registered on 29th August 1952 described as “as inheritance – son and daughter-in-law as per statement of the occupants” which shows the new holders to the Defendant No.1. The Plaintiff has not applied for amendment of the property register card since 1952. The Defendant No.1 claims right, title and interest pursuant to the entry in the property register. 11.It is contended that such entries do not confer title (See Balkrishna Harishandra Patil Vs. Madhukar Madhavrao Deshpande 1999(3) ALL 5 NMS.1960/10-S.1812/95 MR 3) 12.It is true Defendant No.1 does not have any document of title duly registered as required by law in her name. However the Plaintiff has allowed the aforesaid position to prevail for more than four decades prior to the filing of the suit. 13.The Plaintiff contends that the declaration should have been registered. Dr. Nilkanth Apte Vs. Dr. Ramchandra Apte A 1991 Bom 10 is relied upon in that behalf. Defendant Nos.1(a) and 1(b) have not relied upon the declaration for proof of their title and consequently for the collateral purpose of showing the Plaintiff’s acquisition with regard to the property rights in the suit plot, the Defendants’ reliance upon the unregistered declaration cannot be faulted. 14.It is also contended that the declarations are not duly stamped. The documents can be got adjudicated by the Stamp Officer as required by law pending the suit. 15.The Defendant No.1 gave a public notice of further transfer in favour of Defendant No.4. The Plaintiff has objected to the transfer upon his claim of 1/4th share in the suit property. 16.After filing of the suit the Plaintiff took out an application for interim injunction. The Plaintiff applied for ad-interim relief. The relief has not been granted. The Notice of Motion has not been proceeded. 6 NMS.1960/10-S.1812/95 17.Pending the suit and after such stalemate the Defendant No.4 has transferred the suit plot of land to Defendant No.5. The Plaintiff has thereafter applied for injunction against Defendant No.5 from creating further rights and utilising the suit plot of land transferred to Defendant No.5. At such a belated stage, equitable relief of injunction of such nature cannot be granted. 18.Hence Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)