1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.3387 OF 2007 NO.3387 OF 2007 NO.3387 OF 2007 Mohan Mohan Mohan Hotchand Khanchandani Hotchand Khanchandani Hotchand Khanchandani ...... Petitioner Petitioner Petitioner vs vs vs Bhavika Bhavika Bhavika Paresh Shah & anr .. Paresh Shah & anr .. Paresh Shah & anr .. Respondents Respondents Respondents WITH WITH WITH WRIT WRIT WRIT PETITION No.3392 OF 2007 PETITION No.3392 OF 2007 PETITION No.3392 OF 2007 Mohan Mohan Mohan Hotchand Khanchandani .. Petitioner Hotchand Khanchandani .. Petitioner Hotchand Khanchandani .. Petitioner vs vs vs Bhavika Bhavika Bhavika Paresh Shah & anr Paresh Shah & anr Paresh Shah & anr ...... Respondents Respondents Respondents Mr.Dharam Mr.Dharam Mr.Dharam Sharma i/b Dharam & Co for Sharma i/b Dharam & Co for Sharma i/b Dharam & Co for Petitioner Petitioner Petitioner Mr.Vinod Mr.Vinod Mr.Vinod S.Pandey S.Pandey S.Pandey i.b Shri S.U.Pandey for i.b Shri S.U.Pandey for i.b Shri S.U.Pandey for Respondent Respondent Respondent no.1 no.1 no.1 CORAM CORAM CORAM : : : A.S.OKA, A.S.OKA, A.S.OKA, J J J DATED DATED DATED : : : 10th 10th 10th September, 2007 September, 2007 September, 2007 JUDGMENT JUDGMENT JUDGMENT 1.1.1. By an order dated 24th August, 2007 these By an order dated 24th August, 2007 these By an order dated 24th August, 2007 these petitions petitions petitions were ordered to be heard finally. were ordered to be heard finally. were ordered to be heard finally. 2.2.2. Heard the submissions of the learned counsel Heard the submissions of the learned counsel Heard the submissions of the learned counsel for for for the parties. the parties. the parties. 3.3.3. The 1st respondent is the wife of the 2nd The 1st respondent is the wife of the 2nd The 1st respondent is the wife of the 2nd respondent. respondent. respondent. There is a matrimonial petition There is a matrimonial petition There is a matrimonial petition pending pending pending between the 1st and 2nd respondents in the between the 1st and 2nd respondents in the between the 1st and 2nd respondents in the Family Family Family Court at Bombay. Court at Bombay. Court at Bombay. 4.4.4. According to the case of the petitioner, the According to the case of the petitioner, the According to the case of the petitioner, the respondent respondent respondent jointly acquired a flat which is the jointly acquired a flat which is the jointly acquired a flat which is the subject subject subject matter of dispute in these two petitions matter of dispute in these two petitions matter of dispute in these two petitions and and and both the respondents were members of the both the respondents were members of the both the respondents were members of the co-operative co-operative co-operative housing society in which the flat is housing society in which the flat is housing society in which the flat is situated. situated. situated. According to the case of the petitioner, According to the case of the petitioner, According to the case of the petitioner, 2 on on on 13th October, 2005 the respondent no. 2 for 13th October, 2005 the respondent no. 2 for 13th October, 2005 the respondent no. 2 for himself himself himself and in his capacity as the alleged and in his capacity as the alleged and in his capacity as the alleged Constituted Constituted Constituted attorney of the respondent no.1 attorney of the respondent no.1 attorney of the respondent no.1 executed executed executed an agreement for sale in respect of the an agreement for sale in respect of the an agreement for sale in respect of the said said said flat in favour of the petitioner. According flat in favour of the petitioner. According flat in favour of the petitioner. According toto to the case of the petitioner, a sum of the case of the petitioner, a sum of the case of the petitioner, a sum of Rs.4,00,000/- Rs.4,00,000/- Rs.4,00,000/- was was was paid by him to the 2nd respondent paid by him to the 2nd respondent paid by him to the 2nd respondent by by by two two two cheques in the sum of Rs.2,00,000/- each and cheques in the sum of Rs.2,00,000/- each and cheques in the sum of Rs.2,00,000/- each and cash cash cash amount of Rs.2,00,000/- was paid by him to the amount of Rs.2,00,000/- was paid by him to the amount of Rs.2,00,000/- was paid by him to the 2nd 2nd 2nd respondent constituting total agreed respondent constituting total agreed respondent constituting total agreed consideration consideration consideration of Rs.6,00,000/-. According to the of Rs.6,00,000/-. According to the of Rs.6,00,000/-. According to the case case case of the petitioner, though the said agreement of the petitioner, though the said agreement of the petitioner, though the said agreement was was was not registered, along with the deed of not registered, along with the deed of not registered, along with the deed of confirmation confirmation confirmation dated 14th June, 2006 the said dated 14th June, 2006 the said dated 14th June, 2006 the said agreement agreement agreement was duly registered in the office of the was duly registered in the office of the was duly registered in the office of the Sub-Registrar Sub-Registrar Sub-Registrar of Assurances. of Assurances. of Assurances. 5.5.5. An application was made by the petitioner to An application was made by the petitioner to An application was made by the petitioner to the the the concerned co-operative housing society for concerned co-operative housing society for concerned co-operative housing society for admitting admitting admitting him as a member. However, the said him as a member. However, the said him as a member. However, the said request request request was not acceded to by the society on the was not acceded to by the society on the was not acceded to by the society on the ground ground ground that there was an order of temporary that there was an order of temporary that there was an order of temporary injunction injunction injunction passed by the Family Court on 27th passed by the Family Court on 27th passed by the Family Court on 27th December, December, December, 2005 restraining the 2nd respondent from 2005 restraining the 2nd respondent from 2005 restraining the 2nd respondent from transferring transferring transferring the said flat till further orders. the said flat till further orders. the said flat till further orders. 6.6.6. The petitioner applied before the Family Court The petitioner applied before the Family Court The petitioner applied before the Family Court for for for impleading impleading impleading himself as a party respondent to the himself as a party respondent to the himself as a party respondent to the petition petition petition filed by the 1st respondent for divorce. filed by the 1st respondent for divorce. filed by the 1st respondent for divorce. By By By an order dated 26th March, 2007 the learned an order dated 26th March, 2007 the learned an order dated 26th March, 2007 the learned Judge Judge Judge rejected the said application. By a separate rejected the said application. By a separate rejected the said application. By a separate order order order passed on the same day, the learned Judge of passed on the same day, the learned Judge of passed on the same day, the learned Judge of 3 the the the Family Court allowed the application filed by Family Court allowed the application filed by Family Court allowed the application filed by the the the 1st 1st 1st respondent and permitted the 1st respondent respondent and permitted the 1st respondent respondent and permitted the 1st respondent toto to enter the said flat on the ground that the said enter the said flat on the ground that the said enter the said flat on the ground that the said flat flat flat is her matrimonial home. Writ Petition is her matrimonial home. Writ Petition is her matrimonial home. Writ Petition No.3387 No.3387 No.3387 of 2007 has been filed by the petitioner of 2007 has been filed by the petitioner of 2007 has been filed by the petitioner for for for challenging challenging challenging order dated 26th March, 2007 passed order dated 26th March, 2007 passed order dated 26th March, 2007 passed by by by the Family Court by which the 1st respondent is the Family Court by which the 1st respondent is the Family Court by which the 1st respondent is permitted permitted permitted to enter the said flat. Writ Petition to enter the said flat. Writ Petition to enter the said flat. Writ Petition No.3392 No.3392 No.3392 of 2007 is filed by the petitioner for of 2007 is filed by the petitioner for of 2007 is filed by the petitioner for challenging challenging challenging the order by which application made by the order by which application made by the order by which application made by the the the petitioner for impleadment has been rejected. petitioner for impleadment has been rejected. petitioner for impleadment has been rejected. ItItIt must be stated here that on the basis of the must be stated here that on the basis of the must be stated here that on the basis of the impugned impugned impugned order, the 1st respondent has already order, the 1st respondent has already order, the 1st respondent has already entered entered entered the said flat and as of today the 1st the said flat and as of today the 1st the said flat and as of today the 1st respondent respondent respondent is in possession thereof. is in possession thereof. is in possession thereof. 7.7.7. The submission of the learned counsel for the The submission of the learned counsel for the The submission of the learned counsel for the petitioner petitioner petitioner is that while rejecting the application is that while rejecting the application is that while rejecting the application for for for impleadment, the Family Court has proceeded on impleadment, the Family Court has proceeded on impleadment, the Family Court has proceeded on an an an erroneous assumption that an agreement was erroneous assumption that an agreement was erroneous assumption that an agreement was entered entered entered into by the petitioneor in respect of the into by the petitioneor in respect of the into by the petitioneor in respect of the said said said flat after the order of injunction dated 27th flat after the order of injunction dated 27th flat after the order of injunction dated 27th December December December 2005 was passed by the Family Court. He 2005 was passed by the Family Court. He 2005 was passed by the Family Court. He submitted submitted submitted that that that there is evidence to show that a sum there is evidence to show that a sum there is evidence to show that a sum of of of Rs.4,00,000/- by two cheques in the sum of Rs.4,00,000/- by two cheques in the sum of Rs.4,00,000/- by two cheques in the sum of Rs.2,00,000/- Rs.2,00,000/- Rs.2,00,000/- each was paid by the petitioner to each was paid by the petitioner to each was paid by the petitioner to the the the 2nd respondent in October, 2005. He submitted 2nd respondent in October, 2005. He submitted 2nd respondent in October, 2005. He submitted that that that though the agreement is of October, 2005, the though the agreement is of October, 2005, the though the agreement is of October, 2005, the same same same was duly registered alongwith a deed of was duly registered alongwith a deed of was duly registered alongwith a deed of confirmation confirmation confirmation dated 14th June, 2006. He therefore, dated 14th June, 2006. He therefore, dated 14th June, 2006. He therefore, submitted submitted submitted that transfer of the said flat in favour that transfer of the said flat in favour that transfer of the said flat in favour of of of the petitioner has been completed prior to the the petitioner has been completed prior to the the petitioner has been completed prior to the 4 date date date on which order of injunction was passed. on which order of injunction was passed. on which order of injunction was passed. 8.8.8. Learned counsel appearing for the first Learned counsel appearing for the first Learned counsel appearing for the first respondent respondent respondent submitted that there is no power of submitted that there is no power of submitted that there is no power of attorney attorney attorney executed by the 1st respondent in favour executed by the 1st respondent in favour executed by the 1st respondent in favour of of of the 2nd respondent. He submitted that as there the 2nd respondent. He submitted that as there the 2nd respondent. He submitted that as there isisis no power of attorney, assuming that the no power of attorney, assuming that the no power of attorney, assuming that the agreement agreement agreement of sale was executed was by the 2nd of sale was executed was by the 2nd of sale was executed was by the 2nd respondent respondent respondent even prior to 27th December, 2005, the even prior to 27th December, 2005, the even prior to 27th December, 2005, the 1st 1st 1st respondent continues to be the owner of 1/2 respondent continues to be the owner of 1/2 respondent continues to be the owner of 1/2 share share share in the said flat. He submitted that on the in the said flat. He submitted that on the in the said flat. He submitted that on the face face face of it, the transaction has been made by the of it, the transaction has been made by the of it, the transaction has been made by the 2nd 2nd 2nd respondent after the order of temporary respondent after the order of temporary respondent after the order of temporary injunction injunction injunction was passed by the Family Court. He was passed by the Family Court. He was passed by the Family Court. He submitted submitted submitted that the Family Court was justified in that the Family Court was justified in that the Family Court was justified in passing passing passing an order permitting the 1st respondent to an order permitting the 1st respondent to an order permitting the 1st respondent to enter enter enter the said flat as the said flat is her the said flat as the said flat is her the said flat as the said flat is her matrimonial matrimonial matrimonial home. It must be stated here that home. It must be stated here that home. It must be stated here that learned learned learned counsel for the petitioner has stated that counsel for the petitioner has stated that counsel for the petitioner has stated that the the the petitioner desires to file a suit for petitioner desires to file a suit for petitioner desires to file a suit for establising establising establising his title in respect of the said flat. his title in respect of the said flat. his title in respect of the said flat. 9.9.9. I have perused the impugned orders. Order I have perused the impugned orders. Order I have perused the impugned orders. Order dated dated dated 26th March, 2007 passed by the Family Court 26th March, 2007 passed by the Family Court 26th March, 2007 passed by the Family Court on on on the application At Exhibit 11 for impleadment the application At Exhibit 11 for impleadment the application At Exhibit 11 for impleadment made made made by by by the petitioner records that the transaction the petitioner records that the transaction the petitioner records that the transaction isisis illegal in view of the Report of the police. illegal in view of the Report of the police. illegal in view of the Report of the police. However, However, However, no finding has been recorded as regards no finding has been recorded as regards no finding has been recorded as regards the the the execution of the alleged Power of Attorney by execution of the alleged Power of Attorney by execution of the alleged Power of Attorney by the the the 1st Respondent. There is no prima facie 1st Respondent. There is no prima facie 1st Respondent. There is no prima facie finding finding finding recorded by the Family Court on the aspect recorded by the Family Court on the aspect recorded by the Family Court on the aspect of of of the title. In so far as the order passed on the title. In so far as the order passed on the title. In so far as the order passed on 5 Exhibit Exhibit Exhibit 17 is concerned, the learned Judge has 17 is concerned, the learned Judge has 17 is concerned, the learned Judge has referred referred referred to the report dated 7th August, 2006 to the report dated 7th August, 2006 to the report dated 7th August, 2006 submitted submitted submitted by by by Dindoshi Nagar police station. On the Dindoshi Nagar police station. On the Dindoshi Nagar police station. On the basis basis basis of the said report, the learned Judge has of the said report, the learned Judge has of the said report, the learned Judge has observed observed observed that in order to take revenge, the 2nd that in order to take revenge, the 2nd that in order to take revenge, the 2nd respondent respondent respondent was illegally trying to sell the said was illegally trying to sell the said was illegally trying to sell the said flat. flat. flat. The learned Judge held that the said flat The learned Judge held that the said flat The learned Judge held that the said flat was was was a matrimonial home of the 1st respondent. a matrimonial home of the 1st respondent. a matrimonial home of the 1st respondent. Therefore, Therefore, Therefore, the learned Judge proceeded to allow the the learned Judge proceeded to allow the the learned Judge proceeded to allow the 1st 1st 1st respondent to enter possession of the said respondent to enter possession of the said respondent to enter possession of the said flat. flat. flat. 10. 10. 10. As stated earlier, the petitioner desires to As stated earlier, the petitioner desires to As stated earlier, the petitioner desires to file file file a a a suit for establishing his title. Perusal of suit for establishing his title. Perusal of suit for establishing his title. Perusal of the the the orders orders orders impugned in both the petitions show that impugned in both the petitions show that impugned in both the petitions show that there there there is no adjudication made as regards the is no adjudication made as regards the is no adjudication made as regards the alleged alleged alleged rights rights rights of the petitioner. The Family Corut of the petitioner. The Family Corut of the petitioner. The Family Corut has has has not decided the question as to whether the not decided the question as to whether the not decided the question as to whether the transaction transaction transaction was in fact made in October, 2005 as was in fact made in October, 2005 as was in fact made in October, 2005 as contended contended contended by the petitioner. There is no finding by the petitioner. There is no finding by the petitioner. There is no finding recorded recorded recorded on the Power of Attorney allegedly on the Power of Attorney allegedly on the Power of Attorney allegedly executed executed executed by the 1st respondent. As of today, the by the 1st respondent. As of today, the by the 1st respondent. As of today, the 1st 1st 1st respondent has already entered possession of respondent has already entered possession of respondent has already entered possession of the the the said flat. Therefore, a limited interim said flat. Therefore, a limited interim said flat. Therefore, a limited interim protection protection protection was granted by this Court in terms of was granted by this Court in terms of was granted by this Court in terms of prayer prayer prayer clause clause clause (b) in Writ Petition No.3387 of 2007. (b) in Writ Petition No.3387 of 2007. (b) in Writ Petition No.3387 of 2007. The The The petitioner has made a statement that he wants petitioner has made a statement that he wants petitioner has made a statement that he wants toto to file a suit on title in the appropriate court. file a suit on title in the appropriate court. file a suit on title in the appropriate court. Hence, Hence, Hence, it is not necessary to interfere with the it is not necessary to interfere with the it is not necessary to interfere with the impugned impugned impugned orders. However, ad interim relief orders. However, ad interim relief orders. However, ad interim relief granted granted granted by by by this Court will have to be continued for this Court will have to be continued for this Court will have to be continued for a reasonable time to enable the petitioner to reasonable time to enable the petitioner to reasonable time to enable the petitioner to 6 obtain obtain obtain suitable orders from the appropriate court suitable orders from the appropriate court suitable orders from the appropriate court inin in a suit on title. It will have to be clarified a suit on title. It will have to be clarified a suit on title. It will have to be clarified that that that by both the impugned orders, no adjudication by both the impugned orders, no adjudication by both the impugned orders, no adjudication has has has been made by the Family Court as regards the been made by the Family Court as regards the been made by the Family Court as regards the alleged alleged alleged rights of the petitioner in respect of the rights of the petitioner in respect of the rights of the petitioner in respect of the flat flat flat in question and the observations made by the in question and the observations made by the in question and the observations made by the Family Family Family Court Court Court in the impugned orders are only the impugned orders are only the impugned orders are only tentantive tentantive tentantive observations. The suit or proceedings observations. The suit or proceedings observations. The suit or proceedings which which which may be filed by the petitioner will be may be filed by the petitioner will be may be filed by the petitioner will be decided decided decided on its own merits and all contentions of on its own merits and all contentions of on its own merits and all contentions of both both both the parties including the contentions raised the parties including the contentions raised the parties including the contentions raised by by by the 1st respondent regarding genuineness of the the 1st respondent regarding genuineness of the the 1st respondent regarding genuineness of the transaction transaction transaction are expressedly kept open. are expressedly kept open. are expressedly kept open. 11. 11. 11. Hence, these petitions are disposed by passing Hence, these petitions are disposed by passing Hence, these petitions are disposed by passing the the the following order : following order : following order : (a) (a) (a) It will be open for the petitioner to It will be open for the petitioner to It will be open for the petitioner to file file file a suit or apropriate proceeding before a suit or apropriate proceeding before a suit or apropriate proceeding before the the the appropriate forum for establishing his appropriate forum for establishing his appropriate forum for establishing his title/ownership title/ownership title/ownership in respect of the flat in in respect of the flat in in respect of the flat in dispute. dispute. dispute. (b) (b) (b) The said suit or proceeding and interim The said suit or proceeding and interim The said suit or proceeding and interim application