Bombay High Court
Kanaiyabhai Lalbhai Contractor vs Kalpesh Patel And 5 Ors on 25 October, 2021
Author: A. K. Menon
Bench: A. K. Menon
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.13158 OF 2021
IN
SUIT (L) NO.13156 OF 2021
Kanhaiyabhai Lalbhai Contractor .. Applicant
In the matter between
Kanhaiyabhai Lalbhai Contractor,
r/at - "Suvas" Bunglow,
Behind Aarya Samaj Mandir,
Off Linking Road, Santacruz (W),
Mumbai-400 054.
And
A4/1 "Kalash" Somnath Mahadev Society,
Athwa Umra Road, Athwalines,
Surat (Gujarat)-395007. .. Plaintiff
v/s.
1. Kalpesh Patel
2. Seasons Enterprises Private Limited
3. Vishwas Patel
4. Vivek Patel
5. Varini Patel
Defendant nos.1 to 5 being the partners
of Seasons Avenues Properties,
a partnership firm carrying on business
at 701, Seasons Avenue, Linking Road,
Khar (West), Mumbai-400 052.
1/58
IAL-13158-21 IN SL-13156-21.doc
wadhwa
6. Hemant Lalbhai Contractor,
r/at - 25, "Leher" Adarsh Society,
Near Gokulam Dairy, Athwalines,
Surat (Gujarat)-395001. .. Defendants
Mr. Zubin Behramkamdin a/w Ms. Ferzana Behramkamdin & Ms.
ShleshaSheth i/b. FZB & Associates for the applicant-plaintiff.
Dr. Veerendra V. Tulzapurkar, Sr. Advocate, a/w Mandar Soman & Sean
Wassoodew, Ms. Vijaya Ingule & Rupesh Mandhare for respondent-
defendant nos.1 to 5.
Mr. S.C. Naidu, a/w Aniketh Poojari i/b. C.R. Naidu & Co. for defendant
no.6.
CORAM : A. K. MENON, J.
RESERVED ON : 22ND SEPTEMBER, 2021
PRONOUNCED ON : 25TH OCTOBER, 2021
JUDGMENT
1. The suit seeks a declaration that the plaintiff and defendant no.6 are joint owners of the suit property. The plaintiff seeks a decree for partition, for division of the suit property by metes and bounds and separate possession subject to a declaration being made as aforesaid. It also seeks disclosure on oath of permissions that may be obtained by defendant nos.1 to 6 who are developers and in 2/58 IAL-13158-21 IN SL-13156-21.doc wadhwa whose favour the defendant no.6 has executed a Development Agreement. As a corollary, the plaintiff also seeks a declaration that the defendant nos.1 to 5 have no share, right, title or interest in the suit property and the Development Agreement executed between defendant no.6 and defendant no.1 to 5 is unenforceable null and void and to declare that the Power of Attorney is illegal. The plaintiff also seeks permanent injunctions restraining the defendants from dealing with, disposing, transferring the suit property and injunctions restraining the defendants from obstructing the plaintiffs' access, possession and enjoyment of the suit property. Pending the disposal, the plaintiff seeks injunctions in the aforesaid terms and inter alia appointment of the Court Receiver, High Court, Bombay.
2. It is appropriate that description of the parties be set out prior to considering the interim application. The plaintiff and defendant no.6 are brothers. The plaintiff's grandfather Ramji Dayawala had started a family business. In or about 1965, the plaintiff claims to have joined this family business. The defendant no.6 also is said to have joined much later in the year 1977. The plaintiff and defendant no.6 are still partners of Ramji Dayawala Sons & Co. along with other family members. They carry on business inter 3/58 IAL-13158-21 IN SL-13156-21.doc wadhwa alia at Surat. The suit property is said to have been purchased in July 1962 by the father of the plaintiff one Lalbhai. Lalbhai and Dahiben had seven children, 5 daughters and the 2 sons viz. the plaintiff and the defendant no.6. It is the plaintiffs' case that in or about 1968, Lalbhai was desirous of gifting the suit property to the plaintiff and defendant no.6 who are his two sons to the exclusion of five daughters. The plaint sets out several other aspects of properties purchased by Lalbhai during his lifetime. However, in the present suit we are only concerned with the property in Mumbai known as "Suvas".
3. It is the plaintiffs' case that sometime in August 1968 an oral family arrangement was arrived at between his parents, the plaintiff and defendant no.6 then a minor, agreeing that the property would always be used as a family home of the Contractor family in Mumbai. The parents Lalbhai and Dahiben, the plaintiff and defendant no.6 would at all times be joint owners with rights of occupation, possession and use along with their respective family members. A Gift Deed came to be executed on 4th September, 1968 wherein the plaintiff and defendant no.6 were described as "Donees". At that time, the defendant no.6 was a minor and was represented by his mother and natural guardian 4/58 IAL-13158-21 IN SL-13156-21.doc wadhwa Dahiben. The suit property was said to be subject of an Indenture of Mortgage in August 1967 and it was later registered with the Sub-Registrar of Assurances in Bombay in or about 1968.
4. It is the plaintiffs' case as canvassed by Mr. Behramkamdin that during the period when the Gift Deed was executed, the family business at Ramji Dayawahla Sons & Co. Pvt. Ltd. had contracts with the Maharashtra State Electricity Board in relation to certain power plants. They also had insurance arrangements with Vulcan Insurance Company Limited and Advanced Insurance Company Limited. They had furnished guarantees on behalf of a company through the aforesaid MSEB. The company Ramji Dayawahla & Sons had along with the father Lalbhai mortgaged the suit property as security to Advance Insurance Company Limited against the guarantee issued to MSEB. This fact finds reference in the Gift Deed which was subject, expressly to the Indenture of Mortgage as between Lalbhai and Advance Insurance Company Limited.
5. It is the plaintiffs' case that in or about 1970 MSEB had threatened to invoke the guarantee given by Advance Insurance Company Limited on behalf of the company. The plaintiff who 5/58 IAL-13158-21 IN SL-13156-21.doc wadhwa was then a Director of the company claims that the company's Solicitors had advised Lalbhai that the plaintiff should relinquish his rights in the suit property in favour of defendant no.6 then a minor, apparently in order to "save" the suit property from being attached and sold in execution of any decree that may be passed. The plaintiff though unwilling, claims to have been convinced by Lalbhai and Dahiben to release his rights in favour of defendant no.6. A further Oral Family Agreement is mooted as between Lalbhai, Dahiben acting as mother and natural guardian for defendant no.6 and the plaintiff whereby it was agreed that the plaintiff would release the suit property in favour of defendant no.6 to save the suit property from being attached and probably sold at the instance of creditors. In other words, they sought to exploit the fact that the defendant no.6 was then a minor and that a minor's property could not be subjected to sale. As part of the family arrangement it is contended that it was orally agreed that daughters of Lalbhai and Dahiben, sisters of the plaintiff and the defendant no.6 would have a right to use the suit property.
6. Acting on the alleged oral family arrangement, the plaintiff is said to have released his share in the suit property for disclosed 6/58 IAL-13158-21 IN SL-13156-21.doc wadhwa consideration of Rs.1000/-. He executed a Release Deed on 8 th September, 1970 relinquishing all right, title and interest in the suit property in favour of defendant no.6. It is admitted that the Release Deed has been registered with the Sub-Registrar at Bombay. Thus, the first important fact to be noted is that there is a written deed of release duly executed by the parties and registered before a Sub-Registrar at Mumbai. This fact is admitted. The plaintiff has then contended that in or about 1975, upon attaining majority, the defendant no.6 had been appraised of the oral family arrangement. He had agreed to be bound by at all times and thus, the oral family arrangement was to be given effect to, in the manner set out in the plaint. The daughters of Lalbhai are said to have agreed to this arrangement. Notwithstanding the Release Deed, the plaintiff and his family members are said to be holding passports, their ration card and business cards which displays their address as that of the suit property.
7. Lalbhai who was then a resident of London died there on 15 th November, 1984 and the death certificate of Lalbhai also displays the address of the suit property. Some family businesses, Partnership firms and the company also continued to have their 7/58 IAL-13158-21 IN SL-13156-21.doc wadhwa address at the suit property. The plaintiff has contended that in 1978 after the defendant no.6 joined the family business, he was using the suit property in transit till 1986 and in 1986 the defendant no.6 shifted to Surat and looked after the family business from there. The plaintiff claims he continued to use the suit property whenever his family members or he would come to Mumbai they would stay at the suit property and use the furniture and fixtures of which the plaintiff claims ownership. The plaintiff claims that in 1984 after Lalbhai's death the plaintiff, defendant no.6 and their mother Dahiben reaffirmed the oral family arrangement between them. While the right of occupation, possession and ownership of these three persons continued, the plaintiff's sisters and their family were allowed to use the property. The mother- Dahiben expired on 7 th March, 2012. Upon the demise of Dahiben, the oral family arrangement is said to have been reaffirmed as between the plaintiff and defendant no.6. The plaintiff claims that he along with defendant no.6 continued to hold the suit property as owners with the sisters having a right to reside there at along with their families.
8. According to Mr. Behramkamdin, the plaintiff has left behind several personal belongings including furniture and fixtures in 8/58 IAL-13158-21 IN SL-13156-21.doc wadhwa one room on the first floor of the suit property which has always been in the plaintiffs' sole, exclusive, continued use and occupation. On or about 14th June, 2019 and onwards, the defendant no.6 unilaterally prevented the plaintiff form using the suit property. In this background, the plaintiff claims that on or about sometime in the 1st week of May 2021 he was informed by the neighboring plot owner that there were Security Guards posted at the suit property. He learnt that there were several people in the compound of the suit property and soil testing work was underway. Being unaware acts of defendant no.6, and being apprehensive that the defendant no.6 may unilaterally deal with the property, the plaintiff issued a public notice dated 10 th May, 2021 mentioning that the plaintiff was an owner of the suit property and in possession thereof alerting members of the public not to deal with the suit property with any person other than the plaintiff.
9. According to Mr. Behramkamdin, upon demise of Lalbhai and Dahiben, the suit property is owned jointly by the plaintiff and defendant no.6 for themselves and their respective families. Even according to the alleged Will of Lalbhai (which the plaintiff does 9/58 IAL-13158-21 IN SL-13156-21.doc wadhwa not appear to admit of) the oral family arrangements have been reiterated that the bequest is being made in respect of suit property in favour of Dahiben, the plaintiff and defendant no.6. However, the oral family arrangement is said to have been reiterated. The Will provides that Lalbhai had transferred the suit property from defendant no.6 to Dahiben and himself. The absence of reference to the plaintiff in this respect very material. Notwithstanding the provisions of the Will or its legal effect, the plaintiff has claimed that the defendant no.6 along with the plaintiff are joint owners and in the event of any decision to redevelop the property, it could not have been taken without the express consent of the plaintiff. Viewed in this light Mr. Behramkamdin submitted that the execution of the Development Agreement and the power of attorney are non-est, not binding upon the plaintiff, and as such, in breach of the oral family arrangement and therefore liable to be ignored. The Development Agreement and Power of attorney are said to be null and void despite being a registered document, it is liable now to be cancelled.
10. In an affidavit dated 8 th September, 2021 filed by the 10/58 IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff he has produced copies of his Voter's ID card, Aadhar card and current ration card. A copy of the cover page of a cheque book issued by Bank of Baroda in the name of Ramji Dayawahla Engineers is also included which also shows the name of the suit property, copies of the passport of the plaintiff's wife and daughter also discloses that the address provided is that of the suit property. The affidavit annexes therewith two photographs at Exhibit 'H' & 'G' which are said to be of the room that was refurnished and repaired by the plaintiff and which was in occupation. The affidavit also contains reference to Income Tax notices received by the plaintiff in March 2017 at the suit property as also a notice from Bank of Baroda calling upon Ramji Dayawahala Engineers to complete KYC requirements. Copy of a request for issuance of new cheque book of which HDFC Bank is also relied upon to show that the address of the Kanaiyalal Lalbhai Contractor HUF was that of the suit property. So also the pass book in respect of the said account with HDFC Bank Ltd. held by Kanhaiyalal Contractor HUF was that of the suit property. These are but a few other documents that have been pressed into service at the hearing of this interim application.
11. In a further affidavit dated 17 th September 2021, the 11/58 IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff has reiterated the contents of a handwritten letter dated 6th March, 2006 sent by facsimile by the defendant no.6 to the plaintiff describing various properties. At serial number 7 the handwritten letter deals with the suit property. The language used in the said letter pertaining to the Suit property is in plural and not singular. The defendant no.6 and the plaintiff would thus mutually decide the fate of the suit property and not the defendant no.6 alone. This is indicative of the intention of the parties to take a joint decision if at all in relation to the suit property.
12. The plaintiff as a joint owner of the property is desirous of continuing in ownership, use and occupation of the premises but the defendant no.6 appears to be opposed to it. In view of the joint ownership that is now pleaded and canvassed before me, the plaintiff claims to be entitled to all the aforesaid reliefs, leading upto the delivery of the purported Development Agreement and Power of Attorney to this court for cancellation and for handing over possession of the suit property. In the interregnum the plaintiff seeks to restrain the defendants from proceeding with redevelopment or taking any steps in furtherance thereof. The interim application filed by the plaintiff seeks appointment of the 12/58 IAL-13158-21 IN SL-13156-21.doc wadhwa Court Receiver, High Court Bombay of the suit property, injunction restraining the defendants from proceeding with any development activity. Meanwhile, seeks deposit of original title deeds of the suit property in this court. It also seeks to restrain the defendant nos.1 to 5 in proceeding with demolition of the suit property or altering the property in any manner including by removing the furniture and fixtures and personal belongings of the plaintiff said to be lying thereat. Mr.Behramkamdin therefore submits that the reliefs sought may therefore be granted. Mr. Behramkamdin has also relied on the following judgments;
1) Syndicate Bank v/s. M/s. S. S. Printers and others1
2) MST Rukhmabai v/s. Lala Laxminarayan & Ors.2
3) Smt. Gangabai w/o Rambilas Gilda v/s. Smt. Chhabubai w/o Pukharajji Gandhi3
4) Sanjay Kaushis v/s. D.C. Kaushis & Ors.4
13. Opposing the grant of relief on behalf of respondent nos.1 to 5, Dr. Tulzapurkar would submit that the plaintiff has failed to make out a case for grant of the reliefs sought. He relies upon the fact that the plaintiffs attempt to establish the validity of the oral 1 1995(2) Mh.L.J. 198 2 (1960) 2 SCR 253 3 )1982) 1 SCC 4 4 1991 SCC OnLine Del 497 13/58 IAL-13158-21 IN SL-13156-21.doc wadhwa agreement cannot succeed. He submitted that when there is a written document such as the Release Deed which is registered as required by law and which has been acted upon, the terms of the registered deed would prevail over any oral contract. It cannot be substituted by any oral agreement and in particular the Release Deed being a document which confers title. The requirement of recording the same writing and registering the same is to ensure its validity. Dr. Tulzapurkar also submitted that the terms of the registered deed such as the Release Deed in the present case, may be varied only by a valid registered document. It could not be varied except by an instrument in writing and duly registered. Dr. Tulzapurkar submitted that there is no case whatsoever for grant of any reliefs in favour of the applicant. Canvassing the case of the developer Dr. Tulzapurkar submitted that the developer spent over 17,52,98,909/- and having spent such large sums of money, the balance of convenience is clearly in favour of the defendant nos.1 to 5 and against the plaintiff who has come to court belatedly with a case of an oral agreement seeking to modify a registered contract. This is submitted is clearly not sustainable. The plaintiff has produced little or no evidence of such an oral agreement having been arrived at. There are no other persons 14/58 IAL-13158-21 IN SL-13156-21.doc wadhwa named as witnesses or could in any manner resist in ascertaining whether an oral agreement preceded the execution of the deed of release or whether it was arrived at contemporaneously with the deed of release or shortly thereafter.
14. Dr.Tulzapurkar submitted that in an affidavit dated 7 th July, 2021 file don behalf of defendant nos.1 to 5, the deponent has reaffirmed the contents of an affidavit filed on behalf of defendant no.6. He submitted that the developers have entered into the development agreement after carrying out an exercise in due diligence, investigating the title of defendant no.6 of the suit property and after taking searches at the offices of Sub-Registrar of Assurances, the defendant no.6 was found to be the sole owner of the property . Public notices have since been issued and no objections were received. It is only thereafter that the development agreement and power of attorney came to be executed in favour of the developers. Substantial consideration has been paid and costs incurred as aforesaid and the defendant no.6 is said to have put the developers in possession. At the time possession was taken none of the belongings of the plaintiffs as set out in the plaint was lying thereat. Acting upon the development 15/58 IAL-13158-21 IN SL-13156-21.doc wadhwa agreement, the deponent has applied for approvals of plans and for construction of a building, the plans are under process and at an advanced. Intimation of disapproval is expected to be issued by the Municipal Corporation shortly. The deponent has also contended that large amounts have been spent towards fees of Architects, legal fees, scrutiny fees, premiums paid to the corporation, and in these circumstances, considering the delay in approaching this court no relief should be granted.
15. Defendant no.1 who is the partner of the developer has also filed an additional affidavit dated 1st September, 2021 in which he sets out that after taking possession of the suit property, on 30 th March, 2021, an IOD has been issued on 2nd August, 2021, conditions of the IOD save and except demolition have since been complied and that the defendant no.1 has spent about 17,52,98,909/- till date towards costs of redevelopment on account of gross delay.
16. Dr. Tulzapurkar relied on the following judgments;
1) S. Saktivel (Dead) by LRS. v/s. M. Venugopal Pillai and others 5
2) Chandrakant Shankarrao Machale v/s. Parubai Bhairu Mohite 5 (2007) 7 SCC 104 16/58 IAL-13158-21 IN SL-13156-21.doc wadhwa (Dead) through LRS.6
17. Mr. Naidu appearing on behalf of the defendant no.6 submitted that the alleged oral agreement is non-existent. He submits that the plaintiff has not filed the suit for specific performance of any family arrangement. On the other hand, he seeks a declaration and partition but there is no prayer for specific performance of any alleged family arrangement. There is also no challenge to the Release Deed or the Gift deed. According to Mr. Naidu the claim is for partition of property in which the plaintiff has no share. He has relied upon a compilation of documents and submitted that the nephew of the plaintiff had initiated a suit in Surat before the Additional Principal Judge and in that suit, an injunction was sought against the disposal of the property. The property included the Mumbai suit property and the defendant no.6 who was arraigned as defendant no.3 in that suit had defended his possession and has effectively sought certain reliefs. The defendant no.6 had successfully thwarted the attempts of the nephew to obtain an injunction and arguments on behalf of the 6th defendant were supported the plaintiff herein 6 (2008) 6 SCC 745 17/58 IAL-13158-21 IN SL-13156-21.doc wadhwa who was a party defendant in that suit. The court had not granted any relief in respect of the Mumbai property since it was beyond its jurisdiction but having supported the case of defendant no.6 in the Surat suit, it is not possible to now contend contrary to the submissions made in this court at Surat. Mr. Naidu further submitted that the plaint is based upon false assertions. It falsely states that plaintiff is a joint owner.
18. Mr. Naidu further submitted that since the suit seeks partition of the property there would have been at least 1/8 th share that would fall within the share of each family member inasmuch as Lalbhai and his wife and seven children and therefore 1/8th share would fall to the share of each of these family members but in the present suit, the daughters have been excluded. The five sisters of the plaintiff were necessary parties and even otherwise the sisters had not conveyed their consent to the plaintiff approaching this court without making them parties. Since they were necessary parties, the relief sought could not have been urged without securing their presence especially since the oral agreement pleaded includes a component whereby the sisters are entitled to also use the property for their residence in Mumbai 18/58 IAL-13158-21 IN SL-13156-21.doc wadhwa from time to time. If the allegations in the plaint are true, it was absolutely essential that the five sisters of the plaintiff and defendant no.6 were impleaded as party defendants. Not having done so, Mr. Naidu submits that the assertions in the plaint cannot be believed. In fact as we can see the sisters have not supported either plaintiff or defendant no.6 since neither of them has been able to procure any affidavits of support of their respective cases.
19. Mr. Naidu submitted that the plaintiffs' suit is clearly barred by law of limitation assuming that the family agreement is true and the Release Deed is sham and bogus document. In 2014, the entire property has been claimed and a judgment delivered by the Surat court, none of the present defences has seen to have been canvassed in that court. Of course there may be some truth in the contention of Mr. Behramkamdin that the Surat court was not concerned with the property of the Mumbai and has expressly made it clear in its judgment that it had no territorial jurisdiction over the property in Mumbai. Mr. Naidu submitted that the suit is filed on 16th June, 2021 and by operation of Article 58 and 59 of the Limitation Act the suit is clearly barred and since the suit is not maintainable, the interim application too must fail. 19/58 IAL-13158-21 IN SL-13156-21.doc wadhwa
20. Mr. Naidu further submitted that in any event the plaintiff has omitted to assail the Release Deed which was absolutely essential. If the plaintiff is to succeed in the present suit since he is claiming ownership of the property along with the defendant no.6 to the exclusion of all others. Despite the execution of the deed of release, it was necessary that the oral agreement propounded by the plaintiff is supported by challenge to the registered deed of release. He submitted that in the facts of the case, since the applicant is now seeking performance of the alleged oral arrangement, the suit which only seeks a declaration of ownership and without assailing the deed of release executed by the plaintiff, is defective and the declaration in the suit cannot be granted even assuming the averment were true without the plaintiff having first assailed the deed of release. Mr. Naidu also submitted that considering the prayers in the suit which seeks a declaration of ownership, absent to the challenge of deed of release, the suit is not maintainable since that he really seeks is specific performance of the oral agreement and that the suit cannot succeed in the absence of a challenge to the written document in the form of the deed of release. He therefore 20/58 IAL-13158-21 IN SL-13156-21.doc wadhwa submitted that the suit is barred and liable to be rejected.
21. The plaintiff being a stranger to the property, the provisions of Section 41(h) of the Specific Relief Act will operate as a bar to grant of injunction. The suit is speculative and does not even disclose a proper cause of action. In any event have been executed the Release Deed and admittedly so, there is no subsisting cause of action in favour of the plaintiff. The Release Deed cannot be undone by mere pleading of an oral family arrangement. Mr. Naidu then invited my attention to the property register card in respect of the suit property and submitted that the alleged deed of mortgage which caused the plaintiff to have given up his share pursuant to the alleged family arrangement. In any event the defendant no.6 was then a minor and by virtue of the gift deed dated 4 th September, 1968, 50% share in the property would vest in the minor.
22. My attention is invited to the affidavit filed on behalf of defendant no.6. Defendant no.6 claims that the plaint is liable to be rejected under provisions of Order VII Rule 11(a) & (d). The 21/58 IAL-13158-21 IN SL-13156-21.doc wadhwa suit is also liable to be rejected under Order VII Rule 11B of the CPC for want of payment of proper court fees. Mr. Naidu in his submission made it clear that the defence to be present interim application is without prejudice to three other interim application filed by defendant no.6 viz. the IA no.1483 of 2021 filed under Order VII Rule 1D and IA-1492 of 20201 filed under Order VII Rule 11A and D and IA 1491 of 2021 filed under Order XII Rule
6. These are sought to be raised as preliminary objections.
23. According to the defendant no.6 the suit is not competent and the plaintiff cannot seek possession under Section 6 of the Specific Relief Act. It is contended that the critical elements required in pleadings for a suit of this nature to succeed have not been met. The plaintiff has not claimed to be in actual physical possession of the suit property within six months prior to institution of the suit. He has not made out a case of being in settled possession, open, continuous and to the knowledge of defendant no.6 and/or that he was forcefully dispossessed. There is no mention of the alleged manner in which such forcible possession took place or any complaint having been lodged against such alleged dispossession. According to the defendant no.6, the suit is filed under Section 5 of Specific Relief Act. The 22/58 IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff has only sought a declaration and as part of such declaration he seeks an order of partition by metes and bounds. Thus the suit is based on title, a proprietary suit for declaration and hence, clearly falling within the scope of Section 5 of the Specific Relief Act. Defendant no.6 has urged his case that the plaintiff was not in settled possession at any time.
24. In support of these contentions it is stated that the plaintiffs' parents were residents of Surat that the plaintiff and their father had serious disputes and differences sometime in the year 1983 as a result of which the plaintiff moved out of their parental home into rental premises in Surat. There was a separation between plaintiff on one hand and the father Lalbhai, post separation the plaintiff had set up an independent business in the name of TP Construction Co. but continued to be shown as partner albeit merely on paper of Ramji Dayawahla Sons & Co. though no business had been carried out in the name of that firm since about 1983. The plaintiff later shifted to his own Bungalow at Surat sometime in 1989 and/or permanently residing in Surat thereafter ever since.
25. It is then contended by defendant no.6 that in or around 23/58 IAL-13158-21 IN SL-13156-21.doc wadhwa 1992-1993, the plaintiff set up a proprietary business in the name of Ramji Dayawahla Engineers. Sometime in 2003, the plaintiff had requested the defendant to permit his son Urmil to reside at a suit premises since he was pursuing his education in Mumbai. The defendant permitted Urmil to stay during 2003 to 2005 gratuitously. No member of the plaintiff's family other than Urmil has resided at the suit property. The plaintiff's businesses are run by him and his sons in the aforesaid firm name and style. It had major contracts in Gujarat, Abu Dhabi and Muscat.
26. When the defendant no.6 came to Mumbai in 1972 he was residing in a suit property during his education here. He proceeded to London in 1976 but on all visits to India he would continue to stay at the suit property. The plaintiff it is contended never resided at the suit property or had any furniture and personal belongings thereat. The family business at Mumbai and Surat continued with the defendant no.6 in-charge. He claims to have paid all bills of all property tax, water charges and electricity charges in respect of the suit property for over 30 years. Bills for the aforesaid services are also said to be in the name of the defendant no.6 alone. The bungalow being in a dilapidated state, he has been spending considerable amounts repairing it but it was 24/58 IAL-13158-21 IN SL-13156-21.doc wadhwa getting difficult to maintain the property and therefore he decided to redevelop the property. However, the defendant no.6 continued to maintain the property including a number of domestic servants and security guards. He claims to have paid for the services of these persons himself.
27. The defendant no.6 has reiterated the issuance of the public notice, the fact that no objections were received and asserts to have been in continuous open and exclusive possession of the suit property since about 1972 till he handed over possession to developers. Neither the plaintiff nor any of his family members were ever in settled possession of the property since adverting to the contentions in the plaint regarding the plaintiff's ration card showing the address of the suit property. The deponent states that the name of the plaintiff was inserted only to enable him to obtain a passport from Mumbai. There being no passport office in Surat at the material time, passports were being issued from Mumbai and Mumbai being the closet and most convenient place. The plaintiff's name was inserted to facilitate the issuance of passports. The plaintiff is also said to have obtained a liquor license on the basis of his Mumbai address. The plaintiff's son Urmil's name was inserted in the ration card only for the purposes of facilitating 25/58 IAL-13158-21 IN SL-13156-21.doc wadhwa admission to the college and principally the ration card stands in the name of defendant no.6, his wife and children upon issuance. The plaintiff's name was inserted in the year 2000.
28. The reply highlights the fact that the plaintiff has admittedly stayed on the suit property till about 2002 when he voluntarily shifted to Surat. The absence of particulars of any of his family members residing in the suit property after 2002 is conspicuous by its absence and hence it is contended that the plaintiff was not dispossessed, as now contended. Defendant no.6 has denied that any furniture or fixtures or personal belonging to the plaintiff is lying at the suit property. The Release Deed in no uncertain terms records the plaintiff having released all right, title and interest in the suit property in favour of defendant no.6 and as sole owner he was entitled to deal with the property. The claim of joint ownership is untenable and the plaintiff has no right whatsoever to seek any of the interim or ad-interim reliefs unless he first obtains a declaration of title to the suit property and that cannot be done unless the plaintiff establishes that the Release Deed in favour of the defendant no.6 was not valid. In any event, it is not the plaintiff's case that the Release Deed is a sham and bogus document but he seeks to set up an oral family 26/58 IAL-13158-21 IN SL-13156-21.doc wadhwa arrangement contrary to this written registered document. The suit is thus proceeding on the basis of the alleged oral family agreement arrived at in 1970 about 51 years ago without disclosing a subsisting cause of action especially since the Release Deed has not been challenged in any manner. The Release Deed being registered and in operation, the plaintiff cannot seek enforcement of any oral arrangement contrary thereto. Thus, it is contended that the reliefs claimed in the plaint are liable to be rejected.
29. Mr. Naidu in support of the defendant's case has argued that the plaintiff's case is also barred in the light of Section 91 and 92 of the Indian Evidence Act. The suit is not competent and has incurable defects including non-joinder of necessary parties being the sisters of the plaintiff and defendant no.6 especially since the plaintiff has claimed that he is the head of the family and has filed the suit on behalf of self, his wife and children. No leave has been obtained to file the suit in a representative capacity though non-joinder of necessary parties such as the 5 sisters of the plaintiff is said to be material and despite such objections, the plaintiff has taken no steps to implead the sisters even though matter has been pending for a long time. Mr. Naidu submitted 27/58 IAL-13158-21 IN SL-13156-21.doc wadhwa that once the fact of the Release Deed having been executed and registered is accepted unless the Release Deed is revoked and cancelled it is no question of the plaintiff seeking any relief contrary to the provisions of the Release Deed and therefore the plaintiff is precluded from setting up an oral arrangement. In fact no cause of action arises in favour of the plaintiff to seek cancellation of the Release Deed much less to file the suit seeking partition or separate possession. The defendant no.6 is a sole owner of the property and no cause of action has arisen to file the present suit as such sole owner he has entered into an agreement of development. The affidavit refers to the fact that there is one electricity meter and one water meter at the suit property. These meters are in the name of the defendant no.6. Municipal Tax bills are also issued to defendant no.6 alone and this is prima facie evidence of a fact that the defendant no.6 alone was in use and occupation of the suit property contrary to the plaintiff's claims now set up in the suit. Absent any cause of action, it is submitted that the suit has no merit and therefore there is no question of granting any interim protection as now sought.
30. According to defendant no.6, the plaintiff's voter ID card, 28/58 IAL-13158-21 IN SL-13156-21.doc wadhwa Aadhar Card and ration card all show that he is a permanent resident of Surat and having obtained these documents at Surat. It is obvious that the previous ration card in Mumbai cannot be pressed into service as proof of use and occupation and residence at the suit property. In particular the ration card at Mumbai does not include the names of the plaintiff's wife and daughters and the plaintiff's name was thus introduced only for the purpose of enabling him to obtain a passport as aforesaid. In fact continuous residence of the plaintiff at Surat is virtually admitted. The defendant no.6 has denied the plaintiff's contention that the premises in his occupation were renovated and that the photographs are of no value, especially since the plaintiff has not produced any evidence in terms of bills or vouchers to establish that he had the premises renovated, particulars of the contractor or workmen who are involved has been set up. In support of his case, Mr. Naidu placed reliance on a document dated 6 th March, 2006 written by the defendant no.6 and admitting of the plaintiff's right in the suit property is of no assistance to the plaintiff. It is contended that the translation annexed is misleading. Mr. Naidu submitted that the document if read in its entirety will reflect an attempt at amicable settlement of long 29/58 IAL-13158-21 IN SL-13156-21.doc wadhwa pending disputes between the parties and is not supportive of the plaintiff's case of use and occupation of the suit property. Specific reference to the property 'Suvas' in the said letter is consistent with the case of the defendant no.6 that the arrangement in relation to Suvas as recorded in the Release Deed would continue to operate and there is no occasion to make any change to that position. Mr. Naidu submitted that the letter which has been produced only much later and not as one forming the basis of the suit claim does not support the plaintiff's oral arrangement. Even otherwise, at least one of the properties in which the plaintiffs' sisters are said to have a share has been sold and the proceeds were divided between the plaintiff and defendant no.6. No share was provided to the sisters. Mr. Naidu has taken me through the additional affidavit dated 9 th September, 2021 filed on behalf of defendant no.6 and which deals with the various items of property set out in the letter of 2006. He submitted that the letter does not advance a case of the plaintiff in any manner and it is hardly admission of the plaintiff's case as set up in the plaint.
31. Mr. Naidu also stressed upon the fact that the identity card issued to the plaintiff by the Election Commission of India undoubtedly shows the address of the plaintiff at Surat so did the 30/58 IAL-13158-21 IN SL-13156-21.doc wadhwa Aadhar card and the ration card. The ration card also bears the name of the plaintiff's wife, sons, daughters-in law and daughters and the address on ration card is that of Surat. It is also pointed out that a copy of an envelope addressed by Bank of Baroda to Ramji Dayawahla Engineer shows the address of the company as Bal Sadan Apartments Mumbai and this property Bal Sadan is not the suit property but is opposite the suit property. This Mr. Naidu seeks to press into service to establish that the plaintiff's attempt at showing use and occupation of the suit property is baseless and cannot succeed. In this manner, the plaintiff's case is sought to be disputed and denied.
32. Mr. Naidu highlighted the fact that no relief under Section 6 has been claimed, there is no allegation of forcible illegal dispossession and of continuous prior possession as contemplated in Section 6. He also submitted that the valuation clause is defective the suit has not been properly valued and the plaint clearly is one that that falls under Article 1 of the schedule and not Article 2 especially since the reliefs under Section 5 & 6 of the Specific Relief Act are mutually exclusive and the present suit is not one that complies with the requirement of Section 6. In any event, making reference to paragraph 4(k) of the plaint, Mr. 31/58 IAL-13158-21 IN SL-13156-21.doc wadhwa Naidu highlighted the fact that the plaintiff had shifted to Surat in the year 2002 and it is not his case that he was dispossessed within 6 months prior to having approach this court. Settled possession has not been established. The plaintiff and his family members are permanent residents of Surat and this has been reiterated in the affidavits and the documents their testimony to this fact. In effect there is no challenge to the obvious factual aspect that the plaintiff and his family members are permanent residents of Surat. Mr. Naidu relied upon the following decision in support of his case;
1) I.S. Sikandar (Dead) by LRS. v/s. K. Subramani and Others 7
2) N.V. Srinivasa Murthy and others v/s. Mariyamma (Dead) by proposed LRS and Others8
3) Poona Ram v/s. Moti Ram (Dead) through Legal Representatives and Others9
4) Ramanlal Ambalal Patel v/s. Hina Industries10.
33. On behalf of the plaintiff it is contended that while Dr. Tulzapurkar has relied upon the costs incurred upto 31 st July, 2021 in terms of professional fees, TDR acquisition costs, stamp duty, and other charges. In a further affidavit in rejoinder dated 7 (2013) 15 SCC 27 8 (2005) 5 SCC 548 9 (2019) 11 SCC 309 10 1993 CivilCC91 32/58 IAL-13158-21 IN SL-13156-21.doc wadhwa 11th September, 2021 the plaintiff has reiterated his case in the plaint and denies that prior to execution of the development agreement, the defendants no.1 to 5 had carried out any due diligence exercise and has put them to strict proof thereof. The suit property was described being the Surat suit and that no reference whatsoever to the said suit is found to be made in the development agreement. The public notices issued in Mumbai are of no consequence since the plaintiffs were residents of Surat and that the defendants were well aware when the notice was published. The premises although in Mumbai the plaintiff was one of the likely claimants and that the notice should have been published in Surat as well.
34. The plaintiff has reiterated the fact that he was not aware that defendant no.6 had handed over the property to the developers and that he came to know of the same only on receipt of the letter dated 14th May, 2021 from the Advocate of the developer. He seeks to press this aspect into service to overcome the objection on the ground of delay. The affidavit reiterates that one room on the first floor of the suit property has always been and continued in the possession of the plaintiff and his family 33/58 IAL-13158-21 IN SL-13156-21.doc wadhwa members for their sole and exclusive occupation till illegal dispossession by defendants. The affidavit reiterates that the plaintiff continues to be the joint holder and that the relief sought in the plaint be granted.
35. In yet another additional affidavit filed on behalf of defendant no.6 dated 17th September, the defendant no.6 has stated that the plaintiff's case that the Release Deed was not to be acted upon is incorrect. The affidavit reiterates that the Release Deed was acted upon by the plaintiff, reference being had to an application made by the plaintiff dated 6 th June, 1972 addressed to City Survey Officer informing him that he had released the property in favour of defendant no.6 and requesting transfer of the property in the City Survey Record. A copy of this document is to be found at Exhibit 1. Furthermore it is contended that the said application is made under Section 149 of Maharashtra Land Revenue Code 1966. The application was registered by the office of the Tahsildar, Bandra and pursuant to this application dated 29th July, 1972 the plaintiff was called upon to record objections, if any, to the deletion of his name from the property registrar card pertaining to suit property. The plaintiff raised no objection at the 34/58 IAL-13158-21 IN SL-13156-21.doc wadhwa relevant time and that the Tahsildar made an endorsement on the application that the request for deletion of name had been made a month ago no objection was received and the mutation was approved. Thus this endorsement is said to be dated 6 th January, 1973 and accordingly the property registered card duly mutated shows the defendant no.6 as the sole and exclusive owner of the suit property.
36. Mr. Naidu submits that these documents conclusively establish the case of defendant no.6 and falsifies the case of the plaintiff. The affidavit also sets out the fact that plaintiff is a stranger to the suit property and that in view of the dilapidated condition of the suit property, the defendant no.6 had instructed his solicitors to issue a public notice in the Free Press Journal notifying the public at large inserted a public notice inviting objections if any to the defendants claim to ownership. The plaintiff at the time did not raise any objection and the notice was unanswered knowing fully that the plaintiff had no right title and interest. Copy of the public notice has been attached and that clearly evidences publication on Friday 2 nd December, 2016 whereby the defendants name is shown as the client on whose instructions the notice has been inserted calls upon individuals, 35/58 IAL-13158-21 IN SL-13156-21.doc wadhwa companies, banks, non-banking financial institutions or firms or association of persons having any claim to forward their claims in writing within 14 days of the date of the publication and not having responded to even this public notice. It is obvious that the plaintiff had no case whatsoever that the property was of his joint ownership.
37. Having heard the rival contentions and having considered the pleadings and the documents at this interim stage I am unable to find merit in the plaintiff's case. In support of the plaintiffs attempt at securing reliefs, references have been made by Mr. Behramkamdin to various documents, I will briefly deal with some of the important ones which the plaintiffs have relied upon. The ration card issued in the name of the plaintiff shows the address of the suit property, the ration card also makes mention of the name of the plaintiff's son Urmil. The passport issued to the plaintiff in or about 4th August, 2012 and which is scheduled to expire on 13th August, 2022, also shows the address of the suit property. The passports of the plaintiff's two sons also show the address of the Mumbai property. In addition it is contended that the liquor license issued to the plaintiff in June 2007 and the death certificate of Lalbhai, the father of the plaintiff and 36/58 IAL-13158-21 IN SL-13156-21.doc wadhwa defendant no.6 both mentioned the address as Suvas-the suit property. Reference is also been made by Mr. Behramkamdin to a list of movables said to be lying at the suit property.
38. The plaint also sets out that one room in the suit property is still in the possession of the plaintiff and his family members till they were illegally dispossessed. According to the plaintiffs, his son Urmil took photographs of the renovated room in June/July 2019 in the presence of the plaintiff, the references to these statements are to be found in the affidavits filed by the plaintiffs along with the sons. The passport of the plaintiff's wife also shows the address of the suit property. In addition, the plaintiffs have relied upon a copy of the cheque book issued by Bank of Baroda to Ramji Dayawahla Engineers which held an account with the said bank and calling the plaintiff to complete the KYC requirements. This letter is dated 1st September, 2020 and has been canvassed as evidence of the fact that the plaintiff was in occupation of the suit property. A cheque book issued by HDFC Bank in the name of Kanhaiyalal Contractor HUF also has been pressed into service. Finally, the plaintiff has relied upon the handwritten letter dated 6th March, 2006 which he believes is critical in establishing the fact that the property in question was 37/58 IAL-13158-21 IN SL-13156-21.doc wadhwa in the joint ownership of plaintiff and defendant no.6. The letter is said to have been sent by facsimile to the plaintiff from the fax machine bearing the phone number of the telephone installed at Suvas. In this manner, the plaintiff has attempted to establish possession and ownership of suit property. Incidentally, the letter dated March 2017, addressed by the Income Tax Department to the plaintiff, is really addressed to the plaintiff at his Surat address it is only the copy that has been marked to the Mumbai address. These are the documents in support which the plaintiff has pressed into service in support of this case. Last but not the least, at the conclusion of hearing, Mr. Behramkamdin submitted that the plaintiff has since located the original Release Deed which the defendant believed was lost. He offered to produce the original Release Deed in court.
39. My attention is also invited to the averment in the plaint to the effect that the property belong to Lalbhai, Dahiben, plaintiff and defendant no.6, and what is contemplated is dealing with the share of minor since the defendant no.6 attain the majority only in the year 1975. Thus, the plaintiffs' version of the father of the plaintiff being advised to have the Release Deed executed in order to save the property from attachment or sale does not help the 38/58 IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff today because nothing prevent him from setting the record straight to seek cancellation of the release. The alleged mortgage in favour of the Insurance Company is not reflected in the record of rights or any contemporaneous record. There is no evidence of such an arrangement.
40. I am of the view that the plaintiff would have been advised of the consequences of a Release Deed being executed and registered and if indeed the family arrangement was true, as pleaded, the plaintiff would have always had the option of seeking cancellation of that Release Deed. I have taken into consideration the facts in the present case, the plaintiffs' claim that there is an oral agreement which had been arrived at prior to the Release Deed or about the time the Release Deed was executed and which was subsequently reiterated. The question is whether the alleged oral agreement can prevail over the registered Release Deed ? If the plaintiff succeeds in establishing the oral agreement supersedes the release, he may have a case. All other surrounding circumstances urged by the plaintiff including documentation cannot assist the plaintiff if he cannot establish that the oral agreement prevails.
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41. It is in this respect that Section 92 of the Evidence Act will have to be considered. It is apposite at this stage to consider the provisions of the Evidence Act. Chapter VI of the Act provides for exclusion of oral evidence by documentary evidence. Section 91 provides that when terms of a contract or a grant or any other dispossession of property have been reduced in writing, no evidence shall be given in proof except the document itself or secondary evidence of its contents. Section 92 in terms provides that when terms of a contract of grant for dispossession of property or any other matter required by law to be reduced to writing in the form for document and which has been proved, no evidence of any oral agreement or statement shall be admitted of the purposes of contradicting, varying, adding to or subtracting from the terms of the document. It will be appropriate that we reproduce provisions of Section 91 and 92 for ease of reference.
"Section 91. - Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents. - When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or 40/58 IAL-13158-21 IN SL-13156-21.doc wadhwa other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. - Wills 1[admitted to probate in 2[India]] may be proved by the probate.
Explanation 1. - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2. - Where there are more originals than one, one original only need be proved.
Explanation 3. - The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact."
"Section 92. - Exclusion of evidence of oral agreement.-- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1) .--Any fact may be proved which would 41/58 IAL-13158-21 IN SL-13156-21.doc wadhwa invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law:
Proviso (2).-- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts."42/58
IAL-13158-21 IN SL-13156-21.doc wadhwa
42. The only exception, when a person may be permitted to give evidence of any agreement varying the terms of a document is provided for Section 99 which reads thus;
"Section 99. - Who may give evidence of agreement varying term of document.--Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document."
43. Thus, analysis of the three provisions reveals that once a document pertaining to dispossession of property has been prepared in accordance with law, no evidence may be given in proof of terms of such a document except the document itself or secondary evidence of the contents of the document. Continuing with the underlying principle in Section 91, Section 92 provides that where terms of any dispossession of property is required by law to be reduced to writing, no evidence of any oral agreement shall be admitted between the parties or their representatives in interest for the purposes of altering the contents of the written document. The effect of the section is that any attempt at contradicting, varying, adding to or subtracting from its terms, is not permissible.
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44. It will be useful to consider the second proviso to Section 92 which states that if a separate oral agreement exists as to any matter which a document is silent that separate oral agreement may be provide, provided it is not inconsistent with the terms of the document and in considering whether or not the proviso applies the court is required to have regard to the degree of formality of the document. In the instant case the document is a Release Deed executed and registered in accordance with law. It is of the highest degree of formality that one expects a document of this nature to be. Proviso 4 deals with the existence of any distinct or subsequent oral agreement to rescind or modify any grant or dispossession of property and such subsequent agreement may be proved provided that the contract or dispossession is required by law to be in writing or has been registered in accordance with the law enforce in relation to registration of documents. Proviso 4 is a hurdle in the plaintiff's path which he has failed to cross.
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45. The plaint as drafted proceeds on the basis that there is an oral agreement between the parties just prior to the execution of the Release Deed and which has been reiterated later. Thus, it absorbs several elements to which reference has to be found in chapter VI of the Evidence Act. We have seen that where a document is required to be registered, proviso 4 to Section 92 expressly prohibits proof of such oral agreement. The oral agreement in contemplation is to rescind or modify any contract grant or dispossession of property. In the present case, such an oral agreement is said to exist both before and after execution of the deed of release and in that view of the matter, the deed of release having been registered I am unable to hold in favour of the plaintiff on this aspect.
46. I must also consider the effect of Section 99 which provides that persons who are not parties to a document or their representatives in interest may give an evidence of facts tending to show that a contemporaneous agreement, varying the terms of the document existed. The case of the plaintiff could probably have fallen in this category. However, it is necessary that persons who may give evidence to vary the terms of the Release Deed could not 45/58 IAL-13158-21 IN SL-13156-21.doc wadhwa have been parties to the Release Deed and the plaintiff is clearly not qualified to invoke this provision which necessarily requires that the person who wishes to give evidence to facts tending to show a contemporaneous agreement and thereby varying the terms of a document must not be a party to the document.
47. In the present case, the plaintiff is very much a party to the Release Deed and even assuming the plaintiff or his representatives in interest seek to give evidence, it must be contemporaneous. In the present case, it may be possible to believe that the oral agreement if it exists was arrived just before at the time of the execution of the Release Deed and was reiterated thereafter. One must not lose track of the fact that the defendant no.6 was then a minor and did not have the capacity to contract. However, being entitled to the benefits of the grant, the vesting took place upon the execution of the deed of release, not only that the defendant no.6 has since placed on record. Further evidence indicates that not only was the Release Deed reiterated, the property was also transferred to the name of defendant no.6 in the record of rights. Had the oral agreement being give an effect to or intended to give an effect to, there was no occasion for the 46/58 IAL-13158-21 IN SL-13156-21.doc wadhwa plaintiff to apply for removing his name from record of rights and thus, ensure that the vesting in favour of defendant no.6 was formally recorded in the revenue records. Even today in view of the cause of action pleaded the very basic prayer would have been to challenge the execution of the date of release this has still not been done and the suit has filed proceeds merely on the basis of a family arrangement and in my view is clearly hit by provisions of Section 91 and 92 of the Indian Evidence Act.
48. One other aspect that was highlighted in submissions was that the Release Deed in its schedule also refers to the furniture and fixtures which the plaintiff has given up and in the light of that release there is no question of today seeking to take advantage of any alleged repairs or renovations carried out claiming ownership of the furniture and fixtures in the room that the plaintiff claims he occupies at all times. The averment pertaining to the exclusive use of this room also do not commend itself to me since the plaintiff has gone on record to state in no uncertain terms that it is that one room that was exclusively occupied by him and his family members and which was renovated. The records before me indicates that there are at least 47/58 IAL-13158-21 IN SL-13156-21.doc wadhwa three photographs which have said to be of this room. However, a comparison of this evidence the fact that these are different rooms the photographs are not obviously of the same room. When one views the photographs at Exhibit 'G' and 'H' of the affidavit of the plaintiff dated 8th September, 2021 and the size of the room becomes immediately apparent. Whereas the photographs at Exhibit 'A' to 'D' of the affidavit dated 26 th July, 2021 is obviously a larger room and the different one. Thus, the photographic evidence which the plaintiff relies upon in my view is questionable and that goes to the root of the plaintiffs claim to be in exclusive use and occupation of "one room" and furniture and fixtures therein and the allegation of dispossession.
49. In my view the plaintiff has failed to make out a case that he was dispossessed of this room as alleged. Furthermore there is no evidence whatsoever of whether or not the plaintiff was contributing to the maintenance costs of the suit property. The contentions of the defendant no.6 that there is only one electricity meter and one water meter at the suit property and the fact that all municipal tax bills and electric charges and water charges have been borne by the defendant no.6 has not been seriously 48/58 IAL-13158-21 IN SL-13156-21.doc wadhwa challenged. In fact there was no evidence to suggest anything to the contrary including as to whether the plaintiff had contributed to these costs at any stage.
50. While the plaintiff claims that on or about sometime in the 1st week of May 2021 he was informed by the neighboring plot owner that there were Security Guards posted at the suit property there is no mention of who the plot owner was. No supporting affidavit is filed. Considering the balance of convenience I do not find it is in favour of the plaintiff.
51. In rejoinder, Mr. Behramkamdin submitted that the absence of the challenge to the Release Deed will not come in the way of the plaintiff seeking protection in the suit. According to Mr. Behramkamdin, the decision in Chandrakant Machale (supra) is not applicable to the facts of the present case and it is not the plaintiffs' case that the Release Deed was a sham and bogus document. Execution of the Release Deed is admitted but it was agreed right from a very first day that the ownership of the property would vest in the plaintiff and defendant no.6 to the exclusion of the others. He submitted that there is no effective 49/58 IAL-13158-21 IN SL-13156-21.doc wadhwa denial of the mortgage by the defendants that the mortgage is very much pleaded the factual basis for execution of the Release Deed has been set out and there is no denial of this fact.
52. According to Mr. Behramkamdin the plaintiff did not seek specific performance and the suit need not be only under Section
6. The suit is a title suit and the plaintiff is thus entitled to protection till such time he establishes his case at the trial. Alluding to the lack of assistance in the order of the Surat court, Mr. Behramkamdin submitted that the plaintiff in that suit being the nephew had claimed several properties including a share in Suvas that it is obvious that the court had not taken into consideration since Suvas was beyond the jurisdiction of that court and any effective terms that judgment is of no assistance to the defendants. One other important factor that Mr. Behramkamdin highlighted is the fact that no due diligence exercise was conducted at Surat. In effect what he submits is that the public notice was issued only in Mumbai no attempt was made to ascertain whether the plaintiffs and his family members had any objections especially since the parties had been using the Mumbai property in common. The defendant developer was also aware that the plaintiff is a resident of Surat and was bound to 50/58 IAL-13158-21 IN SL-13156-21.doc wadhwa carry out a proper due diligence exercising including publication of notice in Surat. Had that been done the plaintiff would have been alerted within time and before the execution of the development agreement. This he submitted is an important fact that must be held against the developer while considering balance of convenience.
53. Perusal of the public notice copy of which is annexed to the plaint reveals that the plaintiff has claimed as joint owner in possession since the time of the father Lalbhai, The address of the plaintiff in the said public notice is that of Surat and not of the suit property). In pursuance of the public notice, the plaintiff states that he received a letter dated 14th May, 2021 from Attorney's representing defendant nos.1 to 5 claiming that they had entered into a Development Agreement dated 30th March, 2021 with defendant no.6 which was registered that the defendant no.6 had also executed a power of attorney in favour of defendant nos.1 to 5 and put the defendant nos.1 to 5 in possession of the suit property for redevelopment of the property. The notice declares that the Attorney's letter informed the plaintiff that defendant nos.1 to 5 had already inserted a public notice dated 1st March, 2021 in the Free Press Journal and Janmabhoomi 51/58 IAL-13158-21 IN SL-13156-21.doc wadhwa inter alia, inviting objections in respect of title that no response is received to the said public notice. The plaintiff in reply through his Advocate's letter dated 20 th May 2021 contended that the plaintiff was joint owner along with defendant no.6 and that possession claimed by the developers-defendant nos.1 to 5 was illegal in other words the plaintiffs case of joint ownership, possession and right to use the suit property was reiterated the date of filing the suit the plaintiff claims that he had not received the copies of the developer agreeing or power of attorney. However, he has since obtained copies of the Development Agreement through search taken in the sub-registry but the power of attorney was still not available meanwhile defendant no.6 vide his Advocates' letter dated 2 nd May, 2021 claimed that he was the sole owner of the suit property having been in exclusion use and continuous possession of the suit property for about 50 years. This is the state of affairs at the time of the plaintiff approaching this court and seeking the aforesaid declarations. These contentions canvassed by Mr. Behramkamdin will not help the petitioner in overcoming the basic hurdle in his path viz. the Release Deed and its legal effect.
54. In the suit filed in the court of the Senior Civil Judge, Surat, 52/58 IAL-13158-21 IN SL-13156-21.doc wadhwa by one Dhaval Ravindrabhai Contractor who is a son of one of the sisters of the plaintiffs i.e. nephew of the plaintiff and defendant no.6, inter alia claiming that he has a share in various properties of Lalbhai and Dahiben, the suit property figures as one of those in respect of which the nephew claims a share. In the Surat suit, the nephew seems to have referred to the said Will of Lalbhai dated 29th April, 1983 and the plaintiff claims that it is for the first time that he became aware of such a Will. The plaintiff claims that perusal of the Will reflects that the oral family arrangement has been reiterated. However, Lalbhai has said to have "transferred" the property back from defendant no.6 to the names of Dahiben and himself. I do not see how this supports the plaintiff's case.
55. In the course of submissions, the plaintiff having placed reliance upon the handwritten letter dated 6 th March, 2006 and the same was in Gujarati language, both sides relied upon their own versions the contents of the translation into English. To avoid any controversy, I called upon the registry to obtain an official translation which has since been provided. The copy of this fair translation is reproduced below;
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56. Having considered the contents, the question is whether this letter would entitle the plaintiff to the reliefs sought. In my view, 55/58 IAL-13158-21 IN SL-13156-21.doc wadhwa though certain reference is made alluding to the author or the letter, defendant no.6, having suggested that "we" would decide the course of action in relation to Suvas. I am not persuaded to hold that this is sufficient to indicate that there was an oral arrangement as pleaded in the plaint.
57. There is absolutely no explanation as to why the plaintiff agreed to the changes being made in the record of rights. In fact he raised no objections and consented to his name being deleted. These are acts which have not been explained by the plaintiff. In fact there is no attempt to explain his conduct except to state that the record of rights is not evidence of title. The import of having supported an application for deletion of his name and having stood by that till date of suit is immense and has not been explained satisfactorily. All other contentions in support of the plaint pales into insignificance in the absence of a challenge to the Release Deed and the implementation of it.
58. In the factual background that I have had to consider, reliance placed by Mr. Behramkamdin on the decision in Rukhmabai's (supra) is of no assistance. Likewise, Syndicate Bank (supra) also does not help since those are issues which will be 56/58 IAL-13158-21 IN SL-13156-21.doc wadhwa decided at a later stage in view of the pendency of other interim applications seeking dismissal of the plaint. Reliance upon Gangabai's (supra) in the facts of the present case will not help the plaintiff. In fact, the decision in Gangabai's case reiterates that the law declares that the nature and intent of the transaction must be gathered from the terms of the document itsef. Since Release Deed has been acted upon by the plaintiff itself by supporting deletion of his name from the record of rights. The decision of the Delhi High Court in Sanjay Kaushish (supra) also will not assist the plaintiff at this interim stage.
59. As we have already seen, S. Saktivel (supra) clearly clarifies the legal position that oral agreement cannot modify or substitute a registered document and as held in Poona Ram (supra), the plaintiff has failed to establish settled, continuous, effective, open possession with animus possidendi. Maintainability of the suit for want of cause of action or imporper frame of suit and the aspect of limitation need not be considered at this stage. What is of relevance is whether the plaintiff has made out a prima facie case for grant of interim relief and that he has failed to do.
60. The Supreme Court has in the case of S. Saktivel ( Dead) 57/58 IAL-13158-21 IN SL-13156-21.doc wadhwa (supra), clearly laid down the law on this aspect inter alia holding that since a disposition conferring title to properties is required by law to be reduced into writing to ensure its efficacy. The parties to such a document cannot be permitted to adduce oral evidence to substantiate any subsequent agreement which results in modifying the written document. Chandrakant Shankarrao Machale (supra) has followed the decision of the court in S. Saktivel (supra).
61. In view of what is stated above, I am not persuaded to grant interim relief prayed for and accordingly I pass the following order;
(i) Interim Application (L)No.13158 of 2021 is dismissed.
(ii) No costs.
(iii) Ad-interim protection operating till date shall continue till
30th October 2021.
(A. K. MENON, J.)
Digitally
signed by
SANDHYA
SANDHYA BHAGU
BHAGU WADHWA
WADHWA Date:
2021.10.25
13:38:53
+0530
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