Bhawana Ramkrishna Naik And Anr vs Sadhana Patil And 6 Ors on 20 August, 2019

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Bombay High Court

Bhawana Ramkrishna Naik And Anr vs Sadhana Patil And 6 Ors on 20 August, 2019

1. This notice of motion is moved for urgent relief inter alia for injunction restraining the defendants and persons claiming through them from acting upon on deed of conveyance dated 3 rd July, 2017 supported by power of attorney dated 12th August, 1975 and deed of conveyance dated 28 th March, 1978. The plaintiff and defendant nos. 1 to 4 are stated to be surviving heirs of late Vasudeo Naik. Defendant no. 5 is said to be proprietor of the said 1/4 ::: Uploaded on - 22/08/2019 ::: Downloaded on - 22/08/2019 21:26:41 ::: 903-nmsl-1942-2019.odt Raj Construction II who claims to be in possession of one room. Defendant no. 6 claims to have purchased the property from defendant no. 7.

2. Mr. Modi on behalf of defendant no. 7 while opposing this motion states to the best of his knowledge and information that defendant no. 7 has passed away. Today none appears for either defendant no. 7 or his heirs. Mr. Bhosle is unaware whether defendant no. 7 has passed away. However he seeks leave to make application for amendment if that is true. Be that as it may the plaintiff and defendant nos. 1 to 4 claim a share in the property and the suit seeks a partition of the property as also a declaration that deed of conveyance dated 3rd July, 2017 executed by defendant no. 7 in favour of defendant no. 6 by declaring it null and void.

3. A prima facie case has been made out in view of the fact that in recital "D" to the deed of conveyance dated 3 rd July, 2017 the following has been stated :

"D. "The said Mr. Vasudeo J. Naik, being the confirming party herein, entered into and executed for Deed of Covneyance dated 12.8.1975 whereby transferring, assigning and conveying all his right, title and interest in respect of the said property in favour of the Vendor herein.

The said Mr. Vasudeo J. Naik being the confirming party herein, also executed a Power of Attorney dated 28.3.1978 in favour of the Vendor herein."

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903-nmsl-1942-2019.odt Thus a reference is made to an earlier deed of conveyance dated 12 th August, 1975 by which Mr. Vasudeo Naik is said to have transferred and assigned all his right in respect of the property described in the Schedule. The Schedule to the said conveyance refers to the suit property which is also described in Exhibit B- Part (a). Also annexed is the copy of power of attorney said to be have been granted by Mr Vasudeo Naik in favour of defendant no. 7 and on the basis of which the deed of conveyance is said to have been executed. This power of attorney is seen to be dated 28 th March, 1978 as seen from the top of the page 10 thereof. However strangely the date of execution before the Presidency Magistrate is said to be 22 nd August, 1978 viz a Power of attorney dated 28th March, 1978 is seen to be executed 6 days earlier.

4. Mr. Bhosle has challenged the veracity of the power of attorney as also fact that any such document could have been executed by Mr. Vasudeo Naik who has admittedly expired on 13 th February, 1950. As on date there is no challenge to the death certificate of Mr. Vasudeo Naik and the other document relied upon by defendant no. 6 and 7. In that view of the matter a prima facie case made out for grant of urgent ad-interim relief.

5. Accordingly, I pass the following order :

(i) There will be an ad-interim relief in terms of prayer clause (a) and (c) which read as follows:

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903-nmsl-1942-2019.odt

(a) That pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to direct Defendants or any persons claiming through them be restrained by a permanent order and injunction from taking any steps in pursuance of alleged Deed of Conveyance dated 3rd July, 2017 alongwith original Power of Attorney dated 12th August, 1975 and Deed of Conveyance dated 28th March, 1978 annexed at Exhibit N;

(c) That pending the hearing and final disposal of the suit, the Defendants, their servants and/or agents and/or person/s claiming under or through them, be restrained by an order of permanent injunction of this Hon'ble Court from in any manner dealing with, alienating, disposing of, parting with possession and/or creating any third party rights and/or creating any charge in respect of the properties described in Exhibit B;

(ii) Plaintiff shall offer all documents referred and relied upon today for inspection within two weeks from today.

(iii) Affidavit in reply to be filed by all defendants along with vakalatnama within four weeks from completion of inspection. Rejoinder to be filed within two weeks thereafter.

(iv) Liberty to apply to fix a date for hearing after pleadings are complete.

(A.K. MENON,J.) 4/4 ::: Uploaded on - 22/08/2019 ::: Downloaded on - 22/08/2019 21:26:41 :::

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Bombay High Court