Bombay High Court
Mohd. Salim Abdul Sattar vs Saifee Burhani Upliftment Trust on 10 September, 2014
Author: S. J. Vazifdar
Bench: S.J. Vazifdar, Revati Mohite Dere
appl.470.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (LODGING) NO. 470 OF 2014
IN
NOTICE OF MOTION NO. 383 OF 2014
IN
SUIT NO. 231 OF 2004
Mohd. Salim Abdul Sattar,
adult, Indian Inhabitant,
residing at Unit No.22,
Supervisor Quarter No.1,
Near Powai Check Post,
Aarey Milk Colony, Goregaon (East),
Mumbai - 400 065 ig ... Appellant
(Ori. Plaintiff)
Versus
1. Saifee Burhani Upliftment Trust,
a trust, having its regisered office address
as Flat No. 1901, 19th Floor,
Husseni Tower, 43-45, Raudat Tahera Street,
Mumbai - 400 003
2. Mrs. Roashan Gulam Rassol Vora,
3. Gulam Rassol Vora,
adult, Indian Inhabitants, residing at
Flat No. 1404, 14th Floor, Jangid Tower,
MTNL Marg, Mira Road (East),
District Thane - 401 107 ... Respondents
(Ori. Defendants)
Mr. Harinder Toor a/w Ms. Jai Baikar i/by S. K. Legal Associates for
the Appellant
SQP 1/7
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appl.470.14.doc
Mr. E. P. Bharucha, Sr. Counsel a/w Mr. Chirag Balsara, Mr. Yatin
Pande, Ms. Farida Poonawala-Tata i/by Pandya & Poonawala for the
Respondent No.1
Mr. Rajshekhar V. Govilkar for the Respondent No.2
CORAM : S.J. VAZIFDAR &
REVATI MOHITE DERE, JJ.
RESERVED ON : 5th SEPTEMBER, 2014
PRONOUNCED ON : 10th SEPTEMBER, 2014
ORDER (Per S. J. Vazifdar, J.) :
1. This is an appeal against the order of the learned Single Judge dismissing the appellant's notice of motion for interim reliefs restraining the respondent from dealing with his 50% share in the suit property which admeasures 219 sq.yards.
2. According to the appellant, respondent No.2 and he are the co-owners of the suit property. Respondent No.3 is the husband of the respondent No.2. The appellant contends that the alleged surrender of his share in the property in favour of respondent No.2 is illegal and fraudulent. The appellant, accordingly, contends that SQP 2/7 ::: Downloaded on - 10/09/2014 23:48:19 ::: appl.470.14.doc respondent No.1 who claims to have purchased the property from respondent No.2 has acquired no right in respect of his 50% undivided share in the property.
3. Considering the facts and circumstances of the case, the learned Judge has rightly exercised his discretion in refusing to grant interim reliefs.
4.The appellant and the respondent No.2 purchased the property by a Conveyance dated 16th March, 2000. The property comprises of land and a structure thereon, which is tenanted. A General Power of Attorney dated 14th May, 2001 was executed by the appellant and the respondent No.2 in favour of respondent No.3.
Respondent No.3 was thereby entrusted with managing the property.
The powers include the powers to execute documents and assurances and writings as may be required to be executed in respect of the property and to lodge the same for registration and to admit the execution thereof.
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5. Mr. Toor, the learned Counsel appearing on behalf of the appellant contended that the Power of Attorney only granted the power to manage the same. We will assume that to be so.
6. Mr. Toor then invited our attention to an alleged unregistered Release Deed dated 6th June, 2002 executed by respondent No.3, purportedly, as the Constituted Attorney of respondent No.2, by which, the appellant is alleged to have released in favour of respondent No.2 his 50% share in the property. We will, for the purpose of this application, ignore the same on the ground that respondent No.3 had no power to execute the Release Deed and on the ground that the same is unregistered. This is despite the alleged Deed of Confirmation dated 28th January, 2003, which was registered.
7. By a Deed of Conveyance dated 30th March, 2013, respondent No.2 conveyed the entire property to respondent No.1.
Mr. Toor contends that the alleged Release Deed dated 6th June, 2011 being unenforceable in law, defendant No.2 was not entitled to convey the appellant's share in the property to respondent No.1.
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8. The Conveyance, however, refers to a Power of Attorney dated 9th May, 2000 executed by the appellant and respondent No.2. A copy thereof was tendered before the learned Judge, who referred to the same. The Power of Attorney is executed by the appellant and respondent No.2 in favour of respondent No.3. The same conferred power on respondent No.3 inter alia to execute deed or deeds of conveyance and/or transfer or such other documents and assurances and writings as may be required to be executed in respect of the property and to lodge the same for registration.
9. It is necessary to note only a few facts which persuaded the learned Judge to refuse interim reliefs.
The consideration of Rs. 2,00,000/- was not improbable, considering that the property was bought only a year earlier by the appellant and respondent No.2 for the same amount, although prices are known to rise in this city. The other circumstances do not indicate prima facie at least that the transaction was fraudulent. We see no reason to interfere with the learned Judge's prima facie view that the property had next to no value and considerable liability on the date of SQP 5/7 ::: Downloaded on - 10/09/2014 23:48:19 ::: appl.470.14.doc the sale in favour of respondent No.1. The property was mortgaged to a Bank. The Bank initiated legal proceedings to attach and auction the property. The appellant did not want to be saddled with the liability.
The mortgage loan of about Rs. 15,00,000/- has been repaid by the respondent. The property was dilapidated to such an extent that it was almost unfit for habitation. It had no rental income. The demolition and redevelopment was likely to cost a substantial amount. The property had also been attached by the TADA Court in the Mumbai bomb blast case of 1993. Various taxes and dues were payable in respect of the property. It was earmarked for acquisition for road widening.
It is not inconceivable that in these circumstances, the appellant was content to part with his interest in the property.
10. The plaintiff has spent no amount in respect of the property for the last several years. Respondent No.1 has already started undertaking a huge redevelopment project which pertains to redevelopment of a cluster involving 280 buildings, of which 190 buildings have been acquired.
SQP 6/7 ::: Downloaded on - 10/09/2014 23:48:19 :::appl.470.14.doc It is possible that having lost interest in the property and having conveyed his share therein, the appellant now seeks to take advantage of the fact that the value of the property has increased on account of the efforts put in and expenses incurred by the respondents, especially the respondent No.1.
11. In the circumstances, the appeal is dismissed.
REVATI MOHITE DERE, J. S.J. VAZIFDAR, J.
SQP 7/7
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