Bombay High Court
Smt. Lalitprabha Bhatt And Others vs Mr. Goswami Kalyanraiji Maharaj And ... on 16 November, 2016
Author: G. S. Patel
Bench: G.S.Patel
Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors
901-CHS547-14.DOC
SHEPHALI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMABER SUMMONS NO. 547 OF 2014
IN
SUIT NO. 163 OF 2014
1. LALITPRABHA BHATT,
Aged 63 years, residing at Bhattji Ka
Mandir, Athakhambha, Vrindavan,
Mathura (U.P.)
2. INDUPRABHA BHATT,
Aged 62 years, residing at Bhattji Ka
Mandir, Athakhambha, Vrindavan,
Mathura (U.P.)
3. GOSWAMI GOKULOTSAVJI
MAHARAJ, Aged 58 years, residing at
Girdhar Nikunj, Yashwantganj South,
Near Malahargani, Madhya Pradesh,
Indore 452002.
4. BHAVANA BHATT,
Aged 52 years, residing at C/16, Moti
Mahal, Bapu Nagar, Jaipur, Rajasthan.
5. JYOTSANA GOSWAMI,
Aged 57 years, Residing at Ravi Shankar
Ward, Chameli Chowk, Sagar, Madhya
Pradesh. ...Plaintiffs
versus
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Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors
901-CHS547-14.DOC
1. GOSWAMI KALYANRAIJI
MAHARAJ, Age about 60 years,
residing at Girdharj Nikunj,
Yashwantganj, Near Malaharganj,
Indore 452 002, M.P.
2. MAHALAXMI GOSWAMI BAHUJI
(Padmini) wife of Mr. Goswami
Kalyanraiji Maharaj, residing at
Girdharj Nikunj, Yashwantganj, Near
Malaharganj, Indore 452 002, M.P.
3. GOSWAMI SHRILAXMI
(CHANDRAKANTA MINOO)
BAHUJI, widow of Late Goswami
Devkinandanji Maharaj, residing at
Girdharj Nikunj, Yashwantganj, Near
Malaharganj, Indore 452 002, M.P.
4. HARIRAI (HARI RAY) alias
MURLIDHAR GOSWAMI, S/o.
Goswami Kalyanraiji Maharaj, residing
at Girdharj Nikunj, Yashwantganj, Near
Malaharganj, Indore 452 002, M.P.
5. WAGDHISH GOSWAMI, S/o.
Goswami Kalyanraiji Maharaj, residing
at Girdharj Nikunj, Yashwantganj, Near
Malaharganj, Indore 452 002, M.P.
6. DIVYESH GOSWAMI, age 22 years,
S/o. Late Goswami Devkinandanji
Maharaj, residing at Girdharj Nikunj,
Yashwantganj, Near Malaharganj,
Indore 452 002, M.P.
7. BHAMINI NILABH SHARMA, D/o.
Late Goswami Devkinandanji Maharaj,
residing at 1001, 10th Floor, Sidheshwar
Heights, Plot No. 220, Sector 21,
Kamothe, Navi Mumbai 410 209.
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Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors
901-CHS547-14.DOC
8. SHUBHAPRADA KAUSHAL
SHARMA, Pedebhotla D/o. Late
Goswami Devkinandanji Maharaj,
residing at 265, Ajit Nagar Society, Near
D-Mart Mall, Akota, Baroda 390 020.
9. PUNJAB & SIND BANK,
315, Linking Road, Khar Branch, Opp.
Kottak Mahindra, Linking Road, Khar,
Mumbai.
10. THE CHIEF MANAGER,
Punjab & Sind Bank, Khar Branch, Opp.
Kottak Mahindra, Linking Road, Khar,
Mumbai.
11. MADHURIKA MURTHY,
age 64 years, w/o. N.V.S. Murthy,
Through its Constituted Attorney
N.V.S. Murthy, Residing at:11,
Nagattamon Kuli Street, Ashok Nagar,
Indore, M.P.
12. BRIJNALA CHAKRAWARTY alias
URMILA, Age 65 years, w/o. Gokulesh
Chakrawarty, through its Constituted
Attorney, Gokulesh Chakrawarty
husband of Birjbala Chakrawarty,
residing at 32, Kunjwan Colony,
Kesharbag Road, Indore - 9, M.P.
13. CHAMPAK LATA BHATT,
Age 65 years, w/o. Krishna Jivan Bhatt,
through its Constituted Attorney,
Gokulesh Chakrawarty, Residing at
8/12, Mahesh Nagar, Chennai ...Defendants
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Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors
901-CHS547-14.DOC
A PPEARANCES
FOR THE PLAINTIFFS Mr. Sagar Ghogre, a/w Mr. Subhash
Bhalwal and Mr. Viraj Kandpile.
FOR DEFENDANTS NOS. 1, Ms. Rajani Iyer, Senior Advocate, a/w
2, 4 AND 5 (APPLICANTS) Mr. Dharam, i/b Dharam & Co.
FOR DEFENDANTS NOS. 3, Mr. Niraj Shah, i/b Law Chamber of
6, 7 AND 8 Siddharth Murarka.
ig CORAM : G.S.Patel, J.
DATED : 16th November 2016 ORA JUDGMENT:
1. This is the Chamber Summons by Defendants Nos. 1, 2, 4 and 5 for revocation of the leave under Clause XII of the Letters Patent granted on 10th January 2014 to the Plaintiffs.
2. The Suit seeks distribution of some jewellery deposited in Locker No. 412 bearing registration No. 697. The Plaintiffs seek a declaration that this jewellery is the property of one Smt. Goswami Chandraprabha Bajuji Maharaj, deceased, and that the locker was held with Defendants Nos. 9 and 10. The second prayer is for a declaration that the 1st Defendant, in connivance with one Goswami Devkinandanji Maharaj (Devendra Sharma), also since deceased, defrauded the Plaintiffs.Page 4 of 13
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3. Ms. Iyer for the Applicants submits that leave was wrongly granted. She says that there is no immovable property involved and the suit is only in respect of movables in a bank locker in Mumbai.
Every single one of the Defendants lives outside Mumbai. According to her, no part of cause of action has arisen in Mumbai. The mere location of certain movables (the jewellery) in Mumbai does not, she submits, create any cause of action sufficient to warrant grant of leave under Clause XII of the Letters Patent.
4. Clause XII of the Letters Patent reads thus:
"12. Original jurisdiction as to suits.-- And We do further ordain that the said High Court of Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, in which the debt or damage, or value of Page 5 of 13 16th November 2016 ::: Uploaded on - 18/11/2016 ::: Downloaded on - 19/11/2016 00:56:09 ::: Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors 901-CHS547-14.DOC the property sued for, does not exceed one hundred rupees."
(Emphasis added)
5. On a plain reading of it, this says that in all cases other than suits for land, and leaving aside the question of where the defendants reside or work for gain, prior leave is necessary under Clause XII where a part of the cause of action has arisen within the local limits of the ordinary original jurisdiction of this Court. The question, therefore, is whether any part of the cause of action in this suit arises within this Court's jurisdiction, having regard to the averments in the plaint and the reliefs sought.
6. Mr. Ghogre for the Plaintiffs relies on the decision of a Division Bench of this Court in Shiv Bhagwan Moti Ram Saraoji v Onkarmal Ishar Dass & Ors.1 The relevant portion relied on reads thus:
"But the view accepted by this Court is that, in cases of suits for land, if leave is taken under Cl.
12, the Court can entertain such suits if part of the land or immovable property is situated within jurisdiction. It is not disputed that all the immovable properties which the plaintiff seeks to partition were situated outside jurisdiction at the date when the suit was filed. And, therefore, if this had been a simple suit for partition of immovable property, it is clear that this Court would have no
1. AIR 1952 Bombay 365; per Chagla CJ and Bhagwati J.Page 6 of 13
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The plaintiff avers that business in the name and style of Ramlal Ganpatrai was and is being carried on in Bombay by the plaintiff and defendant No. 1 as members of a joint and undivided Hindu family, and that this business has considerable assets in Bombay. Therefore, there is a clear averment that there is movable property belonging to the joint family within jurisdiction.
Now, the view that found favour with the learned Judge below was that the existence of movable property within jurisdiction was not a part of the cause of action and also that a suit for partition of immovable property continued to be a suit for land although the plaintiff also asked for partition of movables. Dealing with the first point, it is difficult to understand, with respect to the learned Judge, how the existence of property in a partition suit is not a part of the cause of action. It is necessary for the plaintiff to allege that there is some property of which he is seeking partition. The mere fact that there was a joint family and that the plaintiff is a member of the Page 7 of 13 16th November 2016 ::: Uploaded on - 18/11/2016 ::: Downloaded on - 19/11/2016 00:56:09 ::: Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors 901-CHS547-14.DOC joint family would not be sufficient to entitle him to maintain the suit. If a joint family had no property, then there would be nothing to partition, and, therefore, the averment as to the existence of property would be the averment of a necessary and material fact. This necessary and material fact would undoubtedly be a part of the cause of action.
It is suggested that it would not be necessary to allege where the property existed and that it would be sufficient if the property existed irrespective of the location of the property. This argument is based upon a misunderstanding of the true meaning of the expression "where the cause of action arises". The first duty of the court is to ascertain what facts constitute the cause of action. Having ascertained that, the next duty of the Court is to ascertain where these facts arose. It is perfectly true that the existence of a property at a particular place is not a part of the cause of action. What is a part of the cause of action is the existence of the property. But having ascertained that, the next question is, "where did that fact, namely, the existence of the property, arise?" And if the property is situated in Bombay, then, to the extent of that particular fact constituting the cause of action, the cause of action arises in Bombay. Certain facts constitute a cause of action irrespective of where they arise. But the importance of where they arise arises only in connection with the question of jurisdiction."Page 8 of 13
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7. In particular, I must note the finding of the Division Bench in the words emphasized above that "It is perfectly true that the existence of a property at a particular place is not a part of the cause of action." The distinction that is drawn here is between the existence of a property at a particular place -- the location or situs is not a part of the cause of action -- and the existence of the property at all which is indeed a part of the cause of action. As the Division Bench puts it once one has ascertained that the property exists, the next question is "where did that fact, namely, the existence of the property arise?" One proceeds from existence to location; from the fact to the place where the fact took place. If the property is shown to exist, and that this is the cause of action, and this fact-based cause of action is shown to be in Mumbai, then the cause of action arises here.
8. It is on this basis that Mr. Ghogre contends that even absent any other particulars, the existence of jewellery is admitted; the existence of the locker is admitted; those are the facts constituting the cause of action; and all those facts "arose" in Mumbai, where the locker was opened. Therefore, the Plaintiffs say, the admitted existence of the jewellery in a bank locker in Mumbai and since the opening of that bank locker by the Defendants is not disputed, there is no doubt that a substantial part of the cause of action has arisen within Mumbai.
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9. But the Plaintiffs do not need to rest their case on so slender a thread. I find that from a comprehensive reading of the plaint from paragraphs 9 to 28, the consistent case of the Plaintiffs is that the jewellery was brought to Mumbai by the mother. It was apparently agreed to be distributed. That distribution was to take place in Mumbai. It never did take place. In paragraph 15 of the plaint, the averment is:
"15. It is pertinent to note that sale of such high value jewellery could have taken place only in Mumbai, as at that time it was though that a interested buyer for such jewellery could have been found only in Mumbai. Further, it was difficult to carry such high value jewellery back to Indore."
(Emphasis added)
10. Thereafter, it is stated in paragraph 19 that Plaintiff No. 3 asked Plaintiff No. 1 and one Goswami Devkinandanji Maharaj as to what had happened in Mumbai and was then told that the jewellery was deposited and kept in a locker. Then come paragraphs 27 to 32 leaving aside a number of intervening incidents that are not immediately germane for the present purposes.
"27. The late Goswami Devkinandanji Maharaj informed Plaintiff No. 3, that Defendant No. 1 had opened a joint locker with Defendant No. 9 in false names of Chandresh Sharma and Devendra Sharma so as to hide identities. It was revealed that Defendant No. 1 in connivance with the late Page 10 of 13 16th November 2016 ::: Uploaded on - 18/11/2016 ::: Downloaded on - 19/11/2016 00:56:09 ::: Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors 901-CHS547-14.DOC Goswami Devkinandanji Maharaj had opened the locker in joint false names and had deposited the said jewellery in the said locker.
28. It seems that Defendant No. 1 and the late Goswami Devkinandanji Maharaj had opened Locker No. 412 bearing Registration No. 697 ("the said locker") with Defendant No. 9 jointly under the false name of Chandresh Sharma and Devendra Sharma so as to hide identities. The said Locker was opened so as to deprive all the legal heirs of their rights in the said Jewellery so that the same was not associated with his real name Goswami Kalyanraiji Maharaj.
29. Further, the Late Goswami Devkinandanji Maharaj revealed and gave the documents which were provided to Defendant No. 9 for the purpose of opening the said Locker. The documents, revealed that Defendant No. 1 has appointed his wife Defendant No. 2 as his nominee to the said Locker and the said nomination has been filled up by Defendant No. 1 on or about 20th May 2013.
Further, in the said documents Defendant No. 2 has stated that Defendant No. 4 and Defendant No. 5 would be her successors.
30. The late Goswami Devkinandanji Maharaj did not reveal earlier to the Plaintiffs, the said conspiracy/fraud played by Defendant No. 1 as he feared that Defendant No. 1 would create impediments and obstructions in life of his children who are fairly young and would not be in a position Page 11 of 13 16th November 2016 ::: Uploaded on - 18/11/2016 ::: Downloaded on - 19/11/2016 00:56:09 ::: Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors 901-CHS547-14.DOC to face the wrath of Defendant No. 1 who is an influential person.
31. The Plaintiffs state that Defendant No. 1 has signed in the Personal Information Sheet of locker with Defendant No. 9 as Mr. Chandresh Sharma, S/o. Girdharlalji Sharma, thereby opening the said Locker in a false name and under a false identity. A photocopy of the said personal information sheet was handed over by the late Goswami Devkinandanji Maharam, before his death to the Plaintiffs. Hereto annexed and marked as Exhibit "B" is cpy of the Personal Information Sheet dated 21.05.2013.
32. The late Goswami Devkinandanji Maharaj had prior to his demise appointed Defendant No. 3 as his nominee. Defendant No. 3 had stated that Defendant No. 6 would be her successor. Defendant No. 1 has played fraud upon the Plaintiffs by trying to deprive the Plaintiffs of their rights and entitlements to the said Jewellery being the property of the said deceased mother."
11. On any reasonable reading of the plaint, the cause of action, therefore, is that a bank locker was fraudulently or illicitly opened in defeasance of the Plaintiffs' rights and that the jewellery was deposited in this locker; and that this locker, the jewellery, and the deposit of the jewellery in the locker, as part of the fraud alleged, all took place in Mumbai. The allegation of fraud is that the very opening of the locker and the manner in which it was done was Page 12 of 13 16th November 2016 ::: Uploaded on - 18/11/2016 ::: Downloaded on - 19/11/2016 00:56:09 ::: Lalitaprabha Bhatt & Ors v Goswami Kalyanraiji Maharaj & Ors 901-CHS547-14.DOC surreptitious and fraudulent, the intention being to deprive the Plaintiffs of their share in that jewellery.
12. I am unable to accept the contention on behalf of the Applicants that I must, at this stage, assess whether the fraud has been proved or not or what is the exact nature of that fraud. Those are surely matters that must await the trial of the Suit after evidence is taken. Similarly, there is no question today of assessing whether the locker contains all the items of jewellery that the Plaintiffs say it does, or if it contains anything less. While assessing jurisdiction, and considering a question of a lack of it, I must look to the plaint as it stands -- very much as on a demurrer, and not with regard to any defence -- to see if any part of the cause of action can be safely said to have arisen in Mumbai.
13. With this approach, it seems to me from a reading of paragraphs 27 to 29 alone that the Plaintiffs have been sufficiently able to demonstrate that a part of the cause of action has arisen in Mumbai.
14. If that be so, then there is no question of the leave under Clause 12 having been wrongly granted or of it now being revoked.
15. The Chamber Summons is dismissed. There will be no order as to costs.
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