Bombay High Court
Kml Estates Private Ltd vs Darryl D'Monte And 8 Ors on 8 March, 2023
Author: K.R. Shriram
Bench: K. R. Shriram
Digitally
signed by
MEERA
MEERA MAHESH
MAHESH JADHAV 1/28 APP(L)556-18.doc
JADHAV Date:
2023.03.09
10:39:22
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 556 OF 2018
IN
NOTICE OF MOTION NO. 2250 OF 2012
IN
SUIT NO. 2335 OF 2012
KML Estates Private Limited )
formerly known as KML Foods Private Ltd. )
A company incorporated under the provisions of )
the Companies Act, 1956 having its registered )
office at G-2, Ground Floor, Trade Centre, Kamala )
Mills Compound, Senapati Bapat Marg, Lower ) ....Appellant
Parel, Mumbai - 400 013. ) (Orig. Def. No.7)
V/s.
1A. Zarine D'Monte )
Aged 75 years, Occupation : Psychotherapist )
1B. Samir D'Monte )
Aged 45 years, Occupation : Architect )
2A. Sunita Cecile D'Monte )
C/o Samir D'Monte, Kinara, 29-B, Carter Road, )
Bandra (West), Mumbai - 400 050. )
3. Ena D'Monte )
Aged 96 years, Occupation : Housewife )
Plaintiff Nos. 1 to 3 all of Mumbai, all residing at )
"Kinara", 29-B, Carter Road, Bandra (West), )
Mumbai - 400 050. ) ....Original plaintiffs
(Since deceased and deleted in the plaint)
4. Saint Peter's Church, Bandra )
A public trust registered under the provisions of )
The Bombay Public Trust Act 1950 bearing Public )
Trust Registration (P.T.R.) No.D/100) and having )
its trust office at Hill Road, Bandra (West), )
Mumbai - 400 050. )
5. Dr. Frazer Mascarenhas S.J. )
Parish Priest of Saint Peter's Church, Bandra. )
6. Norman J. D'Monte )
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Indian Inhabitant of Mumbai, a practicing )
Advocate having his office at 51-A, Church Road, )
Bandra (West), Mumbai - 400 050. )
7. M/s. Vinky Developers )
an erstwhile partnership firm of the Defendant )
Nos.5 and 6 having its place of business at 1, )
Aradhana Building, 88, Veer Savarkar Marg, )
Mahim, Mumbai - 400 016. )
8. Vandana Punwani )
Indian Inhabitant of Mumbai, carrying on )
business at Anand Vihar Samaj Kendra, 20 th Road, )
Khar Danda, Mumbai - 400 052. )
9. Ramal Advani )
Indian Inhabitant of Mumbai, carrying on )
business at M/s. Advani Consultancy Services, ) ....Respondents
Flat No.6, Renuka Apartment, Linking Road, ) (Orig. Def. Nos.
Bandra (West), Mumbai - 400 050. ) nos.1 to 6)
WITH
NOTICE OF MOTION (L) NO.1332 OF 2018
IN
APPEAL (L) No.556 OF 2018
----
Mr. Arif Bookwala, Senior Advocate a/w. Mr. Ashraf Ahmed Shaikh, Ms.
Mahek Bookwala i/b. Ms. Chaitali Kamble for appellant.
Mr. Rafiq Dada, Senior Advocate a/w. Mr. Vishal Kanade, Mr. Mukul Taly,
Ms. Shamima Taly, Mr. Aziz Mohd, Ms Sayali Gharpure and Adv. Sehyr Taly
i/b. S. Mahomedbhai and Co. for respondent nos.1(A), 1(B) and 2(A).
Mr. Aspi Chinoy, Senior Advocate a/w. Dr. Rohini Pandit and Ms. Esha
Solanki for respondent nos.4 and 5.
----
CORAM : K. R. SHRIRAM & RAJESH S. PATIL, JJ.
RESERVED ON : 20th FEBRUARY 2023
PRONOUNCED ON : 8th MARCH 2023
JUDGMENT (PER K.R. SHRIRAM, J.) :
1 By consent, it was decided to take up the appeal for final hearing at the admission stage itself.
2 Appellant is impugning an order dated 23 rd October 2018
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passed by the Learned Single Judge in Notice of Motion no.2250 of 2012, whereby appellant was restrained from acting upon pursuance/ furtherance of the decree dated 29th June 1988 and/or the agreement dated 9 th June 1989 and/or the supplemental agreement dated 28 th March 1996 and/or the Deed of Conveyance dated 17th April 2020 and from developing, constructing upon, alienating, encumbering, parting with possession of, granting any lease, license or tenancy or creating any other third party rights in respect of the land admeasuring 1774.25 sq.mtrs. or thereabouts situate at Saint John Baptist Road, Bandra (West), Mumbai 400050 (the suit property).
3 One Darryl D'Monte (original plaintiff no.1), his brother Dr. Brian D'Monte (original plaintiff no.2) and their mother Ena D'Monte (original plaintiff no.3) [all three are dead now and legal heirs are on record] filed Suit No.2335 of 2012. Plaintiff no.1 is now represented by his legal heirs Zarine D'Monte and Samir D'Monte. Dr. Brian D'Monte - original plaintiff no.2 is represented by his legal heir Sunita Cecile D'Monte and name of Ena D'Monte is deleted as her legal heirs are, we are informed, respondent nos.1A, 1B and 2A. These plaintiffs are respondent nos.1, 2 and 3 to the appeal. Original defendant Nos.1 to 6 are respondent nos.4 to 9 in the appeal. Appellant was the original defendant no.7. The interim order is basically causing absolute prejudice to appellant and hence this appeal has Meera Jadhav 4/28 APP(L)556-18.doc been preferred.
4 Original respondent nos.1 to 3 filed the suit claiming to be the owners of the suit property having inherited the same through one Dr. Cecil D'Monte. Dr. Cecil D'Monte was the father of original plaintiff nos.1 and 2 and husband of original plaintiff no.3. Original respondent nos.1 to 3 (for ease of reference are collectively referred to as said respondents) claimed that Dr. Cecil D'Monte had acquired the suit property and the structure standing thereon under a registered Deed of Partition dated 6 th June 1947. Respondent No.4 (original defendant no.1) is the Church in the suit property. Respondent no.5 (original defendant no.2) is the sole trustee of respondent no.4. Respondent no.6 (original defendant no.3) is a practicing advocate, who was engaged by Dr. Cecil D'Monte, predecessor in title of the suit property to represent him in the proceedings in the City Civil Court. Respondent no.7 (original defendant no.4) is a partnership firm in which respondent nos.8 and 9 (original defendant nos.5 and 6) were partners. Later respondent no.7 (original defendant no.4) was converted into sole proprietory concern of respondent no.8 (original defendant no.5). The development rights of the suit property were granted to respondent nos.7 to 9 by respondent no.4 after public notices and charity commissioner's permission. Appellant is the purchaser of the suit property by a Deed of Conveyance dated 17th April 2010.
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5 The following chronology of facts is necessary to decide this appeal :
(a) On or about 14th June 1924, an Indenture of Lease was executed between one Reverend Braz D'Monte (lessor) and the Trustees of the society of Jesus and the Archbishop of Bombay, leasing in favour of the Trustees with the permission of the Archbishop, the suit property for a period of 20 years commencing from 1st July 1923 for yearly rent of Rs.1/-. The trustees were to erect temporary structures for residence and housing of poor Gujaratis and Catholics.
(b) On 29th January 1935, Reverend Braz D'Monte expired as a bachelor. The suit property was part of larger estate and properties of Braz D'Monte and other family members which devolved on Dr. Cecil Joseph D'Monte the predecessor in title of plaintiffs.
(c) On 30th June 1943, the lease dated 14th July 1924 expired.
(d) On 6th June 1947, Deed of Partition was executed between the heirs Reverend Braz D'Monte whereby the suit property and structure standing thereon was transferred and vested in favour of Dr. Cecil D'Monte.
(e) On 19th February 1948, indenture was executed between Dr. Cecil D'Monte (Lessor) and the Church of St. Peter, Bandra (Respondent No.4). The Lessor leased the suit property in favour of the church for a period of 20 years commencing from 1st July 1943 for the yearly rent of Rs.1/-.
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(f) On 30th June 1963, lease dated 19th February 1948 expired.
(g) On 18th August 1977, Dr. Cecil D'Monte prepared his last Will and Testament. In this Will there was no mention of the suit property.
(h) On 18th August 1983, respondent no.6 addressed a letter to the Deputy Charity Commissioner under instructions from respondent no.4 requesting that the leasehold property be shown as the property of the Trust in the Trust Register and submitting a change report as property of the trust.
(i) On 30th March 1985, the order was passed by the Deputy Charity Commissioner recording the change in schedule-I to the extent of the leasehold rights of the suit property.
(j) On 13th July 1987, one Advocate O. S. Pereira under instructions of respondent no.4 addressed a letter to Dr. Cecil D'Monte stating that respondent no.4 is in adverse possession of the suit property from 1 st July 1963. In the plaint, said respondents admit Dr. Cecil D'Monte received the said letter but said respondents themselves, at the material time, had never seen the letter.
(k) On 16th October 1987, respondent no.4 instituted Suit No.239 of 1988 in the City Civil Court seeking a declaration that respondent no.4 is the owner of the suit property by adverse possession.
(l) On 30th March 1988, respondent no.6 appeared in the City Civil Court proceedings and submitted that he had filed his vakalatnama for Meera Jadhav 7/28 APP(L)556-18.doc Dr. Cecil D'Monte and service of writ of summons was waived. He also submitted that Dr. Cecil D'Monte did not want to file a written statement or contest the suit.
(m) On 29th June 1988 the suit came to be decreed.
(n) On 31st October 1988, respondent no.4 issued public notices in Mumbai Samachar and on 1st September 1988 in English Daily by name "Daily", inviting tenders for development/sale of the suit property.
(o) On 9th June 1989, an agreement was entered into between respondent no.4 and respondent no.6 granting development rights of the suit property to respondent nos.6 to 8. Total consideration of Rs.20,00,000/- was paid to respondent no.4. Respondent nos.6 to 8 were to construct 15 flats with a carpet area of 250 sq.ft. each and hand over the same to respondent no.4 free of cost.
(p) Sometime in 1990, respondent no.4 made an application under Section 36 of the Bombay Public Trust Act to the Charity Commissioner for obtaining sanction of the sale and transfer of the suit property to respondent no.6 for consideration of Rs.22,00,000/-.
(q) On 24th April 1992 an order came to be passed by the Charity Commissioner granting permission under Section 36(1) to respondent no.4.
(r) On 9th June 1996, a supplemental agreement was entered into between respondent no.4 and respondent nos.6 to 8 modifying terms and Meera Jadhav 8/28 APP(L)556-18.doc conditions of the agreement dated 9 th June 1989. The Charity Commissioner by an order dated 2nd June 1997 imposed certain conditions on the sale of the suit property, one of such condition being that the sale should be completed within 6 months of the order and change report should be filed.
(s) On or about 9th November 1997, the decree passed by the Bombay City Civil Court on 29th June 1988 was registered and Index-II was changed to trustees of respondent no.4.
(t) On 21st November 1998 Dr. Cecil D'Monte expired leaving behind him original plaintiffs (respondent nos.1 to 3) as only legal heirs and next of kin.
(u) The Bombay City Civil Court's decree was drawn up on 9th February 1999.
(v) The probate was granted on 13th October 1999 to original respondent no.3, who was one of the executor of the Will dated 18 th August 1977 of Dr. Cecil D'Monte. It is necessary to note that the schedule of the assets in the Will does not include the suit property.
(w) On an application filed to the Charity Commissioner for extension of time for completing the sale of the suit property, the Charity Commissioner by an order dated 10 th July 2009 extended the period of completion of construction by a period of 24 months. By an order dated 15th March 2010 read with order dated 6th April 2010, the Charity Meera Jadhav 9/28 APP(L)556-18.doc Commissioner amended the earlier order and enhanced compensation amount to Rs.10,30,00,000/- and the property was to be conveyed on "as is where is basis" in favour of respondent no.6 or its nominee.
(x) On 17th April 2010 the Deed of Conveyance was entered into between respondent no.4, respondent no.7 as the sole proprietor of respondent no.6, and appellant, whereby appellant purchased the suit property. It is stated that the suit property by then was fully encroached and the consideration of Rs.10,30,00,000/- had already been paid.
(y) On 13th September 2012, Suit No.2335 of 2012 was filed by plaintiffs (the said respondents) seeking, inter alia, a declaration that the decree dated 29th June 1988 passed by the Bombay City Civil Court be declared as null and void and for injunction.
(z) On 24th September 2012 the notice of motion in which the impugned order was passed came to be lodged.
Affidavit in reply dated 5th December 2012 was filed by respondent no.6 opposing ad-interim reliefs. The stand taken by respondent no.6 in the reply was that the suit property was lost to tresspassers and hutment dwellers who could not be evicted by respondent no.4 which Dr. Cecil D'Monte was also aware; that Dr. Cecil D'Monte had not disclosed the property in his tax returns and therefore, did not want to execute any document but would not contest any suit filed by respondent no.4; that the Meera Jadhav 10/28 APP(L)556-18.doc vakalatnama prepared in favour of respondent no.6 was signed in the presence of respondent no.3; that the vakalatnama is not found in the board department; that respondents have remained silent and not objected to the sale of the suit property despite the public notices given way back in 1988; that the name of respondent no.7 was displayed on a large notice board in front of the suit property for more than 20 years; that appellant has removed the structures, hutments and encroachers by paying them lakhs of rupees and cleared the entire property and made it entirely vacant.; that the suit is barred by law of limitation and the statement of respondents that they came to know only in August 2012 is false; and that the certified copy of the drawn-up decree dated 29th June 1988 was obtained by respondents on 22nd May 2012.
(aa) Respondent no.6 filed a further affidavit dated 14 th June 2013 in reply to the notice of motion stating that the contents of the earlier affidavit are reiterated; that a preliminary issue be framed - whether the suit is barred by limitation?; that the plaint should be rejected under Order 7 Rule 11 of the CPC; that said respondents did not take action for more than 23 years although they had full knowledge of decree passed on 29 th June 1988 and the letter dated 13th July 1987 was not replied to by Dr. Cecil D'Monte.
(bb) Respondent no.5 also filed affidavit in reply dated 24 th December 2013 opposing the notice of motion in which the stand taken by respondent Meera Jadhav 11/28 APP(L)556-18.doc no.5 was that the suit is not maintainable and ought to be dismissed; that letters dated 28th October 2013, 12th November 2013 and 11th December 2013 were addressed by the advocate for appellants asking if any petition for probate had been filed and any probate obtained; that inspection was taken by the advocate for respondents of the documents and it was discovered that in the probate proceedings of the Will of Dr. Cecil D'Monte, in the schedule of assets, the suit property was not included; that respondents failed and neglected to give the advocate inspection of medical records of Dr. Cecil D'Monte in support of the claim of dementia as alleged in the plaint; that Dr. Cecil D'Monte transacted deals of other lands at Bandra at the relevant time.
(cc) Respondent no.6 filed another affidavit in reply dated 13th January 2014 alleging that said respondents had deliberately not disclosed that probate was obtained of the Will of Dr. Cecil D'Monte and that the suit property did not form part of estate of the deceased in the probate proceedings. Respondent no.6 also alleged that said respondents had got this vakalatnama removed from the proceedings in the City Civil Court and to make false allegations of fraud.
(dd) Appellant also filed affidavit in reply dated 20 th February 2014 taking a stand that appellant was an innocent purchaser and had purchased after taking search of record of 40 years of the suit property and therefore Meera Jadhav 12/28 APP(L)556-18.doc there was no need to go behind the decree passed by the Bombay City Civil Court.
(ee) said respondents filed affidavit in rejoinder dated 5 th March 2014, in which they stated that they acquired knowledge of the alleged fraud committed by defendants to the suit only in August 2012 when they were conducting a search of the immovable properties of their father Dr. Cecil D'Monte; that the letter dated 13th July 1987 was never received by respondents. The suit property not being mentioned in the Will or the schedule would not efface the title of Dr. Cecil D'Monte. 6 Almost 2 years after the notice of motion was taken out an order dated 10th March 2014 came to be passed by the Trial Court refusing ad-interim relief. In the said ad-interim order dated 10 th March 2014, the Court rejected it, inter alia, on the grounds that it is not explained why suddenly between May to August 2012 a search was conducted of the immovable properties by said respondents; respondents were expected to have taken search in 1999 at the time of filing of the probate petition which appears not to have been done; that respondents have given no particulars of the knowledge which shows gross delay and laches on their part; the explanation in rejoinder is inadequate; that two issues with regard to jurisdiction and limitation were framed; that the issue regarding whether the Court has jurisdiction was answered in the affirmative; that the issue Meera Jadhav 13/28 APP(L)556-18.doc regarding the suit being barred by the laws of limitation was adjourned for evidence and; that notice of motion was to be taken up for hearing after the preliminary issue of limitation was decided. This order was not challenged in any appeal.
7 On 31st May 2016, appellant received the commencement certificate with respect to the suit property and on 1 st June 2016 intimation of disapproval was received by appellant in respect of the suit property. 8 On 8th October 2016, a further affidavit came to be filed by said respondents stating that heavy machinery for construction has been brought in and installed on the suit property and in view of change in circumstances, pending the issue under Section 9A to be decided by this Court in its usual course, interim reliefs be granted.
9 Appellant filed affidavit in reply dated 18 th October 2016 to the further affidavit of respondents stating that appellant has spent huge amounts for removing encroachments by providing huge compensation to the occupants/encroachers; that the development process has begun on the suit property and therefore, in view of the refusal of any ad-interim order on 10th March 2014, no permission was required by appellant to continue with the construction activity etc. In the meanwhile, recording of evidence began in the application taken out under Section 9A of CPC.
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On 23rd October 2018 the impugned order came to be passed. 10 Mr. Bookwala submitted that when one considers the impugned order holistically, the only basis on which the learned Single Judge has passed the order of injunction was because in the City Civil Court proceedings vakalatnama of respondent no.6 was not found and there was no record to show registration of any such vakalatnama in the register maintained by City Civil Court because the register has been missing and vakalatnama was lost. Strangely, the Learned Single Judge states that on these facts the case of respondents that the decree passed in the Bombay City Civil Court was a nullity prima facie merits consideration. Of course, the Court also observed that the decree was passed without service of writ of summons (respondent no.6 states that the service of writ of summons was waived on instructions from Dr. Cecil D'Monte). In view of the above, the Court has observed that respondent no.6 prima facie appeared to lack any authority to represent Dr. Cecil D'Monte which goes a long way to prima facie support said respondents' case of want of knowledge on their part till the time they claim to have got to know of the suit and the decree passed therein in the year 2012. The Court has observed that said respondents have imminently agruable case on nullity of the decree and for cancellation of all subsequent documents of title executed on the strength of such decree and pending such trial, status quo needs to be preserved in Meera Jadhav 15/28 APP(L)556-18.doc respect of the suit property. This is the only basis on which the ad-interim order has been granted. The learned Single Judge, however, has failed to notice or even consider or deal with the fact that in the Will of Dr. Cecil D'Monte dated 18th August 1977, for which probate was obtained by original respondent no.3 on 13 th October 1999, the suit property is not mentioned. Even in the schedule of the assets in the application of probate does not include the suit property. The Court did not find anything amiss and in our view incorrectly so, as to how suddenly said respondents, between May to August 2012, conducted search of immovable properties of Dr. Cecil D'Monte, 14 years after he died and 13 years after the probate was obtained and suddenly found two Indentures of Lease dated 14 th July 1924 and 19th February 1948. There is no explanation as to why such search was not taken when Dr. Cecil D'Monte died, or when the schedule of assets to the probate petition came to be prepared.
11 The learned Single Judge has simply come to a conclusion that respondent no.6 prima facie appeared to be lacking any authority to represent Dr. Cecil D'Monte only because vakalatnama and the register where vakalatnamas are maintained by the Bombay City Civil Court have been missing/lost. The Court also failed to consider the fact that on 31st October 1988 and 1st September 1988 respondent no.4 had issued a public notice inviting tenders for development/sale of the suit property and Meera Jadhav 16/28 APP(L)556-18.doc Dr. Cecil D'Monte, who was alive at that time, had not even objected. If, Dr. Cecil D'Monte was the owner of the suit property, certainly he would have objected and also would have included the suit property in the Will dated 18th August 1977.
12 Further the suit in the Bombay City Civil Court came to be instituted by respondent no.4 only on 16 th October 1987, more than 10 years after the Will was executed, which would prima facie indicate that Dr. Cecil D'Monte had handed over the property to respondent no.4. None of these factors have been considered while passing the impugned order. 13 The learned Single Judge failed to consider any of the grounds for which the ad-interim relief was rejected vide order dated 10 th March 2014. Those grounds, in our view, were still relevant when the impugned order was passed.
14 Mr. Dada's thrust, appearing for said respondents, was that the Suit No.2335 of 2012, in which the appeal is filed, was for cancellation of the decree dated 26th September 1988 because that was a collusive decree and obtained by fraud. If Dr. Cecil D'Monte wished to divest himself of his rights in the suit property, he would have done so vide a Conveyance and/or Gift Deed.
15 Mr. Dada submitted :
(a) the decree dated 26th September 1988 of the Bombay City Civil Meera Jadhav 17/28 APP(L)556-18.doc Court as it was obtained by fraud was void ab initio and that forms the root of the alleged title through which appellant claims.
(b) the conduct of respondent no.6 shows that respondent no.6 purported to appear for Dr. Cecil D'Monte in the City Civil Court suit was regularly acting for respondent no.4 Trust, both before and after the institution of the said suit. It is said respondents' case that respondent no.6 had submitted to decree without any instructions from Dr. Cecil D'Monte and the fraud committed by respondent no.6 both on the City Civil Court and said respondents, who are original plaintiffs, could be seen from the various documents filed in the City Civil Court proceedings; a fraud has been played by respondent no.6 in collusion with others and the following judgments hold that a decree obtained by fraud is a nullity and non-est :
(i) Ram Kumar V/s. State of UP1
(ii) SP Chengalvaraya Naidu (Dead) by LRs V/s. Jagannath (Dead) by LRs and Ors.2
(iii) AV Papayya Sastry and Ors. V/s. Government of AP and Ors.3
(iv) T. Vijendradas and Anr. V/s. M. Subramanian and Ors.4
(v) Meghmala and Ors. V/s. G. Narasimha Reddy and Ors.5
(vi) Biman Chandra Datta V/s. Promotha Nath Ghose 6
1. 2022 SCC Online 1312
2. (1994) 1 SCC 1
3. (2007) 4 SCC 221
4. (2007) 8 SCC 750
5. (2010) 8 SCC 383
6. 1922 ILR 886 Meera Jadhav 18/28 APP(L)556-18.doc
(c) the decree dated 26th September 1988 was passed under Order 8 Rule 10 read with Order 8 Rule 5 and as held by the Apex Court in Balraj Taneja and Anr. V/s. Sunil Madan and Anr. 7, the Court should not proceed to pass judgment merely because a written statement has not been filed by defendant. Where a written statement has not been filed, the Court should be a little cautious in proceeding under Order 8 Rule 10. This submission of Mr. Dada is a non starter because the decree dated 26th September 1988 is not in challenge before us.
(d) certain portions of the evidence that was recorded on the issue that was framed by the Trial Court in the suit under the provisions of Section 9A of the Code of Civil Procedure, 1908 were also relied upon in an attempt to show the said respondents alongwith late Dr. Cecil D'Monte were victims of fraud.
We have to note that the learned Single Judge has not referred to any evidence in the impugned order. At the same time, considering the evidence recorded, particularly of original plaintiff no.1 (late Darryl D'Monte), we have a lot to say on the conduct of said respondents (original plaintiffs).
16 Mr. Chinoy appearing for respondent nos.4 and 5 submitted, and rightly so, that said respondents have been economical with truth.
7. (1999) 8 SCC 396 Meera Jadhav 19/28 APP(L)556-18.doc Mr. Chinoy pointed out that in the plaint, plaintiffs, i.e., the said respondents, have stated in paragraph 16 that at the material time during the period from 1985 until his death in 1998 the said Dr. Cecil D'Monte was suffering from dementia and craved leave to refer to the medical records of the said Dr. Cecil D'Monte, when produced (Mr. Bookwala stated that till date no records have been produced despite being called upon).
Mr. Chinoy submitted that in cross examination of original plaintiff no.1 (late Darryl D'Monte), to decide the issues framed under Section 9A of CPC, in answer to question nos.89 to 95 PW-1 (Darryl D'Monte) has answered as under :
Q.89. According to you, your father continued to be the owner of the said property despite the fact that the lease was not renewed. Therefore, if your father was the owner why was the property was not shown in the schedule annexed to the petition? Ans. It was not shown in the schedule because it was given out as a charitable transaction to the church at Rs.1/- a year and he did not want to show it in his properties as he would have to pay property tax thereon. Since there was no income from this property, he did not show the said property in the schedule. Q.90. Are you therefore suggesting that the property was donated to the church so that your father ceased to be the owner thereof?
Ans. I am stating nothing of the kind and he continued to be the owner.
Q.91. Was this property shown in any income tax returns filed by your father at any time during his life time? Ans. I cannot vouch for the earlier periods, but towards the end of his life, he did not show it because there was virtually no income from the said property and he did not want to pay property tax thereon.
Q.92. Upto which year according to you was it shown in his income tax returns?
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Ans. I have no recollection.
Q.93. Are you aware of the tax returns filed by your father? Ans. I was aware of the returns filed by him towards the end of his life.
Q.94. What do you mean by "towards the end of his life"? Ans. From the early 1980's till his death 1998. Q.95. Would it therefore be correct to say that right from the early 1980's your father did not show this property as a part of his estate?
Ans. I believe that is correct.
(emphasis supplied) Mr. Chinoy submitted that if PW-1 could say his father Dr. Cecil D'Monte did not show the suit property in his income tax returns because Dr. Cecil D'Monte did not want to pay property tax thereon and this was during the period from early 1980 till his death in 1998, that would only mean that Dr. Cecil D'Monte was quite capable of managing his affairs and cannot, by any stretch of imagination, be called suffering from dementia as falsely averred in paragraph 16 of the plaint. Moreover, it also belies plaintiffs' averments in the plaint that they did not know about the existence of the suit property until 2014 or that was the reason for not disclosing it in the schedule of property in the petition to grant probate of the Will of Dr. Cecil D'Monte.
17 Mr. Chinoy submitted that in paragraph 11 of the plaint, plaintiffs have admitted that Dr. Cecil D'Monte received the letter dated 18 th Meera Jadhav 21/28 APP(L)556-18.doc July 1987 from advocate O.S. Pereira which notes that Respondent No.4 (original defendant no.1) is in adverse possession of the suit property from 1st July 1963 and was exercising all the rights of an owner. Dr. Cecil D'Monte never protested, which also indicates that the decree passed by the Bombay City Civil Court was not obtained by fraud. Mr. Chinoy also submitted that the registry of City Civil and Sessions Court, has, by a letter dated 26 th April 2021, informed that as per the office records department of City Civil and Sessions Court, for the period from March 2004 to December 2015 only advocate Norman Joseph D'Monte (respondent no.6) has taken inspection on 5th November 2012 and nobody else which also shows that the stand of said respondents that they took search of the City Civil Court proceedings when they received the certified copy of the entire records and proceedings on 1st March 2014 is incorrect.
18 Mr. Chinoy also submitted that a fraud would arise only if the property had any value. If PW-1 in his evidence, as quoted earlier, has stated that Dr. Cecil D'Monte did not want to show the property in his income tax returns because there was no income from the property, how could there be any fraud or deprivation. Mr. Chinoy submitted that respondent no.6, in his examination in chief in Section 9 application, has stated in paragraph 4 as under :
4. However, Dr. C.J. D'Monte, although was agreeable to the suggestion of transferring the suit property and benefiting the Church, he expressed his apprehension to execute or sign any Meera Jadhav 22/28 APP(L)556-18.doc document of transfer of the suit property to the Church, for the reason given by Dr. C.J. D'Monte was that he had not disclosed that he was the Owner of the suit property and had not shown the suit property in any of his Tax Returns at any time and therefore would not like to execute any document of transfer in favour of St. Peter's Church, but that he would not contest or oppose any claim by the Church to title to the suit property. Dr. Cecil Joseph D'Monte himself suggested that the Church could adopt any proceedings on title to the suit property.
Mr. Chinoy submitted that this matches with what PW-1 (late Darryl D'Monte, plaintiff no.1) has stated in his cross examination. Therefore, there can be no fraud being played by respondent no.6 as alleged.
19 Mr. Bookwala in rejoinder brought to the notice of the Court certified copy of the decree dated 29th June 1988 which has been filed by said respondents in the compilation and in the bill of cost forming part of the certified copy of the decree it is mentioned that two rupees is the cost on defendant's Vakalatnama. Mr. Bookwala submitted that if the registry has shown two rupees on defendant's Vakalatnama, certainly the Vakalatnama of respondent no.6 must have been on record.
20 In our view, this appeal has to be allowed. In our opinion the said respondents, who are plaintiffs in the suit, should have come to the Court with clean hands. The observations of the Hon'ble Supreme Court in S. P. Chengalvaraya Naidu V/s. Jagannath (Dead) by LRS (Supra), that was relied upon by Mr. Dada, are relevant in this context. The Court observed :
Meera Jadhav 23/28 APP(L)556-18.doc "The Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands ......... We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation".
The Apex Court and this Court have, on many occasions, stated that if a party comes to the Court with unclean hands, should be dealt with very strongly and substantial costs also should be imposed on the party. The conduct of such party intends to impede and prejudice the administration of justice. Judiciary is the bedrock and handmaid of orderly life and civilized society. In Sciemed Overseas Inc. V/s. BOC India Ltd. 8 the Apex Court has lamented about the unhealthy trend in filing of affidavits which are not truthful. Paragraph 2 of the said judgment reads as under :
"2. A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that. This is illustrative of the malaise that is slowly but surely creeping in. This 'trend' is certainly an unhealthy one that should be strongly discouraged, well before the filing of false affidavits gets to be treated as a routine and normal affair."
Kuldip Singh, J. (as he then was) in S.P. Chengalvaraya Naidu (Dead) by LRS (Supra) in paragraph 5 observed :
"5. ................ We are constrained to say that more often than not, process of the Court is being abused. Property- grabbers, taxevaders, bank loandodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegalgains indefinitely. We have no hesitation to say that a person, who's
8. 2016 AII SCR 370 Meera Jadhav 24/28 APP(L)556-18.doc case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
The reason why we say this is because if during the period from 1985 until his death in 1998 the said Dr. Cecil D'Monte was suffering from dementia, how could PW-1 in his cross examination (as quoted earlier) state that his father did not show the suit property in his name because Dr. Cecil D'Monte did not want to pay property tax thereon. If Dr. Cecil D'Monte had dementia from 1985-1998 how could he even decide which property should be shown in his tax returns and which should not be or that tax will have to be paid if disclosed. This is one lie by said respondents. Secondly, the answers in the cross examination (quoted earlier) also indicate that said respondents were always aware about the existence of the suit property because, if PW-1 (late Darryl D'Monte) was not aware at all of the suit property, he could not have answered in his cross examination that his father Dr. Cecil D'Monte did not show it in the income tax returns during the period from 1985 till his death in 1998 because he did not want to pay tax on the said property. How could he say this unless his father Dr. Cecil D'Monte had discussed the suit property with him. This proves the other averment in the plaint that plaintiffs got to know about the existence of the said property or alleged fraud only in the month of August 2012 was another falsehood.
Meera Jadhav
25/28 APP(L)556-18.doc
21 The suit property was not mentioned in the Will of Dr. Cecil
D'Monte or in the schedule in the list of properties in the probate petition. This has not been considered by the learned Single Judge. 22 The learned Single Judge has also not considered the fact that the Will of Dr. Cecil D'Monte is dated 18 th August 1977 and on 31st October 1988 respondent no.4 issued public notices in Mumbai Samachar and on 1st September 1988 in English Daily by name "Daily" inviting tenders for development/sale of the suit property. But still Dr. Cecil D'Monte did not object. We say this with some affirmation because said respondents have in the plaint admitted that Dr. Cecil D'Monte received the letter dated 13 th July 1987 from Advocate O. S. Pereira on behalf of respondent no.4 stating respondent no.4 was in adverse possession of the suit property from 1 st July 1963. That public notice, in our view, would be notice even to said respondents who never protested, since as noted earlier they were aware of the existence of the suit property.
23 The impugned order is based purely on a very narrow compass that in the City Civil Court proceedings no Vakalatnama of respondent no.6 was found and the Vakalatnama register was not available, hence there was prima facie a fraud. But the learned Single Judge has not considered that respondent no.6, in his affidavit in examination in chief dated 6 th June 2016, has stated in paragraph 7 as under :
Meera Jadhav 26/28 APP(L)556-18.doc
7. I thereafter got a Vakalatnama prepared in my favour a week before the hearing of the suit and then went to the residence of Dr. Cecil Joseph D'Monte, opposite Otter's Club, Bandra, and obtained his signature on the same in the presence of Plaintiff No.3 who was present at that time. I then filed the said Vakalatnama about 3 days before the hearing of the suit in the Board Department of the Bombay City Civil Court. I handed over the Vakalatnama to the Clerk in charge who entered the details of same in the Register kept for recording Vakalatnamas received.
(emphasis supplied) The original plaintiff no.3, who died during the pendency of this suit, has not filed any affidavit denying this fact. She was alive at the time when the affidavit of respondent no.6 dated 6 th June 2016 was filed, though of advance age.
The learned Single Judge has not considered any of these facts before passing the impugned order.
24 The learned Singe Judge has also not considered the certified copy of the decree of the Bombay City Civil Court which shows rupees two for defendant's Vakalatnama and the only defendant was Dr. Cecil D'Monte. 25 PW-1 (late Darryl D'Monte), in his evidence in chief, also stated and so also in his cross examination that there is no income from the suit property and hence, there was never any need to include the suit property in the income tax returns of Dr. Cecil D'Monte or myself or my family members. This destroys the case of fraud raised by Mr. Dada. Fraud would mean wrongful or criminal deception intended to result in financial or Meera Jadhav 27/28 APP(L)556-18.doc personal gain. If according to plaintiffs, the property was worthless and because of which they did not even include it in any income tax returns or even in the probate petition of Dr. Cecil D'Monte, makes us feel that there could not have been a fraud. 26 Therefore, since none of these points have been considered by the Learned Single Judge, in our view the order impugned in this Appeal cannot be sustained. The impugned order is hereby quashed and set aside. 27 Appeal allowed with costs in the sum of Rs.6,00,000/- of which said respondents to pay Rs.3,00,000/- to appellant and Rs.3,00,000/- to respondent nos.4 and 5 by way of cheque drawn in favour of advocates on record for the respective parties within four weeks from the date of this order being uploaded. 28 Appeal disposed accordingly. Consequently, all interim applications also stand disposed.
29 Since the suit has been pending from 2012, we pass the following directions akin to case management hearing in a commercial suit :
(a) whichever party that has not filed written statement shall file the same and serve a copy thereof within four weeks from the date of this order being uploaded.
(b) within two weeks thereafter, parties shall file their respective affidavit of documents and serve a copy thereof upon the other side, failing which parties will not be permitted to rely on any document, copy whereof is not annexed to the plaint and/or written statement and mentioned in the list of documents annexed to the plaint and/or Meera Jadhav 28/28 APP(L)556-18.doc written statement. This will not, however, prevent a party from confronting a witness of another party with any document.
(c) within two weeks thereafter, parties shall complete discovery and inspection. If inspection is not given, such party will not be permitted to rely on such document.
(d) within two weeks thereafter, statement of admission and denial with reasons for denial to be exchanged. If the statement of admission and denial is not given, parties shall be deemed to have admitted the existence of all the documents of the other side.
(e) the suit be listed for directions on 9 th June 2023 before the learned Single Judge.
30 Mr. Kanade prays for stay of this order for a period of four weeks. Mr. Bookwala strongly opposes. Mr. Kanade states that plaintiffs (respondent nos.1A, 1B and 2A) shall also gave an undertaking in accordance with Rule 148 of the Bombay High Court, (Original Side) Rules as per the format prescribed by Prothonotary and Senior Master, High Court, Bombay and that undertaking will be given before the end of this week. Statement accepted.
31 In view of the undertaking being given, this order and judgment is stayed for a period of four weeks from today.
(RAJESH S PATIL, J.) (K.R. SHRIRAM, J.) Meera Jadhav