Ram Udharam Sumaya and Others vs Chandan Ram Sumaya

Mridula Bhatkar, J—ADMIT. Heard finally with the consent of the parties.

In this appeal the order dated 13.6.2013, passed by the learned Judge of the City Civil Court in Notice of Motion No. 513 of 2014, in S.C. Suit No. 468 of 2012, is challenged.

The appellants are the original plaintiffs who have filed Suit No. 468 of 2012 for simpliciter injunction against the respondent/defendant in respect of the suit flat: (for the sake of convenience referred hereinafter "plaintiff/defendant"). The appellant Nos. 1 & 2 are the parents of the respondent original defendant and the appellant No. 3, is a real brother of the defendant. It is the case of the plaintiffs that father of plaintiff No. 1 has purchased flat No. E504 admeasuring 1400 sq. feet, at Simla House, Napean Sea Road, Mumbai, in the year 1970. In the year 1989 the father of plaintiff No. 1 expired leaving behind his wife and three children. Plaintiff No. 1 was the nominee of the said flat and other legal heirs, i.e. the brothers relinquished their right in respect of the suit flat and thus, the plaintiff No. 1 along with his mother became the owner of the said flat. In the year 1998, the mother of the plaintiff No. 1 expired and as other legal heirs, i.e. the mothers had no objection, plaintiff No. 1 became exclusive owner of the said flat. The plaintiff gifted the said flat including rights about the membership to his wife plaintiff No. 2 i.e. by registered gift deed dated 15th November, 2002. Plaintiff No. 3 and defendant being sons of plaintiff Nos. 1 & 2, were residing earlier in the suit flat. In the year 1995, the defendant got married and started residing in another flat which is owned by plaintiff nos 1 & 2 at Malbar Apartment, Napean Sea Road. It is the case of the plaintiffs that the defendant No. 1 was facing financial crisis and had to repay bank loan in time. Therefore, the plaintiffs with a view to help him gave money to the tune of Rs. 35 lacs and also repaid bank loan nearly of one crore. Agreement to that effect was entered into between plaintiffs and the defendant on 8th July, 2004.

It is the case of plaintiffs that the defendant though their son, was harassing and creating problems to them and they are old and were scared of their son. The defendant No. 1 threatened them and used physical force however he being their son they do not want to take harsh criminal action against him. The defendant had issued notice to them on 1.2.2012 with unwarranted allegations and he also threatened that he would throw them out of the premises. Therefore, they filed suit for injunction restraining defendant from evicting them forcibly from the suit premises and the defendant should not enter the suit premises.

In the said suit, Notice of Motion was taken out and the same was contested by the respondent by filing reply. It was alleged that the plaintiff Nos. 1 & 2 are dancing on the tunes of plaintiff No. 3 who is the real brother of the defendant. In fact plaintiff No. 3 is trying to gain complete control over the property by using old parents. The defendant claims joint ownership and joint possession in the suit property. He claims that the suit property is not a self acquired property of his father but his grandfather was the owner of it and therefore, he has equal share in the suit property alongwith his father and brother. He was residing in the suit premises and now he is roofless.

Learned counsel Mr. Godbole, appearing for the respondent further argued that this property is of Hindu undivided family so each coparcener has equal right. The defendant being a son of the plaintiffs have equal share in the said property and no injunction can be granted against co sharers, thus, in view of this legal position, the Court cannot pass any order in deviation. He further argued that the submissions made by the learned counsel for appellants are baseless and there are no pleadings to that effect in the plaint.

Learned counsel in support of his submission relied on the judgments of Apex Court, in i) Mohammad Baqar and Others Vs. Naim-un-Nisa Bibi and Others, AIR 1956 SC 548 and ii) Sakhahari Parwatrao Karahale and anr vs Bhimshankar Parwatro, reported in (2002) 9 SCC 608 . In Karhale''s case, Supreme Court has held that though there is exclusive possession of the joint family property, then such possession is always by the members who are not in possession and injunction cannot be granted to one cosharer against other cosharer. He also relied on the judgment of this Court in Shri Bhaguji Bayaji Pokale and others Vs. Shri Kantilal Baban Gunjawate and others, AIR 1998 Bom 114 : (1998) 1 ALLMR 536 : (1998) 3 BomCR 5 : (1998) 1 MhLj 276 . It is on the point of joint possession and right of the cosharer. Learned counsel on the point of joint possession and right of the party, relied on the judgment of Supreme Court in Bonder and Another Vs. Hem Singh (dead) by LRs. and Others, (2009) 6 JT 616 : (2009) 8 SCALE 463 : (2009) 12 SCC 310 : (2009) 9 SCR 410 . He further relied on the judgment of Supreme Court, in Gopal Vishnu Ghatnekar Vs. Madhukar Vishnu Ghatnekar, AIR 1982 Bom 482 : (1982) 84 BOMLR 41 : (1982) MhLj 65 . In this case learned Single Judge of this Court held that the nomination cannot override the legal right. The learned counsel in respect of ownership and possession, relied on the judgment of Supreme Court in Budh Ram and Others Vs. Bansi and Others, (2010) 8 JT 115 : (2010) 7 SCALE 750 : (2010) 11 SCC 476 : (2010) 9 SCR 674 . He submitted that if suit is going to fail and if no relief can be granted finally, then such relief cannot be granted at the interim stage. He placed reliance on The State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12 : (1952) 18 CLT 45 : (1952) 1 SCR 28 , and Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, AIR 1983 SC 1272 : (1984) 55 CompCas 423 : (1983) 3 CompLJ 171 : (1983) 2 SCALE 324 : (1983) 4 SCC 625 : (1983) 3 SCR 962

At the outset, it is necessary to mention that learned counsel Mr. Godbole has made a statement that defendant is not going to evict the plaintiffs from the suit premises. In view of this statement, relief prayed in para 16(a) of the Notice of Motion that the defendant, his agents, servants and employees be restrained from evicting the plaintiff forcibly from the suit premises is granted and to that extent the order passed by the trial Court is set aside. Admittedly the flat was purchased by the father of plaintiff No. 1. Though the plaintiff No. 1 was made nominee of the suit flat by nomination the legal rights of the other parties cannot be extinguished.

This being a family matter wherein the parents one brother on one side and the other son on the other side, I with the help of the learned counsel for both sides tried to encourage the mediation between the parties. However the efforts failed.

The entire issue revolves around, whether the respondent defendant has relinquished his right in the suit property which is an ancestral property. The parties do not dispute that the flat was inherited from the grandfather and late mother i.e. grandmother of the appellants and both the grandsons have equal share in the said property as grandfather died intestate. While giving reasoning the learned trial judge did not consider one important fact i.e. the agreement dated 8th July 2004 was executed between the appellants father & mother /plaintiffs 1 and 2 and the respondent son. It was agreed between the parties to the agreement that the parents would pay an amount of Rs. 35 lakhs to repay the loan and the respondent son which he has raised from D.C.B. Bank and he would discharge his liabilities towards business of M/s. Kent Cars Private Limited and Car launch Private Limited and also release the Garage No. 1 in Simala Housing Society. It was agreed by the defendant son in the said agreement that he would not claim any right, title and interest either against the properties of the first and second part of their properties and/or the estate left by them on their demise. The learned counsel for the appellants plaintiffs submitted that this agreement discloses that defendant has relinquished his rights in all the properties and, therefore, he has no right in the said suit flat also. These submissions are not acceptable at this stage of notice of motion because no proved oral as well as documentary evidence is before the trial Court and this Court. After going through the deed of agreement, it is found that there is specific mention in respect of discharge of liabilities by the respondent son towards the businesses, garage, repayment of loan to D.C.B. Bank; so also there is mention in respect of gift of Flat No. 11 in Malabar Apartment, Napean Sea Road and sale of the said flat for repayment of the loan of the respondent son. The agreement thus discloses that the appellant parents were kind and very much concerned for their respondent son who was in financial difficulty as he has raised heavy loan to the tune of Rs. 30 to 35 lakhs from the bank. It appears that they sold the Flat No. 11 Malabar Hills, Mumbai to pay off the said loan. This act of the parents is out of love and affection for the respondent son and in lieu of that the respondent son waived off his all rights and interest against the property and the business of his parents. He also mentioned that he would not challenge their will in any court of law.

However, the said agreement is silent about the suit flat for which the parties are fighting. If there would have been mention in the said agreement in respect of relinquishment of the right in the suit flat, then on facts, prima facie, the case of the plaintiffs/appellants would have been accepted and the relief of injunction could have been granted against the respondent son by the Court. However, there is no whisper in respect of the suit flat in the said agreement. The document is to be considered in toto and in proper context and, therefore, prima facie, it cannot be said that the property of the appellants party Nos. 1 and 2 i.e. parents as mentioned in the agreement includes the suit flat also. Therefore, at the most, it can be said that by the said agreement the respondent son has relinquished his right and interest in the share of the father, which father has inherited the said suit flat. However, this agreement prima facie does not indicate that the defendant son has waived of his share in the suit flat. It is as rightly observed by the trial court that it is a case of joint possession and he being a cosharer, no order of injunction, at this stage, can be granted.

It is to be noted that the respondent son has been residing away from the parents in a different house since many years and parents are in possession of the suit property at present. The suit is for simpliciter injunction and it is not for declaration or any other relief. Under such circumstances, no injunction at this stage can be granted. It all depends on the evidence and the interpretation of the said document and other evidence if the plaintiffs are successful to bring on record to prove their case. Needless to say, the trial Court to interpret and appreciate the evidence without getting influenced by the observations of this Court, as they are prima facie. It was submitted that the respondent son has forged the signatures of the parents as guarantors on bank documents. However there are no such pleadings in the plaint. The plaintiffs may take steps to amend the plaint. However, in view of the facts and circumstances and the law, the order passed by this Court is hereby confirmed, with the following modifications :

(a) The Appeal from Order is partly allowed.

(b) The relief is granted in terms of Prayer Clause (a) in the Plaint.