BOMBAY HIGH COURT

RUSSI JAL DORABJEE & ORS…. Applicants VS. BHARAT DALPAT PATEL & ORS

DATED : 12.12.2017

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

The Flat was purchased by Ms. Ivy Framroze Cooper (‘Ivy’). Ivy passed away intestate on 30th July, 1995 leaving behind, her husband -Keki Jehangir Munshi (‘Keki’), her sisters - Jer Mithaiwala, Sheroo Dorabjee (wife of Plaintiff No. 1) and Putli Kersi Dodhi - Plaintiff No. 2 and two brothers i.e Burjor Framroze Cooper - Plaintiff No. 3 and Kersi Framroze Cooper - Defendant No. 5.

Facts of the Case :

At the time of Ivy's death, as per the law applicable to the Parsis dying intestate, Keki became entitled to 50% of Ivy's estate and her siblings became entitled to the remaining 50% of Ivy's estate including the Suit Flat.

However, after Ivy's demise, Keki shifted into the Suit Flat and thereafter sold the flat at Chheda Sadan. According to the Plaintiffs, he had requested the siblings of Ivy/their heirs to permit him to occupy the entire Suit Flat during his lifetime since they were now all co-owners of the Suit Flat. In return, Keki agreed to bequeath his 50% share in the Suit Flat to Ivy's siblings.

In or around 2012, Keki suffered a stroke which resulted in paralysis of the right side of his body. He was 89 years old at that time and was left physically and mentally disabled. Taking advantage of the situation, Defendant No. 1 moved into the Suit Flat with his wife and daughter i.e Defendant Nos. 2 and 3 under the guise of taking care of Keki.

According to the Plaintiffs, that Keki had purportedly executed a registered Gift Deed dated 21st April, 2014 in respect of the Suit Flat in favour of Defendant No. 1 (hereinafter referred to as the ‘Gift Deed’).

According to the Plaintiff, a perusal of the Gift Deed revealed the following shocking facts:

a) That Keki has not signed the same and it only bears his purported thumb impression.

b) That Keki has claimed to be the sole owner of the Suit Flat on the date of the purported gift, to the exclusion of the Plaintiffs and Defendant No. 5

c) That Keki had got the Share Certificate of the Suit Flat transferred to his sole name after Ivy's death.

d) That Defendant No. 4 Society through its Manager as well as its Secretary have purported to certify that Defendant No. 1 and his family have been residing in the Suit Flat.

e) That Defendant No. 4 had issued a maintenance bill dated 4 January, 2014 in respect of the Suit Flat in the name of Defendant No. 1 prior to the date of execution of the Gift Deed.

f) That Defendant No. 1 had managed to get the electricity bill in respect of the Suit Flat transferred in his name prior to 17 April, 2014 i.e prior to the date of execution of the Gift Deed.

According to the Plaintiffs, the Plaintiff Nos. 1 and 2 are 87 and 89 years old respectively. Plaintiff No. 3 is a resident of the United Kingdom and also 86 years of age. The Plaintiffs through Zubin Cooper, the son of Plaintiff No. 3 who is a citizen of the United Kingdom, started making inquiries as to how they could have legal recourse in respect of their share in the Suit Flat. However, before the Plaintiffs could take any steps, Keki passed away on 4 January, 2017.

After his death, Defendant No. 1 claimed that Keki had left a Will and that he was in possession thereof and that the same would be read out by him on 21 January, 2017. However, on one pretext or another, Defendant No. 1 avoided reading of Keki's Will.

The Plaintiff therefore filed the above Suit for a declaration that the Plaintiffs and Defendant No. 5 are collectively entitled as Co-owners to a 50% undivided share, right, title and interest in the Suit Flat; for a declaration that the Gift Deed dated 21 April, 2014 is illegal and null and void and that no title passes to Defendant No. 1 thereunder;

Observation & Judgement :

In view of the aforestated facts, it is more than prima facie established that Keki had only 50% right in the Suit Flat. He thus, vide the Gift Deed cannot under law, gift 100% of the Suit Flat to Defendant No. 1, nor under the law can he bequeath the entire Suit Flat in favour of Defendant No. 1 vide his Will.

The Plaintiffs and Defendant No. 5 do have 50% share in the Suit Flat since the same has devolved on them as explained hereinabove, under the Parsi Succession Act.

In the above circumstances, the following Order is passed :

i) The Court Receiver, High Court, Bombay, is appointed Receiver in respect of the Suit Flat.

ii) The Court Receiver shall have the Suit flat valued and based on the valuation report, in consultation with the parties, fix the security deposit as well as the monthly royalty amount, on which the Suit flat can be given to a third party for use and occupation as Agent of the Court Receiver.

iii) The third party, who is willing to use and occupy the Suit flat on the terms and conditions fixed by the Court Receiver, in consultation with the parties to the Suit, shall execute an Agency Agreement with the Court Receiver incorporating the usual terms and conditions.

iv) The Court Receiver shall invest the amount received towards security deposit in fixed deposit/s of a nationalized bank and shall after deducting his costs, charges and expenses from the amount received towards compensation/royalty, handover 50% of the balance amount to Defendant No. 1 and 50% to the Plaintiffs and Defendant No. 5 after obtaining a written undertaking from them that they shall bring back the said amounts in the event of this Court requiring them to do so.

v) The above Notice of Motion is accordingly disposed off.

vi) Liberty is granted to the parties as well as to the Court Receiver to apply in case any clarification is required.

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BOMBAY HIGH COURT

RUSSI JAL DORABJEE & ORS…. Applicants VS. BHARAT DALPAT PATEL & ORS

DATED : 12.12.2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY

ORIGINAL CIVIL JURISDICTION

APPEAL (L)  NO.221 OF 2017

ALONG WITH

NOTICE OF MOTION (L) NO.1199 OF 2017

Bharat Dalpat Patel & Ors                                ... Appellants /Applicants

Versus

Russi Jal Dorabjee & Ors.                                  ... Respondents

Mr. Pravin Patel for Appellants / Applicants.

Mr. Karl Tamboly a/w Ms. Vijaya Bhat i/b M/s. Mulla & Mulla & CBC for

Respondent Nos.1 to 3.

CORAM :-   SMT. VASANTI A. NAIK & SARANG V. KOTWAL, JJ.

DATE :- 12 DECEMBER, 2017

JUDGMENT (PER : SARANG V. KOTWAL, J.) :-

1. The present appeal takes exception to the order dated 22/03/2017 passed by a learned Single Judge of this Court in Notice of Motion (L) No.285 of 2017 taken out by the respondent nos.1 to 3 in Suit (L) No.81 of 2017. By the said impugned order, the learned Single Judge was pleased to appoint a Court Receiver in respect of the suit flat. The learned Single Judge was further pleased to issue certain directions which included, inter alia, that the Court Receiver should have the suit flat valued and based on the valuation report, in consultation with the parties, should fix the security deposit as well as the monthly royalty amount on which the suit flat could be given to a third party for use and occupation as Agent of the URS 1 of 8 2 APPL 221-17 @ NMAL 1199-17-Judgment.doc-25 Court Receiver on execution of an appropriate Agency Agreement. 

The Court Receiver was further directed to invest the amount received towards security deposit in fixed deposit/s of a nationalized bank and after deducting his costs, charges and expenses, to handover 50% of the balance amount to the appellant no.1 herein and 50% to the respondent nos.1 to 3 and 5 on obtaining a written undertaking from them and they would bring back the said amount if and when directed.

2. The brief facts are as follows :

The suit filed by the respondent nos.1 to 3 herein (original plaintiff nos.1 to 3) pertains to the Flat No.8, 2 nd Floor, Su-Prabhat Cooperative Housing society Limited, 76, Bhulabhai Desai Road (Breach Candy), Mumbai - 400 026 ( the 'suit flat'). The said flat was originally purchased by one Ms. Ivy Framroze Cooper ('Ivy)'. She was married to one Keki Jehangir Munshi ('Keki'). Ivy passed away on 30/07/1995. She died intestate and according to the laws applicable to Parsis, her husband Keki was entitled to 50% share in the suit flat and her siblings together were entitled to the remaining 50% share in the suit flat. 

At the time of her death, Ivy was survived by five siblings. Sheroo Dorabjee, Putli Cooper and Jer Mithaiwala were Ivy's sisters and Burjor Framroze Cooper and Kersi Cooper were her brothers. At the time of filing of the suit, Sheroo Dorabji had died and he was survived by her husband Russi Jal Dorabji who is the plaintiff no.1.

3. The suit was filed by the aforementioned Russi Dorabji, Putli Cooper and Burjor Cooper. Kersi Cooper was joined as the defendant no.5. The plaintiffs have pleaded in the plaint that they along with defendant no.5, are entitled to 50% share in the suit flat. The defendant nos.1, 2 and URS 2 of 8 3 APPL 221-17 @ NMAL 1199-17-Judgment.doc-25 3 are occupying the suit flat in the circumstances mentioned hereinbelow. The defendant no.4 is the society in which the suit flat is situated.

4. According to the respondent nos.1, 2 and 3 (original plaintiffs), the appellant no.1 (defendant no.1) was the servant of Keki. The appellant nos.2 and 3 (defendant nos.2 and 3) are wife and daughter of the appellant no.1. It is the their case that the appellant no.1 has attempted to usurp the share of the respondent nos.1, 2, 3 and 5.

5. Ivy and Keki got married in the year 1985. They did not have any children. They resided in a flat at Chheda Sadan, 115, Backbay Reclamation. Even at the time of her death on 30/07/1995, Ivy was residing at Chheda Sadan flat and after death, Keki shifted in the suit flat and sold the Chheda Sadan flat. As per the pleadings in the plaint, Keki acknowledged 50% share of Ivy's siblings and since their relations were cordial, the Plaintiffs allowed Keki to occupy the entire flat on their behalf during his lifetime and in return, Keki agreed to bequeath his 50% share to Ivy's siblings. Keki was on regular visiting terms with the plaintiffs and had cordial relations throughout. Keki suffered a stroke in the year 2012 and thereafter the appellant no.1 took complete charge of the suit flat and took wrong advantage of his fragile condition. It was revealed that the respondent no.4 had already transferred the share in the suit flat in the name of Keki. 

The appellant no.1 had claimed that, by a registered Gift Deed dated 21/04/2014, Keki had gifted the suit flat to the appellant no.1 and that Keki had left a Will bequeathing the suit flat in the name of the appellant no.1. In these circumstances, the plaintiffs filed the above suit, inter alia, praying for declaration that the plaintiff nos.1, 2 and 3 and the defendant no.5 (respondent nos.1 to 3 and 5) be declared as co-owners of URS 3 of 8 4 APPL 221-17 @ NMAL 1199-17-Judgment.doc-25 the 50% undivided share, right, title and interest in the suit flat. It was also prayed that the Gift Deed dated 21/04/2014 be declared illegal and at any rate, be declared as illegal to the extent that it purported to deal with the 50% undivided share. Apart from other consequential prayers, the plaintiffs had also sought directions to restrain the appellants and the respondent no.4 (defendant nos.1 to 4) from dealing with the suit flat or the share certificate. The original plaintiffs had also prayed for appointment of a Court Receiver.

6. Along with the suit, the respondent nos.1 to 3 filed Notice of Motion (L) No.285 of 2017 in Suit (L) No.81 of 2017 praying, inter alia, that the appellant nos.1 to 3 and the respondent no.4 be restrained by an order of injunction from dealing with, disposing of, transferring, alienating, encumbering or parting with possession of or creating any third party rights or interest in or inducting any third party into possession or occupation of the suit flat or transferring the share certificate in respect of the suit flat . Another prayer was also made for appointment of a Court Receiver. After hearing both the parties, the learned Single Judge was pleased to pass the impugned order dated 22/03/2017 as mentioned earlier. The appellants have challenged the said order.

7. The appellant no.1 had filed the affidavit-in-reply to the Notice of Motion before the learned Single Judge. Apart from denying the main contention of the plaintiffs, he admitted that the suit flat was purchased by Ivy from her own funds in her sole name and the share certificate originally stood in her name. He disputed that Ivy's siblings were entitled to 50% share in her estate. According to him, Keki had executed the documents of his own free will and volition and out of love and affection for him.

8. The learned Single Judge had considered the submissions made on behalf of the parties. The learned Judge observed that even assuming the stand of the appellant no.1 being correct, the fact remains that Ivy was the sole owner of the flat and according to the law applicable to Parsis dying intestate, only 50% share in the the suit flat devolved on Keki and the 50% devolved on her siblings. One of her siblings Jer Mithaiwala and her husband had died without leaving any child and their share devolved on the respondent nos.1, 2, 3 and 5. In any case, 100% share could not be devolved on Keki. The impugned order records that the Advocate for the appellant no.1 could not substantiate his claim on legal grounds that 100% share in the suit flat devolved on Keki. 

The learned Judge even gave a chance to the appellant no.1 by inquiring with him as to whether the appellant nos.1 to 3 were agreeable to allow the respondent nos.1 to 3 and 5 to use 50% of the suit flat and / or to sell the suit flat and share 50% consideration with the respondent nos.1 to 3 and 5. However, the appellants refused to do so. The learned Judge thereafter asked the appellants as to whether they were willing to to use the entire suit flat on depositing 50% of the market rent in Court to secure the rights of the respondent nos.1 to 3 and 5 upon them succeeding in the suit flat. Even this was not acceptable to the appellants on the pretext that they had no money to deposit the said amount in Court. In these circumstances, the learned Judge passed the impugned order.

9. We have heard the learned Counsel for parties.

10. According to the learned Counsel for the appellants, the learned Judge erred in passing the impugned order. He has not considered the aspect of balance of convenience. The appellants were in occupation of URS 5 of 8 6 APPL 221-17 @ NMAL 1199-17-Judgment.doc-25 the suit flat since many years. He submitted that the appellants were put in possession by the said Keki and had executed valid documents in favour of the appellant no.1.

11. As against that, Mr. Tamboly submitted that the said Keki himself had no right beyond 50% share at the highest in the suit flat. He was not legally competent to execute the purported document or Gift Deed or Will in respect of the suit flat.

12. On hearing the learned Counsel for parties and considering the rival submissions as well as going through the impugned order, we are of the opinion that the learned Judge had committed no error in passing the impugned order.

13. The appellants could not substantiate as to how Keki could claim to be the owner of the entire flat. Chapter III of The Indian Succession Act, 1925 provides special rules for Parsi intestates. In the present facts of the case, Section 54 (a) and (d) read with Part I of Schedule II are applicable. The said provisions read thus :-

"54. Division of property where intestate leaves no lineal descendant but leaves a widow or widower or a widow or widower of any lineal descendant -

Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the property of which the intestate dies intestate shall be divided in accordance with the following rules, namely :-

(a) if   the   intestate   leaves   a   widow   or   widower   but   no widow or widower of a lineal descendant, the widow or widower shall take half the said property;

(b)       .....

(c)       .....

(d) the residue after the division specified in clause (a), or  clause (b)  or clause (c) has been made shall be distributed among the relatives of the intestate in the order specified in Part I or Schedule II; and the next- of-kin standing first in Part I of that Schedule shall be preferred to those second, the second to the third and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares;

(e) ....."

Part I of Schedule II mentions the brothers and sisters of such person dying intestate. Hence by reading these provisions together, it prima facie appears that at the highest, Keki is entitled to 50% share of Ivy's estate and her siblings are entitled for the residuary 50% of her estate.

14. We find that the learned Judge had offered the appellants a fair chance of either occupying 50% of the flat or depositing 50% of the rent as per the market rate. However, both these opportunities were not accepted by the appellants. The learned Counsel for the appellants could not show any provision in law which entitled Keki to own the entire 100% of the suit flat. Therefore, prima facie, his rights did not extend beyond URS 7 of 8 8 APPL 221-17 @ NMAL 1199-17-Judgment.doc-25 50% share in the suit flat as is rightly held by the learned Single Judge. Prima facie, we find that the respondent nos.1 to 3 and 5 are unjustifiably denied 50% share in the suit flat. In these circumstances, to secure the suit property during pendency of the suit, the learned Judge has rightly passed the impugned order. Hence we find no merit in the appeal and therefore the same is dismissed.

15. In view of dismissal of the appeal, the Notice of Motion does not survive and the same is accordingly disposed of.

(SARANG V. KOTWAL, J.)                                         (SMT. VASANTI A. NAIK, J.)