Disposed

Chaudhary Abdul Majid Shahadat and 3 Ors. v. Smt. Shenaz Abdulla Shahadat and 236 Ors.

Bombay HC5 May 2010NMS/3527/2002

Case brief

AI extract

What is this about?

This order continues the Court Receiver to supervise construction of a suit property in a partition dispute. It grants possession of 46 sold flats to purchasers via the Receiver while restricting further development of remaining wings and commercial complex until the suits are decided.

What did the court decide?

Court Receiver continued; possession granted to 46 flat purchasers; further construction of remaining commercial complex and Wing F restricted pending court leave.

Chaudhary Abdul Majid Shahadat and 3 Ors. Vs Smt. Shenaz… — Property and Title | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.3527 OF 2002

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SUIT NO. 4007 OF 2002

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ALONG WITH

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COURT RECEIVER’S REPORT NO. 267 OF 2009

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SUIT NO. 4007 OF 2002

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ALONG WITH

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COURT RECEIVER’S REPORT NO. 73 OF 2010

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SUIT NO. 4007 OF 2002

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Chaudhary Abdul Majid Shahadat & Ors.

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...Plaintiff.

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Vs.

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Smt. Shenaz Abdulla Shahadat & Ors.

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...Defendants.

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Ms. Manjiri Shah with Mr. Z.A. Jariwala and Ms. P. Mhatre i/by M/s. Thakore Jariwala & Associates for Plaintiff Nos. 1 and 2.

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Mr. Holambe along with Mr. G.P. Khan for Defendant Nos. 1(a) and 1(b).

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Mr. G.G. Ketkar, 1^st Assistant to the Court Receiver, present.

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Mr. Virag Tulzapurkar, Sr. Counsel with Ms. Jasmin Sheth with Swapnil Khatri i/by M/s. Wadia Ghandy & Co. for Defendant No. 6.

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Ms. Punita Soni i/by M/s. Bilawala & Co. for Defendant Nos. 7,11 to 14,16, 17, 27, 28 and 31.

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Mr. Jayesh Bhatt for Defendant No.15.

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Mr. K.K. Shroff along with Ms. Snehali Karkera i/by M/s. Dhruva & Co. for Defendant No.8.

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Mr. V.Y. Sanglikar for Defendant No.236 and Flat Purchasers of Flat Nos. G-42, 44,11,21 & 23.

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Mr. Nainesh Amin for Defendant Nos. 25 and 26.

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Mr. M.V. Hakrogi for Defendant Nos. 11 and 13.

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Ms. Deepa Kamath for the Flat Purchaser. 235.

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CORAM :- ANOOP V. MOHTA, J. DATED :- 5^TH MAY, 2010.

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P.C.-

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1 As the basic facts, parties and properties are common, interlinked and interconnected and therefore, for proper understanding of the matter, for clarity and to avoid repetition; the submissions and the arguments are made only in these two Motions and the Court Receiver’s Report, and therefore, this common order, though heard separately one after other. The facts of both suits are also dealt with separately.

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2 ( As Per Suit No. 1961 of 2003 ) The Plaintiff is one of the daughters

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of Chaudhary Shaukat Hasmullah (“Shaukat”) who died intestate on 5^th March, 1995 leaving behind 11 heirs. Defendant Nos. 1 to 3 are the sons,

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Defendant No.4 is widow and Defendant Nos. 5 to 10 are 6 daughters.

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3 The basic prayers in the suit, as well as, in the notice of motion are

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for administration of the estate of her father Shaukat and for setting aside

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(a) relinquishment deed dated 1^st July, 1995, signed/ executed by the Plaintiff for release of her share; (b) consent terms dated 15^th April, 1998; (c) development agreement dated 22^nd January, 2002 in favour of Defendant No.32; (d) power of Attorney dated 26^th March, 1998 in favour of Defendant No.1. The Plaintiff along with other heirs of Shaukat executed a general power of attorney dated 26^th March, 1998 in favour of Defendant No.1 to deal with the suit property. Clause 7 of the Power of Attorney empowers Defendant No.1 to sign the consent terms. Clause 21 entitles Defendant No.1 to deal with the property for and on behalf of the Plaintiff. Clause 25 empowers Defendant No.1 to sign, execute and deliver all contracts, conveyances and assignments and another documents for and on behalf of the Plaintiff.

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4 The Plaintiff has claimed 6.73% interest in the estate of Defendant Nos. 1 to 3 who are entitled to 13.46% interest in the suit property. However, in the arguments, restricted as 2.97% of the suit property.

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5 The sons of Shaukat (Defendant No.1-3), widow of Shaukat (Defendant No. 4) and other daughters of Shaukat (Defendant No. 5-11) have opposed the claims of the Plaintiffs and have affirmed the Deed of Relinquishment and the Power of Attorney granted in favour of Defendant No.1 herein. Defendant No.5 and 10 have subsequently filed a contrary

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affidavit however, no independent proceedings challenging the relinquishment deed have been filed by Defendant No.5 or Defendant No. 10 or any other heir of Shaukat.

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6 The Supplementary Deed of Partnership dated 23^rd September, 1995 of Haji Shaukat & Co also records that the female members of Shaukat Branch i.e. Defendant No. 4 (widow), and Plaintiff No.1, Defendant No. 5-11 (daughters of Shaukat) have released their respective undivided shares in the estate of late Shaukat in favour of Defendant No. 1-3 (sons of Shaukat). The same release by all the female heirs of Shaukat is also recorded in the Deed of Partnership dated 11^th July, 1995 of Shaukat Shahadat & Co..

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7 As submitted, in written notes also without prejudice that even in the event prayer (d) of the Plaint is granted i.e. the Consent Decrees are set aside and the three original suits being Suit No. 1350 of 1980, Suit No. 843 of 1985 and Suit No. 3170 of 1985 are restored, the following shall be the share of the Plaintiff;

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8 M/s. Haji Shaukat & Co. shall have 1/6^th or 16.66% share in the Suit Property to be divided between the then existing partners in their profit

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sharing ratio of 20% each as follows -

Shaukat

Defendant No. 1

Defendant No. 2

Defendant No. 3

Defendant No. 23

Defendant No. 24

Shaukat shall as a partner shall be entitled to 16.66% of 1/6^th in the Suit Property being 2.97% in the Suit Property.

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9 M/s. Shaukat Shahadat & Co. shall have 1/3 share or 33.3% share in

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the Suit Property to be divided between the partners then in their profit sharing ratio as follows.

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Shaukat (25%)

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Chaudhary Shahadat Hasmullah (25%)

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Abdul Basalat (25%)

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Rahimtulla Rubali (12.5%)

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Defendant No. 23 (12.5%)

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Shaukat as a partner shall be entitled to 25% of 1/3 share in the Suit Property being 8.3% in the Suit Property. Therefore, Shaukat had in the

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aggregate entitled to 2.7% + 8.3% in the Suit Property aggregating to approximately 11% in the Suit Property.

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10 The Plaintiff in Suit No. 1961 of 2003, as an heir of Shaukat may be entitled to a certain share in this 11% which as per Muslim Law shall devolve as follows:

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Widow (1/8)	=	1.38%	=	1.38%
Sons (7/52 each)	=	2.14% each x 3	=	6.42%
Daughter (7/104 each)	=	0.45% each x 7	=	3.21%
			-----	-------------
			=	11%

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Therefore, the Plaintiff as per her case will be entitled to 0.45% share in the Suit Property, in the event prayers as set out in the Plaint are granted.

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11 An amount of Rs.2,05,72,318/- (Rupees Two crores five lakh seventy two thousand three hundred eighteen only) has been paid by Defendant No.32 to sons of Shaukat (Defendant No.1,2 and 3) towards their share of gross sale proceeds under the Development Agreement (which may include the share of Plaintiff relinquished to Defendant No.1, 2, 3). By and under order dated 12^th August, 2003, in Notice of Motion No. 1922 of 2003 in Suit No. 1961 of 2003, Defendant Nos. 1 to 4 deposited the sum of Rs.

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5,45,000/- (Rupees five lakhs forty five thousand only) towards their share of gross sale proceeds under the Development Agreement. Further, by and under order dated 3^rd December, 2008 in Notice of Motion No. 2782 of 2006 in Suit No. 1961 of 2003 refused injunction against the Suit Property and directed status quo in respect of Flat of Defendant No.1 towards claim of the plaintiff.

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12 The suit property is an immovable property admeasuring 1596.53 sq. meters situated at Chakala, Andheri (East) Mumbai, ( Notice of Motion

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3527 of 2002) , in Suit No. 4007 of 2002 , owned by -

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M/s. Haji Shaukat & Co. M/s. Shaukat Shahadat M/s. Premier Iron & Co. & Metal Industries (50% share) !-------------------------------------------------------------! ! ! ! ! Partners Partners 1 Choudhary Shaukat Hasmullah 1 Shaukat (“Shaukat”) 2 Choudhary Shahadat Hasmullah (“Shahadat”) 2 Chaudhary Mohd. Rafiq Shaukat 3 Abdul Basalat Rubali (D8) 3 Chaudhary Mohd. Zubair 4 Rahimtulla Rubali Shaukat Ali (D9)

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4 Chaudhary Abdul Gani Shaukat 5 Sharif Hassan Rubali (D 10) (D 27) 5 Sharif Hassan Rubali (D 27)

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6 Ahmed Rubali (D 28)

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13 Disputes arose between the partners of M/s. Haji Shaukat & Co. and M/s. Shaukat Shahadat & Co. resulting in the following proceedings.

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(i) Suit No. 1350 of 1980 was filed by Shahadat against Shaukat and other partners for dissolution and accounts of Shaukat Shahadat & Co. and declaration that Deed of Retirement of Shahadat was not valid and binding on him.

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(ii) Suit No. 3170 of 1985 was filed by M/s. Shaukat Shahadat & Co. against Shahadat for declaration that the firm was the co-owner of the Suit Property and Shahadat had no individual right in the Suit Property.

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(iii) Suit No. 843 of 1985 was filed by Shahadat against Shaukat, Defendant No. 24-26 for declaration that Shahadat was entitled to 1/6^th share in the Suit Property.

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14 Shahadat intestate died on 15^th March, 1994 and Shaukat died intestate on 5^th March, 1995 leaving behind the following heirs:

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(a) Shahadat branch

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--------------------------------------------------------------------
! ! !
Widow Sons Daughters
(P4) ! !
! !
--------------------------- ------------------------------
! ! ! ! ! ! ! !
P1 P2 P3 D1 D2 D3 D4 D5
!
----------
! !
D1(a) D1(b)
Widow Daughter
(Plaintiffs in Suit No. 1717 of 2009)
(Separate from these two suits)

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(b) Shaukat branch

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--------------------------------------------------------------------
! ! !
Widow Sons Daughters
(D7) ! !
! !
----------------------- -----------------------------------------------------
! ! ! ! ! ! ! ! ! !
D8 D9 D10 D11 D12 D13 D14 D15 D16 D17

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(Plaintiffs in Suit No. 1961 of 2003)

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15 The female members of Shaukat branch i.e. widow and 7 daughters had vide Deed of Relinquishment dated 1^st July, 1995 relinquished all their

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right, title and interest in the estate of Shaukat in favour of the sons of Shaukat i.e. D8, D9 and D10.

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16 By recording above, the Consent Terms dated 15^th April, 1998 filed in Suit No. 1350 of 1980, the aforesaid three suits came to be disposed off and the shares of each branch of Shaukat and Shahadat family came to be determined to the extent of 8.50% to the Shahadat branch and to extent of 41.50% to the Shaukat branch.

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(As per Suit No. 4007 of 2002)

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17 Pursuant to the aforesaid Consent Terms, by and under a Development Agreement dated 22^nd January, 2002 executed between Defendant No. 24-25 (Qureshis), Defendant No. 6,7, 8 (Shaukat heirs), Defendant No. 27 (Sheirf Hasan Rubali), Defendant No.1, Defendant No. 2-5, Plaintiff 1-4 (Shahadat heirs), Boman Irani, Percy Chowdhary, Saifuddin Patel ( as confirming parties) and Defendant No.6, all the aforesaid parties granted development rights in respect of the Suit Property in favour of Defendant No.6. Defendant No.1 executed the Development Agreement on behalf of Plaintiff Nos. 1 to 4 and Defendant Nos. 2 to 5 by and under Power of Attorney dated 25^th April, 1995.

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18 Under the Development Agreement the gross sale proceeds to

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generate upon sale of the premises to be constructed in the new building on the suit land is bifurcated in the manner as set out under the Development Agreement executed between:

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i) Defendant No.6.

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ii) First Owners (Premier Iron & Metal Industries):- (Mohmd. Jamil Mohmd. Ismail Qureshi (Defendant No.24), Mohd. Aquil Mohmd. Ismail Qureshi (Defendant No.25), Mohmd. Kafil Mohmd. Ismail Qureshi (Defendant No.26),

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iii) Second Owners (Shaukat Branch):- Mohd. Rafique Shaukat Chaudhary, Mohd. Zubair Shaukat Chaudhary, Abdul Gani Shaukat Chaudhary, Sharif Hasan Rubakli,

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iv) Third Owners (Shahadat Branch):- Chaudhary Abdul Majid Shahadat (Plaintiff No.1), Mohd. Farooque Shahadat Chaudhary (Plaintiff No.2), Mrs. Gafurunnisa Shahadat Chaudhary (Plaintiff No.4), Abdulla Shahadat (Defendant No.1), Mrs. Kulsum Manzoor Khan (Defendant No. 2), Mrs. Saira Afzal Khan (Defendant No.3), Mrs. Shahida Saifullah Chaudhary (Defendant No.4), Mohd. Llyas Shahadat (Plaintiff No.3), Mrs. Shabira Ayub Khan (Defendant No.5)

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v) Boman Irani (First Confirming Party), Sharfuddin A. Patel (Second Confirming Party), Mr. Percy Choudhary (Third Confirming Party).

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19 Defendant No.6 commenced construction and development on the suit property as far back as in January, 2002. In spite of being aware of the redevelopment undertaken by Defendant No.6 the suit came to be filed on December, 2002.

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20 The plans sanctioned by the authorities envisaged construction of 8 residential buildings and 1 commercial complex. Till the date of filing of the present suit, Defendant No. 6 has completed construction of 5 buildings (Wing A to E) and building G and H were under construction. The Commercial Complex and one Residential Building i.e. Wing F are not yet completed.

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21 By and under and order dated 6^th May, 2004 passed by the Court disposed of Notice of Motion No. 3527 of 2002 along with Notice of Motion No. 1922 of 2003 in Suit No. 1961 of 2003, where the Court permitted Defendant No. 6 to continue construction of G and H Buildings. The Court restrained Defendant No.6 from creating third party rights in respect of the unsold flats of Buildings G and H.

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22 The aforesaid order was carried in appeal by Defendant No.6 being Appeal No. 558 of 2004 in Notice of Motion No. 3527 of 2002 in Suit No.

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4007 of 2002,l whereby the Division Bench of this Hon’ble Court by its order dated 21^st October, 2004 directed the Court Receiver to act as Court Commissioner and report to the Court about the status of the suit property. The Court permitted Defendant No. 6 to complete construction of G and H buildings but restrained creation of third party rights in respect thereof.

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23 In the meantime following settlement took place in Suit No. 4007 of

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2002:-

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Date	Agreement	Consideration
20^thApril, 2007	Registered Conveyance between Defendant No. 235 and Plaintiff No.1	Rs.4,00,00,000/- (Rupees Four Crores Only)
1^stAugust, 2007	Registered Conveyance between Defendant No. 235 and Plaintiff No.2	Rs.1,10,00,000/- (Rupees One Crore Ten Lakhs Only)
28^thSeptember, 2007	However, in the meanwhile, Plaintiff No.4 (Widow) expired
7^thNovember, 2008	Consent Terms with Plaintiff No.3 and Defendant No.6 (includes share derived from Shahadat and his mother, Plaintiff No.4) taken on record by the Hon’ble Court on 17^th January, 2009	Rs.2,00,00,000/- (Rupees Two Crores only) + Flat admeasuring 975 sq.ft.
28^thDecember, 2007	Registered Conveyance between Defendant Nos. 2-5 in favour of Defendant No.235 (includes share derived from Shahadat and their mother, Plaintiff No.4)	Rs.35,00,000/- (Rupees Thirty Five Lakhs) each.

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24 In view of death of Plaintiff No.4, in Suit No. 4007 of 2002, her share in the Suit Property devolved as follows:-

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As per Muslim Law of Inheritance, the estate of widow will devolve upon the sons and daughters in the ratio of 2:1 as follows:

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(As per shares in Consent Terms)

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(As claimed by the Plaintiffs)

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3 sons 0.21% each 0.41%

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4 daughters 0.10% each 0.20%

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Since one of the son (i.e. Defendant No.1) pre-deceased his mother (Plaintiff No.4), he will not get any share in his mother’s estate as per Muslim Law.

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25 As explained above, by the contesting party, only rights of Plaintiff No.1 and Plaintiff No.2 accruing to them through Plaintiff No.4 (Widow) is outstanding. Share of Plaintiff No.1 and Plaintiff No.2 shall be 0.41% each and therefore aggregating to 0.82%.

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Therefore, there is force in the contention raised that, the present suit only survives to the extent of 0.82% share accruing to Plaintiff No.1 and Plaintiff No.2 through their mother.

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26 Appeal No. 558 of 2004 and Appeal No. 572 of 2004, filed by Defendant No.6 came up for final hearing before the Division Bench of this Hon’ble Court. The Division Bench vide its order dated 17^th January, 2009, in view of the “subsequent developments” in the form of settlement between the parties which were significant and was pleased to set aside the interim order dated 6^th May, 2004 and remitted the Notice of Motion No. 3527 of 2004 in Suit No. 4007 of 2002 and Notice of Motion No. 1922 of 2003 in Suit No. 1961 of 2003 for fresh consideration. The interim order of Court Receiver was continued till the disposal of the Notice of Motion as a protection measure. Defendant No. 6 was permitted to grant possession to the 40 flat purchasers in Wing G and H on satisfying the Receiver that they have bona fide agreements to sell the flats, substantial consideration has been paid and that MCGM has granted occupation certificates for the same flats.

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27 All the Flats in Wing A, B, C, D and E are sold to flat purchasers and the possession of the flats are handed over to such flat purchasers. Wing A,B, C, D and E are residential buildings, Wing G & H are also residential buildings and the construction thereof is completed and the occupation certificate is also given. Wing G and H totally comprises of 56 flats, out of which 40 flats are sold and letter of allotment were issued accordingly by Defendant No.6 to various flat purchasers and Defendant No. 6 has

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received substantial consideration thereof. However, possession to the flat purchasers of these 40 flats as not yet permitted by the Court Receiver in spite Defendant No.6 having satisfied the Court Receiver in respect of the requirements as stated above of the Hon’ble Court vide its order dated 17^th January, 2009, the Court Receiver submitted its Report No. 267 of 2009, dated 8^th September, 2009 to the Court for directions. Wing F is a residential building, the construction whereof is yet to commence and one more commercial building thereof is proposed to be constructed. In addition to the buildings to be constructed on the suit land, there are uncompleted amenities and infrastructure also.

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28 Defendant No.1 is entitled to sale proceeds as consideration under the Development Agreement. Till date Defendant No.6 has paid an aggregate sum of Rs.67,79,763/- (Rupees Sixty Seven Lakhs Seventy Nine Thousand Seven Sixty Three only) towards consideration to the Shahadat branch. Out of the aforesaid sum, a sum of Rs.15,59,421/- (Rupees Fifteen Lakhs Fifty Nine Thousand Four Hundred and Twenty One only) was paid by Defendant No. 6 to Defendant No.1 which has been deposited by him in this Court and a further sum of Rs.52,20,342/- (Rupees Fifty Two Lakhs Twenty Thousand Three Hundred and Forty Two only) has been deposited by Defendant No. 6 in this Court on behalf of Shahadat branch.

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29 On 9^th April, 2010, as there was no report submitted by the Court Receiver pursuance to the order passed by the Division Bench, this Court has directed as follows:-

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“1 In view of the order passed by the Division Bench in the matter, specifically in paragraph No. (2) (ii)(a) read with Paragraph No.5 of the Court Receiver's report dated 12^th September, 2009, it is desirable that the Court Receiver to give detailed report, within 10 days, from today.

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2 The liberty is granted to the parties to appear before the Court Receiver, on 12.04.2010 at 3.00 p.m.

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3 The matter be placed on board with additional report of the Court Receiver, on 22^nd April, 2010, as the additional report is necessary for passing the final order in Notice of Motions.”

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30 The Court Receiver accordingly submitted the Additional Report No. 73 of 2010, dated 20^th April, 2010, and prayed that:-

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“(a) As B.M.C. Has issued Occupation Certificate in respect of “G” and “H” wings of the building and the 19 Flat Purchasers have paid full consideration to the Defendant No.6 as per list being Exhibit “C”, the Court Receiver may be permitted to put the said Flat Purchasers in possession of their respective flats as agent of the Court Receiver upon executing the necessary Agency Agreement and undertaking, without royalty and security as per order dated 17^th January, 2009.”

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31 It is relevant to note the following order of the Division Bench in Notice of Motion No. 2708 of 2004 in Appeal No. 558 of 2004 in Notice of Motion No. 3527 of 2002 in Suit No. 4007 of 2002 dated 21/10/2004:-

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“Heard.

2 The notice of motion is returnable on 14^th December, 2004.

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3 The learned motion Judge observed that construction has proceeded considerably and it would not be proper now to stop the construction activity. He also observed that two buildings consisting of five wings are complete and flats therein have been sold. The work now remains is in respect of G and H wings and the commercial complex and in G and H wings also it is said that some agreements have been entered into.

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4 Taking overall facts and circumstances into consideration and the aforesaid observations made by the learned motion Judge, we are satisfied that the operation of the impugned order deserves to be stayed and the following ad-interim order shall remain operative until further orders:-

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(i) The Court Receiver is appointed to act as Court Commissioner for reporting to this Court the present status of the property in dispute. If necessary, the Court Commissioner may take the assistance and services of the structural Engineer and Architect to assist him. The report shall be submitted by the Court Commissioner as early as possible and in no case later than four weeks from the date of deposit of tentative expenses by the appellant.

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(ii) The appellant (defendant No.6) is permitted to complete the construction of G and H wings as per the sanctioned plans only without any alteration or modification. However, the appellant shall not create any third party right or interest henceforth in the G and H wings.

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(iii) The appellant (defendant No.6) is restrained from proceeding with any further construction in respect of the commercial complex.

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(iv) The appellant (defendant No.6) shall furnish to the Court Commissioner the true and correct copy of the sanctioned plants, copies of agreements, if any, so far entered into in respect of flats in G and H wings, the copies of other necessary documents necessary for completion of G and H wings and all other documents that may be required by the Court Commissioner.

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(v) Liberty to the appellant (defendant No.6) to apply the court for appropriate direction after the completion of construction of G and H wings.

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(vi) The appellant (defendant No.6) is directed to deposit a sum of Rs.25,000/- with the Court Receiver towards tentative expenses within ten days from today.”

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32 It is necessary to note first of all in above back-ground basic prayers in these two suits which are as under:-

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As per Suit No. 1961 of 2003-

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“a) that this Hon’ble Court be pleased to declare that purported Power of Attorney dated 26^th March, 1998 (Exhibit “C” hereto) and purported writing dated 1^st July, 1995 (Exhibit “D” hereto) are illegal, null and void.

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b) that Defendant Nos. 1 to 3 and 23 or any of them or any other Defendant who may be in the possession of

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the alleged Power of Attorney dated 26^th March, 1998 Exhibit “C” hereto and the writing dated 1^st July, 1995 Exhibit “D” hereto be ordered by this Hon’ble Court to deliver up the same to this Hon’ble Court for cancellation and the same be ordered and decreed to be cancelled by this Hon’ble Court;

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c) in the alternative it be declared that the said purported writing (Exhibit “D”) hereto has not been acted upon and was never intended to be acted upon.

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d) that this Hon’ble Court be pleased to set aside the consent decree passed on 15^th April, 1998 in Suit No. 1350 of 1980, 843 of 1985 and 3170 of 1985 and restore the said suits to file.

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e) This Hon’ble Court be pleased to declare that Agreement dated 22^nd January, 2002 purporting to be entered into between 1^st Defendants and other Defendants being Exhibit “E” hereto is a sham and bogus document and the same be delivered up and cancelled.

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g) That it be declared that Plaintiff has 6.73 share or such other percentage share as may be found in the entire estate of late Shaukat Hasmulla including property at Chakala and the same be delivered up to her by partitioning the same by metres and bounds and for that purpose the properties and estate of late Mr. Shaukat Hasmullah be administered under the Order and direction of this Hon’ble Court in accordance with law.”

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based upon that the Plaintiffs have taken out Notice of Motion for interim reliefs.

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33 The prayers in Suit No. 4007 of 2002 are-

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a) that this Hon’ble Court be pleased to set aside the consent

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decree passed on 15^th April, 1998 in Suit Nos. 1350 of 1980, 843 of 1985 and 3170 of 1985 and restore the said suits to file.

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b) this Hon’ble Court be pleased to declare that Agreements entered into between Defendants and Defendant No. 6 in respect of the suit property are void, illegal and without any effect in law and be ordered to be cancelled.

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c) that the 6^th Defendants by themselves, their servants, agents and persons claiming through or under them be restrained by a permanent order and injunction of this Hon’ble Court from in any manner directly or indirectly entering upon the suit property described in Scheduled “A”, A1 hereto or from carrying out any construction thereon;

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cc) That this Hon’ble Court be pleased to- (added by the Complainant in 2005)

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(i) Declare that the Defendant Nos. 34 to 248 have no right title or interest or any part or portion of the suit property described in Exhibits A and A1 to the Plaint or on any part or portion of the residential and/or commercial buildings constructed/ being constructed thereon.

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(ii) That the agreements entered into between the Defendant No. 6 on the one hand and the Defendant nos. 34 to 248 on the other hand are all illegal, null and void and not binding upon the Plaintiffs.

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(iii) That the Defendant Nos. 34 to 248 be ordered and decreed to hand over to the Plaintiffs quiet, vacant and peaceful possession of the premises of which possession is stated to have been given to the said Defendant Nos. 34 to 248.

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(iv) The Defendant Nos. 34 to 248 be restrained by a perpetual order and injunction from in any manner remaining upon and/or entering any part or portion of the suit property described in Exhibits A and A1 hereto.

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(v) That the Defendant Nos. 34 to 248 be restrained by an order and injunction from in any manner dealing with, encumbering, parting with possession, including any third parties, including by way of leave and license agreement/ caretaker agreements or otherwise creating third party rights in respect of the premises or any part or portion thereof purportedly purchased by the said Defendants by entering into agreements with Defendant No.6.

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(vi) That it be declared that all IODs, Ccs and other permissions, NOC, sanctions and licenses granted by Defendant Nos. 249 and 250 for carrying out and/or in aid of development and/or construction on the suit properties described in Exhibits A and A1 to the Plaint are all illegal, null and void and not binding upon the Plaintiff and the Defendant Nos. 249 and 250 be ordered and directed to withdraw/revoke/cancel the same.

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(vii) That interim and ad-interim reliefs be granted in terms of prayer clauses (cc) (iii) to (cc) (v) above.”

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34 From the above prayer clauses itself it is very clear that the Plaintiffs want, the Court to decide and declare the power of Attorney dated 26^th March, 1998 purported writing dated 1^st July, 1995 and also prayed to set aside the consent decree passed on 15^th April, 1998 in Suit No. 1350 of 1980, 843 of 1985 and 3170 of 1985. The declaration is also sought with

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regard to the agreement dated 22^nd January, 2002, purporting to be sham and bogus document. The declaration is also sought that the Plaintiff has 6.73% share and/or such other percentage share in the entire estate of late Mr. Shaukat Hasmulla and therefore, sought administration of the same also. The relief of restrainment was also sought against Defendant No.32 interfering upon the suit property as described in Schedule-Exhibit “A”. Importantly, such declaration itself such relief and for such declaration is their exists those detailed executed documents, in view of the consent terms of the year 1998. The alleged writing is also of the 1^st July, 1995. The suit is for the year 2003, basically after the agreement dated 22^nd January, 2002. The averments so raised in the plaint read with the supporting documents, even if placed on record unless adjudicated and decided finally by leading supporting evidence, I am not inclined to accept the case of the Plaintiffs based upon this averments so raised to grant adinterim reliefs as contended.

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35 As per Suit No. 4007 of 2002:-

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The multiple prayer clauses are made for similar reliefs revolving around the same consent terms dated 15^th April, 1998, the agreement entered into by Defendant No.6 in respect of the suit property. The declaration with regard to the Defendant No.34 to 248 is added by amendment in the year 2005, read with further declaration that all IODs,

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Ccs, other permissions, NOC, sanctions and licenses granted by Defendant No.249 and 250 for carrying out and/or in aid of development and construction on the suit properties are to declare the same as illegal, null and void and not binding. The existence of those documents are not at all in dispute. The prayers are made to declare those actions and the documents null and void. Therefore, if the existence are not at all in dispute and the prayers are to declare the said documents null and void including all transactions based upon the same unless granted finally, there is no case of interim relief, as prayed. Most of the parties have already acted upon on the same. The conduct of the parties and the delay on their part in filing such suit and seeking declaration of such type of orders which goes to the root of the documents. Therefore, unless decided by giving full opportunity to both the parties, I am not inclined to accept the case of the contesting Plaintiffs only, as some of the plaintiffs are even settled the matter pending these motions itself.

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36 Assume for a moment that the case made out by the Plaintiffs with regard to their shares, based upon the alleged misrepresentation and of fraud, yet, in view of above facts and circumstances are quite nominal and shall be subject to grant in the suit after due trial only. The respective shares and the claims based upon the same, even if so raised, just cannot be the reason to overlook the existence of those documents as referred

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above and the conduct of the parties at the relevant time, by accepting those terms and conditions of those documents actually participated and acted upon. The Apex Court in M. Gurudas & Ors. Vs. Rasaranjan & Ors., AIR 2006 S.C. 3275 , has considered one of such aspect, which according to me is relevant to be noted for the present matter i.e. in a partition suit the Court needs to consider the extent of plaintiffs shares in the property. As noted, at this prima facie stage, it is not possible for the Court to decide the shares of the Plaintiffs, even if so agitated and as unless the prayers so raised/made are decided finally, no case is made out for grant of reliefs so contended.

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37 In Anand Prasad Agarwalla Vs. Tarkeshwar Prasad & Ors., AIR

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2001, S.C. 2367 , as relied by the learned counsel appearing for the Plaintiffs referring to Order 39 Rule 1 and 2 of Code of Civil Procedure (for short, CPC), it is held by the Apex Court, that the Court cannot held mini trial at the stage of grant of temporary injunction and examine various aspect of case. This principle, in my view, supports the case of a contesting Defendants in all respect, as basic reading of the prayers and the averments so raised in the plaint, as well as, in the Notice of motion, itself shows that there exists various registered documents/ consent decrees and therefore, the existences of the same, if not in dispute, and unless that is decided finally in due trial, those prayer clauses itself are not sufficient to grant the

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reliefs so prayed by the Plaintiffs, at this stage of the Proceedings and to halt the construction which has been proceeded pursuance to the orders passed by this Court from time to time.

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38 There is no serious dispute, which is clear from the record also the first order dated 6^th May, 2004 in Notice of Motion No.270 of 2004 in Suit No. 4007 of 2004 and order dated 21^st October, 2004 passed by the Division Bench of this Court in Notice of Motion No. 2708 of 2004 arising out of the order in Motion No. 3527 of 2002 and as recorded above and the work/ construction of 2 buildings consisting of 5 wings even completed and the flats have been sold. The work in respect of “G” and “H” wings and commercial complex are not completed and as some of the flats in “G” and “H” wings, some agreements have been entered into, the Division Bench has appointed the Court Receiver to act as a Commissioner for reporting the status of the property in dispute. Defendant No.6, has been permitted to complete the construction of “G” and “H” wings as per the sanctioned plan. However, directed that the Appellant should not create any third party rights or interest. Defendant No.6 was also restrain from proceeding further in respect of the construction of Commercial Complex. As the Division Bench has also directed to Defendant No.6 to submit the relevant documents, sanctioned plans with regard to the completion of “G” and “H” wings. The liberty was also granted to apply for appropriate order

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or directions after the completion of construction of “G” and “H” wings. From the record, it is clear that the parties acted upon the same and proceeded accordingly except above there was no any direction and/or restrainment order against the contesting Defendants. It also means, the Court Receiver has been appointed by the Division Bench to supervise the construction itself. The statement is, as recorded that the construction is completed of “G” and “H” wings, except Commercial property.

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39 It is relevant to note the order passed by the Division Bench, on 17^th January, 2009, in Appeal No. 558 of 2004 in Notice of Motion No. 3527 of 2002 in Suit No. 4007 of 2002 which is reproduced as under:-

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“1 This appeal arises out of the order dated 6.5.2004 passed by the learned Single Judge of this Court in notice of motion no. 3527 of 2002 in Suit No.4007 of 2002. It is common ground before us that after the order dated 6.5.2004 was made by the learned Single Judge, certain developments have taken place in that suit in the form of settlement being reached by some of the Plaintiffs with the contesting defendants who are appellants in this appeal, and death of one of the Plaintiffs as also transfer of interest by some of the plaintiffs. These developments definitely have bearing on the type of interim order that should operate during the pendency of the suit. The appellant has also placed on record consent terms arrived at between the appellant and the respondent no.3 who was plaintiff no.3 in the suit, they are taken on record and marked “X” for identification. In our opinion, in view of these subsequent developments which are significant so far as the type of interim order that should operate during the pendency of the suit is concerned, requires re-consideration of notice of motion which has been decided by the learned Single Judge. It is also common ground that this Court has made an ad-interim order in this appeal dated 21.10.2004 which is presently operating.

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2 Taking overall view of the matter, therefore, in our opinion, the following order would meet the ends of justice:-

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(I) The order dated 6.5.2004 passed by the learned Single Judge of this Court in notice of motion no. 3527 of 2002 in suit no.4007 of 2002 is set aside. That notice of motion is remitted back to the learned Single Judge for fresh consideration and decision. The appellant shall file an affidavit in that notice of motion within a period of two weeks from today bringing on record subsequent developments that, according to the appellant, have taken place during the pendency of the appeal. Office shall also place on record of the learned Single Judge the consent terms at “X” for the consideration of the learned Single Judge. During the pendency of the notice of motion before the learned Single Judge, ad-interim order dated 21.10.2004 passed in notice of motion no. 2708 of 2004 in this appeal, shall continue to operate with the following additions:

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(i) The Receiver of this Court will continue to function as before the ad-interim order dated 21.10.2004.

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(II) We have been informed that in Wing “G” and Wing “H” there are total 56 flats. According to the learned Counsel appearing for appellant, out of 56 flats, 40 flats have been agreed to be sold and substantial consideration has been received from the purchasers. According to the parties, therefore, there is no reason as to why possession of those 40 flats cannot be given to the purchasers. This position is not disputed before us presently. However, in our opinion, it will not be appropriate to make blanket order for delivery of possession. In our opinion, the following order would meet the ends of justice:-

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(a) The appellant and the flat purchasers may produce before the Receiver material to establish that full consideration has been received by the defendant no.6 from the flat purchasers and proper agreements has been entered into in their favour in respect of the flats and also the documents to show that the Corporation has granted occupation certificate for occupation of

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those flats. In short, the defendant no.6 and the flat purchasers have to satisfy the Receiver that they are bonafide agreements to sell the flats and substantial consideration has been paid. Possession of the flats may be given to such purchasers as agent of the Receiver on usual terms and conditions except royalty and security.

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This order will not come in the way of the Corporation granting occupation certificate, if otherwise, the defendant no.6 is entitled to the occupation certificate in accordance with law.

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(III) This order will operate during the pendency of the notice of motion before the learned Single Judge, with liberty to the parties to apply for modification of the same, in case there are any subsequent development. It is made clear that the occupation of 40 flats would be as the agents of the Receiver without royalty and security and they will have to abide by all other conditions as agents.

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(IV) The learned Single Judge is requested to dispose of the notice of motion as expeditiously as possible.”

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40 The Division Bench has noted the subsequent events/ developments pending the Notice of Motion including the consent terms entered into by some of the Plaintiffs and after recording the same, ordered to dispose of the motion, as expeditiously as possible, afresh. By putting/filing additional contentions/additions here again the Court Receiver as already appointed, directed to continue before the ad-interim order in the Appeal dated 21/10/2004. The Division Bench has even ordered and observed “there is no reason as to why the possession of those 40 flats cannot be given to the purchasers, by recording that in Wings “G” and “H” there are

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56 flats and out of that 40 flats agreed to be sold and substantial consideration has been received by the Developers. The contention was added that the Appellant and the Flat purchasers to produced necessary documents to establish the respective rights and claims, apart from occupation certificate for occupation of those flats. It is specifically observed that “possession of the flats may be given to such purchasers as agent of the Receiver on usual terms and conditions except royalty and security.” The liberty was also granted to the parties to apply for modification of this order.

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41 The Court Receiver Report No. 267 of 2009 in Suit No. 4007 of 2002, dated 8^th September, 2009, submitted by the Court Receiver for appropriate order basically with regard to the allotment of 40 flats by treating the same as valid agreements under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963(for short, “the MOF Act”).

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42 It is necessary here to note the earlier Court Receiver's Report of the year 2004 dated 23^rd June, 2004, as the Court Receiver was appointed by an order dated 6^th May, 2004 passed in Notice of Motion No. 270 of 2004 in Suit No. 4007 of 2004, the said report reflects that the representative of the Court Receiver visited the suit property and even made inventory of the

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flats sold and the construction and the details were submitted in the Exhibit A and B to the report covering the Names of the flat purchaser, total consideration paid, the date of possession and the various remarks referring to the flats, the allotment letter and the date. The allotment letter ranges for the period from 21/06/2002 up to 05/06/2003 of about 40 flats.

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43 It is necessary to note the last additional report dated 20^th April, 2010 submitted by the Court Receiver pursuance to the order dated 9^th April, 2010 passed by this Court, in view of Division Bench order dated 17^th January, 2009 basically paragraph No.2 II (a) read with paragraph No.5 of the Court Receivers report dated 8^th September, 2009, there is no reference made about the earlier report dated 23^rd June, 2004 and basically details of the respective flats and the date of allotment/ letters and the consideration so paid. However, it is observed by referring to annexure “C” as under:-

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“6. Upon considering the letters dated 29^th July, 2009 and 12^th April, 2010 of Advocate for Plaintiff Nos. 1 and 2, and submission dated 12^th April, 2010 of Advocate for Defendant No.15 and Annexure “C” of submission dated 15^th April, 2010 of Defendant No.6 and oral submission of Advocate for some of the Flat purchasers recorded in metting note dated 16^th April, 2010, the Court Receiver is of opinion that 19 Flats Purchasers have letter of allotment/Agreements and have paid full consideration to Defendant No.6 as per the receipt filed in the office of the Court Receiver. Hereto annexed and marked as Exhibit “E” (Colly) are the copies of the aforesaid letters dated 29^th July, 2009, 12^th April, 2010 and 15^th April,

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2010 and Exhibit “F” (Colly.) are the copies of the Minutes of Meeting dated 12^th April, 2010 and 16^th April, 2010.

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7. Considering all the submissions of Advocate for parties as well as Advocate for Flat Purchasers i.e. Jalan Family, 19 flat purchasers as per list being Exhibit “C” to this report may be considered having letter of allotment/ agreement and have paid full consideration and possession of Flats may be given to such Flat Purchasers as agent of the Court Receiver on usual terms and condition without royalty and security as per order dated 17^th January, 2009.”

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44 Though reference was made of 34 flat purchasers, yet prayer is sought only for 19 flat purchasers. In no order the Court Receiver has been directed to decide the validity of these documents. The order was to assist/ to verify the proceedings with regard to the details of the purchaser of respective flats, so that the appropriate order of giving possession, subject to existing Agency Agreement and undertaking without royalty and security, can be passed by the Court. There was no opinion sought from the Receiver to decide and to take decision as prayed in this report. The important facet in such matters, which is clear from the orders already passed by the Court from time to time, is to verify the bonafide transactions/ Agreements pending the proceedings at that time.

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45 The material so placed on record with regard to 40 flats, the purchasers importantly covering the letter of allotments read with

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respective consideration and the substantial amount so paid and deposited as further supported by the Zoroastrian Co-operative Bank Limited and as was already placed on record by an affidavit dated 14^th January, 2004, 25^th February, 2004 of Defendant No. 34, Defendant No.6, in Notice of Motion No. 3527 of 2002 in Suit No. 4007 of 2002, just cannot be overlooked even to consider the case in view of order so passed by the Division Bench. In absence of any restrainment order, it is quite natural that the concerned parties proceeded to complete the project, as early as possible. It is also natural that pending such litigation, some parties may make payment subsequently. As recorded, some of the parties have paid the substantial amount/ consideration based upon the letter of allotments which is recorded above ranges from the year 2002 to 2003. It means, even prior to the order passed on 6^th May, 2004 and even if, there are transactions and the rights have been created subsequently, still in my view, in absence of any restrainment order those transactions, just cannot be overlooked.

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46 In the construction/ development of property transactions, it is possible that the parties may enter into oral transactions of the respective flats. There is no bar. However, appropriate registration and execution of documents subsequently, as per the requirements of law, as relevant, just cannot be the reason to deny such purchasers their rights to claim the possession of the respective flats from the builder/developer as agreed.

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The party like the Plaintiffs, cannot raised such objection to deny the rights and obligations so created by the parties by executing the agreements which reflected firstly in letter of allotment and secondly by payment of respective consideration which may not be 100% because of pendency of the litigations. In my view, the letter of allotment read with consideration paid at the relevant time and as not denied by the parties, unless denied and disputes the same, no third person/ party can object. Even if objected unless decided in their favour, those documents/ agreements are sufficient to consider, at this stage to grant possession of the flats to the flat purchasers.

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47 The list of 46 flat purchasers and their respective payments is a part of record. The Receiver, by giving his opinion, restricted only to the 19 flat purchasers, which in my view, is not correct. The Plaintiffs suit, as well as, Notice of Motions and the orders passed thereon which are modified from time to time, and the pendency of hearing, that itself cannot be the reason not to deal with handing over the possession of such purchasers. It is not in the interest of anybody that such project be halted basically when the shortage of accommodation is at large, in the city. The Court has appointed the Court Receiver to supervise the construction and which has been going on. This also, in my view, safeguards the interest of all for the time being.

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48 It is very much necessary to note here that the Builder/Contractor/ Promoter, as well as, the respective members/ purchasers of the Flats, are bound by their obligations, as well as their rights. The aspect of registered covenants between the Plaintiff Nos. 1 and 2 with Defendant No. 235 dated 20^th August, 2007, dated 11^th August, 2007, the consent terms with Plaintiff No. 3, Defendant No.6, dated 7^th November, 2008, the registered covenant between Defendant No.1 and 5, in favour of Defendant No. 235 are also subsequent relevant factor, which goes against the Plaintiffs and such other supporting Defendants.

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49 Even if, there are allegations made about non compliance of various

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purchase, non performance of obligations, breach of trust, misrepresentation, fraud and all these facets need detailed inquiry. The internal dispute so raised between the family members, by the Plaintiffs who have a very nominal shares in the property as recorded above, cannot be adjudicated finally at this interim stage itself. It is settled that if it is difficult to partition the property, the alternative remedy is to compensate such person and/or owner of the property by paying the market rate compensation. The parties based upon the various consent terms, agreements and registered documents have constructed various wings on the suit property and now occupied by various other purchasers also. The

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total area of the plot/ property even if taken note of, have already been developed/constructed and in occupation of large number of occupants/ members who have also formed the society, even if there are allegations of breaches of various terms and conditions including of provisions of law and based upon which the contesting Plaintiffs want to re-agitate and re-open the whole transactions and by filing such suit after such long time/ period, therefore, the conduct of the parties, in my view, is also relevant factor which goes against the contesting plaintiffs/ Defendants.

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50 After the death of original party, the legal heirs now want to reagitate and re-open the issue/ transaction. Some of the plaintiffs agitated the issue of fraud/ misappropriation pending the litigation, some of the plaintiffs have settled the matter though they raised such allegations by filing the suit at initial stage. The internal dispute, even if any, of family members by considering the developments of the property as recorded above and the fact that the respective shares of the concerned plaintiffs are quite less in proportion, I see, there is no reason to halt the project. The basic elements of balance of convenience, equity, irreparable injury goes against the Plaintiffs but supporting the case and submission of contesting Defendants and the purchasers/ members. The conduct and the delay aspect, in the present facts and circumstances, also goes against the Plaintiffs. The monitory aspect, as recorded, is also relevant factor, as the

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Plaintiffs can be compensated, if they made out their case, after due trial.

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51 It is relevant to note that the matter was also adjourned for various occasions for the settlement, in view of above, but it could not be materialized. It will be in the interest of both the parties that such matters be settled and all should co-operate to complete the project.

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52 The learned Senior Counsel appearing for the concerned Defendants, on instructions, even submitted that they are ready and willing to deposit the monitory part of considering the share of the respective plaintiffs, if any. He also submitted that there is no question of continuing the Receiver in view of subsequent development. However, I am of the view that, since beginning the Development and Construction on the plot in question, has been under the supervision of the Court Receiver/ Commissioner, and it is accordingly proceeded further till this date. Therefore, there is no reason that it should not be continued till the decision of the suit. Both the suits are expedited. In view of this, the following order:-

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O R D E R

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a) The Court Receiver, as appointed for only supervision of

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the Development/ construction as Commissioner on the suit property to continue till the decision of the suits.

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The Receiver shall not interfere and obstruct the day to day constructions and the affairs of the maintenance of the Buildings and/or as of the society.

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b) The Court Receiver’s Report No. 73 of 2001 is allowed subject to following modification:-

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a) The Court Receiver is directed to give the possession of the flat to the flat purchasers as agent of the Court Receiver by executing the necessary Agency Agreement and without royalty and security as per the list Exhibit “C” i.e. 46 flat purchasers with all amenities, car parking space allotted to the flats, if any. It is made clear that those 46 flat purchasers shall not create any third party rights or interest in the property without leave of the Court.

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c) The Builder/Promoter, the respective Defendants maintained the Accounts as already directed and submitted the same to the Court Receiver for every 6 months, till the disposal of the suits. The respective rights and obligations of the parties including providing necessary amenities to continue as per the agreement and as per the law.

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d) The liberty is granted to the concerned Developer/ parties/ Defendants to sought leave/ permission/ order from the Court, if they wish to develop remaining commercial complex and residential building “F” on the suit property including the car parking space attached to the flats, if any. It is made clear that the remaining commercial complex and residential buildings, to be constructed, subject to sanction and permission in accordance with law; and no physical possession should be given to any third person without leave of the Court.

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e) It is made clear that no third party right/ interest will be created on 10% of this undeveloped commercial complex/ Residential Building (F) without the leave of the Court, Defendant No.6 to submit the map to the Receiver de-marketing 10% of the area as observed above, within four months, with due notice to concerned Plaintiffs/ Defendants.

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f) In view of above, both the Notice of Motions are accordingly disposed of.

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g) Both the Court Receiver’s Report are also disposed of, accordingly. No costs.

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h) It is made clear that any construction is subject to the suits decision. All the parties to proceed in accordance with law with regard to the documentations including registration, if any.

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i) The learned counsel appearing for the Plaintiffs seeks stay of this order. Now as the order is passed to hand over possession and permitted construction of commercial wings and therefore, I am inclined to stay the effect and operation of this order for six weeks only.

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(ANOOP V. MOHTA, J.)

Chaudhary Abdul Majid Shahadat and 3 Ors. v. Smt. Shenaz Abdulla Shahadat and 236 Ors.

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Chaudhary Abdul Majid Shahadat and 3 Ors. v. Smt. Shenaz Abdulla Shahadat and 236 Ors.

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