Partly allowed

Abdul Kader Ahmed Sayyed v. Yusuf Ahmed Sayyed

Bombay HC4 May 2012NMS/2810/2011

Case brief

AI extract

What is this about?

In a partition suit involving nominee shares of a cooperative society flat, the court held that the deceased nominee held shares as a trustee for legal heirs. Relying on prior precedents, the court ruled the deceased could not validly gift the property to one heir alone and granted an injunction without appointing a receiver due to existing possession.

What did the court decide?

Notice of Motion made absolute; injunction granted; no appointment of Court Receiver.

Abdul Kader Ahmed Sayyed Vs Yusuf Ahmed Sayyed — Partition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO. 2810 OF 2011 IN SUIT NO. 2276 OF 2011

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Abdul Kader Ahmed Sayyed

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..... Plaintiff

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VERSUS

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Yusuf Ahmed Sayyed & Ors.

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..... Defendants

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Mr.Nandu Pawar for the Plaintiff.

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Mr.Anil K.Lulla for Defendant Nos. 1 and 2.

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CORAM : R.D. DHANUKA, J. DATE : 4 th MAY, 2012.

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P.C. :

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The Plaintiff has filed this suit for a declaration that Plaintiff has 2/9^th undivided share, right, title and interest i the suit flat and is seeking partition thereof. The Plaintiff has taken out this Notice of Motion for appointment of Court Receiver and injunction in respect of the suit flat.

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One Mrs.Marjorie Pheroze Broacha was the absolute owner of the suit flat. On 6^th March, 1980, the said Mrs.Marjorie Pheroze Broacha had accepted the faith Islam and got married to Mr.Sayyed Ahmed Usman alias Ahmed Usman Sayyed. After the said marriage of Mrs.Marjorie Pheroze Broacha, her name was

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changed to Mrs.Mariam Ahmed Sayyed. After her marriage with Mr.Ahmed Usman Sayyed, she adopted Plaintiff and the Defendants as her sons and daughters. It is common ground that in the year 1983 the said Mrs.Mariam Ahmed Sayyed had filed a nomination form in the society in respect of the suit flat and shares nominating her husband i.e. Mr.Ahmed Usman Sayyed Plaintiff and Defendant No.1. The said Mrs.Mariam Ahmed Sayyed thereafter filed another nomination form in the year 1985 nominating Mr.Ahmed Usman Sayyed only in the record of the society in respect of the suit flat and the shares. On 26^th December, 2002 the said Mrs.Marian Ahmed Sayyed died intestate leaving behind her husband, Plaintiff and Defendants as her only legal heirs and representatives. On 9^th January, 2003 upon demise of Mrs.Mariam Ahmed Sayyed, father of the Plaintiff and Defendants applied to the society for recording his name in the record of the society as nominee in respect of the suit flat and shares. Accordingly, the society transferred the suit flat and the share in the name of Mr.Ahmed Usman Sayyed as nominee. On 13^th April, 2010, the said Mr.Ahmed Usman Sayyed died intestate leaving behind him the Plaintiff and Defendants as the only heir and legal representative.

¶21

The Plaintiffs and Defendant No.3 by their advocates letter dated 27^th April, 2010 called upon the society not to transfer the suit flat and suit shares in the name of Defendant Nos. 1 and 2. The Plaintiff thereafter filed this partition suit

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and has taken out this Notice of Motion for appointment of Court Receiver and injunction.

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The Learned Counsel appearing on behalf of the Plaintiff submits that admittedly father Mr.Ahmed Usman Sayyed was nominated by the mother who was the owner of the suit flat in the record of the society and upon her demise, the said flat and the shares were transferred in favour of the deceased father as nominee. The Learned Counsel submitted that the nominee has no legal right and therefore all the legal heirs including the Plaintiff would be entitle to share in the suit property.

¶27

The Learned Counsel appearing on behalf of the Defendants on the other hand submitted that though there is no dispute that the suit flat and the shares were transferred in the name of the deceased father upon the demise of the mother. However it is submitted that during the lifetime by the deceased father, he had gifted the said flat and shares in favour of Defendant No.2 by execution of Gift Deed in the month of February, 2004 and on the basis of such Gift Deed, society has already transferred the said flat and shares in favour of Defendant No. 2 on 9^th March, 2004. According to the Learned Counsel, Defendant No.2 has become exclusive owner of the suit flat and the shares and that the Plaintiff has no right, title or interest of whatsoever nature in the suit property and is thus is

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not entitled to claim any relief.

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It is common ground that the father was nominated by the deceased mother who was the original owner in respect of the suit flat in the record of the society and upon demise of the deceased mother, the name of the father was admitted as a member in respect of the suit flat and the shares as a nominee.

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By oral Judgment dated 16^th April, 2012 delivered by this Court in Notice of Motion No. 2024 of 2011 in Suit NO. 1267 of 2011 in case of Shashikiran Ashok Parekh vs. Rajesh Virendra Agrawal and others after considering Section 30 of the Maharashtra Co-operative Societies Act, 1960 and Rule 25 of the Maharashtra Cooperative Societies Rules, 1961 and after considering the Judgment of this Court in case of Gopal Vishnu Ghatnekar vs. Madhukar Vishnu Ghatnekar¹ and in case of Om Siddharaj Co-operative Housing Society Ltd. vs. The State of Maharashtra² and in the case of Chitra Haldipur vs. Shahid Bhagat Singh CHS Ltd.³ I have taken a view that nominee holds the share and interest of the deceased for the disposal of the same in accordance with law. Society is under obligation to transfer the shares or the interest of the deceased member to the person or persons nominated in accordance with the rules. No rights are created

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in favour of the nominee on transfer of the interest of the deceased member.

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1 AIR 1982 Bom.482

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2 1998(4) Bom.C,R. 506

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3 2007(4) Bom.C.R.432

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Nominee holds flat and shares as trustee on behalf of all the legal heirs and representatives for disposal of the same in accordance with law.

¶42

In view of the well settled position of law laid down by this Court in the aforesaid Judgments, I am of the prima facie view that the deceased father had no exclusive right, title and interest whatsoever in the suit flat and the shares. Admittedly the name of the deceased father was recorded in the record of the society as a nominee. Therefore, he could not convey any right, title or interest in favour of the Defendant No.2 by execution of any Deed of Gift or otherwise. In my prima-facie view, the Plaintiff is also entitled to share in the suit flat and the share. The suit property is required to be protected. However, in view of the fact that Defendant No.2 is in possession of the suit flat for last several years, I am not inclined to appoint Court Receiver in respect of the suit flat.

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I, therefore, pass the following order :-

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(a) Notice of Motion is made absolute in terms of prayer (a).

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(b) There shall be no order as to costs.

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[R.D. DHANUKA, J.]

Abdul Kader Ahmed Sayyed v. Yusuf Ahmed Sayyed

Case brief

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What did the court decide?

Abdul Kader Ahmed Sayyed v. Yusuf Ahmed Sayyed

Case brief

What is this about?

What did the court decide?

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