Partly allowed

Kanhiyalal Ramdas Galani @ Kanhiya K. Galani v. Vijaykumar R. Galani @ Vijaykumar Galani and Anr.

Bombay HC14 Jan 2013NMS/1895/2011

Case brief

AI extract

What is this about?

The court vacated an ad-interim injunction restraining the defendant from transferring the fourth property in the suit (a flat in Mumbai) which stands in the defendant's name based on a transfer and share certificate. The court held no interim relief was warranted as the plaintiff failed to show the property was purchased using the deceased's funds or tenancy rights. The rest of the injunction rem

What did the court decide?

Vacated the ad-interim injunction specifically regarding Gala No.359; all other aspects of the ad-interim order continue.

Kanhiyalal Ramdas Galani @ Kanhiya K. Galani Vs Vijaykumar… — Property and Title | Bombay HC (2013)

NMS No.1895_2011

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

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NOTICE OF MOTION NO.1895 OF 2011

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SUIT NO.1491 OF 2011

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Kanhiyalal Ramdas Galani

@ Kanhiya K. Galani

– Plaintiff

V/s.

Vijaykumar R. Galani @ Vijaykumar Galani & Anr. -- Defendants

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Mr. Sahil Mahajan, Adv. for Plaintiff. Mr. R.K. Sharma, Adv. for Defendant No.1.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 14th January, 2013.

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P.C. :-

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The Plaintiff has sued for administration of the estate of his deceased father in the schedule Exh. B to the plaint. The Plaintiff has shown four immoveable properties and two moveable properties. The Plaintiff has taken out this Notice of Motion for appointment of receiver and usual injunctions as also for disclosure and claiming an access to one of the properties. The Plaintiff has been granted exparte ad-interim injunction restraining the defendants from in any manner transferring or creating third party rights in the estate of the deceased. 2. Defendant No.1 has sought to defend the suit. He has accepted the first three immoveable properties as the estate of the deceased. He has not accepted the 4^th property in list Exh. B to the plaint as the property of the deceased. The Plaintiff has claimed

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NMS No.1895_2011

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tenancy rights in that property. The property is G.359 in Kaliandas Udyog Bhavan, Near Century Bazaar, Prabhadevi, Mumbai – 25. Defendant No.1 has produced original agreement dated 15^th June, 1981 showing transfer of the said property in his name. He has also produced the share certificate of the society as also one society bill showing the payment of the maintenance by him. The original document shows the ownership rights in the name of the defendant No.1 transferred from one Jankibai widow of one Jethan Rohira. The share certificate shows the transfer from the name of Smt. Jankibai J. Rohera to the name of defendant No.1 on 25^th June, 1982 signed by the then Secretary of the society. The original share certificate is seen to be a genuine document. The original agreement is also seen to be genuine though unregistered.

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The very contention of the Plaintiff that, that property is acquired under tenancy rights is seen to be incorrect. The Plaintiff has not shown any rent receipt in the name of the deceased.

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It is argued on behalf of the Plaintiff that the property was purchased from the funds of the deceased. Nothing prima facie is produced to show that fact. It is contended that defendant No.1 was 18 years old at the time of purchase of this property. That fact has also not been shown by production of his original birth certificate. That is not mentioned in the plaint.

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The defendant No.1 has prima facie shown his absolute title in respect of the suit property. The property admittedly stands in his name. If the plaintiff shows that it is purchased from the funds of the HUF, the Plaintiff as also defendant No.2 would have a 1/3^rd share in the said property. That 1/3^rd share can be computed at the time of the hearing of the suit. Since that property stands in the name of the defendant, which fact is not disputed, coupled with the fact that the

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3 NMS No.1895_2011

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funds of the deceased are not shown to have been utilised therein at present no interim relief can be granted in respect of that property. 6. The affidavit in reply filed on 26^th July, 2011. There is no affidavit in rejoinder as filed as yet.

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Hence the ad-interim order dated 6^th July, 2011 is vacated in respect of immoveable property shown as item No.4 in the list Exh. B to the plaint being Gala No.359 in Kaliandas Udyog Bhavan, Near Century Bazaar, Prabhadevi, Mumbai – 25. The rest of the ad-interim order shall continue as the interim order in the suit.

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Notice of Motion is disposed off accordingly.

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This order is stayed for two weeks.

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( ROSHAN DALVI, J.)

Kanhiyalal Ramdas Galani @ Kanhiya K. Galani v. Vijaykumar R. Galani @ Vijaykumar Galani and Anr.

Case brief

What is this about?

What did the court decide?

Kanhiyalal Ramdas Galani @ Kanhiya K. Galani v. Vijaykumar R. Galani @ Vijaykumar Galani and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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