Dismissed

Neeta Sarda and 2 Ors. v. Prabhakar Kabra and 2 Ors.

Bombay HC8 Apr 2013NMS/3266/2009

Case brief

AI extract

What is this about?

The Single Judge disposed of notice of motion applications seeking injunctions to restrain alienation of a flat. The Court found no prima facie case for injunction as the Deed of Gift was denied by the donor and lacked delivery of share certificates or acceptance of the gift as required by law.

What did the court decide?

Injunctions restraining alienation and transfer were refused; status quo order continued pending suit.

Neeta Sarda and 2 Ors. Vs Prabhakar Kabra and 2 Ors. — Property and Title | Bombay HC (2013)

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NMS Nos.4387_3266__2007_2009

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

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NOTICE OF MOTION NO.4387 OF 2007

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AND

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NOTICE OF MOTION NO.3266 OF 2009

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SUIT NO.3198 OF 2007

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Mrs. Neeta Sarda & Ors.

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– Plaintiffs

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V/s.

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Mr. Prabhakar Kabra & Ors.

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– Defendants

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Mr. P.N. Modi, Sr. Advocate, a.w. Mr. Rohan Sawant, Adv. i/b. I.C. Legal for the Plaintiffs.

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Mr. Ruchir Tolat, Adv. i/b. M/s. L.C. Tolat & Co. for the Defendant Nos.1 and 2.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 8th April, 2013.

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P.C. :-

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The Plaintiffs have applied for injunction restraining, alienation and transfer in respect of the suit premises claimed to be gifted to the Plaintiffs and Defendant Nos.1 and 2 have applied for vacating the order of status quo already passed. The suit property is a flat in Vishwa Mahal Co-operative Society (Vishwa Mahal). It admittedly stood in the name of one Jagannath Prasad Kabra (J P Kabra). Defendant No.1 is his son. Plaintiff No.1 is his grand daughter. The Plaintiff Nos.2 and 3 are the children of Plaintiff No.1. Defendant No.1 is stated to have executed a registered Deed of Gift in favour of Plaintiff No.1, his niece, gifting the said flat for love and affection to her.

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Defendant No.1 has denied execution of the gift deed. He has sought to show various aspects to prove how the gift could not have been made. He claims to transfer the suit flat to defendant No.2.

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2 NMS Nos.4387_3266__2007_2009

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He has appointed defendant No.2 as his Constituted Attorney. Both are represented by one advocate. Defendant No.2 claims to have made payments in respect of the suit flat. The payments are made partly to Syndicate Bank to discharge the loan of defendant No.1, partly to him by cheque and partly in cash. The transfer deed is not executed by defendant No.1 in favour of defendant No.2 yet.

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The Plaintiffs have annexed the photocopy of the deed of gift as also the typed written copy to the plaint. Since it was stated to have been registered and since the execution of the registered document itself was denied, the Prothonotary and Senior Master of this Court was directed to obtain a copy of the registered document from the Registrar of Assurances, New Delhi where it was registered. The photocopy of the registered document has been sent to the Prothonotary and Senior Master. Another photocopy of the registered document has also been obtained by the Plaintiff upon an application made which has been receipted. 4. The registered gift deed shows four photographs. The registrar's stamp is not shown on any of those photographs. The registrar's stamp showing Sr.No., Date of Registration, Registration fee charged etc. is at the foot of the first page. The reverse of the first page shows the presentation of the document by defendant No.1 who is stated to have been present in Delhi in the office of the Registrar on 23^rd August, 1996. The execution of the document itself which shows the admission of the execution by him in favour of the Plaintiffs herein. It shows that he was identified by his advocate, one Ashok Kumar Jain and one Prafulla Kumar Senapati as the marginal witness. Both these persons are seen to have signed below his signature and below the signature of the Registrar, Delhi. The typewritten copy of the execution clause shows the date 22^nd August, 1996 having been

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previously typed. It is corrected to read 23^rd August, 1996 at one place and erroneously as corrected to read 32^nd February, 1996 at two other places below the signatures of the Registrar, Delhi. The stamp of the Registrar on page one, however, shows the hand written dated 23^rd August, 1996. The stamp of payment of Rs.10/- shows another date 30^th July, 1996 but which may be unimportant.

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There are two page '2' of the document showing various recitals. The first recital shows the owner J P Kabra, the father of defendant No.1. He is shown to be the owner of 30 ordinary shares of Rs.100/- each in Vishwa Mahal society vide share Certificate Nos.91, 92 & 93. The indenture shows the transfer by gift out of natural love and affection of the said 30 ordinary shares under certificate Nos.91, 92 and 93. The last clause of the deed shows the declaration and confirmation by the donor that he had duly delivered to the donees share certificate Nos.91, 92 and 93 along with the duly signed and executed transfer deed in favour of the donees and the donees having accepted the transfer; Plaintiff No.1 as the natural guardian of Plaintiff Nos.2 and 3. The schedule to the deed of gift shows the flat particulars.

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Share certificate Nos.91, 92 and 93 stated to have been duly signed, executed and delivered are not produced by Plaintiffs. It is argued on behalf of the Plaintiffs though that is so declared and confirmed in the deed itself it was not delivered. The original share certificates are therefore, not produced. The duplicates are stated to have been applied for from the society. The public advertisements in that behalf are stated to have been given. There is certain correspondence relied upon and annexed to the plaint in that behalf. 7. Defendant No.1 has produced the original share certificates in his possession. These bear Nos.24, 46 and 71. These are three

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NMS Nos.4387_3266__2007_2009

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share certificates for 5 shares, 20 shares and 5 shares constituting a total 30 shares in Vishwa CHS Ltd. which is a cooperative housing society being a building consisting of flats. It is an admitted position that defendant No.1 as also the father of the defendant No.1 had only one flat in the building Vishwa Mahal society. Hence share certificates represent the flat described in the schedule to the deed of gift relied upon by the Plaintiffs and which is the suit flat. The original share certificates are executed on 2^nd March, 1949, 31^st January, 1955 and 31^st January, 1955 for 5 shares, 20 shares and 5 shares respectively. These are old, torn, tattered, taped and yellowed pages. They are partly printed and partly handwritten including aforesaid dates and numbers of shares. They are showing ownership of J P Kabra, the father of defendant No.1 which is an admitted position. They are signed by two secretaries of the society, one in 1949 and two in 1955.

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They show the transfer executed on 28^th May, 1979 in favour of defendant No.1 of the shares under each of these certificates being transfer No.74 pursuant to the meeting held on 28^th May, 1975. The note of transfer is signed by a single signatory on all the three certificates. It is in the same handwriting on all three certificates.

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The issue of the original certificates as also the transfer are handwritten in the documents which are more than 30 years old and carry the presumption as the handwriting and signatures on the documents under Section 90 of the Indian Evidence Act. In fact the documents not only carry the statutory presumption but the original documents having been themselves produced, are seen to be wholly genuine.

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It is argued on behalf of the Plaintiffs that once the duplicates share certificates are issued, the original certificates can

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have no value. The duplicate share certificates are not produced by the Plaintiffs. Even if they are produced, bearing Nos.91, 92 and 93, the original share certificates, if later produced, bearing the same numbers may get merged in the duplicates so that they both together would constitute but one document. The original certificates bearing other numbers and particulars cannot be displaced by duplicates.

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It is upon the aforesaid facts that the Deed of Gift shown to be registered with the Registrar at New Delhi but without the photograph of Defendant No.1 duly stamped, has to be viewed. 12. Counsel on behalf of the Plaintiffs upon the Court's query and upon taking instructions stated that the Plaintiffs were then residing in Calcutta and defendant No.1 was then residing in Delhi at the time of Deed of transfer being 23^rd August, 1996. The typewritten Deed of Gift shows the donor at Calcutta. (In fact the donees were in Calcutta). It is executed and registered on the same day in New Delhi though the property itself is situated in Mumbai. As aforesaid the photographs of the donor as also donees are not rubber stamped by the Registrar though the Registrar's stamp is put on that page. Two persons have signed the deed, but not as attesting the execution.

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Defendant No.1 has disputed the execution of the document but the photocopy of the documents sent by the Registrar, New Delhi shows signatures of 'Prabhakar Kabra' on all the pages. Whether it is that of Defendant No.1 would have to be considered only in the trial.

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The share certificates would have been the strongest circumstantial evidence handed over by donor to the donees. Though moveable property, transferable by delivery, they have not been handed over despite a declaration and confirmation in that behalf in the last clause of the document typewritten in Calcutta where the

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donees had resided and who have not signed accepting the gift as required by Section 122 of the Transfer of Property Act, 1882.

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The share transfer forms have never seen the light of the day. 16. Public advertisements are shown to have been issued stating that the share certificate Nos.91, 92 and 93 mentioned in the Deed of Gift have been lost / misplaced. The Plaintiffs claim that the society gave the notice before the issue of the duplicate share certificates applied for at the cost of the Plaintiffs (not defendant No.1). Six such public notices are annexed to the plaint. The entire page of the publication is not annexed. But it is stated to be in the Indian Express, JanSatta, (Delhi), Financial Express, (Calcutta), Lokmat, (Bombay) and AajKal, all on 18^th April, 2000. 17. The correspondence relied upon by the Plaintiffs in that behalf is also material. Photocopies of the correspondence is not annexed to the plaint. The receipts of the letters is not shown. Typed written copies are annexed. The first is letter dated 18^th May, 2002 about 6 years after the execution of the gift setting out the aforesaid facts by Plaintiff No.1 addressed to the society requesting to issue of duplicate shares and requesting transfer of shares thereafter. Annexed to that letter are four documents including an indemnity bond dated 16^th May, 2002, stated to have been executed by Defendant No.1. Copies of the paper publications made, copy of the certified photocopy of the Deed of Gift duly notarised and a copy of letter dated 12^th June, 2000 which is not relied upon or annexed by the Plaintiffs to the plaint are also annexed to that letter.

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Upon the Court's query photocopy of the letter dated 18^th May, 2002 is produced and annexed thereto is a photocopy of the letter of defendant No.1 dated 12^th June, 2000. The copy of the letter

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of Plaintiff No.1 does not show the receipt by the society. It bears no endorsement. It is not shown to have been sent to the addressee. Counsel on behalf of defendant Nos.1 and 2 states that despite request / demand inspection of these photocopies has not been given by the Plaintiff's advocate to the advocate on behalf of the defendant Nos.1 and 2. The Plaintiffs claimed that the inspection has been given. It is contended by the Plaintiff that the defendants have not denied this letter. The defendants cannot deny because it is neither addressed by them or to them. The original from the society record would alone show the fact of the letter and upon that would have to be considered the act of the parties.

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Within two months, thereof, on 3^rd July, 2012 defendant No.1 is stated to have addressed a letter to the society. A copy of this letter shown to be sent by Defendant No.1 by speed post to the society is produced by Defendant No.1. It makes a reference to the society's letter dated 18^th June, 2002. The copy letter of defendant No.1 shows he having informed the society that he has never given any affidavit or indemnity bond dated 16^th May, 2002 as photocopy sent by the society to him. He claimed that the indemnity bond said to be issued by him was not issued by him. He also stated that he had never been to Calcutta in 2002 and the bond was not executed by him and the signature on the indemnity bond was not his.

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The date of the indemnity bond is mere two days prior to the letter of plaintiff No.1 addressed to the society. The copy letter of Plaintiff No.1 addressed to the society shows “indemnity created by Prabhakar Kabra in original” as the first document annexed thereto. It appears that society has sought verification of the indemnity bond by its letter dated 18^th June, 2002 addressed to Defendant No.1 , its member and owner of the suit flat sought to have been gifted to the

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8 NMS Nos.4387_3266__2007_2009

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Plaintiffs before registering the transfer. Defendant No.1 has not verified the indemnity bond but specifically stated that he has not executed it. It appears that the society did not take any steps upon the letter dated 18^th May, 2002 of Plaintiff No.1 upon receipt of letter of defendant No.1 dated 3^rd July, 2002.

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The Plaintiff has relied upon the letter alleged to have been sent by defendant No.1 to the society. The typewritten letter annexed at Exh. I to the plaint requests issue of duplicate shares gifted to the Plaintiffs and process the transfer which was pending and required to be completed. It encloses a fresh indemnity for issuing the duplicate shares. The society has still not acted upon this letter also. It is argued by counsel on behalf of the Plaintiff that the letter is not denied by the society. It is, however, disputed by defendant No.1 to have been sent to the society.

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The letter of the Chief Manager of Syndicate Bank dated 28^th May, 2004 sent to the society for the suit flat showing the security created pursuant to a credit facility availed by defendant No.1 is also annexed to the plaint. The society has noted the letter and approved lien of the bank. The loan of defendant No1 has been discharged by defendant No.2.

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A copy of the letter dated 30^th July, 2004 of a tenant who was in possession of the part of the suit flat has also been annexed to the plaint. However, that is not material except perhaps to consider the collateral evidence with regard to the acts of the parties at the time of trial.

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Counsel on behalf of the Plaintiff relied upon the original letter dated 20^th January, 2000 of the society addressed to defendant No.1, of which a copy has not been sent to the Plaintiff. It refers to the suit flat and share certificate Nos.91, 92 and 93. It states that the

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defendant No.1 had already requested the society to issue duplicate share certificates and the same were issued on 2^nd June,1989, a date prior to the transaction as also the aforesaid correspondence. The society appears to have reprimanded defendant No.1 as frequent lost / misplaced share certificate is the gross negligence on his part and called upon him to insert public notices, submit paper cuttings with an indemnity bond and a fee for the issue of the duplicate certificates. This the very first letter of the society after the execution of Deed of Gift. It refers to a letter dated 18^th December, 1999 of defendant No.1. Copy of the letter dated 18^th December, 1999 is not produced. That would be the very first letter of the defendant No.1 requesting the issue of duplicate share certificates. It, however, has no relevance or bearing on the gift deed which was sought to be acted upon by Plaintiff No.1 only in 2002.

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The Plaintiffs advocates produced in Court certain original documents for the court's inspection. Amongst them are the letter dated 28^th January, 2000 and copy letter dated 21^st April, 2003 addressed by defendant No.1 to the Secretary but not copied to the Plaintiffs. How the Plaintiffs have the original correspondence between the Society and its member, Defendant No.1 is not understood.

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Copies of the correspondence of the society with the bank as also letter of the tenant which have been now copied to the Plaintiffs have not been produced by the Plaintiffs, upon Court's query. It is not known how and for what purpose the Plaintiffs came to annex those letters to the plaint.

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Nothing appears to have been done by or in favour of the Plaintiffs after the initial correspondence with the society in 2002. The flat stands in the name of defendant No1 yet. The original share

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certificates are also with defendant No.1 bearing certificate Nos.24, 46 and 71 as contended by the defendant Nos.1 and 2.

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The Plaintiffs have contended that in 2007 defendant No.1 sought to transfer the suit flat to defendant No.2 under certain other share certificates bearing other distinctive number of shares. The Plaintiffs have relied upon the form of notice of intention of a member to transfer his share and interest in the capital / property of the society addressed by defendant No.1 to the Secretary in the requisite form dated 11^th April, 2007 filling the particulars of number of shares and the distinctive numbers of shares as also name of defendant No.2 therein. Another form also of consent of the proposed transferee for the transfer showing the particulars of defendant No.2 and signed by defendant No.2 on the same date being dated 11^th April, 2007 is relied upon by the Plaintiffs. The Plaintiffs have accordingly issued their Advocate's notices to the Secretary and to defendant No.1 which are stated not to have been denied by defendant No.1.

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The Plaintiffs have also annexed a typewritten copy of the indemnity bond stated to have been executed by defendant No.1 mentioning about the sale of the flat to defendant No.2 affirmed on 25^th June, 2007 and a letter of defendant No.2 addressed to the society on 17^th July, 2007 making a grievance about the society not cooperating to issue NOC to transfer in his favour despite he having paid off the bank loan taken by defendant No.1.

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Counsel on behalf of the Plaintiffs draw my attention to the fact that this letter mentions about the fact of knowledge of the Plaintiffs claim as the donee of the flat from defendant No.1. The relevant part of the letter of defendant No.2 which is relied upon by the Plaintiffs to show knowledge of their gift deed runs thus :

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“Before entering in to an agreement for the purchase of the

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flat situated at the above mentioned address it was clear from both the parties, fact about the flat, and Suresh Sharma had agreed to purchase the flat knowing about the facts and circumstances of the flat situated at Churchgate.”

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It may be mentioned that the entire letter bears reference only to two parties defendant No.1 and defendant No.2. The aforesaid paragraph also shows the facts relating to both parties. There appears no reference to the Plaintiffs at all. The letter relies upon the documents executed in 2007 only. This letter does not show the knowledge of the defendant No.2 of the Plaintiffs' case as sought to be argued on behalf of the Plaintiffs.

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The affidavit in reply of defendant No.1 makes a specific reference to the denial of the existence of the share certificate Nos.91, 92 and 93 and states that he is holding original share certificates bearing Nos.24, 46 and 71 issued by the society. These are the aforesaid original share certificates produced by defendant No.1 for the inspection of the Court.

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Defendant No.1 has also filed another suit initially in the City Civil Court bearing Suit No.1075 of 2008 which has been returned to this Court for filing and is stated to have been filed in this Court. The suit has not been registered in this Court. Presumably the adequate court fee for the lack of which came to be returned to this Court for filing under the provisions of Order 7 Rule 10 of the CPC has not been complied. It has not been served upon the Plaintiffs herein. That has no bearing upon the truth or bonafides of the Plaintiffs' case

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The affidavit of Defendant No.1 shows the denial of defendant No.1 that he informed the Plaintiffs of any application made for duplicate share certificate to be issued by the society. He has denied the application dated 27^th April, 2000 made to the society

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NMS Nos.4387_3266__2007_2009

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or issue of public notice. Understandably, therefore, the Plaintiffs contend that the Plaintiffs paid for the public notices which the society called upon the defendant No.1 to publish. Defendant No.1 has also denied as false the contention in the letter dated 18^th May, 2002 of Plaintiff No.1. Hence it is seen that no letter has been issued by defendant No.1 to the society for transfer to the name of the Plaintiffs upon any Deed of Gift. Similarly, defendant No.1 has not sent to the society any indemnity signed by him. All these has been done by Plaintiff No.1 alone. It must be mentioned that the flat which belongs to defendant No.1 and which stood in his name since 1979 in the records of the society is now sought to be transferred by defendant No.1 to Defendant No.2.

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Defendant No.2 has filed his affidavit in support of his own Notice of Motion being the above Notice of Motion No.3266 of 2009 for being allowed to register the agreement of sale executed between defendant Nos.1 and 2 and to take possession of a part of the suit flat except the disputed premises which the Plaintiffs claim are in possession of the plaintiffs.

¶91

Defendant No.2 has shown the payments made by defendant No.2 to defendant No.1 in a further affidavit filed by him in respect of the suit flat. He has paid Rs.2 lacs and Rs.2.5 lacs by two cheques dated 27^th April, 2007 and 1^st May, 2007 to defendant No.1. He has paid Rs.23.2 lacs to Syndicate Bank by another cheque to pay off the loan of defendant No.1. A total amount of Rs.27.7 is paid by cheques. He claims to have paid further Rs.15.3 lacs and 3.25 lacs to defendant No.1 in cash.

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The Plaintiffs have claimed to be in actual possession of the suit flat when the suit was filed. Court Commissioner came to be appointed as per the order passed by Justice Khanwilkar, as he then

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13 NMS Nos.4387_3266__2007_2009

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was, at the time of grant of ad-interim relief in the first Notice of Motion taken out by the Plaintiffs. The Commissioner's report shows that the main door of the suit flat was opened by the defendant No.1. The said door was not locked from the outside. There was another door inside the main door under lock and key. That could not be opened by defendant No.1. That was later opened by the Plaintiffs' key. Ad-interim relief came to be considered thereupon and status quo order has came to be passed.

¶96

It is now explained that the flat is “'L' shaped. The part of the flat is in possession of the tenant. Part of flat is in the Plaintiffs' possession; one wing is in the possession of the tenant, the other being in the possession of the Plaintiffs. The Plaintiffs have part in their possession under their lock and key. That could not be opened by the defendant No.1. That was opened by the Plaintiffs' key. It is case of the defendant Nos.1 and 2 that the original lock of defendant No.1 has been broken by the Plaintiffs and their lock has been put. The Court could only see the possession at the time of the suit. How the Plaintiffs claimed to be in possession – lawfully or unlawfully – would be determined at the stage of trial.

¶97

The Plaintiffs claim to be in possession pursuant to the Deed of Gift. When and how the Plaintiffs came to be in possession pursuant to the deed of gift would be considered in trial. The status quo order has been passed.

¶98

The above facts show not a clear prima facie case made out by the Plaintiffs. In fact upon the Notice of Motion having been heard and this Court having been not satisfied of the title claimed under the Deed of Gift without payment of consideration, the Court ordered the copy of the original registered document from the custody of the Registrar, New Delhi. It was directed to be sent to the Prothonotary

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and Senior Master of this Court. After it has reached to this Court also the Courts initial query as to why defendant No.1 who is the uncle of Plaintiff No.1 would gift the suit flat to the Plaintiffs remained unanswered. The Court is informed that the Plaintiff is the daughter of the brother of defendant No.1. Defendant No.1 lived in Delhi. The Plaintiffs lived in Calcutta. They are now stated to be living in the Delhi. Only the trial would show the intention behind gift, if any.

¶103

Since there is no document showing any contemporaneous or circumstantial evidence to show the execution of the Deed of Gift denied by defendant No.1 and even unknown to him in respect of share certificates which are disclaimed by defendant No.1 by production of other three share certificates, the grant of injunctions claimed by the Plaintiffs cannot be made.

¶104

The status quo order already passed shall continue pending the suit. 43. Written Statement of defendant Nos.1 and 2 have been filed. They are contesting parties. Their oral evidence would be required.

¶105

The documents of defendant No.1 as also of the Plaintiffs are addressed to the society, defendant No.3. Defendant No.3 would be required only to produce the original documents of the Plaintiffs, Defendant Nos.1 and 2. The photocopy of the registered Deed of Gift registered with the Registrar, New Delhi has been sent to the Prothonotary and Senior Master of this Court. The photocopy of the Deed of Gift applied for and issued to the Plaintiffs is also produced by the Plaintiffs. Both these documents shall be kept in the sealed cover in the custody of the Prothonotary and Senior Master pending the suit.

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The original share certificates produced by defendant No.1 are returned to defendant No.1. The photocopy of the letter dated 3^rd July, 2002 produced by defendant No.1 showing photocopy of postal slip as also letter sent to the society on 5^th July, 2002 are returned to defendant No.1. The photocopy of the aforesaid letters produced by the Plaintiffs are returned to the Plaintiffs along with the photocopies of certain publications and a bill of Rs.28,000/- produced by the Plaintiffs.

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Both Notices of Motion are disposed off accordingly.

¶111

Based upon the pleadings between the parties issues in the suit are framed as follows :

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Whether the gift deed dated 23^rd August, 1996 is validly executed and properly registered.

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Whether the Plaintiffs have become owners of the suit flat under the gift deed dated 23^rd August, 1996.

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Whether Defendant No.2 is the bonafide purchaser for value of the suit flat.

¶115

What relief, if any, is the Plaintiff entitled to?

¶116

The parties may place the Suit No.1075 of 2008, which relates to the same property between the same parties, on board as common evidence would be required to be led in both the suits.

¶117

Suit is adjourned to 13^th June, 2013 for considering the admissibility of the documents of the Plaintiffs.

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( ROSHAN DALVI, J.)

Neeta Sarda and 2 Ors. v. Prabhakar Kabra and 2 Ors.

Case brief

What is this about?

What did the court decide?

Neeta Sarda and 2 Ors. v. Prabhakar Kabra and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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