Dismissed

Shri.Mohd. Salim Abdul Sattar v. Saifee Burhani Upliftment Trust and 2 Ors.

Bombay HC18 Jul 2014NMS/383/2014

Case brief

AI extract

What is this about?

In this suit for partition leading to a Notice of Motion, the Plaintiff claimed his 50% share in a Mumbai property sold by his relatives to a Trust later. The court dismissed the challenge, finding the Plaintiff had previously relinquished his rights and delinked himself due to property liabilities, noting the subsequent sale value reflected market conditions rather than unlawful deprivation.

What did the court decide?

Dismissal of the Notice of Motion and rejection of the application for extension of status-quo.

Mr. Harinder Toor, with Mr. S.B. Pawar, i/b M/s. S.K. Legal Associates, for the Plaintiffs. Mr.F. E. DeVitre, Senior Advocate a/w Chirag Bulsara, Farida Poonawala-Tata, i/b Pandya & Poonawala, for the Defendant No. 1.

1.The Plaintiff, represented by Mr. Toor, learned Advocate, claims to have a 50% undivided share in a property of about 219 sq. yds. at Bhuleshwar. This is C. S. No. 4227. There is a building on this plot known as Dudhwala Building, of ground and three upper floors. The 3rd Defendant is the paternal uncle of the Plaintiff; the

2.The Plaintiff’s case is that, between them, the 2nd and 3rd Defendants have illicity deprived the Plaintiff of his 50% right, title and interest in the Bhuleshwar property. They have done so for a pittance. They have then sold this property to the 1st Defendant - Saifee Trust for Rs.1.35 crores. The 1st Defendant-Trust has acquired this property because it is a part of the lands in Central Mumbai being redeveloped under a special proposal for cluster redevelopment of that area. The proposed redevelopment is for the benefit of the residents of that area, many of whom are indigent.

3.I have heard Mr. Toor, learned Advocate for the Plaintiff, Mr. Govilkar, learned Advocate for Defendant Nos. 2 and 3, and Mr. DeVitre, learned Senior Counsel for Defendant No. 1. I have, for the reasons that follow being unable to find in favour of the Plaintiff. Shortly stated, it appears that some 12 or 13 years ago, the Plaintiff relinquished his interest in this property in favour of Defendants Nos. 3 and 2, his paternal uncle and aunt respectively. At that time, the structure was beset with a multitude of problems. These included its dilapidated condition, problems with tenants (the building was fully tenanted), and perhaps most significantly that it was identified as one of the assets of a prominent figure from Mumbai’s underworld. At that time, therefore, the structure had virtually no development potential or worth. It is the subsequent attempted gentrification of the area that has given the property a significant value. It is at this stage that the Plaintiff comes to Court. Even this delay would not necessarily defeat the Plaintiff. However,

I have also found that the grounds on which he mounts his challenge to be singularly uninspiring. There are strong justifications furnished by the 2nd and 3rd Defendants for their acquisition in 2002 of the Plaintiff’s 50% interest in this property.

4.The Plaintiff and 2nd Defendant each acquired a 50% right, title and interest in the property under a conveyance dated 16th March 2000. The vendor was the Plaintiff’s grandmother, the 3rd Defendant’s mother. The sale price was stated to be Rs. 2 lakhs. This is not disputed. A copy of this conveyance is Exhibit “B” to the plaint. On 14th May 2001, a little over a year later, the Plaintiff and the 2nd Defendant executed a Power of Attorney in favour of the 3rd Defendant. Mr. Toor submits that although his client signed on the first and the last page of this Power of Attorney, those are the only pages that he signed. It is unclear from this submission and from the averments in the plaint, what, if anything, in the other pages was supposed to have been changed. Mr. Toor also suggests that there is a marked and visible difference in the signatures on the first page and on the last page of this Power of Attorney. Again, I am unable to see the significance of this, even assuming it to be so.

5.This document was followed, again a little over a year later, by a so-called Deed of Release between the Plaintiff and the 2nd Defendant. By this document, the Plaintiff relinquished his entire 50% interest in the Bhuleshwar property in favour of the 2nd Defendant. Mr. Toor attempts to make capital of the fact that this document was signed by the 2nd Defendant for herself and by the 3rd Defendant as the Plaintiff’s constituted attorney, not by the Plaintiff himself, and that the entire consideration was a mere Rs. 1

lakh. This, Mr. Toor submits, is prima facie evidence that the document was fraudulent: why else, he asks, should a property that is today worth Rs.1.35 crores or thereabouts have been sold for a mere Rs.1 lakh? What Mr. Toor perhaps overlooks is that the entire property was acquired only two years earlier for not very much more: only Rs. 2 lakhs. At that time, as the material put on affidavit by the 2nd and 3rd Defendants shows, the property had next to no value and considerable liabilities. I must, at this stage, also note that Mr. Toor has been unable to show that the Plaintiff made any contribution toward meeting the various liabilities in respect of this building.

6.The Deed of Release was admittedly unregistered. On 28th January 2003, the 3rd Defendant executed a Deed of Confirmation. In this an incorrect date is given for the Deed of Release (16th March 2002 instead of 16th June 2002). This, too, is grist to Mr. Toor’s mill in his case on fraud.

7.Ten years later, on 30th March 2013, the 2nd and 3rd Defendants conveyed the entire property to the 1st Defendant. One of the recitals in that conveyance refers to a wholly different Power of Attorney of 9th May 2001. This is not on record. However, Mr. DeVitre, having taken instructions, has been able to furnish a copy of that Power of Attorney. Neither of these Powers of Attorney has a clause that directly relates to redevelopment. There are, however, other clauses that lend themselves to a interpretation that the constituted attorneys were empowered to redevelop the property.

8.On 21st August 2013, the Plaintiff’s Advocates sent a notice to all three Defendants. Defendants Nos. 2 and 3 replied through their Advocates on 3rd September 2013. A copy of that letter is Exhibit “H” to the plaint. That document makes for very telling reading. In paragraph 6 of that letter, one that has eight sub- paragraphs, the 2nd and 3rd Defendants have listed out the various issues and problems that the property and its management faced. The property was mortgaged to a co-operative bank by the Plaintiff’s father and the Plaintiff’s uncle some years earlier. The outstanding under this mortgage loan had ballooned to Rs.15 lakhs. The co-operative bank had initiated legal proceedings to attach and auction the property. An allegation was made that the Plaintiff did not want to be saddled with that loan repayment liability. The property had also caved in and was unfit for habitation. It had no rental income. Demolition and redevelopment were likely to cost a substantial amount. The property also had considerable litigation in various courts filed by erstwhile tenants. Defending these litigations had cost an enormous amount in terms of legal fees. Redevelopment permissions also required a substantial outlay. The entire property had been attached by the TADA Court in the Mumbai Bomb Blasts case of 1993. There were annual property and other taxes to be paid. Part of the land had been earmarked for acquisition for road widening. Structural repairs had, in the meantime, demanded a large expenditure for shoring and propping up the building. The allegation made was that all these expenses, efforts, and time spent were by the 2nd and 3rd Defendants. The Plaintiff had chosen to wash his hands off the entire property. The Plaintiff through his Advocate, responded to this letter on 16th September 2013. Although Mr. Toor makes an attempt to say that

the 2nd and 3rd Defendants’ contentions have been adequately denied, I do not believe this to be correct. The denial in the Plaintiff’s Advocate’s letter of 16th September 2013 is half-hearted and only in generalities. There is, in fact, no specific denial of the contents of paragraph 6 or its various sub-paragraphs. Mr. Toor says it has been denied in the plaint. That is insufficient, and comes too late. Even there, the denials are unconvincing.

9.To my question as to what the Plaintiff had spent on the property, Mr. Toor referred to paragraphs 12 and 33 of the plaint. Neither is any sort of answer. Paragraph 12 only speaks of certain demolitions of the upper floors of the building and makes allegations of transfers of tenancy. Paragraph 33 is a legal submission about limitation. What is more curious is that although the Plaintiff now claims that he was never agreeable to a redevelopment of the property, the plaint itself indicates otherwise. This is abundantly clear from paragraphs 8 to 11 of the plaint. Indeed in paragraph 8, the Plaintiff clearly states that he is willing to develop the property. He also admits that since he was working as a driver in the suburbs he did not have the time to attend to any development proposals and, therefore, left it to the 2nd and 3rd Defendants to manage; hence, his Power of Attorney.

10.Paragraph 11 of the plaint puts this beyond any doubt. Mr. DeVitre, learned counsel for the 1st Defendant, points out that before the trust acquired the property it took search. The search reports are annexed. The property record cards showed the Plaintiff and the 2nd Defendant as the initial owners. Public notices were issued in the Free Press Journal and Gujrati MidDay. The first

notice of 7th April 2010 included the Plaintiff’s name. The Plaintiff did not come forward. A second notice was issued on 13th March 2013. Again the Plaintiff did not come forward. Mr. DeVitre points out that the property was sold at the market rates, of which there is no denial. No case of undervaluation is pleaded. Mr. DeVitre is correct in his submission that the plaint proceeds on the footing that the Plaintiff had agreed to a redevelopment. In effect, given the raft of problems with this property, the Plaintiff disassociated himself from it; and moved himself as far away from it as possible. Moreover, in the Plaintiff’s Advocate’s response to the 2nd and 3rd Defendants’ reply the execution of the Power of Attorney is admitted. Mr. DeVitre is also correct in his submission that the allegation of collusion between the Defendants is to far-fetched to be accepted. The documents the Plaintiff impeaches are of 2001 and 2002. The 1st Defendant was in no way on the scene at that time. Indeed, there was no proposal for cluster development at that time. It is only this proposal that has now drawn the Plaintiff back to what he perceives to be a mother lode. A telling circumstance is that in paragraph 24 of the plaint, and in prayer (d) the Plaintiff has sought a 50% share in the sale proceeds. This puts the matter beyond the pale: the Plaintiff is not so much asserting his title to the property as staking a claim to the sale price of a property in which he had relinquished all rights a decade earlier.

11.An ad-interim order was passed in this matter on 14th October 2013. This order restrained the 2nd and 3rd Defendants from withdrawing any amount from their bank account from their account at Canara Bank except an amount of Rs.50,000/-. Mr. Govilkar is not wrong in pointing out that this was very like an

order of attachment before judgment. There are, however, insufficient pleadings to support the continuance of that order. I must hasten to that at the ad-interim stage, merely by contrasting the value of Deed of Relinquishment (Rs. 1 lakh) and the sale 10 years later to the 1st Defendant (Rs.1.35 crores), a first impression might well have been that the Plaintiff had somehow been deprived of valuable rights. On a closer examination and on an affidavit in reply being filed, this turns out not to be the case. I must also note that while all the Defendants have filed affidavits in reply, there is no affidavit in re-joinder. Paragraphs 3, 4 and 5 of the 2nd and 3rd Defendants’ affidavit in reply are completely uncontroverted. In these paragraphs, the 2nd and 3rd Defendants have not only set out the problems that the property faced but also, specifically, that the Plaintiff had distanced himself from the property entirely. Paragraph 5, in fact, attributes to the Plaintiff a statement said to have been made by him to Defendants Nos. 2 and 3 that he wanted to be relieved of all liabilities, duties and obligations relating to this property. There being no traverse, there is not reason why this assertion should not be accepted.

13.I have, by separate order dated 15th July 2014 relieved the 2nd and 3rd Defendants of their undertakings given to this court on 14th October 2013. That order of 15th July 2014 is to be read as forming part of this order as well.

14.At this stage, learned advocate for the Plaintiff seeks an extension to the status-quo for a period of two weeks. Given the facts and circumstances of the case, and especially that under the ad-interim order, the 2nd and 3rd Defendants were clearly put to a considerable amount of hardship and restricted to withdrawing only an amount of Rs. 50,000/- and that too from as far as back as October 2013. Application is rejected.

Shri.Mohd. Salim Abdul Sattar v. Saifee Burhani Upliftment Trust and 2 Ors.

Case brief

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What did the court decide?

Shri.Mohd. Salim Abdul Sattar v. Saifee Burhani Upliftment Trust and 2 Ors.

Case brief

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What did the court decide?

What the court decided

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