MANU/MH/3760/2017

IN THE HIGH COURT OF BOMBAY

Appeal (L) No. 221 of 2017 and Notice of Motion (L) No. 1199 of 2017
Decided On: 12.12.2017
Appellants: Bharat Dalpat Patel and Ors.
Vs.
Respondent: Russi Jal Dorabjee and Ors.
Hon'ble Judges/Coram:
V.A. Naik and Sarang V. Kotwal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Pravin Patel
For Respondents/Defendant: Karl Tamboly and Vijaya Bhat i/b Mulla & Mulla & CBC
Sarang V. Kotwal, J.
1 . The present appeal takes exception to the order dated 22/03/2017 passed by a
learned Single Judge of this Court in Notice of Motion (L) No. 285 of 2017 taken out
by the respondent Nos. 1 to 3 in Suit (L) No. 81 of 2017. By the said impugned
order, the learned Single Judge was pleased to appoint a Court Receiver in respect of
the suit flat. The learned Single Judge was further pleased to issue certain directions
which included, inter alia, that the Court Receiver should have the suit flat valued and
based on the valuation report, in consultation with the parties, should fix the security
deposit as well as the monthly royalty amount on which the suit flat could be given
to a third party for use and occupation as Agent of the Court Receiver on execution of
an appropriate Agency Agreement. The Court Receiver was further directed to invest
the amount received towards security deposit in fixed deposit/s of a nationalized
bank and after deducting his costs, charges and expenses, to handover 50% of the
balance amount to the appellant No. 1 herein and 50% to the respondent Nos. 1 to 3
and 5 on obtaining a written undertaking from them and they would bring back the
said amount if and when directed.
2. The brief facts are as follows:
"The suit filed by the respondent Nos. 1 to 3 herein (original plaintiff Nos. 1
to 3) pertains to the Flat No. 8, 2nd Floor, Su-Prabhat Cooperative Housing
society Limited, 76, Bhulabhai Desai Road (Breach Candy), Mumbai - 400
026 (the 'suit flat'). The said flat was originally purchased by one Ms. Ivy
Framroze Cooper ('Ivy)'. She was married to one Keki Jehangir Munshi
('Keki'). Ivy passed away on 30/07/1995. She died intestate and according to
the laws applicable to Parsis, her husband Keki was entitled to 50% share in
the suit flat and her siblings together were entitled to the remaining 50%
share in the suit flat. At the time of her death, Ivy was survived by five
siblings. Sheroo Dorabjee, Putli Cooper and Jer Mithaiwala were Ivy's sisters
and Burjor Framroze Cooper and Kersi Cooper were her brothers. At the time
of filing of the suit, Sheroo Dorabji had died and he was survived by her
husband Russi Jal Dorabji who is the plaintiff No. 1."
3 . The suit was filed by the aforementioned Russi Dorabji, Putli Cooper and Burjor
Cooper. Kersi Cooper was joined as the defendant No. 5. The plaintiffs have pleaded
in the plaint that they along with defendant No. 5, are entitled to 50% share in the

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suit flat. The defendant Nos. 1, 2 and 3 are occupying the suit flat in the
circumstances mentioned hereinbelow. The defendant No. 4 is the society in which
the suit flat is situated.
4. According to the respondent Nos. 1, 2 and 3 (original plaintiffs), the appellant No.
1 (defendant No. 1) was the servant of Keki. The appellant Nos. 2 and 3 (defendant
Nos. 2 and 3) are wife and daughter of the appellant No. 1. It is the their case that
the appellant No. 1 has attempted to usurp the share of the respondent Nos. 1, 2, 3
and 5.
5. Ivy and Keki got married in the year 1985. They did not have any children. They
resided in a flat at Chheda Sadan, 115, Backbay Reclamation. Even at the time of her
death on 30/07/1995, Ivy was residing at Chheda Sadan flat and after death, Keki
shifted in the suit flat and sold the Chheda Sadan flat. As per the pleadings in the
plaint, Keki acknowledged 50% share of Ivy's siblings and since their relations were
cordial, the Plaintiffs allowed Keki to occupy the entire flat on their behalf during his
lifetime and in return, Keki agreed to bequeath his 50% share to Ivy's siblings. Keki
was on regular visiting terms with the plaintiffs and had cordial relations throughout.
Keki suffered a stroke in the year 2012 and thereafter the appellant No. 1 took
complete charge of the suit flat and took wrong advantage of his fragile condition. It
was revealed that the respondent No. 4 had already transferred the share in the suit
flat in the name of Keki. The appellant No. 1 had claimed that, by a registered Gift
Deed dated 21/04/2014, Keki had gifted the suit flat to the appellant No. 1 and that
Keki had left a Will bequeathing the suit flat in the name of the appellant No. 1. In
these circumstances, the plaintiffs filed the above suit, inter alia, praying for
declaration that the plaintiff Nos. 1, 2 and 3 and the defendant No. 5 (respondent
Nos. 1 to 3 and 5) be declared as co-owners of the 50% undivided share, right, title
and interest in the suit flat. It was also prayed that the Gift Deed dated 21/04/2014
be declared illegal and at any rate, be declared as illegal to the extent that it
purported to deal with the 50% undivided share. Apart from other consequential
prayers, the plaintiffs had also sought directions to restrain the appellants and the
respondent No. 4 (defendant Nos. 1 to 4) from dealing with the suit flat or the share
certificate. The original plaintiffs had also prayed for appointment of a Court
Receiver.
6. Along with the suit, the respondent Nos. 1 to 3 filed Notice of Motion (L) No. 285
of 2017 in Suit (L) No. 81 of 2017 praying, inter alia, that the appellant Nos. 1 to 3
and the respondent No. 4 be restrained by an order of injunction from dealing with,
disposing of, transferring, alienating, encumbering or parting with possession of or
creating any third party rights or interest in or inducting any third party into
possession or occupation of the suit flat or transferring the share certificate in respect
of the suit flat. Another prayer was also made for appointment of a Court Receiver.
After hearing both the parties, the learned Single Judge was pleased to pass the
impugned order dated 22/03/2017 as mentioned earlier. The appellants have
challenged the said order.
7. The appellant No. 1 had filed the affidavit-in-reply to the Notice of Motion before
the learned Single Judge. Apart from denying the main contention of the plaintiffs, he
admitted that the suit flat was purchased by Ivy from her own funds in her sole name
and the share certificate originally stood in her name. He disputed that Ivy's siblings
were entitled to 50% share in her estate. According to him, Keki had executed the
documents of his own free will and volition and out of love and affection for him.
8. The learned Single Judge had considered the submissions made on behalf of the
parties. The learned Judge observed that even assuming the stand of the appellant

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No. 1 being correct, the fact remains that Ivy was the sole owner of the flat and
according to the law applicable to Parsis dying intestate, only 50% share in the suit
flat devolved on Keki and the 50% devolved on her siblings. One of her siblings Jer
Mithaiwala and her husband had died without leaving any child and their share
devolved on the respondent Nos. 1, 2, 3 and 5. In any case, 100% share could not be
devolved on Keki. The impugned order records that the Advocate for the appellant
No. 1 could not substantiate his claim on legal grounds that 100% share in the suit
flat devolved on Keki. The learned Judge even gave a chance to the appellant No. 1
by inquiring with him as to whether the appellant Nos. 1 to 3 were agreeable to allow
the respondent Nos. 1 to 3 and 5 to use 50% of the suit flat and/or to sell the suit
flat and share 50% consideration with the respondent Nos. 1 to 3 and 5. However,
the appellants refused to do so. The learned Judge thereafter asked the appellants as
to whether they were willing to use the entire suit flat on depositing 50% of the
market rent in Court to secure the rights of the respondent Nos. 1 to 3 and 5 upon
them succeeding in the suit flat. Even this was not acceptable to the appellants on
the pretext that they had no money to deposit the said amount in Court. In these
circumstances, the learned Judge passed the impugned order.
9. We have heard the learned Counsel for parties.
10. According to the learned Counsel for the appellants, the learned Judge erred in
passing the impugned order. He has not considered the aspect of balance of
convenience. The appellants were in occupation of the suit flat since many years. He
submitted that the appellants were put in possession by the said Keki and had
executed valid documents in favour of the appellant No. 1.
11. As against that, Mr. Tamboly submitted that the said Keki himself had no right
beyond 50% share at the highest in the suit flat. He was not legally competent to
execute the purported document or Gift Deed or Will in respect of the suit flat.
12. On hearing the learned Counsel for parties and considering the rival submissions
as well as going through the impugned order, we are of the opinion that the learned
Judge had committed no error in passing the impugned order.
13. The appellants could not substantiate as to how Keki could claim to be the owner
of the entire flat. Chapter III of The Indian Succession Act, 1925 provides special
rules for Parsi intestates. In the present facts of the case, Section 54 (a) and (d) read
with Part I of Schedule II are applicable. The said provisions read thus:-
"54. Division of property where intestate leaves no lineal descendant but
leaves a widow or widower or a widow or widower of any lineal descendant -
Where a Parsi dies without leaving any lineal descendant but leaving
a widow or widower or a widow or widower of a lineal descendant,
the property of which the intestate dies intestate shall be divided in
accordance with the following rules, namely:-
(a) if the intestate leaves a widow or widower but no widow
or widower of a lineal descendant, the widow or widower
shall take half the said property;
(b) ....
(c) ....
(d) the residue after the division specified in clause (a), or

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 clause (b) or clause (c) has been made shall be distributed
among the relatives of the intestate in the order specified in
Part I or Schedule II; and the next-of-kin standing first in
Part I of that Schedule shall be preferred to those second,
the second to the third and so on in succession, provided
that the property shall be so distributed that each male and
female standing in the same degree of propinquity shall
receive equal shares;
(e) ...."
Part I of Schedule II mentions the brothers and sisters of such person dying intestate.
Hence by reading these provisions together, it prima facie appears that at the
highest, Keki is entitled to 50% share of Ivy's estate and her siblings are entitled for
the residuary 50% of her estate.
14. We find that the learned Judge had offered the appellants a fair chance of either
occupying 50% of the flat or depositing 50% of the rent as per the market rate.
However, both these opportunities were not accepted by the appellants. The learned
Counsel for the appellants could not show any provision in law which entitled Keki to
own the entire 100% of the suit flat. Therefore, prima facie, his rights did not extend
beyond 50% share in the suit flat as is rightly held by the learned Single Judge.
Prima facie, we find that the respondent Nos. 1 to 3 and 5 are unjustifiably denied
50% share in the suit flat. In these circumstances, to secure the suit property during
pendency of the suit, the learned Judge has rightly passed the impugned order.
Hence we find no merit in the appeal and therefore the same is dismissed.
15. In view of dismissal of the appeal, the Notice of Motion does not survive and the
same is accordingly disposed of.
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