Shakil Meer Khan vs Probal S. Ray - 2007 Supreme(Bom) 1235

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 1235

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
S.J. VAZIFDAR, J.
Shakil Meer Khan Applicant
versus.
Probal S. Ray & Anr. Respondent
NOTICE OF MOTION NO.836 OF 2007 IN SUIT NO.592 OF 2007
NOTICE OF MOTION NO.1556 OF 2007 IN SUIT NO.1183 OF 2007
Decided on 3RD SEPTEMBER, 2007.

Advocates:
Advocate Appeared
Mr.Arun H. Palekar with Mr.R.R. Jaiswal for the Plaintiff.
Mr.Yashodharan Sakhare for Defendant No.1
Mr.S.M. Dange for Defendant No.2.

Headnote:Civil Procedure Code, 1908 - Section 17 - Suit for possession - Premises in co- operative society - Owned jointly by mother and son - Entire property cannot be sold by co-owner unilaterally - Can sell only his/her undivided share - Agreement of sale in between third party and defendant mother for her half share in premises - Third party acted upon such agreement and altered their position - Found to be in possession of half of premises - Status quo ordered pending final decision.
Civil Procedure Code, 1908 - Section 17 - Suit for possession - Flat in Co-operative Society - Owned jointly by mother and son - Entire property unilaterally cannot be sold by any of co-owner - Co-owner can sell only his undivided share - Third party entered into agreement of sale with mother for her half share - Third party found to be in possession of half of flat - status quo ordered pending final decision. - It is clear that the suit flat belonged to the plaintiff and defendant No. 1 in equal shares. It is also admitted that the suit flat is a dwelling unit. In view thereof, but for the letter dated 13.6.2006, each of the co-owners i.e. the plaintiff and defendant No. 1 are entitled to sell only their respective undivided half share in the suit flat and neither of them would have had the authority to sell the undivided half share of the other. The agreement dated 17.1.2007 would therefore have created no right whatsoever in favour of defendant No. 2 in respect of the plaintiffs undivided half share in the flat. Moreover, the purchaser would not be entitled to possession of any portion of the suit flat in view of the judgment of the Supreme Court in the case of Dorab Cawasji Warden v. Coomisorab Warden and others, (1990) 2 SCC 117. However, in the facts and circumstances of the present case, High Court was not inclined to pass a drastic order directing defendant No. 1 at the interlocutory stage to vacate the portion of the premises in his possession or even to appoint him as an agent of the Court Receiver requiring him to furnish security or to pay royalty. It is true that plaintiff is not a party to the said agreement dated 17.1.2007. Defendant No. 2 could not therefore unilaterally have dealt with the plaintiff’s share. However, in view of the letter dated 13.6.2006, it cannot be said with any degree or certainty that the plaintiff did not permit defendant No. 1 to hold herself out to third parties that defendant No. 1 was entitled to act on his behalf. Indeed the letter dated 13.6.2006 does give the impression that all that the plaintiff wanted was a sum of Rs. 37,50,000/- and if that was paid the sale may be effected. It is not the plaintiff’s case that he even withdrew the letter dated 13.6.2006. High Court cannot fault defendant No. 2 at least at the interlocutory stage for having entered into the agreement dated 17.1.2007 by acting on the letter dated 13.6.2006. The least that must be said in favour of the defendants is that the true scope of this letter and its effect thereof on the rights of third parties who acted thereon and have alter ed their position to their detriment can be established only at the trial of the suit. Admittedly, defendant No. 1 in view of the alleged harassment to her by the plaintiff and his wife, has received her 50% share of the consideration and has put defendant No. 2 in possession of that portion of the flat which came to her pursuant to the aforesaid order of High Court dated 7.6.2006 albeit at the interlocutor y stage.

ORAL JUDGMENT :

1. Both the Notices of Motion are disposed of by a common order as the subject matter of both the suits is the same and the disputes between the parties in both the suits are similar and raise common questions of fact and law.

2. The Plaintiff and Defendant Nos.1 and 2 in Suit No.1183 of 2007 are Defendant No.1, Defendant No.2 and the Plaintiff respectively in Suit No.592 of 2007.

3. For convenience I will refer to facts and the parties as arrayed in Suit No.1183 of 2007.

. Defendant No.1 is the mother of the Plaintiff in Suit No.1183 of 2007. Defendant No.2 i.e. the Plaintiff in Suit No.592 of 2007 is a third party to whom Defendant No.1 sold the suit flat.

5. Defendant No.2 filed Suit No.592 of 2007 prior to Suit No.1183 of 2007. In Suit No.592 of 2007, Defendant No.2 has sought an order directing the Plaintiff to hand over possession of the suit flat against the payment of Rs.36,25,000/- being his 50% share in terms of an order dated 14.10.2003 passed by the learned Judge in Suit No.6895 of 2002 filed in the Bombay City Civil Court. In the alternative, Defendant No.2 has sought a declaration that a portion of the suit flat in his possession falls to his share and the same be transferred to his name by the Plaintiff in Suit No.1183 of 2007. It is further prayed that the flat be partitioned and divided by meets and bounds and 50% thereof be given to Defendant No.2. Defendant No.2 has also prayed for an order permanently restraining the Plaintiff from selling, transferring etc. the portion of the flat in his possession except to Defendant No.2 and for a permanent injunction restraining the Plaintiff from disturbing the possession of Defendant No.2 of the suit flat.

6. Suit No.1183 of 2007 is filed for a declaration that the possession of Defendant No.2 of a portion of the flat in his possession is illegal ; for an order directing Defendant No.2 to hand over the physical possession thereof to the Plaintiff ; for a perpetual injunction restraining Defendant No.2 from entering the flat and for an order that upon possession being restored, Defendant No.1 be ordered not to part with possession of the flat to any third party. The Plaintiff has also sought an order restraining Defendant No.2 from parting with possession of the suit flat or from creating any third party rights therein and from using the same for commercial purposes. The Plaintiff has filed Notice of Motion No.1156 of 2007 inter-alia for the appointment of a Court Receiver and for an injunction and other interim reliefs in terms of the final reliefs I have referred to.

7. By an order passed today, I have allowed Chamber Summons No.1323 of 2004 for amendment. I will presume that the interim reliefs claimed in the Notice of Motion also stand amended accordingly. One of the amendments is the addition of prayer (aa) declaring the agreement entered into between the Defendants as null and void and for an order directing Defendant No.2 to hand over vacant and peaceful possession of the portion of the flat in his possession to the Plaintiff. Interim reliefs in these terms have also been sought in the Notice of Motion.

8. There is no dispute that the suit flat belonged to the Plaintiff’s father i.e. the first Defendant’s husband who expired on 19.5.2001.

9. On 22.6.2001, the Plaintiff addressed a letter to the society stating that his father had died intestate and requested the society not to transfer the share certificate to any other persons without his knowledge or permission. The Plaintiff also stated that he was aware that his mother/Defendant No.1 was trying to sell the flat and that the society ought not to recognize such transfer without notice to him. A similar letter was also addressed on 18.9.2002.

10. By a letter dated 29.11.2002, the society informed the Plaintiff that based on the nomination made by his father the share certificate had been transferred

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