2012 Supreme(Bom) 2172
ROSHAN DALVI
H. K. Taneja – Appellant
Versus
Bipin Ganatra – Respondent
Advocates Appeared:
Mr. NITIN THAKKAR, Sr. Advocate a/w. Mr. S. UTTAN, Ms. MANJIRI SHAH, Ms. PAMNANI i/b. PAMNANI & PAMNANI for Plaintiffs in Suit No.1094 of 2007 and Applicants in NMS. 886 of 2009.
Mr. MADUR i/b. J.R.T. Legal for Defendant & Plaintiff in 2988 of 2007 and NMS. No.3732 of 2011.
Judgement Key Points
- The suit is filed by Trustees of a Trust dated 28th June 1994 claiming ownership of Flat No.7-C, Woodland Co-operative Housing Society Ltd., Mumbai, bequeathed under a probated Will dated 5th July 1997. (!)
- The Will created a life interest for the deceased's wife, forbidding her from selling, transferring, alienating, leasing, or inducting any third party in the flat. (!) [4000424680006]
- Defendant claims to be nephew of the wife, brought up by foster parents, adopted, and heir entitled to the flat; he filed another suit claiming ownership. [4000424680001][4000424680002]
- Defendant denies plaintiffs' ownership and trusteeship in written statement, claims lawful possession, but admits deceased owned the flat. [4000424680004]
- Plaintiffs seek declaration under Order XII Rule 6 CPC that defendant has no right, title, or interest, is a trespasser, and for possession and mesne profits. [4000424680009] (!) (!)
- Defendant filed criminal complaint admitting suit flat owned by Trust, plaintiffs sued for his eviction, he is not owner so cannot sell flat, contrary to written statement denials. [4000424680012][4000424680013][4000424680014][4000424680015]
- Admissions in criminal complaint, though outside pleadings, qualify under Order XII Rule 6 CPC for judgment at any stage, oral/written, without waiting for other issues. [4000424680010] (!) [4000424680018][4000424680019]
- Admitted facts need not be proved per Evidence Act Section 58; probate tendering sufficient but redundant here. [4000424680020] (!) (!)
- Admissions negate denials, no issues remain on ownership/possession; parties not at issue under Order XV Rule 1 CPC. [4000424680022][4000424680026][4000424680027] (!) (!) [4000424680029]
- Court grants prayers (a) and (b): declaration defendant has no right/title/interest, is trespasser in unlawful possession, decree for possession. [4000424680031][4000424680032][4000424680033][4000424680036][4000424680037]
- Defendant's reply to motion claims admissions unclear/conditional, but court finds them unequivocal; his written statement claims vague. [4000424680035]
- Defendant's Notice of Motion No.1509/2011 dismissed as suit made absolute. [4000424680039] (!)
JUDGMENT
The suit is filed by the Trustees of a Trust dated 28th June 1994. The Trustees claim as the owners of the suit Flat No.7-C, Woodland Co-operative Hsng. Society Ltd., 67 Peddar Road, Mumbai-400 026. The owner of the suit flat who created the trust bequeathed to the said trust the said property under his Will dated 5th July 1997. The Will has been probated. The trustees are, therefore, the legal owners of the suit flat. The Will recites that the deceased who was the owner of the flat resided in the flat with his wife, Urmila Shah. The deceased created a life interest in favour of his wife. She was to enjoy all the facilities in the flat including the movables. She was not to sell, transfer, alienate, lease, rent or create any third party rights in favour of any person. The Will specifically forbids her from inducting any person in the suit flat and 4 car parking places and from tenanting or sub-tenanting or licensing the said premises. The Will shows that the wife has been well provided and sets out the other movable and immovable assets held by the deceased. The Will makes no mention of any adopted child or any foster child.
2. The Defendant claims to be a nephew of the wife
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