Shephali IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 64 OF 2022 IN INTERIM APPLICATION NO. 1499 OF 2021 IN SUIT NO. 108 OF 2021 WITH INTERIM APPLICATION NO. 1231 OF 2022 IN APPEAL NO. 64 OF 2022 Siddhi Umesh Mehta aged 27 years, Hindu Indian Inhabitant, residing at Flt Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar, …Appellant (East), Mumbai – 400 077. (Orig. Defendant No. 3)

~ versus ~

SHEPHALI 1. Hriday Niraj Mehta, SANJAY aged 19 years, Hindu Indian Inhabitant, MORMARE presently residing at B- 302, Fortune Digitally signed by SHEPHALI Empire, Alkapuri, Vadodara, …Respondent No. 1 SANJAY MORMARE Date: 2022.04.13 Gujarat – 390 077. (Orig. Plaintiff)

18:28:13 +0530

2. Umesh Jayantilal Mehta, aged 52 years, Hindu Inhabitant, for himself and as Karta of Umesh Jayantilal Mehta HUF, residing at Flat Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

3. Chhaya Umesh Mehta, aged 47 years, Hindu Indian Inhabitant, residing at Flat Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

4. Shivam alias Dhairya Umesh Mehta, aged 24 years, Hindu Indian Inhabitant, residing at Flat Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

5. Niraj Jayantilal Mehta, aged 44 years, Hindu Indian Inhabitant, for himself and as Karta of Niraj Jayantilal Mehta HUF, presently residing at B-302, Fortune Empire, Alkapuri, Vadodara, Gujarat – 390 077.

6. Priti Niraj Mehta, aged 43 years, Hindu Indian Inhabitant, presently residing at B-302, Fortune Empire, Alkapuri, Vadodara, Gujarat – 390 077.

7. Bela Nirupam Sheth, aged 63 years, Hindu Indian Inhabitant, residing at 8-A, 804, Akshadeep, Damodar Park, L.B.S. Marg, Ghatkopar (W), Mumbai 400 086.

8. Silver Solitaire Co- …Respondents operative Housing Society (Respondent No. 1 is Orig.

Plaintiff and Respondents Nos. 2 Limited, & 3 are Orig. Defendant Nos. 1 &

having its registered address at Plot No. 2 and Respondent Nos. 4 to 8 are

Orig. Defendant Nos. 4 to 8.)

99, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

WITH APPEAL (L) NO. 8205 OF 2022 IN INTERIM APPLICATION NO. 1499 OF 2021 IN SUIT NO. 108 OF 2021 WITH INTERIM APPLICATION (L) NO. 11732 OF 2022 IN APPEAL (L) NO. 8205 OF 2022 Hriday Niraj Mehta, aged 19 years, Hindu Indian Inhabitant, presently residing at B- 302, Fortune Empire, Alkapuri, Vadodara, …Appellant Gujarat – 390 077. (Orig. Plaintiff)

~ versus ~

1. Umesh Jayantilal Mehta, aged 52 years, Hindu Inhabitant, for himself and as Karta of Umesh Jayantilal Mehta HUF, residing at Flat Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

2. Chhaya Umesh Mehta, aged 47 years, Hindu Indian Inhabitant, residing at Flat Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

3. Siddhi Umesh Mehta aged 27 years, Hindu Indian Inhabitant, residing at Flt Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar, (East), Mumbai – 400 077.

4. Shivam alias Dhairya Umesh Mehta, aged 24 years, Hindu Indian Inhabitant, residing at Flat Nos. 201/202, 2nd Floor, Silver Solitaire, Pant Nagar, Ghatkopar (East), Mumbai 400 077.

5. Niraj Jayantilal Mehta, aged 44 years, Hindu Indian Inhabitant, for himself and as Karta of Niraj Jayantilal Mehta HUF, presently residing at B-302, Fortune Empire, Alkapuri, Vadodara, Gujarat – 390 077.

6. Priti Niraj Mehta, aged 43 years, Hindu Indian Inhabitant, presently residing at B-302, Fortune Empire, Alkapuri, Vadodara, Gujarat – 390 077.

7. Bela Nirupam Sheth, aged 63 years, Hindu Indian Inhabitant, residing at 8-A, 804, Akshadeep, Damodar Park, L.B.S. Marg, Ghatkopar (W), Mumbai 400 086.

8. Silver Solitaire Co-

operative Housing Society Limited, having its registered address at Plot No.

99, Pant Nagar, Ghatkopar (East), …Respondents Mumbai 400 077.

(Orig. Defendants)

APPEARANCES for the appellant in Mr Mustafa Doctor, Senior appeal no. 64/2022 Advocate, with Bhavik Manek, Mahesh Menon & Nutan Patel, i/b Mahesh Menon & Co.

for the appellant in Mr Ashish Kamath, with Rohan appeal(l) no. Sawant, Vaibhavi Parchake &

8205/2022 Amar Parab, i/b Pandya &

and for the Poonawala.

respondent in ia/1231/2022.

for respondent no. 7 Mr Mayur Khandeparkar, with in appeal no. 64/2022 Dhwani Bokaria, i/b M/s.

and appeal(l) no. Purnanand & Co.

8205/2022 for respondent no. 8 Ms Kirtida Chandarana, with in appeal(l) no. Henna Shah, i/b Mehernosh

8205/2022 Humranwala.

and ia/1231/2022.

CORAM : G.S.Patel &

Madhav J Jamdar, JJ DATED : 12th April 2022 ORAL JUDGMENT ( Per GS Patel J) :-

1. This order will dispose of both Appeals and also the Interim Application for stay. The Appeals are by the original Plaintiff and by one of the Defendants against an order of 15th February 2022 passed by the learned Single Judge on an Interim Application by the Plaintiff.

2. Since the parties are related, it is probably best to set out the inter se relations. The Plaintiff is one Hriday Niraj Mehta, about 19 years old at the time of institution of the Suit. The 1st Defendant is Umesh Jayantilal Mehta, Hriday’s paternal uncle, his father’s brother. The 2nd Defendant, Chhaya Umesh Mehta, is Umesh’s wife. Defendant No 3 is Siddhi, Umesh and Chhaya’s daughter. The 4th Defendant is Shivam, Siddhi’s brother, Umesh and Chhaya’s son. Defendant No. 5 is Hriday’s father, Niraj (Umesh’s brother). Defendant No. 6 is Priti, Niraj’s wife. Thus Niraj and Priti are Hriday’s parents. Umesh and Chhaya are the parents of Siddhi and Shivam. Niraj and Umesh are brothers. Hriday, Siddhi and Shivam are paternal first cousins.

3. Appeal No. 64 of 2022 is by Siddhi. Appeal (L) No. 8205 of

2022 is by Hriday.

4. Hriday brought suit on 22nd March 2021 about a year or so after he attained majority. In this, he assailed two Gifts Deeds dated 20th November 2014 at Exhibits “F” and “G” to the Plaint. These were in respect of two residential flats 201 and 202 of about 900 sq ft and 1485 sq ft carpet area respectively on the second floor of the Silver Solitaire CHS Limited at Ghatkopar (East), Mumbai 400 077. Hriday said that both these Gifts Deeds were void ab-initio, invalid, illegal and not binding either on him or on his father’s HUF i.e. the Niraj Jayantilal Mehta HUF.

5. The second prayer was for a declaration that the Niraj Jayantilal Mehta HUF, of which Hriday was a member, and its members and coparceners (including Hriday) were entitled to a 50% undivided share, right, title and interest in these two flats. Prayer (c) was for a partition. Prayer (d) was for possession of the one of the two flats to Hriday for his absolute use and occupation. Then there was a prayer for mesne profits, a prayer for disclosure of assets, and a prayer for an injunction. Later, additional prayers were included by amendment. These included a declaration that an Agreement for Sale dated 10th December 2020 executed by Siddhi in favour of the 7th Defendant, the purchaser, Bela Nirupam Sheth (herself joined by amendment) in respect of both flats was also void ab-initio and illegal. The Society has already been joined as the 8th Defendant by way of amendment. An alternative prayer was for a money decree against the Umesh Mehta group to pay 50% of the proceeds of the sale in favour of Bela Sheth of two flats. An interim prayer was added for an order directing the society not to permit any transfer or charge on these flats.

6. Very shortly stated, Hriday’s case was that the alienation of these flats initially by means of the Gift Deeds was entirely fraudulent and unlawful, and illegally deprived him, during the time he was a minor, of his share in those two flats.

7. The Plaint recited that Hriday’s paternal grandfather (the father of Umesh and Niraj) one Jayantilal Mehta established a successful business of trading in glass bottles. Hriday’s allegation in his Plaint was that Umesh caused this business to suffer enormous losses. This led to Umesh, Chayya, Niraj and Priti becoming heavily indebted. They had to face claims from lenders, including banks and financial institutions.

8. Sometime in 2011, there came to be filed Suit No. 2283 of 2011. The plaintiffs to the 2011 Suit were Hriday himself through his next friend, Siddhi for herself and on behalf of her then-minor brother, Shivam. The suit was filed against their respective parents, Umesh, Chayya, Niraj and Priti. There these three first cousins filed Notice of Motion No. 2759 of 2011 for interim relief. Their fathers Umesh and Niraj made a categorical statement that neither HUF, i.e. neither the HUF of Niraj nor the HUF of Umesh (or their Kartas at that time viz., Umesh and Niraj) had any intention of creating third party rights or interests in these two flats. This statement was reiterated in a Written Statement filed jointly by the two sets of parents on 12th October 2012.

9. In the 2021 Suit, which he filed alone on attaining majority, Hriday said that he learnt that his paternal uncle Umesh exercised extreme undue influence and used his dominant position to get Hriday’s own father, Niraj to execute the two purported Gift Deeds of 2014 in Niraj’s capacity as a Karta of the Niraj Jayantilal Mehta HUF gifting the entirety of that HUF’s interest in these two flats to Siddhi alone. According to Hriday, Umesh perpetrated a fraud on the members of his father’s HUF and thus on every coparcener in that HUF. On 19th November 2020, Hriday caused a notice to be sent to his paternal uncle and aunt, his paternal cousins and his parents. There was a standard-form reply on 25th November 2020 merely denying the contentions and saying that a detailed reply would follow. In the correspondence that then ensued, it emerged that there were two Gift Deeds, one in respect of each flat, and these were executed and registered with the Registrar of Assurances as long ago as 20th November 2014.

10. It is with this case Hriday came to Court and said these Gift Deeds in favour of his cousin, Siddhi, purportedly executed by the Kartas of the two HUFs, viz., his paternal uncle, Umesh and his own father, Niraj were void and illegal. He said that neither of them had the authority to execute the Gift Deeds particularly in regard to Hriday’s interest in the two flats. At the time of the Gift Deeds, Hriday was a minor. Nobody had ever attempted to obtain permission of a Court to alienate Hriday’s share in these two flats. There was no mention anywhere of this divestment of Hriday’s interest in the flats being for Hriday’s legal necessity.

11. The learned Single Judge was told that the two flats were sold in December 2020 by Siddhi to Bela Sheth. Hriday amended his Plaint. He said that this transfer by Siddhi to Bela Sheth was illegal and was intended to defeat his claim. He was allowed to amend to implead Bela Sheth and the Society, and to challenge the Agreement for Sale dated 10th December 2020 between Siddhi and Bela Sheth. 12. The Interim Application in the Suit broadly followed the Plaint in terms of its prayers but while the title was amended, there appears to have been no corresponding amendment to the prayers of the Interim Application. Prayer (a) of Hriday’s Interim Application was for a restraint against the Defendants from dispossessing of, alienating, encumbering or creating third party rights in respect of the flats. The second prayer was for the appointment of a Receiver and the third prayer was for an injunction restraining the Defendants from preventing Hriday from residing in the premises.

13. It was this application that Umesh’s family i.e. he, his wife and his two children resisted. Hriday’s parents stayed out of the litigation fray. The Umesh Group said that the Plaintiff was guilty of suppression. They maintained that Siddhi became the absolute owner of the suit flats by virtue of the Gift Deeds, and it was in that capacity that she conveyed her interest to Bela Sheth on 7th December 2020. Bela Sheth was represented and said that she had paid the full consideration and actually taken possession. All this, the Umesh Group said, was known to Hriday even before he filed the suit and the suit was therefore a complete afterthought. They also maintained that Niraj, Hriday’s father had executed the Gift Deeds voluntarily in 2014 and any challenge to those Gift Deeds was barred by limitation. They specifically said that Niraj, Hriday’s father, was the driving force and guiding light to the entire litigation. 14. We do not think we need to be detained by considering the stand of the society or further dwelling on the contentions of Bela Sheth, the purchaser. What is important is how the rival parties placed their case before the learned Single Judge and the form of the order that the learned Single Judge then made.

15. The first contention advanced on behalf of Niraj was that there was a severance in both HUFs immediately on institution of the 2011 Suit by Hriday and Siddhi (for herself and on behalf of Shivam, then a minor). If there was a severance, then no Gift Deeds would have been executed three years later in 2014 by the very same HUFs. If that was so, Siddhi could not be said to have validly acquired any right, title or interest to the suit flats; and, consequently, she had no title to pass to Bela Sheth. After all, Siddhi herself was a co-plaintiff with Hriday to the 2011 Suit. There was an unequivocal expression of the plaintiffs’ intention in the 2011 suit to partition the joint family (i.e. HUF) properties. Umesh and his wife and equally Niraj and his wife could not take shelter behind Section 6 of the Hindu Minority and Guardianship Act 1956 by saying that Niraj had disposed of the undivided interest that vested in Hriday simply because after 2011, when there was a severance, Niraj had no right to do so.

16. Extending this argument further, counsel for Hriday argued before the learned single Judge that the execution of the Agreement in December 2020 after all were put to notice betrayed the dishonesty and mala fide intentions of the Umesh Group. There was already lis pendens registered. No public notice, importantly, was ever issued. Taken together, this constellation of facts could only lead to only one in ineluctable conclusion: that the entire attempt was to clandestinely transfer the property and obtain the sale proceeds only with a view to defeat Hriday’s to the flat.

17. There was strong opposition to this entire formulation from Umesh Group. It argued that the entire basis of the suit was flawed. On the one hand, Hriday said that a joint family status was disrupted in 2011, but strangely enough in the prayer (b) of the 2021 Plaint Hriday still claimed a 50% undivided interest in the Suit flats. The two positions, it was argued, were not only contradictory but were mutually destructive. If there was a severance in 2011, Hriday could not, it was argued, claim an undivided interest in the Suit flats in the name of the severed HUF and yet that was precisely the frame of prayer. Further, it was argued that the Plaint was entirely silent about the conduct of Hriday’s own father, Niraj. We note incidentally that Niraj and Hriday share a common residential address. What impact this will have is perhaps left for a decision another day. But the argument before the leaned Single Judge was that it was Niraj, Hriday’s father. who voluntarily and knowingly executed the Gift Deeds and then bided his time for six years until his son, Hriday, attained majority and then launched the present litigation, firing, as it were from the shoulders of his son. The argument that was pressed into service before the learned Single Judge was, therefore, that granting any relief to Hriday was inequitable. It would amount to granting Niraj relief in an indirect fashion.

18. On this presentation of the rival submissions, the learned Single Judge observed that central to the dispute was the question of the legality and validity of the Gift Deeds. In this context, it was argued that a Karta of an HUF is not required to obtain prior permission of the Court under Section 8(2) of the Hindu Minority and Guardianship Act 1956 (“the HMG Act”) in respect of HUF property. The answer to this from Hriday was that as of 2014 there was a severance in both HUFs and this severance was triggered by the filing of the 2011 Suit. Once that severance took place, there was severance in the joint status. The exemption for a Karta would no longer apply. Hriday would then have an undivided interest in the two flats in his own right. To divest his interest during the period of his minority, one of his natural guardians would have had to seek leave of the Court establishing a case of legal necessity to alienate Hriday’s share as a minor in the two flats. Before the learned Single Judge reliance was placed on the decision of the Supreme Court in Jalaja Shedthi & Ors vs Lakshmi Shedthi & Ors.1 That was a case of a partition. It was cited for the proposition that once there is a such a suit demanding partition, there is a severance of joint family status though there may not be a division by metes and bounds. After this, the family can never be considered to continue as an undivided family, and the interest of a coparceners can never be considered to be a joint family interest. Paragraph 12 of this decision was relied on. 19. Then reliance was also placed on the well-known decision of the Supreme Court in Phoolchand & Anr vs Gopal Lal,2 where the Supreme Court emphasized that immediately on the institution of a suit there would be a severance in the status among the members of a joint Hindu family.

20. Hriday pointed out that in the 2011 suit he, Siddhi and Shivam had distinctly claimed partition and separate possession of their respective shares.

21. Sections 6, 8 and 12 of the Hindu Minority and Guardianship Act read thus:

6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:

1 (1973) 2 SCC 773

2 AIR 1967 SC 1470.

provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;

(c) in the case of a married girl—the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.—In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.

8. Powers of natural guardian.—

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,—

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular—

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.

12. Guardian not to be appointed for minors undivided interest in joint family property.—Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:

Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.

22. These provisions make it clear that the natural guardian of the property of a Hindu minor must seek leave of the Court to dispose of the minor’s interest in any immovable property. The reason for this is self-evident. However, if the minor has undivided interest in joint family property, prior permission of the Court under Section 8 is not required to dispose of the undivided interest of a minor in joint family property. Such joint family property may be alienated by a karta including an alienation of the undivided interest of the minor in joint family property.3

23. This would necessarily have raised the question before the learned Single Judge whether Hriday continued to have an undivided interest in the joint family property in 2014 on the date of the Gift Deeds or whether there was a prior severance of a joint family status in 2011. The learned Single Judge came to the 3 Sri Narayan Bal & Others vs. Sridhar Sutar & Ors, (1996) 8 SCC 54; and Vasantrao Gulabrao Thakre and Ors v Sudhakar Wamanrao Hingankar and Ors, 2018 SCC OnLine Bom 11459 : (2018) 5 Mah LJ 121, were both cited before the learned single Judge.

conclusion that the purpose of 2011 suit was to protect the joint family properties from being proceeded against by creditors and lenders pursing recovery. Notably the 2011 suit was dismissed for want of prosecution on 10th April 2017. Yet the institution of the suit and its consequences remained, as did the statements made by the defendants to that suit in their written statement. It is at this stage that the learned Single Judge held in paragraph 24 as follows:

“24. At the juncture, whatever be the driving factor for the institution of Suit No. 2283 of 2011, which was primarily for declaration of the rights of the plaintiff and defendant Nos. 3 and 4 in the suit flats and partition thereof, it would be rather difficult to draw an inference that the institution of the said suit did not manifest an intention to sever the joint status. It is imperative to note that defendant No. 3 herein had sought partition for herself and defendant No. 4. The institution of the suit on behalf of the plaintiff by the next friend may be questioned;. But it cannot be discounted that defendant No. 3 had also sought partition. In this view of the matter prima facie, the claim of the defendant Nos. 1 to 4 that the families continued to be joint despite manifestation of clear intention, becomes contentious.”

24. We believe this prima facie view formed by the learned Single Judge is not only unexceptionable but is entirely correct. The later dismissal of the 2011 suit or the purpose for which it was filed cannot result in an elision of the inevitable legal consequence of a severance of the joint family status. That is a consequence in law irrespective of what the parties intended or what fate finally befell the suit itself.

25. The learned Single Judge then addressed the question of delay in assailing the Gift Deeds. He came to the conclusion that there may be some substance to this defence. He held that it could not be readily accepted that Hriday’s father’s HUF, the Niraj Jayantilal Mehta’s HUF, made a disposal in 2014 in favour of Siddhi (Hriday’s first cousin and Niraj’s paternal niece) out of ‘natural love and affection’ at a time when both HUFs were under financial stress. If there was an attempt by the Umesh Mehta Group to show some tacit understanding underlying the Gift Deeds then the very basis of the Gift Deeds would disappear.

26. Above all, there stood the question of Section 8 of the HMG Act and the lack of prior permission. That kind of a disposal without leave of the Court is always voidable at the instance of the minor. If the minor Plaintiff on attaining majority is successful in assailing the disposal then it is void ab-initio.

27. With this, we turn immediately to the order that the learned Single Judge fashioned. This is what he held: