PREM BHAGWANDAS HARJANI v. 1A. DAYAL HARJANI and ORS.

other person is invalid, null and void and the letter of attornment dated 17^thJune 2010 and any other documents, if any, executed in respect of the said property or any part thereof, be ordered to be delivered and cancelled and seeking injunction.

Case of the Plaintiffs:

3. The Plaintiffs' case may be briefly stated as follows:

i. Mr. Vensimal Kalachand Harjani died intestate in Mumbai on 24^th July 1962 leaving behind him the following heirs and legal representatives:

Shri Vensimal Kalachand Harjani

Died on 24.07.1962

Bhagwandas Naraindas Chandiram Dharamdas

(Died on 11.11.2001) (Deft. No.1) [Since deceased] [Since deceased] (Died on 28^thOctober 2014) (Died on 8.07.2011) (Died on 18.11.2003) Deft. Nos. 1A to 1E

Suresh Ashok Prem Sarla Leela Prakash Sonia

(Plf-2) (Plf-3) (Plf-1) Died on [widow] (Deft.7) (Deft.8) [8.3.2010] deceased

| [died on 10.4.12]

Manju

(Plf.-4)

Smt. Mohini Gulu [Son] Nirmal [Son]

[widow]

(Deft.-4) (Deft.-5) (Deft.-6)

ii. Said Late Vensimal Kalachand Harjani was the owner of the suit property. Late Vensimal Kalachand Harjani died intestate in Mumbai on 24^thJuly 1962.

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iii. Petition No.518 of 2002 for grant of Probate of an alleged will of Mr. Vensimal dated 20^thNovember 1960 was filed by Defendant No.1 after a lapse of about 42 years from the demise of said Mr. Vensimal.

iv. It is the contention of the Defendant No.1 that under the said will, said Vensimal Kalachand Harjani bequeathed his entire estate in favour of Defendant No.1 to the exclusion of his three other sons.

v. In the said Petition No.518 of 2002, the Plaintiff and his brother - Ashok as well as Chandiram i.e. son of Vensimal filed 3 caveats objecting to the grant of Probate on the ground that the said will is forged and fabricated. Accordingly, the said Petition No.518 of 2002 was converted into a Suit being Testamentary Suit No.24 of 2006.

vi. Thereafter, certain correspondence took place between the parties as the Plaintiff was apprehending that the Defendant No.1 would dispose of the property to the Defendant No.2. By a letter dated 13^th June 2008, the Defendants through their Advocates replied to the Plaintiff's said letter by stating that as the matter is subjudice and awaiting adjudication thereof by the Hon'ble Court, they shall reply in detail soon hereafter and in the meantime denied the allegation and contentions in the said letter under reference. No further reply was given by the Defendant to the Plaintiff's aforesaid letter.

vii. It is the case of the Plaintiff that in or about September 2010, the Plaintiff accidentally came across a letter of attornment addressed to the

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tenants of the said property at Forjett Street informing that Defendant No.2 had acquired the rights in the said property.

viii. In view of the above development the Plaintiff took out Notice of Motion No.123 of 2010 in said Testamentary Suit No.24 of 2006 inter alia for appointment of Court Receiver.

ix. The said Notice of Motion was disposed of by a learned Single Judge by Order dated 5^thJanuary 2011 inter alia observing that the Plaintiff would not even be able to transfer clear title to the transferee until probate is obtained. If the probate is refused, the transfer would be of no effect. If the Will is not validly executed, all the heirs and legal representatives of the deceased would be entitled to the property on intestacy of the deceased. The parties are the sons and sons of the predeceased son of the deceased. All would be entitled to a share on intestacy. This has nothing to do with the transfer of the property. Despite the transfer, if the deceased is taken to have died intestate, the Defendants would be entitled to a share in the property.

x. The Plaintiff thereafter obtained opinion of a handwriting expert Mr. Firoz Shaikh concerning the said alleged will dated 20^thNovember 1960 and it is the case of the Plaintiff that the said will is prepared much after the year 1960 when the said will was allegedly executed.

xi. It is the claim of the Plaintiff in the Plaint that the Testamentary Suit No.24 of 2006 seeking probate and concerning validity of the will

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was still pending and in spite of the same Defendant No.1 has disposed of the suit property in collusion with the Defendant Nos.2 and 3, seeking to deprive all the other heirs of the deceased Vensimal of their legitimate rights and share in the properties of the deceased Vensimal.

xii. The Plaintiff has relied on certain correspondence made with the

MCGM.

xiii. Thus, it is the contention of the Plaintiff that Defendant No.1 surreptitiously and dishonestly attempted to sell the suit property in collusion with Defendant Nos.2 and 3 and they are attempting to defraud the Plaintiff and the other heirs of the deceased-Vensimal. It is also stated in the Plaint that the Plaintiff is also entitled to file a Suit for administration of the estate of the deceased Vensimal and therefore leave under Order II Rule 2 of the Code of Civil Procedure, 1908 ("CPC") was sought.

xiv. It is the case of the Plaintiff that cause of action arose in September 2010 and therefore the Suit filed on 29^thAugust 2013 has been filed within limitation.

Case of the Defendant Nos.2 and 3:

4. The Defendant Nos.2 and 3 filed written statement dated 13^th December 2016. The Defendant Nos.2 and 3 inter alia raised following contentions:

i. The Plaintiff is aware of the Indenture of Conveyance dated 11 ^th

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November 2008 being executed in favour of Defendant No.2 and therefore the Suit filed on 29^thAugust 2013 is barred by the law of limitation.

ii. The reliefs sought in the Suit are based on the Plaintiff's alleged present right for administration of estate of the deceased which is not sought till date in any legal proceedings. The said relief regarding administration of estate is time barred as the deceased died on 24 ^thJuly

1962.

iii. The prayers in the Suit are vague and uncertain and in spite of the Plaintiff being aware of the Indenture of Conveyance dated 11 ^th November 2008 being executed in favour of Defendant No.2, vague statements are made and vague prayers are sought. Since the year 1970, Defendant No.1 alone is collecting the rent, paying the property taxes and maintaining the property as an executor, which has never been objected by the Plaintiff.

iv. The Defendant No.1 in his capacity as the executor of and the sole beneficiary under the last will and testament dated 2^ndNovember 1960 of Late Vensimal had sold the suit property to the Defendant No.2 dated 11^thNovember 2008 for consideration of Rs.85,00,000/-. The deed of confirmation dated 15^thJune 2010 arrived at and confirmed by the parties. The said Deed of Confirmation (along with the Deed of Conveyance) dated 15^thJune 2010 is duly registered. Upon registration

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on 15^thJune 2010 of the Conveyance, there is deemed notice of the said conveyance to all the parties and public at large.

v. The Defendant No.1 had validly sold, transferred and/or conveyed the suit property in favour of Defendant No.2 for valuable consideration and has handed over possession thereof to the Defendant No.2.

vi. The Plaintiff resides at Walkeshwar. Defendant No.2 since the year 2010 has been collecting rent from the tenants of the said property. The Plaintiff has never objected to the same.

vii. The other heirs of the Plaintiff have not objected to the sale. At the highest the Plaintiff can seek share in the amount received by the Defendant No.1.

viii. The Defendant Nos.2 and 3 are not party to the Petition No.518 of 2002 converted as Testamentary Suit No.24 of 2006 and Defendant Nos.2 and 3 are not party to the said suit.

ix. It is denied that the Plaintiff was not aware about the existence of the will dated 2nd November 1960 and further it is denied that the said will is forged and fabricated.

x. The Plaintiff has not obtained any leave of this Court under Order II Rule 2 of the CPC. In any case, the said Suit for administration is time barred. Such an action would be a condition precedent to filing a Suit for the reliefs as claimed by the Plaintiff in the present Suit.

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Issues:

5. Based on these rival pleadings, a learned Single Judge by Order dated 5^thMarch 2018 framed the following issues:

(i) Whether the suit is barred by law of limitation ?

(ii) Whether the suit is bad for non-joinder of necessary parties ?

(iii) Whether the Plaintiff proves that the sale/transfer of the property by deceased Defendant No.1 in favour of Defendant Nos.2 and 3 is invalid, null and void ?

(iv) Whether the Plaintiff proves that the letter of allotment dated 17^thJune, 2010 and documents, if any, executed, be ordered to be delivered and cancelled ?

(v) What order ?

Factual matrix:

6. Before considering rival submission and deciding the issues framed in the Suit, it is necessary to set out certain factual aspects.

(i) The property bearing C. S. No.4/661 of Malabar and Cumbala Hill Division situate lying and being at Forjett Hill Road, Forjett Street together with the structures standing thereon known as V. K. Building Nos.1 and 2 is suit property ("suit property"). It is also undisputed that late Vensimal Kalachand Harjani was the original owner of the suit property. Said Vensimal passed away on 24^thJuly 1962.

(ii) It is the claim of the Defendant No.1 that deceased-Vensimal left the Will dated 20^thNovember 1960. After a period of about 41 years,

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after the death of deceased-Vensimal, the Testamentary Petition No.518 of 2002 for the grant of probate of said Will dated 20^thNovember 1960 has been filed on 13^thMay 2003 by the Defendant No.1. The Plaintiff Nos.1 and 3 and Deceased Chandiram i.e. father of Defendant Nos. 4 to 6 filed Caveats in said Testamentary Petition No.518 of 2003 and therefore the same has been converted into Testamentary Suit No.24 of

2006.

(iii) The Public Notice dated 28^thAugust 2007 was issued by Kishordas Thakordas and Co., Advocates and Solicitor on behalf of the Defendant No.2 which has appeared in Daily Free Press Journal dated 29^thAugust 2007 (Exh D-1/ Page No.295-296), Daily Janmabhoomi dated 30^thAugust 2007 (Exh D-2/Page No.297-298) and Daily Navshakti dated 30^thAugust 2007 (Exh D-3/ Page No.299-300) issued by Defendant No.2. The said Public Notice inter alia states as under:-

"NOTICE is hereby given that our clients are negotiating with SHRI NARAINDAS VENSIMAL HARJANI, Executor of and Sole Beneficiary under the Last Will and Testament of Late Vensimal Kalachand Harjani for the purchase of the undermentioned property free of encumbrances with the consent of (1) Shri Chandiram-Vensimal Harjani; (2) Shri Prem Bhagwandas Harjani

(3) Shri Ashok Bhagwandas Harjani and (4) Shri Suresh Bhagwandas Harjani, who are also claiming interest in the said property."

(Emphasis added)

(iv) On 26^thMay 2008 (Exhibit P-26) (Page Nos.248-259), the Plaintiff No.1 sent notice to (1) Naraindas Vensimal Harjani (Defendant No.1),

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(2) Chandiram Vensimal Harjani (deceased), (3) M/s Veesita Estate Pvt. Ltd. (Defendant No.2), (4) Sanjay P. Bafna, Director, M/s Veesita Estate Pvt. Ltd. (Defendant No.3), (5) Rajeev H. Surana, Constituted Attorney of M/s Veesita Estate Pvt. Ltd. inter alia stating as follows :

"5. That in or around the year 2002 you at Sr. No. 3, 4 and 5 approached you at Sr. No. 1 and expressed desire to purchase the said property for development purpose from you at Sr. No. 1, through Estate Broker Kishore Teckchandani.

6. That you at Sr. No. 1 were from the beginning knowing fully well that the deceased has died intestate leaving behind several legal heirs who as per the provision of Hindu Succession Act are entitled to a proportionate share in the estate of the deceased.

7. That it appears that on you at Sr. No. 3, 4 and 5 approaching you at Sr. No. 1, you at Sr. No. 1 and 2 in furtherance of common intention to usurp the estate of the deceased to the exclusion of all the other legal heirs conspired and agreed to and fabricated a document purported to be 'Will' with a intent to support your claim to the title and interest in the immovable property of the deceased to the exclusion of all the other legal heirs of the deceased and committed an offence of Criminal Conspiracy punishable Under Section 120-B read with Section 114 IPC.

8. That towards attaining the object of usurping the estate of the deceased, to the exclusion of all the other legal heirs of the deceased, you at Sr. No. 1 with common intention together with you at Sr. No. 2 fabricated a document dated 20.11.1960 purported to be 'Will' alleged to be executed and signed by the deceased under which you at Sr. No. 1 was appointed as the 'Sole Executor' and in which, you at Sr. No. 2 has signed and attested as a Witness."

"10. That you at Sr. No. 1 corruptly used or attempted to use the fabricated Will as true and/or genuine evidence which you at Sr. No. 1 knew to be false or fabricated in Testamentary Petition No. 518/2003 filed by you at Sr. No. 1 in the

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Hon'ble High Court of Judicature at Bombay for obtaining Probate for the said Will and thereby committed an offence of using evidence known to be false punishable Under Section 196 IPC with imprisonment of either description for a term which may extend to 7 years and shall also be liable to Fine."

"20. In these circumstances, my client has instructed me to make the following requisitions on you at Sr. No. 1 and 2, which I hereby do:

i. Forthwith cease and desist from relying upon the Will to support or claim any right, title or interest in the estate of the deceased.

ii. Forthwith confirm the fact that the signature of the deceased and you at Sr. No. 1 appearing on the Deed of Mortgage dated 19.7.1954 is the genuine and admitted signature of the deceased and you at Sr. No. 1.

iii. Forthwith confirm that the deceased had expired intestate.

iv. Forthwith confirm that the alleged Will dated 20.11.1960 was not in existence at the time of the death of the deceased.

v. Forthwith confirm that till date no right, title or interest has been acquired in the property/estate of the deceased, to the exclusion of the other legal heirs by relying upon the said Will.

vi. Forthwith confirm and disclose all the details of the right acquired in the property/estate of the deceased, to the exclusion of the other legal heirs by relying upon the said Will.

vii. Forthwith furnish the details of the papers and records bearing the genuine signatures of the deceased.

21. In these circumstances, my client has instructed me to make the following requisitions on you at Sr. No. 3, 4 and 5,

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which I hereby do:

i. Forthwith cease and desist from negotiating and finalizing any transaction of purchase of the said property for development or other wise.

ii. Forthwith furnish the details of all the papers and records received from the addressee no. 1 and 2 herein to substantiate their claims to the title in the said property.

iii. Forthwith make the true and correct disclosure of the terms on which the transaction of the sale of the said property is being negotiated with the addressee no. 1 and 2 herein.

In these circumstances, my client has instructed me to call upon you at Sr. No. 1 and 2 which I hereby do to comply with the requisitions forthwith as described hereinabove and under any event within 7 days from the date of the receipt of this notice failing which my client has given peremptory instructions to initiate civil proceedings against you for declaration that you do not have any right title and interest in the estate of the deceased to the exclusion of the other legal heirs of the deceased and criminal proceedings for commission of offence punishable Under Section 120-B read with Section 114, 192, 193, 196, 199, 467, 471 read with section 34 and/or 109 IPC at your sole risk as to the cost and consequences thereof.

In these circumstances, my client has instructed me to call upon you at Sr. No. 3, 4 and 5 which I hereby do to comply with the requisitions forthwith as described hereinabove and under any event within 7 days from the date of the receipt of this notice failing which my client has given peremptory instructions to initiate Civil proceedings against you for Injunction restraining you to negotiate and/or finalize any transaction of sale or otherwise in respect of the said immovable property of the deceased with addressee no. 1 and 2 to the exclusion of the other legal heirs of the deceased and for Declaration that such negotiation and/transaction is ab initio null and void and bad in law at your sole risk as to the cost and consequences thereof."

(Emphasis added)

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(v) On 13^thJune 2008 (Exhibit P-27) (Page Nos.260 -261), reply was sent by the Defendant No.1 to said notice dated 26^thMay 2008 (Exhibit P-26) contending as follows :

"Our client Shri Naraindas Vensimal Harjani has placed in our hands your letter dated 26^thultimo and with reference thereto we have to state that we are obtaining detail instructions from our client to reply to your said letter and shall revert back to you within a couple of day's. In the meanwhile, we are only instructed to mention that you client has already filed a Caveat challenging the Will in the Probate Petition No.518 of 2003 filed by our client in the Bombay High Court. The Will has been challenged on the same ground on which the same is challenged by Shri Chaudiram Vensima Harjani.

Contrary to your client's stand in the said Caveat proceedings, your client has now changed the version of his allegation with regard to the validity of the said Will. The validity and legality of the said Will is subjudiced and awaiting the adjudication thereof by the Honourable High Court of Judicature at Bombay. However, we shall deal with your letter under reply in detail soon hereafter as aforesaid and in the meanwhile our client shall not be deemed to have admitted any of the allegations and contentions of your client as contained in your letter under reply."

(Emphasis added)

(vi) No further reply has been received by the Plaintiff No.1 from the Defendants.

(vii) On 11^thNovember 2008, Defendant No.1 in his capacity as Sole Executor of said last Will and testament dated 20 ^thNovember 1960 of late Vensimal sold the suit property to Defendant No.2 by Indenture dated 11^thNovember 2008 for consideration of Rs.85,00,000/- (Rupees

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Eighty Five Lakhs Only). The important recitals in said Indenture dated 11^thNovember 2008 are as follows:

"(b). The said Vensimal Kalachand Harjani (hereinafter referred to as the said Deceased") died at Bombay on the 24^thday of July, 1962 leaving behind his Last Will and Testament dated 20th day of November 1960 appointing the Vendor herein as the Sole Executor thereof and bequeathing the said property to the Vendor absolutely and unconditionally;

(c). The Vendor has filed a Petition bearing No.518 of 2003 in the High Court of Judicature at Bombay for obtaining the Probate of the said Last Will and Testament, grant whereof is pending;

(d) In the premises aforestated, the Vendor has become seized and possessed off or otherwise well and sufficiently entitled to the said property and is in exclusive possession and control thereof.

(e) The said Property is substantially in use and occupation of various tenants of the Vendor and occupants as set out in the list hereto annexed and no portion of the said property except common areas is vacant; All the tenants are protected under Rent Control Act, 1999."

The said Indenture dated 11^thNovember 2008 is not a registered document.

(viii) Deed of Confirmation dated 15^thJune 2010 (Exhibit D-4) was executed by which the parties ratified and confirmed execution of Indenture dated 11^thNovember 2008. The said Confirmation Deed is a registered document.

(ix) Letter of attornment dated 17^thJune 2010 (Exhibit D-6) was issued to the tenants of the suit property.

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(x) It is the claim of the Plaintiff No.1 that the Plaintiff No.1 came to know about the said letter of attornment in September 2010.

(xi) The Plaintiff took out Notice of Motion No.123 of 2010 in said Testamentary Suit No. 24 of 2006 inter alia seeking dismissal of Suit, for appointment of the Court Receiver, for issuing contempt notice and certain other reliefs. A learned Single Judge by Order dated 5^thJanuary 2011 disposed of said Notice of Motion inter alia observing as under:

(i) Court Receiver cannot be appointed in the Testamentary Petition as held in the case of Rupali Mehta Vs. Tina Narinder Sain Mehta 2006(6) Bom.

C.R. 778.

(ii) Contempt Petition is required to be separately filed. Prayers (b) and (c) need not be considered.

(iii) The Plaintiff has indeed shown that he has transferred the property. The Plaintiff would not even be able to transfer clear title to the transferee until probate is obtained. If the probate is refused, the transfer would be of no effect. It is for the Plaintiff to take that chance.

(iv) It is contended on behalf of the Defendant that if the Plaintiff transfers the only property bequeathed under the Will, the Court is not required to grant probate at

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all. Of course, if the suit property itself is otherwise disposed off, the suit would become infructuous. But in a probate petition all that the Court is required to see is that the Will has been validly executed. If the Will has been validly executed, the entire property bequeathed to the Plaintiff will be transfered to the Plaintiff. If the Will is not validly executed, all the heirs and legal representatives of the deceased would be entitled to the property on intestacy of the deceased.

(v) The parties are the sons and the sons of the predeceased son of the deceased. All would be entitled to a share on intestacy. This has nothing to do with the transfer of the property. Despite the transfer, if the deceased is taken to have died intestate, the Defendants would be entitled to a share in the property.

(xii) The Plaintiff filed Criminal Complaint bearing CC 11/SW/2009 in the Court of Additional Chief Metropolitan Magistrate against Defendant No.1.

(xiii) The Plaintiff addressed communication to MCGM and other authorities including dated 28^thDecember 2010 (Exhibit P-23) and 8^th

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June 2011 (Exhibit P-24) requesting them not to transfer the suit property.

(xiv) In or about March 2013 the Plaintiff filed in the Bombay City Civil Court, S.C. Suit No. 2590 of 2013 concerning the suit property. The learned Judge of the City Civil Court passed following Order on 9^thMay

2013:

"Adv. Praful Salvi i/b Lambay & Co. for plaintiff present. Adv. for plaintiff files application for withdrawal of suit with liberty to file fresh suit on same cause of action as this court does not have territorial jurisdiction to try and entertain suit. Hence plaintiff is permitted to withdraw a suit with liberty to file fresh suit on same cause of action. Hence proceedings closed.

Suit be registered for statistical purposes only.^" (Emphasis added)

[Note: Mr. Akshay Jadhav, learned Counsel for the Plaintiffs submits that, in the said Order 'territorial jurisdiction' mentioned is a typographical mistake and the same is 'pecuniary jurisdiction'.]

(xv) The present Suit has been filed on 29^thAugust 2013.

(xvi) Said Testamentary Suit No.24 of 2006 in Testamentary Petition No.518 of 2003 was dismissed as abated by learned Single Judge by Order dated 15^thJanuary 2015. The said Order reads as under:

"1. The sole Plaintiff in this probate action passed away on 28th October 2014. A probate was sought to the Will said to have been left by the Plaintiff's father. None of the heirs of the deceased or of the Plaintiff, who might have had any interest in the estate of the deceased, have yet come forward with an application to convert this action into one for Letters

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for Administration with Will annexed.

2. Clearly, in view of the decision of the Division Bench of this Court in the case of Thrity Sam Shroff v Shiraz Byramji Anklesaria, the Suit and the Petition both abate.

3. The Testamentary Suit No. 24 of 2006 and the Testamentary Petition No. 518 of 2003 are dismissed as abated."

(Emphasis added)

7. Hereinafter the issues framed by a learned Single Judge in this Suit by Order dated 5^thMarch 2018 will be considered.

ISSUE NO. I

WHETHER THE SUIT IS BARRED BY LAW OF LIMITATION ?

Submissions of Defendant Nos.2 and 3:

8. It is the main contention of Mr. Ashish Kamat, learned Senior Counsel appearing for Defendant Nos.2 and 3 that the Suit is barred by limitation. He pointed out Paragraph Nos.6, 7 and 9 of the plaint. Learned Senior Counsel also pointed out paragraph 15 of the Evidence Affidavit of PW-1- Prem B. Harjani. He also relied on the Public Notices dated 29^thAugust 2017 (Exh D-1), 30^thAugust 2007 (Exh.D-2) issued by the Defendant No.2. Learned Senior Counsel therefore submitted that thus the Plaintiff was aware since the year 2006 that there were negotiations between Defendant No.1 and Defendant No.2 and therefore he was very well aware of the transaction between Defendant Nos.1 and 2 of the year 2008. He also relied on the Plaintiff's Advocate's letter dated 26^thMay 2008 calling upon the Defendants to desist from

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negotiating any transaction for the purchase of the suit property and deed of conveyance dated 11^thNovember 2008 executed by Defendant No.1 in favour of Defendant No.2 and the deed of conveyance was lodged for registration vide Deed of Confirmation dated 15^thJune 2010. He submitted that public notices were given to the public at large in connection with the proposed deed of conveyance and the deed of conveyance was registered on 15^thJune 2010. He also pointed out Sections 3, 9 and 58 of the Limitation Act, 1963 ("Limitation Act"). He submitted that the deed of conveyance is not specifically challenged by the Plaintiff though the same was categorically pleaded in the written statement. He submitted that even after filing of the written statement the plaint has not been amended. He submitted that it is well-settled principle of law that relief can be granted only with respect to the specific prayers made in the pleadings and reliance is placed on the decision of the Supreme Court in Bachhaj Nahar v. Nilima Mandal¹. Learned Senior Counsel also relied on following decisions of the Supreme Court and other Courts to substantiate his contention that the Suit is barred by the Law of Limitation.

(i) Suraj Lamp & Industries (P) Ltd. v. State of Haryana².

(ii) Decision of the Madras High Court in R. Ravichandran v. The State of Tamil Nadu³.

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(iii) Decision in the case of Godhan Son Of Pola v. Ram Bilas Son Of Mahesh son of Mahesh⁴.

9. Learned Senior Counsel submitted that the date of registration of the deed of confirmation is 15^thJune 2010 and the Suit is filed on 29^th August 2013 and therefore the same is clearly barred by limitation.

10. Learned Senior Counsel pointed out Order VII Rule 6 of CPC and submitted that reliance placed on Article 110 of the Limitation Act on behalf of the Plaintiff is totally misconceived. Learned Senior Counsel submitted that even if filing of Petition seeking Probate in the year 2002 is considered for the purposes of limitation, the same amounts to exclusion of his rights from the ancestral family and therefore the Suit is barred by limitation. He states that the Plaintiff cannot take recourse to Article 110 of the Limitation Act. Learned Senior Counsel also submitted that the reliance by the Plaintiff upon Section 14 of the Limitation Act i.e. Exclusion of time of proceeding bona fide in Court without jurisdiction is also misconceived. He submitted that there are no pleadings in that behalf and the Suit filed before the City Civil Court is not referred to or relied upon by the Plaintiff in the Plaint. He submitted that the Plaintiff is legally required to have pleaded a case of exclusion of time in the Plaint. It is submitted that even in that case also the Suit is time barred. It is submitted that to overcome said difficulty the Plaintiff has relied upon Section 17 of the Limitation Act which is

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concerning effect of fraud or mistake. It is submitted that reliance on said Section 17 is also misconceived.

11. Mr. Ashish Kamat, learned Senior Counsel relied on Rule 2, Rule 4 and Rule 9 of Order VI and Rule 6 of Order VII of CPC. It is submitted that in view of these provisions for the purpose of making of the case of fraud the Plaintiff was under a statutory obligation to give particulars of fraud in the Plaint. Reliance is also placed on the following decisions of the Supreme Court:

(i) Afsar Sheikh v. Soleman Bibi⁵,

(ii) Bishundeo Narain v. Seogeni Rai⁶

(iii) Saradamani Kandappan v. S. Rajalakshmi⁷.

12. It is submitted that the Plaintiff has relied upon Sections 23 and 52 of the Transfer of Property Act, 1882, ("TP Act") to allege that the conveyance is conditional and to contend that the transfer was carried out during the pendency of the Testamentary Suit. The Plaintiff contends that since the Testamentary Suit was dismissed on 15th January 2015, the cause of action continued till 15th January 2015 and therefore the Suit is within limitation. Learned Senior Counsel submitted that all these contentions raised are devoid of any substance. It is submitted that Section 52 of the TP Act contemplates pending suit and not testamentary proceedings. It is therefore submitted that the Suit

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is barred by limitation.

13. Learned Senior Counsel also submitted that the reliance of the Plaintiff on Attornment Letter dated 17^thJune 2010 is also misconceived. Learned Senior Counsel pointed out Examination-in-chief and Cross-examination of PW-1 concerning attornment letter. It is submitted that the Plaintiff has indulged in even improving case on the Letter of Attornment to sustain the suit. It is submitted that the Plaintiff has not come with the true case. Reliance is placed on the following decisions:

i.

Siddu Venkappa Devadiga v. Rangu S. Devadiga⁸

ii. Gulabchand Daulatram v. Suryajirao Ganpatrao⁹ iii.

B.R. Sharma v. Syndicate Bank¹⁰

14. Learned Senior Counsel therefore submitted that the Suit be dismissed as barred by the Law of Limitation. Submissions of Defendant Nos.1A to 1E:

15. Ms. Rujuta Pawar, learned Counsel appearing for the Defendant Nos. 1A to 1E submitted that she is adopting the arguments of Defendant Nos.2 and 3.

Submissions of Defendant No.7:

16. Ms. Rujuta Pawar, learned Counsel appearing for the Defendant No.7 and submitted that Defendant No.7 has no right, title interest in

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the suit property. Submissions of the Plaintiffs:

17. On the other hand, Mr. Akshay Jadhav, learned Counsel appearing for the Plaintiffs submitted that mere knowledge of discussion of sale of property or apprehension of sale of property, does not amount to exclusion from the joint family property as contemplated under Article 110 of the Limitation Act. It is submitted that in the written statement Defendant Nos.2 and 3 for the first time declared that they have executed a deed of conveyance dated 11^thNovember 2008. However, the said deed of conveyance was unregistered document and forms of a part of Annexure of the deed of declaration which in turn was executed and registered on 15^thJune 2010 confirming and ratifying the deed of conveyance. He also pointed out Section 49 of the Registration Act, 1908 ("Registration Act") which specifies the effect of non-registration of the documents required to be registered. It is submitted that the conveyance dated 11^thNovember 2008 was between the Defendants and said conveyance remained a private document till the same was annexed as Annexure to the duly registered deed of declaration dated 15^thJune 2010. It is further submitted that since the conveyance was not registered, it did not affect the suit property in terms of Section 49(a) of the Registration Act. It is submitted that in terms of Section 49(b) and (c) of the Registration Act the Plaintiffs

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could neither adopt any proceedings nor could the unregistered conveyance be admitted as evidence. It is therefore submitted that the conveyance deed dated 11^thNovember 2008 which is not registered document cannot be considered as the commencement of point for the limitation. It is submitted that on 15^thJune 2010 the said deed of conveyance was registered with a deed of declaration and the Plaintiff got the information regarding the same vide letter of attornment dated 27^thSeptember 2010 and therefore the Plaintiff got the knowledge of the transaction of sale and transfer on 27^thSeptember 2010. Reliance is placed on the Plaintiff's evidence (Page No.277).

18. Mr. Akshay Jadhav, learned Counsel placed reliance on Section 47 of the Registration Act. Learned Counsel submitted that thus the Conveyance Deed operates only from the time of its registration through the Deed of Declaration. Learned Counsel pointed out Section 23 of the Registration Act which specifies a time period of four months for registration of a document from the time of its execution subject to Sections 24, 25 and 26. It is submitted that the case of the Defendants do not fall under the provisions of Section 24, 25 and 26 of the Registration Act.

19. Mr. Akshay Jadhav, learned Counsel submitted that mere apprehension or knowledge of an attempt to sell the property cannot give rise to a legal cause of action leading to filing of a Suit. It is

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submitted that issuance of public notice dated 29^thAugust 2007 and 30^thAugust 2007 cannot be construed as cause of action. Reliance is placed on Article 110 of the Limitation Act. Reliance is also placed on Articles 58, 59 and Section 17 of the Limitation Act. It is submitted that Article 59 is applicable as far as cancellation of documents is concerned, when the facts entitling the Plaintiff to have the instrument cancelled first become known to him, which in the present case first arose on 3^rd September 2010 when the Plaintiff received a copy of the letter of attornment dated 17^thJune 2010. Therefore, the present Suit filed on 29^thAugust 2013 is well within limitation.

20. Learned Counsel further submitted that the said conveyance dated 11th November 2008 itself states that the grant of Probate is pending adjudication. It is submitted that as conveyance is conditional as the Defendant No.1 has acquired rights to the suit property on the basis of filing of Probate Petition and hence Section 22 of the TP Act is applicable. It is further submitted that Section 52 of the TP Act is also attracted since the transfer was admittedly carried out during the pendency of the said Testamentary Suit. It is thus submitted that therefore the injury was not complete as the validity of the Conveyance/Deed of confirmation itself depended on the adjudication in the Testamentary Suit and the Conveyance/Confirmation could not be of legal effect till such time.

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Reasoning on Issue No.1 :

21. Before considering the rival submissions concerning issue of limitation, it is necessary to set out the relevant aspects as far as the issue of limitation is concern. The said aspects are follows:

i. Admittedly, Mr. Vensimal Kalachand Harjani was the owner of the suit property.

ii. Said Vensimal Kalachand Harjani passed away on 24^thJuly 1962.

iii. On 13^thMay 2003, the Defendant No.1 filed Testamentary Petition No.518 of 2003 seeking probate of will of Vensimal Kalachand Harjani dated 20^thNovember 1960.

iv. Testamentary Petition No.518 of 2003 was converted into Testamentary Suit No.24 of 2006 as the Plaintiff No.1, Plaintiff No.3 and father of Defendant Nos.4, 5 and 6 had filed Caveats.

v. On 28^thAugust 2007 learned Advocate and Solicitor of the Defendant No.2 issued Public Notice inter alia stating that the notice is issued with the consent of the Plaintiff Nos.1, 3 and also Defendant No.4 as they are claiming interest in the suit property.

vi. On 26^thMay 2008, the Plaintiff No.1 through Advocate issued notice to Defendant Nos.1 to 3 to desist from negotiating and finalizing any transaction between Defendant No.1 and Defendant No.2 and further asking Defendant No.1 to disclose any such transaction.

vii. On 13^thJune 2008 Reply has been sent by the Defendant No.1

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inter alia stating about the pendency of the Testamentary Suit and that issue is subjudice and that detailed reply would be sent later on. No such detailed reply was sent.

viii. On 11^thNovember 2008 Defendant No.1 executed Deed of Conveyance with Defendant Nos.2 and 3. However, the same is not registered document.

ix. On 15^thJune 2010 deed of confirmation has been executed and registered by and between Defendant No.1 and Defendant Nos.2 and 3.

x. It is the case of the Plaintiff that he came to know about the letter of attornment dated 17^thJune 2010 on 27^thSeptember 2010.

xi. The Plaintiff took out Notice of Motion No.123 of 2010 in Testamentary Suit No.24 of 2006 seeking certain prayers in view of the transfer of the suit property. The said Notice of Motion was disposed of by Order dated 5^thJanuary 2011.

xii. On 26^thMarch 2013, Suit No.2590 of 2013 was filed in the City Civil Court at Bombay challenging the transfer of suit property by Defendant No.1 in favour of Defendant Nos.2 and 3.

xiii. On 9^thMay 2013, Order allowing withdrawal of Suit No.2590 of 2013 filed in City Civil Court was passed on account of issue of improper jurisdiction.

xiv. The present Suit came to be filed on 29^thAugust 2013.

xv. On 28^thOctober 2014 Defendant No.1 passed away.

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xvi. On 15^thJanuary 2015, the said Testamentary Petition and Testamentary Suit were dismissed as abated.

22. Thus, in view of the above factual position, it is necessary to consider various provisions of the Limitation Act on which reliance is placed by both the learned Counsel namely Article 58, 59, 110 and Sections 3 and 17 of the Limitation Act. The said Sections and Articles are reproduced herein below for ready reference:

Sections 3 and 17 of the Limitation act, 1963 :

"3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act—

(a) a suit is instituted—

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim is made in court;

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(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.

"17. Effect of fraud or mistake.—(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which—

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been

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purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.

Articles 58, 59 and 110 of the Limitation Act, 1963:

23. It is admitted position that said deceased Vensimal Kalachand Harjani was the owner of the suit property. He passed away on 24 ^thJuly 1962 leaving behind him the heirs and legal representatives as set out earlier in the genealogy of the Plaintiff. Thus, it is admitted position that

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the Plaintiffs are some of the legal heirs and representatives of the deceased Vensimal, original owner of the suit property and they are entitled to the rights in the suit properties. His right can be taken away only if Vensimal bequeaths property exclusively in favour of some other and as the property is in Mumbai such testamentary disposition, takes effect only if probate is obtained with respect to such a will as per Section 213 of the Indian Succession Act, 1925.

24. It is the claim of the Defendant No.1 that said Vensimal has left will dated 2^ndNovember 1960. Testamentary Petition No. 24 of 2006 came to be filed in the year 2002 i.e. after a period of about 42 years after the death of said Vensimal on 24^thJuly 1962. The said Testamentary Petition was converted into Testamentary Suit No.24 of 2006 as the Plaintiff Nos.1, 3 and father of Defendant Nos.4 to 6 have filed Caveats. Admittedly, the said Testamentary Suit and Testamentary Petition was dismissed as abated by order dated 15^thJanuary 2015 on account of the death of the sole Petitioner i.e. Defendant No.1. Thus, in view of the legal position, it is very clear that all the heirs and legal representatives of deceased- Vensimal are entitled to the property as the deceased Vensimal died intestate. Thus, in view of this position, it is very clear that the Plaintiffs as legal heirs and representatives of Vensimal have right, title and interest in the suit property.

25. Thus, in this background of the matter, Article 110 of the

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Limitation Act is very relevant. Article 110 of the Limitation Act provides that a person excluded from a joint family property to enforce a right to share therein has to file a Suit within a period of 12 years when the exclusion becomes known to the Plaintiff. It is main submission of learned Senior Counsel appearing for Defendant Nos. 2 and 3 that the Defendant No.2 was exclusively in possession of the suit property and he was collecting the rent. The Supreme Court in the case of B. R. Patil v. Tulsa Y. Sawkar¹¹while discussing the plea of adverse possession concerning ancestral property has observed in para 27 and 31 as follows:-

"27. The possession of a co-owner however long it may be, hardly by itself, will constitute ouster. In the case of a co-owner, it is presumed that he possesses the property on behalf of the entire body of co-owners. Even non-participation of rent and profits by itself need not amount to ouster. The proof of the ingredients of adverse possession are undoubtedly indispensable even in a plea of ouster. However, there is the additional requirement in the case of ouster that the elements of adverse possession must be shown to have been made known to the co- owner. This is apparently for the reason that the possession of a co-owner is treated as possession of other co-owners. While it may be true that it may not be necessary to actually drive out the co-owner from the property as noticed in Mohd. Zainulabudeen (since deceased) by Irs. v. Sayed Ahmed Mohideen, mere continuance in the possession of a co-owner does not suffice to set up a plea of ouster. The possession of the co-owner will also be referable to lawful title. The possession of the appellant even of the ground floor of the building on the land in question, was entirely in accord with his right as a co-owner.

31. The very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. The possession of a co-owner is ordinarily on his behalf and also on behalf of the

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entire body of the co-owners. In the case of an ouster. the co- owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title."

(Emphasis added)

Admittedly, the claim by the Defendant No.1 is on the basis of will dated 20^thNovember 1960 and probate Petition filed after about 40 years have also abated. Admittedly, right, title and interest is claimed by the Defendant No.1 on the basis of said will. In fact as held in B. R. Patil (supra) the very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title. In this case the entire basis of the claim of the Defendant No.1 to the exclusive ownership of the suit property is the will of deceased Vensimal. The said claim can not be considered as exclusion in view of the law laid down in B. R. Patil (supra).

26. In this behalf it is also significant to note the Public Notice dated 28^thAugust 2007 issued by the Defendant No.2 in which it is specifically stated that the Plaintiff Nos.1 and 3 are claiming interest in the suit property and the said notice is issued with their consent. Therefore there can not be any exclusion/ouster as contemplated under Article 110 of the Limitation Act from joint family to enforce a right to share therein.

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27. It is also required to be noted that a learned Single Judge by order dated 5^thJanuary 2011 passed in Notice of Motion No.123 of 2010 in Testamentary Suit No.24 of 2006 has inter alia observed that the Plaintiff said suit (i.e. present Defendant No.1) has indeed shown that he has transferred the property. The said Plaintiff would not even be able to transfer clear title to the transferee until probate is obtained. If the probate is refused, the transfer would be of no effect. It is for the said Plaintiff to take that chance. In a probate petition all that the Court is required to see is that the Will has been validly executed. If the Will has been validly executed, the entire property bequeathed to the said Plaintiff will be transferred to the said Plaintiff. If the Will is not validly executed, all the heirs and legal representatives of the deceased would be entitled to the property on intestacy of the deceased. The parties are the sons and sons of the predeceased son of the deceased. All would be entitled to a share on intestacy. This has nothing to do with the transfer of the property. Despite the transfer, if the deceased is taken to have died intestate, the Defendants would be entitled to a share in the property.

28. Thus, it is clear that there can not be any exclusion. It is also significant to note that said Testamentary Suit has been thereafter dismissed as abated by order dated 15^thJanuary 2015 as the Defendant No.1 passed away on 28^thOctober 2014. Thus, there can not be any

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exclusion/ouster.

29. In this particular case, such exclusion will be at the most by execution of conveyance dated 11^thNovember 2008 executed between the Defendant No.1 in favour of Defendant No.2. However, admittedly, the said conveyance is not registered document and therefore has no legal consequences. Thereafter, on 15^thJune 2010 the Deed of Confirmation was executed by Defendant No.1 in favour of Defendant No.2 confirming the said deed of conveyance dated 11^thNovember 2008 and the said deed of confirmation was registered. Thus, at the most it can be said that for the purpose of Article 110 the Petitioner is excluded from the joint family property to enforce right to share therein on 15^th June 2010. In that view of the matter, the present Suit filed on 29 ^th August 2013 is well within limitation.

30. It is also required to be noted that one more contention raised by the Defendants is that the case will be covered by Article 58 and therefore it is the submission that three years time will start when the right to sue first accrues.

31. It is submitted by Mr. Ashish Kamat, learned Senior Counsel for Defendant Nos.1 and 2 that admittedly the conveyance dated 11 ^th November 2008 which is an unregistered document has been confirmed by subsequent document dated 15^thJune 2010 executed between Defendant No.1 and Defendant No.2 and as the said Deed of

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Confirmation along with the said conveyance dated 11^thNovember 2008 is registered document, it is his submission that in any case the limitation starts from 15^thJune 2010 and therefore the Suit filed on 29^th August 2013 i.e. after a period of 3 years is barred by limitation. He submits that the registration of document is notice to everyone and in support of said submission relies on Suraj Lamp & Industries (P) Ltd. (supra), R. Ravichandran (supra) and Godhan (surpa). In that behalf, it is required to note that the Plaintiff filed Notice of Motion No.123 of 2010 challenging the transfer of the suit property by Defendant No.1. The said Notice of Motion was filed on 27^thSeptember 2010. A learned Single Judge by Order dated 5^thJanuary 2011 has disposed of the said Notice of Motion, however, clarified that the Defendant No.1 would not even be able to transfer clear title to the transferee until probate is obtained. If the probate is refused, the transfer would be of no effect. It is for the Defendant No.1 to take chance. It has been further clarified that in a probate Petition all that the Court is required to see is that the will has been validly executed and if the will has been validly executed, the entire property bequeathed to the Defendant No.1 will be transferred to the Defendant No.1. However, if the will is not validly executed, all the heirs and legal representatives of the deceased would be entitled to the property on intestacy of the deceased.

32. What is relevant to note is Paragraph No.8 of the said Order,

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wherein it is observed that the parties are the sons and sons of the predeceased son of the deceased and all would be entitled to share on intestacy. Despite the transfer, if the deceased is taken to have died intestate, the Defendants would be entitled to a share in the property.

33. On 26^thMarch 2013 the Suit No.2590 of 2013 was filed by the Plaintiff before the City Civil Court at Bombay challenging the transfer of suit property by Defendant No.1 in favour of Defendant Nos.2 and 3 and the said Suit was allowed to the withdrawn by Order dated 9 ^thMay 2013 for improper jurisdiction.

34. Thus, it is clear that the deed of confirmation is dated 15^thJune 2010, the Notice of Motion No.123 of 2010 was filed in Testamentary Suit by the Plaintiff on 27^thSeptember 2010 i.e. within a period of 3 months from the date of Deed of Confirmation dated 15^thJune 2010. The said Notice of Motion was disposed of on 5^thDecember 2011. Thereafter within a period of about 2 years and 3 months the Suit No.2590 of 2013 was filed in the City Civil Court and the said Suit was allowed to be withdrawn by Order dated 9^thMay 2013 and thereafter, the present Suit came to be filed on 28^thAugust 2013. Thus, the Plaintiff will get benefit of Section 14 of the Limitation Act as far as the period from 27^thSeptember 2010 to 5^thJune 2011 and 26^thMarch 2013 to 9^th May 2013 is concerned assuming that Article 58 is applicable. Thus, even if the said contention of the Defendant Nos.2 and 3 is also taken

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into consideration, then also it is very clear that the Suit is within limitation.

35. Thus, in view of above discussion, it is clear that the Suit is not barred by Law of Limitation.

ISSUE NO. II

WHETHER THE SUIT IS BAD FOR NON-JOINDER OF NECESSARY PARTIES?

36. A learned Single Judge by Order dated 14^thJanuary 2020 passed in Chamber Summons No.971 of 2019 in Suit No.724 of 2013 allowed the amendment to bring on record all necessary and proper parties. Learned Counsels on behalf of the Defendants fairly submitted that this issue does not survive anymore.

37. As far as Issue Nos.3 and 4 are concerned they are interconnected and therefore decided together.

ISSUE NO. III

WHETHER THE PLAINTIFF PROVES THAT THE SALE/TRANSFER OF

THE PROPERTY BY DECEASED DEFENDANT NO.1 IN FAVOUR OF

DEFENDANT NOS.2 AND 3 IS INVALID, NULL AND VOID?

ISSUE NO. IV

WHETHER THE PLAINTIFF PROVES THAT THE LETTER OF

ALLOTMENT DATED 17^THJUNE, 2010 AND DOCUMENTS, IF ANY,

EXECUTED, BE ORDERED TO BE DELIVERED AND CANCELLED?

38. As far these issues are concerned, as already noted herein above, admittedly deceased-Vensimal Kalachand Harjani was the Original Owner of the property. All his heirs and legal representatives are

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entitled to the said property.

39. It is the contention of the Defendants that said Vensimal Kalachand Harjani had executed a will dated 2^ndNovember 1960. Defendant No.1 is the beneficiary of the said will. Said Vensimal passed away on 27^thJuly 1962. Admittedly, Testamentary Petition has been filed in the year 2002 i.e. after about 40 years and the same has been converted into the Testamentary Suit No.24 of 2006 as the Plaintiff Nos. 1, 3 and father of Defendant Nos.4 to 6 filed Caveats. Admittedly, the said Suit has been dismissed as abated by Order dated 15^thJanuary 2015. Thus, this is a case where the deceased has died intestate. Thus, all the heirs are entitled to the share of the property.

40. The contention which Mr. Ashish Kamat, learned Senior Counsel has raised is that the Plaintiff has not sought possession and no specific prayer is made regarding setting aside the said conveyance dated 11^th November 2008 as confirmed by deed of confirmation dated 15^thJune 2010. However, it is required to be noted that the Plaintiff has inter alia sought following relief:

"a] that this Hon'ble Court may be pleased to declare that the sale / transfer of the property bearing C. S. No. 4/661 of Malabar and Cumballa Hill Division situate lying and being at Forjett Hill Road, Forjett Steer together with the structures standing thereon known as V. K. Building Nos. 1 and 2 by deceased Defendant No.1 in favour of Defendant Nos. 2 and 3 and/or any other person is invalid, null and void and the letter of Attornment dated 17 June 2010 and any other documents, if any, executed in respect of the said property or

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any part thereof, be ordered to be delivered and cancelled;"

41. Thus, in effect the said sale/transfer is challenged. It is the submission of the Defendant that as the Suit does not seek relief of possession the same is not maintainable and therefore the same is required to be dismissed. However, in the Plaint, it is specifically stated that the Plaintiff is also entitled to file a Suit for administration of the estate of the deceased and possession thereof and therefore the Plaintiff sought leave under Order II Rule 2 of CPC to omit to sue the Defendants for the said reliefs in the present Suit. It is required to be noted that a learned Single Judge by Order dated 30^thAugust 2013 has granted said leave (Page No.130). Thus, there is no substance in the said contention. The Defendants have relied on various decisions to substantiate the said contention. However, as specific leave is granted under Order II, Rule 2 of CPC, there is no substance in the said contention.

42. Learned Counsel appearing for the Defendants has raised the contention regarding the lack of bona fides in the Plaintiffs case, qua the letter of attornment. However, in view of the above reasons, the same is totally irrelevant. In any case, the evidence on record clearly show that the Plaintiff came to know about the letter of attornment on 3^rdSeptember 2010. Thus, the Plaintiff is entitled for the reliefs.

43. However, it is required to be noted that the relief which the Plaintiff is seeking is that it be declared that the sale / transfer of the

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suit property with structure standing thereon by Defendant No.1 in favour of the Defendant Nos.2 and 3 and and/or any other person is invalid, null and void and the letter of Attornment dated 17^thJune 2010 and any other documents, if any, executed in respect of the said property or any part thereof, be ordered to be delivered and cancelled.

44. Admittedly, Defendant No.1 which has executed the Conveyance Deed dated 11^thNovember 2008 and subsequently executed the Confirmation Deed on 15^thJune 2010 is one of the heir of the original owner Vensimal Kalachand Harjani having undivided share. It has also come on record that Leela Harjani, widow of Dharmadas Harjani and his two sons i.e. Prakash (Defendant No.7) and Sonia (Defendant No.8) have executed a lease deed dated 10^thMay 2008 in favour of Defendant No.1. Thus, the relief sought in prayer clause (a) of the Plaint can be granted to the extent of undivided share of the Plaintiffs.

45. Accordingly, the Suit is decreed in terms of prayer clause (a) and

(b) with respect to the undivided share of the Plaintiffs. Accordingly, the Suit is decreed with cost.

46. Learned Counsel appearing for the Defendant Nos.2 and 3 seeks stay of the decree for a period of 12 weeks. Accordingly, the decree is stayed for a period of 12 weeks from today.

[MADHAV J. JAMDAR, J.]

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