AZEEZ MOHAMMEDKAR Vs. ARTHUR R W TOWT

JUDGEMENT

(1.) Defendant Nos. 2 to 5 have filed the present civil revision petition against the order dated 24.9.2016 made in O.S.No.26280/2014 dismissing the application filed by them under Order VII Rule 11 of the Code of Civil Procedure.

(2.) Respondent Nos. 1 and 2, who are the plaintiffs before the trial Court filed a suit for declaration that the Power of Attorney dated 19.5.1983 executed by Mrs. Dorothy Mavis Shedden and granted to Mrs. Crystal Mayes @ Ellen Crystal Rosemary Albert is ineffective; that they are the absolute owners of the schedule 'B' property; consequently that the Sale Deed dated 20.4.2006 executed in favour of defendant Nos. 2 to 5 by defendant No.1 is null and void and not binding on them; to direct to deliver the Sale Deed dated 20.4.2006 to the jurisdictional Sub-Registrar for cancellation; to deliver vacant possession of the schedule 'B' property and mesne profits from 20.4.2004 till date of suit and future mesne profits till the date of handing over vacant possession of schedule 'B' property to them by raising various contentions in the plaint specifically at paragraphs- 16 and 17 that prior to the death of Mrs. D.M. Shedden, Mr. G.R. Upshon executed a Will on 24.3.2010 naming Mr. Arthur Roy Wayne Towt, plaintiff No.1 as the executor of the Will and trustee of his estates. On 9.8.2012, the Supreme Court of Victoria, Probate Jurisdiction granted a Probate of the Will of G.R. Upshon, who died on 19.6.201 It is further contended that by the Will dated 24.3.2010 the late G.R. Upshon gave all his real and personal properties not otherwise disposed off by this Will to the trustees upon trust, for sale with power to postpone the sale of the whole or any part of the said property and from the proceeds of the sale, directed the trustees to pay all the just debts and funeral and testamentary expenses and all taxes and duties charged on the estate. The balance remaining therein was called the residuary estate and was to be distributed in the shares stated therein, amongst the beneficiaries named in the Will. The Will clearly mentioned that as the Testator had already made provisions for his only child Crystal Rosemary Albert (a.k.a. Crystal Mayes, The First Defendant) by giving her his half share in the schedule 'A' property, he has not made any provisions for her in the residuary estate, etc.

(3.) The defendants filed their written statement denying the plaint averments and specifically contended that the sale deed dated 20.4.2006 is very much binding on the plaintiffs and possession of these defendants are legal and lawful in respect of 'A' schedule property and the plaintiffs are not entitled to recover the possession at any costs from these defendants. Moreover, the suit is barred by limitation for recovery of possession. It is also contended that pleading in para-33 regarding para- 31 that there is no cause of action for the plaintiffs to institute the present suit with an allegation that the cause of action for the suit arose on all dates when the defendants claimed ownership and on 20.4.2006 when the absolute sale deed was executed and registered by the 1st defendant in favour of defendant Nos. 2 to 5 and that on 10.5.2013 when the 1st defendant filed the position statement wherein she has stated that she had sold schedule 'A' property in April 2006 for AUD $ 255,310 (INR. 1,47,50,000) to the 2nd defendant and when the plaintiffs first came to know that the 1st defendant had sold schedule 'A' property to these defendants. The alleged cause of action will not give any legal right to the plaintiffs to institute the present suit seeking for the judgment and decree as mentioned in the prayer column, etc.