VARIEGATE REALESTATE PRIVATE LIMITED Vs. TEHMUL R IRANI

JUDGEMENT

(1.) Admit. With the consent of all the Learned Counsel and of the Original Third Defendant who appears in person, the Appeal has been taken up for hearing and final disposal.

(2.) This appeal arises out of a judgment of a Learned Single Judge on a motion for interim relief. By the order of the Learned Single Judge: (i) The First Defendant has been restrained by an interim injunction from creating any third party interests in the suit property and from inducting any third party, save and except the Second and Third Defendants into the suit premises; (ii) The First Defendant has been restrained from creating any further interests in favour of the Second and Third Defendants; and (iii) The Defendants have been restrained from interfering with the possession of the Plaintiff over the rest of the suit property, save and except for the First Floor of the building. The original Plaintiff is in appeal. The carving out of the exception for the Second and Third Defendants gives rise to the appeal.

(3.) The suit was instituted by the Plaintiff for an injunction restraining the First Defendant from inducting the Second and Third Defendants or any other person into the suit property and from dealing with, disposing of, encumbering or creating any third party rights by inducting any third party into the property. A permanent injunction has been sought restraining the Second and Third Defendants from entering upon or remaining on the suit property. The property in question is land admeasuring 1406 square meters on which there is a bungalow, situated at Turner Road, Bandra. The First Defendant who was about eighty two years old, when the suit was instituted on 10 June 2008, died during the pendency of the suit on 16 August 2010. The Second and Third Defendants are nephews of the First Defendant. The Third Defendant, who has appeared in person, is an Advocate. The First Defendant was single and was a daughter of Sheriar Rustom Ahrestani. Sheriar had acquired an interest in the property as coowner under a registered Deed of Conveyance dated 29 August 1944. Sheriar died on 12 March 1979. By a will executed by him on 17 April 1969, Sheriar bequeathed his one fourth undivided share in the property to his three sons in equal proportion. By the will, the wife of the testator and the First Defendant were allowed a right of residence in the property. The executors and the trustees under the will were directed to maintain both of them as long as they desired to live in the property at Bandra. Sheriar's will has been probated. The Plaintiff acquired title to the property by a registered Deed of Conveyance dated 24 February 2005. The Deed of Conveyance records in clause 4 that a portion of the property on the First Floor admeasuring about 225 sq.ft. was in the occupation of Daulat (the First Defendant), the daughter of Sheriar. Prior to the execution of the Conveyance, a public notice was issued on behalf of the Plaintiff on 28 May 2004 of the proposed sale to which the First Defendant had raised an objection on 7 June 2004.