DADY NOWROJI ADENWALLA Vs. BURJOR H ANTIA

JUDGEMENT

(1.) THIS is a suit for declaration, injunction and possession. The property in respect of which these reliefs are claimed is Flat No. 10 on the 4th Floor of a building known an "roxana", situate at 109, Maharshi Karve Marg, Mumbai 400 020. The approximate area of the said suit- flat is 2850 sq. ft. The plaintiffs claim to be the owners and landlords of the said suit flat. Plaintiff No. 1 is the husband of deceased plaintiff No. 2. Defendant No. 3 is the sister of deceased plaintiff No. 2. The suit flat was previously in occupation of one Minocher Hormasji Nariman, as a tenant thereof. He died issueless on 24th May, 1993.

(2.) ACCORDING to the plaintiffs in the year 1984 the owners and landlords of the Roxana building had evolved a scheme to sell the flats and garages in the suit building on ownership basis with a view to form a co-operative housing society or a limited company. For that purpose they had given offers to the occupiers/tenants in the said building. The plaintiffs, on coming to know about the scheme, approached the tenant Minocher Hormasji Nariman and requested him to buy the suit flat as he was the tenant thereof. According to the plaintiffs the said M. H. Nariman had already bequeathed his tenancy rights in favour of plaintiff No. 2, some time prior to 1985. It may be pointed out that deceased plaintiff No. 2 and defendant No. 3 are the nieces of the said M. H. Nariman. The plaintiffs were ready to give the loan to M. H. Nariman for the purpose of purchasing the suit flat and they had told him that since he had already bequeathed his tenancy rights in favour of the deceased plaintiff No. 2, the suit flat would automatically go to deceased plaintiff No. 2 after his death. However, M. H. Nariman was not interested in purchasing the suit flat. According to the plaintiffs he suggested that the plaintiffs would purchase the same.

(3.) ACCORDINGLY plaintiffs entered into an agreement of sale dated 28th January, 1985 with Murarilal Gupta Kamanwala and others, who agreed to sell the suit flat to the plaintiffs for a sum of Rs. 1,50,000/ -. The plaintiffs informed M. H. Nariman about the transaction entered into with Murarilal Gupta and others. However, they did not claim any rent from him. The plaintiffs have alleged that defendant No. 3 was fully aware of the fact that M. H. Nariman had already bequeathed his tenancy right in favour of the said suit flat to the deceased plaintiff No. 2. But they induced the said M. H. Nariman to cancel the said Will and executed a fresh Will in favour of the defendant No. 3, as per which the suit flat came to be bequeathed to defendant No. 3.