H K TANEJA Vs. BIPIN GANATRA

JUDGEMENT

(1.) The suit is filed by the Trustees of a Trust dated 28th June 1994. The Trustees claim as the owners of the suit Flat No. 7-C, Woodland Co-operative Hsng. Society Ltd., 67 Peddar Road, Mumbai-400 026. The owner of the suit flat who created the trust bequeathed to the said trust the said property under his Will dated 5th July 1997. The Will has been probated. The trustees are, therefore, the legal owners of the suit flat. The Will recites that the deceased who was the owner of the flat resided in the flat with his wife, Urmila Shah. The deceased created a life interest in favour of his wife. She was to enjoy all the facilities in the flat including the movables. She was not to sell, transfer, alienate, lease, rent or create any third party rights in favour of any person. The Will specifically forbids her from inducting any person in the suit flat and 4 car parking places and from tenanting or sub-tenanting or licensing the said premises. The Will shows that the wife has been well provided and sets out the other movable and immovable assets held by the deceased. The Will makes no mention of any adopted child or any foster child. The Defendant claims to be a nephew of the wife of the deceased and residing in the suit flat as such. The Plaintiffs claim that he trespassed in suit premises and has refused to handover peaceful possession despite promising to do so under letter dated 1st November 2006. The Plaintiffs claim that the Defendant has no right, title and interest in the suit flat. The suit, is, therefore, for declaration that the Defendant has no right, title or interest in the suit flat and is in unlawful possession and is trespasser. The suit is for recovery of possession and mesne profits.

(2.) In the written statement the Defendant claims to be the heir of the deceased. He claims that he was brought-up and educated by "the said family of foster parents". The Defendant claims to have been adopted by his foster parents, but claimed that his surname was not changed consequent upon the horoscope of the Defendant. The Defendant has sought to show in his written statement how he lived with the deceased and his wife as his foster parents and claimed to be in lawful occupation and possession of the suit flat. The Defendant also filed another suit being Suit No. 2988 of 2007 for declaration that he was the heir of his foster parents and accordingly the sole owner of the suit flat. He claims that Plaintiffs do not have any right to the suit flat. He claims that after the death of his foster mother the Plaintiffs showed him the Will of the foster father, which he was shocked to see. He has not challenged the said Will or the probate thereof upon proving that he was the heir of the deceased pursuant to any adoption.

(3.) He claims that he himself filed a probate petition and craved leave to refer to and rely upon another Will. He has neither shown when the Petition was filed nor gave particulars of the Petition including its number. The Plaintiffs state that according to their knowledge it is Testamentary Petition No. 534 of 2007. The Plaintiffs claim that it is pending in the office of the Prothonotary and Senior Master of this Court. The Court desired to see the petition referred to and relied upon by the Defendant, the particulars of which the Defendant did not give and his Counsel could not answer. The Testamentary Petition No. 534 of 2007 is seen to have been filed on 7th June, 2007 by the Defendant. The Petition had not been prosecuted at all since its filing.