HARSHAD JETHALAL SHAH Vs. VASUNDRA RAJE NIMBALKAR

JUDGEMENT

(1.) By the present Notice of Motion the applicants are challenging clause 4 of the consent terms dated 15.4.2004 executed by and between the plaintiffs and the defendants. By prayer (b) , (c) and (d) of the motion, the plaintiffs are claiming that they should be put back in possession of a property being bungalow and immovable property situated at Vishwas Colony, r. C. Datta Road, Sayaji Gunj, Division, Vadodara City of an area of 15,807 sq. ft. The plaintiffs have also prayed various interim injunctions against the parties from transferring, alienating, encumbering, dealing with and/or selling the said properties and/or from carrying on any construction thereon. Some of the material facts in the back ground of which the aforesaid reliefs are made are briefly enumerated as under :-

(2.) One Shalini Devi Ghatge died on 12.8.1982 leaving behind her last Will and Testament dated 4.8.1982. Under the said last Will, Shalini Devi bequeathed an immovable property which is the subject-matter of the present motion to the defendants. On the other hand, there was another will of the said deceased Salini Devi Ghatge dated 6.1.1982. It is the case of the applicants that the said property which was bequeathed to defendants was sold by the defendants under two agreements for sale dated 2.9.1982 to the applicants and in part performance thereof, the applicants were put in physical possession of the said property. It is their case that the defendant No. 1 has executed the said agreements for sale for himself and on behalf of the defendant no. 2 as his constituted attorney. Both the said Wills were subject-matter of two petitions in this Hon'be Court, namely, Testamentary Petition No. 12 of 1983 for letters of administration with the will annexed of Yeshwantrao ghatge who was husband of Salini Devi and another Testamentary Petition no. 21 of 1983 for Letters of Administration with Will annexed dated 6.1.1982 of Salini Devi. The plaintiffs in the present proceedings are the executors of the said last Will and testament dated 6.1.1982 of the deceased Salini Devi. During the pendency of the said probate petition, a Notice of Motion was taken out being Notice of Motion No. 786 of 1983 and Notice of Motion No. 910 of 1983 by the plaintiffs. By the aforesaid motions it was prayed that the court Receiver, High Court, Bombay should be appointed in respect of the estate of the deceased including the property at Baroda. The applicant No. 1 's father and the 2nd applicant's husband who was also constituted attorney was respondent No. 3 in the said Notice of Motion No. 786 of 1983. In the said notice of Motion various orders were passed. It is the case of the applicants that the said orders were passed without notice to the respondent No. 3 in the said Notice of Motion. In the aforesaid proceedings, the Court Receiver, High court, Bombay was appointed by an order dated 19.9.1983. In pursuant to the said order on 19.10. 1983 the Court Receiver visited the suit property to take possession thereof. It is the case of the applicants that at the time of taking possession, the applicants were in actual physical possession of the said premises and did not hand over the possession of the suit property to the court Receiver. Consequently on 25.10. 1983 the plaintiffs made an application to this Court for forcible possession of the said property and by an order dated 25.10. 1983 this Court directed the Court Receiver to take forcible possession of the said Baroda property from whomsoever is found in possession thereof. It is the case of the applicants that pursuant to the said order of forcible possession, the applicants handed over physical possession of the said properties to the Court Receiver, High Court, Bombay and Receiver was in possession thereafter. In the meantime, it was found that the Receiver's possession was interfered with by the applicants and thus the Court Receiver filed a complaint and consequently a criminal case was instituted being Criminal case No. 2343 of 1984 in the Court of Judicial Magistrate, Baroda. By an order and judgment dated 23.3.2001, the said complaint was dismissed essentially on the ground that the accused No. 1 who was the father of the applicant and the mother of the respondent No. 1 have already expired and thus it cannot be established that in fact whether he interfered with the possession of the Court Receiver or not. It is the case of the applicants that sometime in or about 2002 when the Court Receiver published an advertisement inviting third parties for offering agency of the Court Receiver in respect of the said property he took out a Notice of Motion being Notice of Motion No. 438 of 2002 in Testamentary Petition No. 12 of 1983 seeking to applicant him as an agent of the Court Receiver in respect of the said property. The said notice of Motion is pending. The said Notice of Motion was to appoint the applicants as agent of the Court Receiver in respect of the said Baroda property. Though the said motion is pending but practically it has become infructuous by virtue of the fact that the Court Receiver, High Court, Bombay is already discharged in the said proceedings.

(3.) It is the case of the applicants that on 15.4.2004 collusive and fraudulent consent terms were filed by the plaintiffs and the defendants in Testamentary petition No. 12 of 1983 in this Court. It is their further case that the applicants were not given notice of the said consent terms to be filed in the proceedings in spite of the fact that the plaintiffs and the defendants were aware that the applicants are claiming rights in the said property. It is the case of the applicants that under Clause 2 of the consent terms, the Court receiver, High Court, Bombay is discharged and under Clause 4 thereof the receiver has been asked to give possession of the estate of the deceased yeshwantrao Ghatge to the defendants. By an order dated 15.4.2004, the said consent terms are taken on record and the said Testamentary Petition is disposed of. It is the case of the applicants that no order has been passed by this Court in terms of the consent terms and thus the consent terms is not superimposed with the impremature by the Court as the order of the Court. It is his further case that similar consent terms which were fraudulent in nature were filed also in Testamentary Petition No. 23 of 1983 and in the said proceedings by an order dated 15.4.2004 the said consent terms are taken on record. Clauses 1, 2 and 3 of the consent terms inter alia provide for issuance of a probate of the last Will and testament of Shalini Devi dated 4.8.1982 and alleged Will dated 6.1.1982 has been given up and/or stood revoked. By Clause 4 of the said consent terms it is provided that an agreement for sale in respect of Baroda property in favour of respondent Nos. 1 and 2 has been reaffirmed and it is provided under Clause 4 thereof that the said property will be conveyed in favour of the respondent Nos. 1 and 2. By the said order dated 15.4.2004 this Court has directed for issuance of probate of the said Shalini devi's last Will and testament dated 4.8.1982. However, it is the case of the applicants that no orders were passed by this Court in terms of the consent terms and thus the consent terms did not form part of any order of this Court.