HOMI F COMARIAT Vs. GOWANI DEVELOPERS PRIVATE LIMITED

JUDGEMENT

(1.) THE plaintiffs and defendants No. 4 and 5 are members of an undivided family. They are co-owners and lessees and holders of the leasehold rights and interests in a piece and parcel of land being Plot No. 2 bearing C. S. No. 2-N/738 of Malabar Hill and Cumbala Hill Division within the city and registration sub-District of Mumbai containing by admeasurement 3349. 53 sq. metres which together with the buildings and outhouses thereon said land consist of the following :--

(2.) PLAINTIFF No. 2 is the son of plaintiff No. 1. Defendant No. 4 is the son of defendant No. 5. Plaintiff No. 1s late father Framji and defendant No. 5 were brothers. Defendant No. 1 (hereinafter called "the Company") is a private limited company. Defendants No. 2 and 3 are the only Directors of the Company. They are engaged in the business of development of the property. The company purported to enter into an Agreement of monthly tenancy dated 13th May, 1996, with defendant No. 4 at a monthly rent of Rs. 1,000/- in respect of the 4th defendants undivided 1/6th share in the suit property. On 13th May, 1996, defendant No. 4 also purported to execute an Assignment in favour of defendant No. 2 for a sum of Rs. 4,80,000/- in respect of his undivided 1/6th share in the suit property subject to the monthly tenancy Agreement. These two agreements are impugned on the ground that they are fraudulent, unlawful and void in law.

(3.) BY an agreement dated 9th March, 1937, the original lease in respect of the property was granted to the grand father of plaintiff No. 1 and great grand father of plaintiff No. 2 by the Secretary of State. On 8th May, 1940, the Governor of Bombay granted lease of 99 years to the grand father and grand mother of plaintiff No. 1 as joint tenants commencing from 15th February, 1937. The grand father of plaintiff No. 1 died on 16th May, 1952, leaving a Will dated 1st February, 1945, which has been duly probated directing his executors, including his daughter Mary @ Meherbai (since deceased) and his wife Shirinbai (since deceased) as follows :--