BIJAY KUMAR JHUNJHUNWALA Vs. JAYA JHUNJHUNWALA

JUDGEMENT

(1.) The petitioner claims to be the adopted son of Smt. Suwati Devi, since deceased who jointly with Smt. Rukmani Devi owned the property situated at Premises No. 228A, Chittaranjan Avenue, Kolkata-700006 comprising 6 Cottahs and 13 Chittacks of land with a five-storied building standing thereon (hereinafter referred to as the 'said property'). In order to substantiate the fact that he is the adopted son of Smt. Suwati Devi, the petitioner has disclosed a copy of the registered deed of adoption dated October 14, 1950 executed by the husband of the said Smt. Suwati Devi, namely Sri Jhabarmal Jhunjhunwala, since deceased and Sri Radheysham Tibrewal, since deceased, the biological father of the petitioner. According to the petitioner, the said Jhabarmal Jhunjhunwala died leaving behind his last Will and Testament dated October 14, 1950 thereby bequeathing all his assets and properties in favour of the petitioner. On May 10, 1978 the Smt. Suwati Devi also died leaving behind her last Will and Testament dated October 14, 1950 thereby bequeathing all her assets and properties including her 50% share and interest in the said property in favour of the petitioner. In the meantime, by a registered deed of gift the said Smt. Rukmani Devi transferred her entire 50% share in the said property in favour of Smt. Krishni Devi Jhunjhunwala. Therefore, according to the petitioner, after the demise of Smt. Suwati Devi, he along with Smt. Krishni Devi Jhunjhunwala became the joint owners of the said property each having undivided 50% share therein. Subsequently, by her last Will and testament the said Smt. Krishni Devi Jhunjhunwala bequeathed her undivided 50% share in the said property in favour of the wife of her grand-son Sri Sharad Jhunjhunwala. After the death of Smt. Krishni Devi Jhunjhunwala the executor appointed by her obtained probate of the said Will and transferred the entire share of Smt. Krishni Devi Jhunjhunwala devolved upon the respondent no. 1. The said property is being occupied by various tenants and occupiers mentioned in Annexure-E to the petition. It is claimed that by an unregistered agreement dated May 31, 2000 the petitioner and the respondent no. 1 amicably partitioned the said property by metes and bounds.

(2.) On April 19, 2017 the petitioner, came to know that Kotak Mahindra Bank Limited (hereinafter referred to as the bank) published of possession notice under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 stating that the respondent nos. 1 and 2 and some other persons had mortgaged entirety of the said property in favour of the bank and in view of the said mortgagers' failure to repay their dues, the bank had taken possession of the said property. By a letter dated December 27, 2017 addressed to the bank the petitioner asserted his ownership in respect of 50% share in the said property. The petitioner claimed that since he had not created any charge or mortgage in respect of his undivided share in the said property, the bank could not have issued the said notice of taking possession of the said property. The bank did not, however, respond to the said letter of the petitioner. According to the petitioner, since the bank did not further proceed with the notice of possession of the said property, he did not initiate any legal proceeding to challenge the said notice. In February, 2018 the petitioner entered into an agreement with the respondent no.3 for attornment of his right to collect rent from the various tenants of the said property, falling under his allotment, in favour of the respondent no. 3 for a lump sum consideration of Rs.1.30 Crore. According to the petitioner, the respondent no.3 has failed and neglected to pay the entire consideration amount of Rs.1.30 crore. It is alleged that in or about May, 2019 the petitioner for the first time came to learn that the respondent nos. 1 and 2 representing themselves to be the joint owners of the said property transferred and conveyed the entirety of the said property in favour of the respondent no.3. It is stated that the respondent no.2 did not own any share in the said property and the transfer of the said property by the respondent nos.1 and 2 is wrongful, illegal and fraudulent. The petitioner has claimed to have obtained a certified copy of the said deed of conveyance dated September 4, 2018 (hereinafter referred to as the said deed of conveyance) by which the respondent nos. 1 and 2 transferred the entirety of the said property to the respondent no.3 through his advocate. A copy of the said deed of conveyance has been disclosed in the petition.

(3.) The petitioner has filed the suit claiming inter alia declaration that the said deed of conveyance executed by the respondent nos. 1 and 2 is vitiated by fraud and null and void. The particulars of fraud have been stated in paragraph 20 of the petition. It is claimed that the statement made in the said deed of conveyance that as the surviving heir and legal representative of Smt. Suwati Devi, Shyam Sundar Jhunjhunwala inherited undivided 50% share of Suwati Devi in the said property is absolutely false and fraudulent. According to the petitioner, when the said Shyam Sundar Jhunjhunwala had no right, title or interest in the estate of the Smt. Suwati Devi since deceased he could not have executed any Will or Testament bequeathing his purported share in the said property in favour of the respondent no.2.