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2025 DIGILAW 1635 (BOM)

Ajit Avinash Ghate v. Hemalata Anand Navkal

2025-12-17

RAJESH S.PATIL

body2025
JUDGMENT : Rajesh S. Patil, J. 1. Learned Counsel for the Decree Holder seeks leave to amend prayer clause (a) of the Interim Application No. 1971 of 2021 by deleting line of prayer clause (a) from the words “further appoint the Applicant as the agent of the Court Receiver” and replace it with words “hand over possession to the Decree holder – Ajit Avinash Ghate” 1.1 Leave as prayed for is granted. Amendment to be carried out forthwith. 2. The Judgment Debtor has raised her objection to the Execution of the decree. Hence, the Decree Holder has filed the Execution Application. In the said Execution Application, he has filed an Interim Application seeking appointment of the Court Receiver, to execute the Decree. 3. The property in dispute in the present proceeding is a flat in the building “Janki Jivan”. The said building was constructed by a person namely Sitaram. Said Sitaram had two sons, Madhav and Avinash. Madhav had two daughters and Avinash had only one son by name Ajit. 4. Out of two daughters of Madhav, one daughter has no dispute with Ajit and has vacated the said flat after receiving her share of monies. Hemalata, another daughter of Madhav, had raised objections in the present Execution Application against Ajit. 5. Sitaram had executed his Will and in the said Will, there is a reference of the flat in dispute. The Will is in Marathi language and translation of the same has been enclosed to the Execution Application. The important para of the said Will is reproduced herein below. “(Translation of a Will written in Marathi.) WILL I, Sitaram Narsinha Ghate, a Hindu, age 85 years, retired Engineer, residing at "Janaki Jeevan", Lady Jahangir Road, Matunga Bombay 19 D.D. in a sound state of mind make this my last Will as under:- I hereby revoke all the Wills, made heretofore i.e. prior to the date 16th December 1971 and this Will shall be treated as my only Will. I am appointing Avinash, my second son, as the sole executor of this Will and the administrator of my entire property. My first son Viz. Chi. Madhav or anybody else has nothing to do with the same. The particulars of my present property are as under: 1) The building viz. "Janaki Jeevan", wherein I am residing at present, together with garages, partitioned room etc. My first son Viz. Chi. Madhav or anybody else has nothing to do with the same. The particulars of my present property are as under: 1) The building viz. "Janaki Jeevan", wherein I am residing at present, together with garages, partitioned room etc. in compound No. 207 and first three floors of the said building are of my absolute ownership. However, the top floor of the building, at present wherein my son viz. Avinash is residing, is constructed by Avinash himself from is self earned monies, with my permission and the same is absolutely of his ownership. Save and except the said fourth floor, all other constructions in the said compound, have been made from out of my self earnings and the same are entirely of my sole ownership. Any other person i. e. my wife viz. Sou. Jankibai Ghate or my two sons viz. Chi. Madhav and Avinash or my daughter viz. Chi. Sau. Rajani Bhate of anybody else has nothing to do with the same. The lease (deed) of my building has been registered in the names of my sons viz. Chi. Madhav and Avinash. And they have given in writing the stamp paper viz. "We do not have any right to the said building viz. “Janaki Jeevan". I myself receive the rent of all my constructions and I myself pay the Municipal taxes. Both of my sons are nothing to do with the same. Chi. Madhav is my elder son, He has only daughters. However, the younger son viz. Chi. Avinash has one son. In order that my property may remain with Ghate Family only. I declare that Chi. Avinash and all his heirs shall get the same (property), after my death. Except the two blocks, there are tenants in my house (i.e. in the portion of my ownership). From out of the same, one block is in the name of my wife. The same shall remain with her only during her life time. However, I declare that she shall not let out the same permanently to anybody and after her death Chi. Avinash alone shall get said block. The another block on the front side is on the second floor and Chi. Madhav, my son, is residing therein for the last 12-14 years without paying rent. However, I declare that she shall not let out the same permanently to anybody and after her death Chi. Avinash alone shall get said block. The another block on the front side is on the second floor and Chi. Madhav, my son, is residing therein for the last 12-14 years without paying rent. I declare that the same shall remain with him only as it is i.e, without rent or with his wife viz. Chi. Sau. Nirmala during her life time. However, declare that if both of them or anyone out of them who may survive; decides to leave the said block and to reside permanently somewhere else then Chi. Avinash or his heirs shall get the said block without any dispute and in lieu of the same my wife or Avinash or his heirs shall give rupees ten thousand to him (Madhav) or his wife i.e. Nirmala. From the time Chi. Madhav started living separately from me against my desire he has received from me the monies at the time of marriage of his daughter, for the purpose of running his business and on many other occasions as well as by way of residing without paying any rent, not less than half of the amount from out of my self earned monies, which I had spent for constructing the building viz. ‘Janaki-Jeevan’ and garages etc. Chi. Avinash or his heirs or my wife shall not have any right to the shares, purchased in his name with my monies, or on the other monies given to him. It is my desire that all of them should reside amicably.” 6. The Probate Petition was filed by Avinash as Executor of the Will of Sitaram. As Madhav objected granting of probate by filing his Caveat, the Probate Petition got converted into a Testamentary Suit. However, as the matter proceeded further, both the brothers i.e. Madhav & Avinash arrived at settlement and pursuant to which the Consent Terms were entered into between them on 31.03.1999. To the said Consent Terms, there was an Annexure which mentions about the terms of the settlement. The said Annexure reads as under :- “ANNEXURE 1. However, as the matter proceeded further, both the brothers i.e. Madhav & Avinash arrived at settlement and pursuant to which the Consent Terms were entered into between them on 31.03.1999. To the said Consent Terms, there was an Annexure which mentions about the terms of the settlement. The said Annexure reads as under :- “ANNEXURE 1. The said Madhav has agreed to withdraw his Caveat and his affidavit in his Caveat dated and dated 21 st Dec.,1974 and also to do all that is required of him by the Court, to enable the Court to reconvert the present suit once again into the original Probate Petition and allow the said Avinash to obtain the probate at the earliest. 2. The said Madhav and/or his heirs, have agreed to sign all the papers and documents that are required to be signed, by law and in general, cooperate fully with the said Avinash and/or his heirs, to ensure that the said Avinash and/or his heirs, get clear title to the Plot 207-B and the buildings existing on the Plot at the earliest. 3. The said Avinash has agreed to pay a sum of Rs. 5,00,000/- (Rupees Five Lacs) to the said Madhav only after the said Madhav signs the Consent Terms. Court agrees to convert the suit into the original Probate Petition. 4. The said Avinash has agreed to allow the said Madhav and his family members to continue to reside in the said Flat, but in view of the advanced ages of the said Madhav and his wife, along with one paying guest. 5. The said Madhav has agreed to pay to the said Avinash or his heirs, the fixed amount of Rs. 200/- per month towards the maintenance of the building from outside as a token only. 6. The said Madhav has agreed that neither he nor his heirs, will create right of third party in the aforesaid front flat on the first floor of the said building or give the said Flat on Leave Licence. 7. The said Avinash has agreed that, after the death of the said Madhav, and the wife of the said Madhav, the said Avinash or in the event of his death prior to the death of the said Madhav and his wife, heirs of the said Avinash, shall pay an amount of Rs. 7. The said Avinash has agreed that, after the death of the said Madhav, and the wife of the said Madhav, the said Avinash or in the event of his death prior to the death of the said Madhav and his wife, heirs of the said Avinash, shall pay an amount of Rs. 5,00,000/- (Rupees Five Lacs) only to the heirs of the said Madhav i. e. the daughters of the said Madhav, Mrs. Hemalata Navkal and Mrs. Anagha Keskar i.e. the amount of Rs. 2.5 lacs each (with the penalty, if any) to liable them to handover the peaceful and vacant possession of the said Flat in favour of the said Avinash or his heirs. 8. The said Avinash has agreed that till the said Avinash or his heirs, pay the amount of Rs. 5,00,000/- as above, to be paid after the death of both Mrs. and Mr. Madhav in favour of the heirs of the said Madhav, the daughters of the said Madhav shall retain possession of the flat. However, the payment would be made only at the time of handing over the possession of the flat by the heirs of the said Madhav to the said Avinash or his heirs. 9. It is agreed that in the event of the delay being beyond 60 days on the part of the Heirs of the said Madhav in handling over the possession of the said flat to the said Avinash of his Heirs, they would be liable to Rs. 2,000/- per day of delay (to be deducted from the amount due to them(i. e. Rs. 5,00,000/-) to the said Avinash or his heirs. The same condition regarding the penalty for the delay shall be applicable in the event of a delay for payment beyond 60 days, on the part of the said Avinash or his Heirs. 10. The Parties herein withdraw all allegations against each other.” 7. There is no dispute that the said Consent Terms entered between the parties and further converted into consent decree passed in Suit No. 81 of 1995. There is also no dispute that the said consent decree has not been challenged by Madhav or his one daughter, Anagha. However, his another daughter, Ms. Hemalata, has objected the Execution Petition. 8. Argument of learned Counsel, Mr. Malvankar on behalf of Ms. There is also no dispute that the said consent decree has not been challenged by Madhav or his one daughter, Anagha. However, his another daughter, Ms. Hemalata, has objected the Execution Petition. 8. Argument of learned Counsel, Mr. Malvankar on behalf of Ms. Hemalata is that, the said consent decree is nullity, since Testamentary Court does not have jurisdiction to decide the right, title and interest inter se between the parties. Therefore, the Consent Terms, wherein right, title and interest between the parties were decided, could not have been acted and such decree could never have been passed. 9. The consent decree has been passed on 31.03.1999 and Madhav who has signed the Consent Terms has died on 15.06.2000. During his life time, Madhav never challenged the said consent decree. As per the Consent Terms, Madhav and his wife were permitted to reside in the subject flat. There is no dispute that Madhav and his wife were permitted to reside in the subject flat. Wife of Madhav – Nirmala Ghate died on 19.12.2018. As per the said Consent Terms, para 7 to the Annexure, heirs of Madhav were supposed to receive a total sum of Rs. 5,00,000/-, as Madhav had two daughters, Ms. Angha & Ms. Hemalata. Ms. Angha was supposed to receive a sum of Rs. 2,50,000/- which she has received and has not raised any objection for transfer of the subject flat in the name of Avinash or his legal heir – Ajit. As regards payment of Rs. 2,50,000/- to Ms. Hemalata, she is not ready to accept the said sum of Rs. 2,50,000/- even today. Therefore, this matter has been heard by me on merits. 10. Mr. Malvankar, learned Counsel appearing for Ms. Hemalata referred to the Judgment of the Supreme Court in the case of Pasupati Nath Das (Dead) vs. Chanchal Kumar Das (Dead) by legal representatives and others, reported in (2018)18 SCC 547 . He has referred to para 14 of the said Judgment. There is no doubt about the ratio laid down by the Supreme Court in the case of Pasupati Nath Das (Dead) (Supra). However, facts of the present case and facts of the above cited Judgment are different. Mr. Malvankar, learned Counsel appearing for Ms. He has referred to para 14 of the said Judgment. There is no doubt about the ratio laid down by the Supreme Court in the case of Pasupati Nath Das (Dead) (Supra). However, facts of the present case and facts of the above cited Judgment are different. Mr. Malvankar, learned Counsel appearing for Ms. Hemalata has also referred to the Judgment of the Supreme Court in the case of Sushil Kumar Mehta vs. Gobind Ram Bohra (Dead) through his heirs, reported in (1990) 1 SCC 193 . It is Mr. Malvankar’s submission that defect in jurisdiction strikes at the authority of the Court to pass a decree and the said objection can be raised even at the stage of execution or in collateral proceeding. Submissions of Mr. Malvankar on this issue are also correct. However, I am not accepting his submissions that in the consent decree which was passed, the Testamentary Court while recording the consent has went ahead and decided issue about right, title and interest of the parties. After going through the consent decree, what I could gather is that both brothers after death of their father have agreed to certain terms pursuant to which Madhav got right to reside in the subject flat free of costs and after death of Madhav and his wife, he got further right i.e. legal heirs could receive Rs. 5,00,000/- in total. It is not as if Avinash’s family has deprived legal heirs of Madhav. They have, in fact, permitted Madhav and his wife to reside in the subject flat in their entire life free of costs and thereafter, they have paid a sum of Rs. 2,50,000/- to one of the legal heirs of Madhav i.e. eldest daughter – Ms. Angha and has re-affirmed to pay the balance amount of Rs. 2,50,000/- to Ms. Hemalata, who is objecting the Execution Application. However, Ms. Hemalata is not ready to accept the consent decree though the consent decree was passed in the year 1999. Due to her objection, for last 27 years, decree could not be executed and the Execution Application has been pending in this Court. I am of the view that there is no merit in the objections raised by Ms. Hemalata and hence, objection raised by her needs to be rejected. 11. Due to her objection, for last 27 years, decree could not be executed and the Execution Application has been pending in this Court. I am of the view that there is no merit in the objections raised by Ms. Hemalata and hence, objection raised by her needs to be rejected. 11. In view of the same, the Interim Application No. 1971 of 2021 filed by the Decree Holder stands allowed in terms of amended prayer clause (a). The said amended prayer clause (a) reads as under :- “(a) That the Hon’ble Court be pleased to appoint a Court Receiver, High Court, Bombay, as Receiver to take physical possession and with all regular powers as provided under Order XL Rule I of CPC, 1908, of the said Flat as described herein and in the Schedule in Column “J” of the present Execution Application for the purpose of executing the said Consent Terms embodied in the said Decree/Order dated 31 st March, 1999 and hand over possession to the Decree holder – Ajit Avinash Ghate”. 12. The Court Receiver is permitted to take help of the Matunga Police Station, Mumbai, if the need so arises. 13. Let the matter to come up on board on 23.12.2025 under the caption “For Compliance”. 14. At this stage, Mr. Malvankar, learned Counsel for the Respondent has prayed that execution of this Order be stayed by a period of four weeks from today. 15. Learned Counsel for the Decree Holder has objected to the said request on the ground that the consent decree which was signed by father of the present objector was passed 27 years ago and for the last 27 years, the Applicant and earlier, his father have been pursuing the litigation in a hope that one day they will receive fruits of the decree. 16. Hence, after hearing the Decree Holder, I am rejecting the request made by Mr. Malvankar, learned Counsel for the Respondent. 17. All concerned to act on the authenticated copy of this order.