Bombay High Court kicks out son who stole Malad flat from father

Apr 17, 2017, 08:15 IST | Vinod Kumar Menon

Mohammed Mehboob Ali (79) and wife Hamida
Mohammed Mehboob Ali (79) and wife Hamida

Retired naval petty officer Mohd Mehboob Ali (79) and wife Hamida (68) have won a battle for scores of senior citizens suffering in silence over property disputes. The High Court on April 3 passed an order evicting the couple's elder son and his family from their flat, ending a three-year-long legal battle. The son and his family had staked their claim to the 900-sqft flat at Malwani, whose value is estimated to be in crores.

The couple's advocate Dinesh Tiwari, said the collector of Mumbai allotted a plot of land at Malwani in 1985 for housing facilities for retired naval officers. Ali, who retired from the navy in 1976, bought a flat in the housing society, and took possession of it in 1996. All documents pertaining to the property were in Ali's name, said Tiwari.

The Alis' son, Shamshad, is a merchant navy captain and has been staying with the couple at their Malwani flat for over two decades. His wife, Shakila, a homemaker, too, lives in the same flat.

The building in Malwani where they own a 900-sqft flat
The building in Malwani where they own a 900-sqft flat

Staking a claim
Shamshad and his wife approached the Bombay High Court in September 2016, challenging a judgment passed in favour of the elderly couple by the City Civil Court, Dindoshi, on August 29, 2016. The Dindoshi court had set aside Shamshad and his family's claim of right over the flat and directed them to vacate the property. Shamshad had filed his suit in 2014.

In the HC, his lawyer claimed that Shamshad and his family were gratuitous licensees (persons permitted, though not invited, to enter another individual's property) of the flat, had invested money in the flat's purchase, and were, therefore, entitled to right over the property.

Court picks holes
Justice MS Sonak, who was hearing the case, came down heavily on Shamshad. He observed that in 1985, when the plot was allotted to retired naval officers and some payments were made for such allotments, Shamshad was only 14 years old. Also, in 1996, when Ali took possession of the flat, Shamshad was 24 years old. The court observed that no proof had been furnished that Shamshad had any source of income between the ages of 14 and 24 to finance the acquisition.

"Apart from brazenly asserting that he is owner of the suit flat, appellant No. 1 (Shamshad) has neither instituted any counter claim in the present suit nor ownership in respect of the said flat. From this, it is quite clear that the appellants had raised a patently false and a frivolous defence, claiming ownership," said Justice Sonak in his order.

The court highlighted the Supreme Court's order that false claims and bogus defences should not to be tolerated. "False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately settle with them by paying a huge amount. This happens because of enormous delay in adjudication of cases in courts. If a pragmatic approach is adopted, then this problem can be minimised to a large extent."

The court accordingly dismissed the plea, giving Shamshad and his family time until April 30 to vacate the flat.

What next?
Tiwari said the elderly couple is now keen on moving the magistrate court and will file for damages under the Maintenance and Welfare of Parents and Senior Citizens Act 2007 for "tremendous physical and mental trauma" at the hands of Shamshad and Shakila.

Harassed for years
Advocate Dinesh Tiwari alleged that the elderly couple was subjected to a lot of mental and physical harassment over the last few years by their son and daughter-in-law."Shamshad and Shakila even lodged numerous non-cognisable complaints with the Malwani police. Finally, the daughter-in-law filed a fake domestic violence and dowry harassment complaint against them, and they had to seek anticipatory bail. The complaints is pending before the respective courts."

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