DAVID ACHUTHA MENONversusVIJAY KUMAR MISHRA (SINCE DECEASED THR HIS LRS)

                             AO No 19 of 2026.docx




         IN THE HIGH COURT OF BOMBAY AT GOA

            APPEAL FROM ORDER NO. 19 OF 2026

Dr. David Achutha Menon
Son of Late Unikat Sivasankara Menon
70 years of age, married, retired,
British Citizen of Indian Origin,
Holding OCI card, Resident of 8 Byfeld
Gardens Barnes, London SW13
9 HP United Kingdom and presently
residing at Flat No.E-703, Adarsh Co-
Operative Housing Society, Caranzalem,
Panaji, Goa
Represented by duly constituted attorney
Mr. Mihir Vardhan                                    ... APPELLANT

                   V/S.

1.   Mr. Vijay Kumar Mishra
     (Since Deceased through his Legal
     Heirs)

1(a) Mrs. Suchita Mishra
     W/o. Late Vijay Kumar Mishra
     Major of age, R/o. House No.838,
     Homestead B/256, Plot A-1,
     Opp Hotel Solmar, Miramar, Panaji,
     Goa – 403 001

1(b) Miss Pavitra Mishra

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     Daughter of Late Vijay Kumar Mishra
     Major of age, R/o. House No.838,
     Homestead B/256, Plot A-1, Opp
     Hotel Solmar, Miramar, Panaji, Goa –
     403 001                              ... Respondents


Mr. Ajay Menon, Advocate for the Appellant.

Mr. Matlok D’Souza, Advocate for the Respondents.


                  CORAM              :              VALMIKI MENEZES, J.
                  RESERVED ON:                      21st August, 2026
                  PRONOUNCED
                  ON        :                       8th October, 2026


JUDGMENT :



1.   his Appeal from Order challenges order dated 09.01.2026
passed by the Civil Judge Senior Division at Panaji on an
application dated 05.08.2025 ( Exhibit D-100) iled under Order
39 Rule 4 CPC for modiication and variation of order dated
23.11.2021 passed by the said Court; the impugned order rejects
the Appellants request for modiication and variation and
directions to Respondent No.1(a) and 1(b) to hand over him the

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keys to the bungalow to use, possess and occupy the suit premises
being a co-owner. he trial court has allowed the Plaintif to take
inspection of the suit bungalow and has further directed that
pending the Plaintif’s and Defendant’s claims being decided, they
have to bear in equal measure the costs of the maintenance of the
structure and maintenance works are to be carried out after
obtaining prior permission of the trial court. he trial court has in
fact rejected the Plaintif’s request for a direction to Defendant’s
No.1 (a) and (b) to hand over keys of the bungalow and to permit
the use for occupation of the premises.


FACT


2.   he present Appellant is the original Plaintif in Special
Civil Suit No.60/2014/B before the Civil court at Panaji. He
claims to be the only child of late Unikat and late Mrs. Angelica
Menon. he Plaint avers that the suit plot A1 was purchased by
his parents on 18.03.1975 through a Deed of Sale after which a
bungalow was constructed thereupon by his parents. his is the
suit property which bears Chalta no.17 of PT Sheet 119 of City
survey Panaji, which was in occupation of Plaintif’s parents. he
plaint further avers that the Plaintif’s father expired on

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04.05.1992, intestate leaving the Plaintif and his mother as joint
owners of the property. His mother expired on 20.12.2011 after
executing a Will dated 12.08.2011 bequeathing her share in the
suit property equally, in favour of the Plaintif and one Vijay
Kumar Mishra (Defendant No.1). he Plaintif claims that the
Will is a product of fraud and undue inluence, obtained from the
Plaintif’s mother during her advanced age of 82 years and
therefore seeks it to be declared as a nullity. he plaint also averse
that on the basis of the Will the Defendant Vijay claimed
occupation of the suit property on the demise of the Plaintif’s
mother, and as a consequence of declaring the Will a nullity, the
Court declare the Plaintif the only successor of his parents. he
plaint also seeks a Decree against the Defendant to hand over
possession of the suit bungalow.


3.   Subsequent to iling of the plaint and written statement
being iled by the Defendant Vijay, he expired and the Defendant
1a (his Wife Suchita) and his daughter Defendant 1b (Ms.
Pavitra) were impleaded as Defendants. According to the written
statement iled by Vijay, he was working as a security guard with
the plaintif’s mother since 1996 and since then has been staying
at the suit property.   He claims that the late Angelica executed

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the Will which is under challenge, bequeathing her half share of
the suit property in favour of the Defendant.             he written
statement does not deny the fact that the suit property was
acquired and owned jointly by the Plaintif’s parents or that the
Plaintif is the only child of his parents or that the Plaintif is a
successor of his father’s estate.       he written statement also does
not raise a plea that the Defendant, who commenced residing at
the suit property in 1996 has adverse possession of the suit
property or has ousted the Plaintif’s title.


4.   On an application for temporary injunction iled by the
Plaintif, the trial Court, by its order dated 11.08.2016 granted
the Plaintif a restraint order, restraining the Defendant from
creating any third party rights or inducting any third party or
parting with the possession of the suit property or altering its
nature. Subsequently, the trial Court also granted the Plaintif
inspection of the suit bungalow vide order 23.11.2021. In all
these orders, the trial Court has noted that the right of the
Plaintif to have possession of the bungalow would be decided on
merits.




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5.   he Plaintif then iled an application seeking modiication
of the injunction order for directing to the Defendants to hand
over keys of the bungalow for the use of the Plaintif. his
application was styled as one under Order 39 Rule 4 CPC. he
application was partly granted on 09.01.2026 in the terms
mentioned in paragraph 1 herein above and is challenged before
this Court as the impugned order.


6.   he main contentions raised in arguments before me by
Advocate for the Appellant Mr. Ajay Menon are as follows:


     A. he trial Court ought to have proceeded on the principle
        that “even if the Plaintif does not admit the execution of
        the Will as genuine” that the Plaintif and Defendants,
        prima facie were co-owners, and the Plaintif as the co-
        owner could not be restrained from enjoying the suit
        property.   On this premise, the Plaintif was entitled to
        the key to the suit premises.


     B. It was contended that the trial Court having granted the
        application partly and allowing the Plaintif to carry out
        maintenance work with the permission of the Court, it

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  ought to have granted the relief of handing over the keys
  to the premises, without which the relief granted by the
  Court would be rendered meaningless.              Reliance was
  placed on Mohd.Baqar and Ors v/s Naim-Un-Nisa Bibi
  and Ors reported in (1955) 2 SCC 499, Tanushree Basu
  and Ors v/s Ishani Prasad Basu and Ors reported in
  ( 2008) 4 SCC 791 and Bhaguji Bayaji Pokale and Ors
  v/s Kantilal Baban Gunjawate               and Ors (1998) (1)
  Mh.L.J.276


C. Opposing the appeal, learned Advocate for the
  Respondents Mr. Matlock D’Souza submitted that an
  application under Order 39 Rule 4 was not maintainable
  and the trial Court ought to have dismissed the
  application in its entirety. It was further argued that
  grant of the application insofar as handing over keys of
  the premises are concerned, would amount to handing
  over possession thereof to the Plaintif, when the
  Plaintif’s right is yet to be determined. Reliance is placed
  on Priti Roy v/s Jaya Naskar, reported in 2011 SCC
  OnLine Cal 2321, P.A Shukla v/s Shirubhai Karsanbhai
  hakker reported in         2001 SCC OnLine Guj 222 and

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         Bank of Baroda v/s Union Bank of India and Ors
         reported in 2022 SCC OnLine Del 531.


CONSIDERATIONS


7.     he Respondents main objection is that the trial Court
ought not to have entertained an application seeking modiication
of the original order of temporary injunction dated 11.08.2016.
As such an application was not maintainable under Order 39 Rule
4 CPC.


       Without going into which provision of the Code could be
invoked for seeking the relief of direction to the Defendants for
handing over one of the keys to the premises, suice it to state
that the Defendants have not independently challenged the
impugned order.        In the absence of such a challenge, the
Appellate Court would examine the correctness of the impugned
order dated 09.01.2026, on the touchstone of Order 43(1) (u)
CPC.


8.     he Application iled by the Plaintif is for a relief to direct
the Defendants to handover the Plaintif the keys of the bungalow

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and to permit the Plaintif the use and occupation of the premises
to exercise his rights to the said premises; the other relief sought is
for a direction to restore possession of the suit house to the
Plaintif pending inal disposal, to safeguard the personal
belongings and valuable records of the Plaintif.          he second
prayer is premised upon the principle that a co-owner is entitled
to enjoy the possession and use of the immovable property along
with all other co-owners, and one co-owner has no right to
interfere or disposes the other co-owner from the immovable
property.


9.    In its earlier order dated 23.11.2021, the trial Court has
observed that it would decide the question of possession during
the course of the trial. In the impugned order dated 09.01.2026,
the trial Court has held that the Plaintif, as a co-owner has a right
to ensure that the suit property does not deteriorate, and
consequently has granted an order allowing the Plaintif to inspect
the suit property and bungalow and to take steps to carry out
maintenance thereof with permission of the Court; the trial Court
has speciically directed that the cost of maintenance would jointly
borne by the Plaintif and the Defendants.



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10.   In Tanushree Basu (supra), the Supreme Court has observed
that there cannot be any dispute as a general proposition of law
that possession of one co-owner would be treated as possession of
all. In this judgment, the Supreme Court has made reference in
the earlier Judgment of Bombay High Court in Bhaguji Bayaji
Pokale (supra) where it has held that where parties to an action are
co-sharers, and as under the law, possession of one co-sharer is
possession of all co-sharers, it cannot be adverse to them, unless
there is denial of their right, to their knowledge, by the person in
possession, and exclusion and ouster following thereon, for the
statutory period are claimed.


11.   In the present case, the Plaintif is undisputedly the co-
owner of the suit property by succession, on the death of his
father and in addition his mother, vide Will dated 12.08.2011 has
bequeathed half of her share to the Plaintif. hough the Will has
been challenged by the Plaintif, till the fate of that Will is decided
by the trial Court, undisputedly, the Plaintif is a major
shareholder of the ownership right in the suit property which
includes the bungalow.      he original Defendant claims to be a
legatee under the said Will to the extent of half of the share of the
mother of the Plaintif.    Proceeding on the assumption that the

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Plaintif and Defendants, for the moment are co-sharers and the
Plaintif holds a major share in the suit property, he cannot be
denied the right to enjoyment of the suit property and be
excluded therefrom by the Defendants. In any event, the
Defendants have neither iled a suit nor counter claim to make
such claim, and the pleadings in the written statement do not
dispute the Plaintif’s right as successor of his father’s share or as a
legatee under his mother’s Will.


12.   Perusal of the written statement reveals that the Defendants
have not set up a plea of ouster or exclusion of the Plaintif from
the suit property, as they claim they commenced to reside in the
suit property in the year 1996 along with the mother of the
Plaintif. he mother of the Plaintif expired on 20.12.2011. he
Will therefore takes efect on that date and the original Defendant
could claim co-ownership only from 20.12.2011. As on the date
of iling of the suit which is 20.11.2014 the Defendants claim to
co-ownership has been only 3 years. he Defendants therefore
could never set up a plea of ouster as they had no exclusive
possession of the suit property for requisite period.




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13.   In the light of these facts, and applying the principle
enunciated by the Supreme Court in Tanushree Basu and the
Bombay High Court in Bhaguji Bayaji Pokale (supra), the
Plaintif must be held to be in joint possession of the suit
property, and would therefore be entitled to own, possess and
enjoy the same without impediment and without being excluded
therefrom by the other co-owner, the original Defendant through
whom the Defendants No.1a and 1b claim a right.


14.   On this premise alone, the impugned order, insofar as it
grants inspection and right to maintenance of the suit property
cannot be faulted and is therefore upheld. However, once it is
held that the Plaintif and Defendants, are co-owners of the suit
property, subject of course to the Will dated 12.08.2011 being
tested in evidence, the Plaintif would be entitled to have access to
the suit property and bungalow and to maintain it jointly with the
Defendants. he Trial Court has passed its order and restricted the
relief to the Plaintif, without giving full efect to the basic
principles of law which are referred to in the preceding paragraphs
as it once proceeds on the basis that the parties are co-owners, it
must allow them to possess and enjoy the co-owned property in
full measure. To that extent, the Trial Court has committed a

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basic error of law, which cause for interference in the limited
appellate jurisdiction under order 43 Rule 1(u) CPC.


15.   Consequently, the impugned order dated 09.01.2026 in
addition to the directions issued by it, shall stand modiied, to
include a direction now issued to the Defendant No.1a and 1b to
handover to the Plaintif one set of keys of the bungalow to permit
the Plaintif to use the suit premises / property. he keys shall be
deposited within one week from the passing of this order in the
Registry of the Trial Court and the Trial Court shall, on a plain
application iled by the Plaintif release such key to the Plaintif; it
is made clear that the Defendants shall in no manner cause any
impediment to the Plaintif to the use and occupation of the suit
property and the premises, and such use shall be joint with the
Defendants. he Plaintif is put to terms that grant of this relief
will in no manner permit him to use any force or coercive method
in evicting the Defendants.


16.   he appeal is partly allowed in terms of the directions
incorporated in paragraph 15 above.




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                                              VALMIKI MENEZES, J.




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Signed by: MEENA VISHAL BHOIR
Designation: Private Secretary
Date: 08/10/2026 16:13:03