- (1.) Leave granted. This appeal has been preferred by the Appellant-elder brother of Respondent No. 1 against the order dated 24th September, 2014 passed by the High Court of Judicature at Bombay in Appeal (Lodging) No. 68 of 2014. By detailed order, the Division Bench of the High Court disposed of the Notice in Motion in terms of Annexure III to the report of the Court Officer, directed to continue the interim order dated 15.07.2011 till final disposal of the suit and allowed the appeal in such terms.
(2.) Taking into consideration the fact that the matter relates to dispute between brother and sister, at the request of the learned Counsel for the parties, we heard the Appellant-Arun Bhaskar Adarkar in presence of his wife and Respondent-Mina Srinivasan Krishnan in presence of her husband in Chambers on 3rd February, 2015. After negotiation between them they intimated that they intend to settle the dispute amicably.
(3.) Pursuant to such negotiation between the parties, the Joint Memorandum of Family Settlement has been filed which reads as follows: "JOINT MEMORANDUM OF FAMILY SETTLEMENT 1. It is agreed, confirmed and declared by and between the parties that the Petitioner and Respondent No. 1 (who are brother and sister) are the only surviving heirs of Late Mr. Bhaskar Namdeo Adarkar and Late Ms. Sarala Bhaskar Adarkar (hereinafter collectively referred to as 'the deceased parents'). 2. The parties agree, confirm and declare that after the demise of Mr. Bhaskar Namdeo Adarkar, Ms. Sarala Bhaskar Adarkar became tenant in respect of the suit premises viz. Flat No. 5, Second Floor, Goolestan, East Wing, Cuffe Parade, Mumbai 400 005 (hereinafter referred to as 'the suit premises'). 3. The parties have now agreed to amicably resolve all their disputes and differences pertaining to the estate of the deceased parents and the tenancy rights to the suit premises and it is hereby agreed, confirmed, declared and undertaken by and between the parties in full and final settlement of all the claims and counterclaims between them in respect of the estate and the tenancy rights of their mother as under: a) The entire right, title and/or interest of the Petitioner in the suit premises shall stand relinquished in favor of the Respondent No. 1 upon the Petitioner receiving from Respondent No. 1 the agreed consideration of Rs. 2,50,00,000/- (Rupees Two Crores Fifty Lakhs Only) in terms hereof. b) It is agreed declared and confirmed by Respondent No. 1 that her entire right, title, interest in the shares of listed/unlisted companies as an heir of the Late Sarla Bhaskar Adarkar, whether sold or unsold, irrespective of the value thereof, in terms of her Last Will and/or Testament dated 26th February 1985 shall stand relinquished in favour of the Petitioner in consideration of these presents upon the order being passed by this Hon'ble Court in terms of this Joint Memorandum of Family Settlement for an aggregate consideration of Rs. 75,00,000/- (Rupees Seventy Five Lacs Only). Save and except what is already received by her, Respondent No. 1 shall not claim any right, title and/or interest in any part of the estate of Late Sarla Bhaskar Adarkar and shall co-operate with the Petitioner as and when required by the Petitioner at his cost, for the execution of such forms or writings so as to give her No Objection for the transfer and/or sale of the assets of the estate of the deceased Sarla Bhaskar Adarkar in favor of the Petitioner for enabling the Petitioner to seek transfer or sale of assets held in the name of their mother, Late Sarala Bhaskar Adarkar. c) It is agreed and declared that further sum of Rs. 15,00,000/- (Rupees Fifteen Lakhs Only) will be deducted from the total consideration on account of missing Diamond earring. The Respondents shall have no claim towards Diamond earring as she has been adequately compensated by payment of Rs. 15,00,000/- which will be deducted in aggregate consideration payable by her. d) Respondent No. 1 shall pay the said sum of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) subject to TDS deduction, if applicable, to the Petitioner in full and final settlement of all the claims and counterclaims between them in respect of the estate of their mother. Respondent No. 1 agrees and undertakes to this Hon'ble Court to pay to the Petitioner the said sum of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) on or before 4th April, 2015 by a Pay Order payable in Mumbai, of a reputed Indian Bank or a Multinational Bank having a branch in Mumbai. There shall not be any further or other amount which shall be payable by either party to the other. Upon receipt of payment by the Petitioner of the said sum of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) and the TDS Certificate, if TDS is deducted, Respondent No. 1 shall be solely and absolutely entitled to the tenancy rights in respect of the suit premises and the Petitioner undertakes to extend all necessary co-operation and execute such documents as may be necessary, including correspondence to the landlord and third parties as and when required and called upon by Respondent No. 1, and at the entire cost of Respondent No. 1, to confirm the relinquishment of his right, title and interest in the suit premises in favor of the Respondent No. 1 so as to enable Respondent No. 1 to perfect her right, title and interest as the sole tenant in respect of the suit premises. e) The Petitioner shall retain all jewellery and other items kept in the Central Bank of India vault and/or elsewhere forming part of the estate of the deceased Late Sarala Bhaskar Adarkar which are already in his possession as on date, as his share of the said estate, except the items of jewellery listed in Annexure "1" hereto which shall be handed over to Respondent No. 1 simultaneously upon Respondent No. 1 handing over payment of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) [subject to TDS deduction, if applicable] as her share of the estate of Late Sarla Bhaskar Namdeo Adarkar in addition to the jewellery and other items which are already in her possession as her share of the estate. Respondent No. 1 shall similarly retain all the silver items forming part of the estate of Late Sarla Bhaskar Adarkar which are presently in her possession as her share of the said estate, except 2 silver thalis that bear the engraved name of the Petitioner and/or Vivek Adarkar which are of sentimental value to the Petitioner and shall hand over to the Petitioner on simultaneously upon receipt of payment of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) [subject to TDS deduction, if applicable] as his share of the said estate. f) The Petitioner and his wife, Fiona Shrikhande Adarkar (with their agents as may be required) shall have access to the suit premises between 11.00 a.m. and 6.00 p.m. on any 3 (three) consecutive days between 20th March, 2015 and 1st April, 2015 provided the aforesaid sum of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) has been paid prior to 20th March, 2015, or on any 3 (three) consecutive days within 7 (Seven) days of the payment of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only), if such payment is made after 20th March, 2015, to enable the Petitioner and his wife Fiona Shrikhande Adarkar to remove all the items and all their personal belongings from the 2 bedrooms in the suit premises that are exclusively under their lock and key and the grey Godrej cupboard in the corridor of the suit premises. The keys of the 2 bedrooms shall be handed over to Respondent No. 1 after all personal belongings as aforesaid are removed from the suit premises under a letter confirming removal/clearance of all personal belongings and handing over of the keys to be executed by both parties. g) The Petitioner shall, upon receipt of payment of the said sum of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs Only) by the Petitioner in terms of Clause 3(c) above, give Respondent No. 1 the rent receipts and receipts of payment of maintenance charges in respect of the suit premises paid to the landlord and the Goolestan Tenant's Group, which are in his possession. h) The Petitioner shall on the receipt of Rs. 1,60,00,000/- in terms of Clause 3(c) above, hand over to Respondent No. 1, signed letters in terms of the drafts annexed hereto as Annexure "2" notifying the specified entities of the change of his address for correspondence/mails from that of the suit premises to any other alternate address. Respondent No. 1 has handed over to the Petitioner at the time of signing of this Joint Memorandum of Family Settlement the postal correspondence received so far at the suit premises in the name of the Petitioner and/or Ms. Sarla Bhaskar Adarkar, which are in the possession of Respondent No. 1, and the Petitioner confirms receipt thereof. Respondent No. 1 for a period of 12 months from the date of executing this Joint Memorandum of Family Settlement hand over all postal correspondence that may be received at the suit premises in the name of the Petitioner and/or Ms. Sarla Bhaskar Adarkar to the Petitioner or his authorized representative on a mutually convenient date and time. i) The Petitioner and Respondent No. 1 shall on the date of payment of aforesaid consideration viz. Rs 1,60,00,000/- jointly address a letter to the landlord of the suit premises in terms of the draft letter annexed hereto as Annexure "3" to the effect that: (i) By virtue of the present Joint Memorandum of Family Settlement, the Respondent No. 1 has solely and absolutely succeeded to the tenancy rights in respect of the suit premises. (ii) The tenancy rights and rent receipts in respect of the suit premises be transferred in favor of the Respondent No. 1 alone. (iii) Request the landlord to accept all further and future rent/maintenance charges in respect of the suit premises directly from the Respondent No. 1. j) Respondent No. 1 shall on the date of payment of aforesaid consideration viz. Rs. 1,60,00,000/- provide to the Petitioner a letter to be jointly addressed by her and the Petitioner to the Goolestan Tenants Group and the Petitioner shall sign the same, in terms of the draft annexed hereto as Annexure "4", to the effect that: (i) By virtue of the present Joint Memorandum of Family Settlement, Respondent No. 1 has solely and absolutely succeeded to the tenancy rights in respect of the suit premises. (ii) Requesting for transfer of maintenance receipts in respect of the suit premises in favor of Respondent No. 1 alone. (iii) Request the Goolestan Tenants Group to accept all further and future maintenance charges, dues in respect of the suit premises directly from Respondent No. 1. 4. The parties hereby agree, confirm, declare and undertake that the understanding arrived at amongst the parties as regards resolution of disputes and distribution of assets as more particularly detailed and agreed under this Joint Memorandum of Family Settlement shall be binding on each of the parties and their respective heirs, executors and administrators. The parties agree, confirm, declare and undertake that neither party nor any of their heirs, executors and administrators shall challenge and/or raise any dispute, claim and/or objection of any nature whatsoever as regards the adequacy of consideration, distribution of assets, and/or any other term as contemplated and set out under these consent terms, either now and/or in the future. 5. Upon this Hon'ble Court passing the Order in terms hereof, the Notice cases/4700065/2011 filed by the State of Maharashtra against the Petitioner and the Respondents in the Metropolitan Magistrate's Court at Esplanade, Mumbai shall stand quashed and disposed of. Further, the Parties hereby agree and undertake that upon this Hon'ble Court passing the Order in terms hereof, all written complaints, correspondence and communication against each other and/or against the kith and kin of the parties hereto shall stand unconditionally withdrawn and/or quashed and if necessary or required, appropriate written representations shall be made and/or appropriate application shall be filed to the concerned Police Station, court or any other authority in the State of Maharashtra or anywhere else including but not limited to Criminal Case No. CC/1623/2011 filed by Respondent No. 1 before the Additional Chief Metropolitan Magistrate at Esplanade, against the Petitioner's wife Under Sections 298 and 504 of the IPC and Criminal Complaint No. 122/SW/2012 filed by the Respondents on 24th July 2012 before the Additional Chief Metropolitan Magistrate at Esplanade Court, Mumbai, against the Petitioner Under Section 406 of the IPC. It is clarified and agreed by and between the parties that upon the jewellery being handed over/exchanged in terms of Clause 3(d) above, Misc. Petition No. 30 of 2014 filed by Respondent No. 1 pending before the Hon'ble Bombay High Court shall stand disposed off and the interim orders passed therein shall stand vacated upon the order being passed by this Hon'ble Court in terms of this Joint Memorandum of Family Settlement and the estate of the Late Sarala Bhaskar Adarkar shall stand administered and the Petitioner shall stand discharge as an executor. The parties shall place on record before the Bombay High Court in the said Testamentary proceedings, certified true copy of this Joint Memorandum of Family Settlement together with the Order to be passed by this Hon'ble Court in terms hereof. The parties shall also extend full co-operation, execute all necessary documents and remain personally present as may be required from time to time for the purpose of withdrawing all complaints including but not limited to filing quashing petition, discharge, compounding application etc. for this purpose and/or for ensuring effective and honorable discharge of the Accused/Defendant family members in any of these complaints. 6. After the payment in terms of Clause 3(c) above is made by Respondent No. 1 to the Petitioner, Respondent No. 1 shall be at liberty to place a true copy of this Joint Memorandum of Family Settlement on record together with the Order to be passed by this Hon'ble Court in terms hereof before the Small Causes Court at Bombay. 7. The parties hereto forthwith withdraw all claims, contentions, allegations, accusations against each other. The Parties agree and undertake that on the observance of all the terms and conditions as set out in these consent terms, no further complaints or investigation whether of criminal or civil nature shall be instituted or commenced at the behest of the Petitioner against Respondent No. 1 & 2 or vice versa, including each of their respective heirs, except to give effect to their understanding under these consent terms and/or unless any party commits a breach of their respective obligations under these consent terms. The Parties hereto further agree that upon completion of all the terms and conditions of this consent terms no further claim on the aforementioned settled debts and liabilities shall be raised & revised by the Parties against each other and/or their heirs. 8. Upon receipt of the said sum of Rs. 1,60,00,000/- (Rupees One Crore Sixty Lakhs only) by the Petitioner in terms of Clause 3(c) above, Suit No. 1173 of 2012 filed by the Petitioner in the Hon'ble Bombay High Court shall stand disposed of. 9. It is further agreed, declared and confirmed by the Respondents that they are aware of the fact that in the event of the Respondents committing breach of Clause 3(c) above, viz. failing to make payment of the sum of Rs. 1,60,00,000/- (Rupees One Croree Sixty Lakhs Only) to the Petitioner on or before 4th April, 2015, the same shall be a breach of their undertaking given to this Hon'ble Court and shall therefore the Respondents shall be guilty of committing contempt of this Hon'ble Court and liable for the penal consequences thereof. In addition thereto, the above Special Leave Petition shall stand revived and the Respondents further agree, declare and confirm that their defense in the above Special Leave Petition shall stand struck off and the Respondents shall not be entitled to defend the above Special Leave Petition. In addition thereto, if any party commits any breach of the terms as stipulated and set out in this Joint Memorandum of Family Settlement, the non-defaulting party shall be entitled to seek execution of this Joint Memorandum of Family Settlement as a decree passed by this Hon'ble Court. 10. The parties hereto agree, confirm and declare that this Joint Memorandum of Family Settlement has been agreed upon and signed out of their free will, without any coercion and the parties hereto shall not have any further or other claim against each other in respect of the subject matter of this Memorandum of Family Settlement. The parties hereto agree and undertake to this Hon'ble Court to abide by the terms hereof in good faith. 11. The parties shall ensure that all courts, authorities, statutory and/or otherwise, bodies, entities etc. take cognizance of this Joint Memorandum of Family Settlement and pass all necessary orders to give effect to the understanding arrived at between the parties under the same and request this Hon'ble Court to pass directions in terms hereof. Dated this day of February, 2015.;