1 nms65-11 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.65 OF 2011 IN SUIT NO.69 OF 2011 Kalavati D. Mistry & Ors. ....Plaintiffs V/s. Vijayaben P. Mistry ....(since deceased) Ms.Nalini P. Mistry & Ors. ....Defendants Mr.Rishabh Shah i/b Mr.B.N. Dalal for the Plaintiffs. Mr.Rajiv Narula with Mr.Pramod Bhosale i/b J. Narula & Associates for Defendant. Nos.3 and 4. CORAM : S.J. VAZIFDAR, J. DATE : 9TH AUGUST, 2011. P.C. :- 1. The plaintiff seeks an injunction restraining defendant Nos. 2, 3 and 4 from selling, disposing of, alienating, encumbering or creating any third party rights in respect of the suit property. 2. It is not necessary to refer to all the facts in detail. Suffice it to note that the suit property being a plot of land with a structure thereon was owned by one Prabhudas Mistry. Prabhudas Mistry was the husband of the original defendant No.1 and the father of one Dinesh Mistry (since deceased) and defendant Nos.2, 3 and 4. Plaintiff No.1 is the wife of the deceased Dinesh Mistry. Plaintiff Nos.2 and 3 are the daughters of the deceased Dinesh Mistry and plaintiff No.1. 2 nms65-11 3. The original defendant No.1 filed an application for probate of the alleged Will of her husband dated 26.3.1978. The said Dinesh Mistry filed a caveat on 16.4.1978. 4. Ultimately a family settlement dated 28.2.1983 was arrived at. Clauses 4 and 8 of the family settlement read as under :- “4. The unmarried daughters of deceased Prabhubhai viz. Nalini and Anjana, shall have absolute right to reside free of any rents, Municipal Taxes of charges of any nature whatsoever or electric or water charges in the premises on the 3rd floor of the said Building, viz. Western Side Block, which is at present occupied and is in possession of said Vijayaben and the said daughters Nalini and Anjana. The said right of residence to the daughters Nalini and Anjana shall be enjoyed by them during their life time respectively. It is further agreed that the said Dinesh shall not be entitled to sell the aforesaid property during the life time of the said Vijayaben. However, if after the death of the said Vijayaben the said Dinesh desires to sell the property, he will not be entitled to sell the same without providing covenants and provisions for residence allotted to the aforesaid two sisters at the place mentioned and allotted to them as tenants free of any rent and electric and water charges and the purchaser or purchasers shall be deemed to have purchased subject to such covenants and provisions. 8. The aforesaid daughters hereby release their right, title and interest in the aforesaid house in favour of Shri Dinesh P. Mistry subject to life, interest only in favour of Smt.Vijayaben P. Mistry and subject to the rights of the said daughters Nalini and Anjana mentioned in clause 4 hereof for their residence without payment of any rent, electric charges, water charges etc. Similarly the said Dinesh P. Mistry hereby releases his share in right, title and interest in the business of Electro Plating factory and tenancy rights at 1st Bhoiwada Shop No.1, Bhuleshwar, Bombay 400 002 in favour of the aforesaid daughters (1) Nalini (2) Hasmukh and (3) Anjana in equal shares.” 3 nms65-11 5. I will presume therefore that the title of the suit property exclusively vested in the said Dinesh Mistry and remained vested in him during his life time. The said Dinesh Mistry expired intestate in the year 2004. The original defendant No.1, his mother, is also a class I heir, as are the three plaintiffs. The three plaintiffs and the original defendant No.1, who expired after the said Dinesh Mistry, inherited a 1/4th share each in the estate of the said Dinesh Mistry. The original defendant No.1 gave her 1/4th share in turn to her daughters defendant Nos.2, 3 and 4. The contention that in view of clause 8 of the family settlement, the original defendant No.1 was not entitled to inherit a share in the estate of the deceased Dinesh Mistry, is not well founded. Clause 8 has nothing to do with the law of intestate succession. In other words clause 8 cannot and does not prevent the law of intestate succession coming into operation upon the demise of the said Dinesh Mistry. 6. The defendants are therefore, entitled to deal with the 1/4th share which they acquired from their deceased mother, the original defendant No.1. They cannot be injuncted from doing so. That a purchaser from them may or may not be entitled to possession is another matter altogether. 7. In the circumstances, the notice of motion is dismissed. All parties agree to maintain status-quo in respect of the suit property for a period of eight weeks from today.