: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2212 OF 2006 IN SUIT NO.1948 OF 2006 Rekha Vipin Khakhar ....Plaintiff V/s. Nishant Mitrasen Mahimtura & Ors. ....Defendants Mr.S.N. Vaishnawa with Mr.R.D. Dave i/b M/s.N.N. Vaishnawa & Associates for the Plaintiff. Mr.N. Engineer with Mr.N.C. Parikh i/b Mansukhlal Hiralal & Co. for Defendant Nos.1 to 3. CORAM : S.J. VAZIFDAR, J. DATED : 17TH JULY, 2008. P.C. : 1. The Plaintiff has taken out this Notice of Motion for appointment of a Receiver in respect of the suit property and for an injunction restraining the Defendants inter-alia from encumbering the same in any manner. The suit is filed for a declaration that the Plaintiff is the owner of a half share in the suit premises and that Defendant Nos.1 and 2 jointly own the other half share therein. The Plaintiff has sought an order for partitioning the suit property by meets and bounds and for possession of her half share. The Plaintiff has also sought a declaration that Defendant No.3 has no interest whatsoever in the suit : 2 : property. 2. The Plaintiff is the sister of the deceased one Dr.Laluben Soneji. Defendant Nos.1 and 2 are the children of the deceased sister of the late Dr.Laluben Soneji. Defendant No.3 is a stranger to the family. 3. Dr.Laluben Soneji expired on 10.1.2005. According to the Plaintiff, the Defendants wrongfully and forcibly took possession of the entire suit premises. The Defendants admittedly occupy the premises adjoining the suit premises. The suit premises admeasure about 700 sq.ft. 4. The Defendants do not deny that the Plaintiff had a half share in the estate of the deceased. It is however, contended that after the death of the deceased, a settlement was arrived at between the Plaintiff and the Defendants whereby it was agreed that the suit premised would come to the share of Defendant Nos.1 and 2 and the Plaintiff would be paid a sum of Rs.15,00,000/- and would retain the jewellery worth about Rs.75,00,000/-. 5. It is difficult in the present case at the interlocutory stage to express a firm opinion about the rival contentions. : 3 : 6. Defendant Nos.1 and 2 admittedly have in their possession the jewellery. They however, contend that the jewellery was gifted to them by the deceased during her life time. Mr.Engineer relied upon the document admittedly signed by the parties listing various items which were handed over to the Plaintiff including a Maruti Esteem Car, furniture, electrical appliances, vessels, crockery and other household articles. Mr.Engineer in particular relied upon item 23. in respect of his contentions that pursuant to a settlement, the jewellery worth atleast half the value of the suit premises was handed over to the Plaintiff. Item 23 reads as under :- "Small silver and gold jewellery lying in the cupboards". 7. It is difficult to accept Mr.Engineer’s contention. Item 23 certainly does not indicate the type of jewellery which admittedly was handed over to the Plaintiff a list whereof is annexed at Exhibit "B" to the affidavit in reply. The list includes diamonds, rubes, emeralds etc. If indeed the settlement was arrived at on the basis that in lieu of the jewellery the Plaintiff forfeited her right to her half share in a flat for an additional consideration : 4 : of only Rs.15,00,000/-, I would have expected item 23 to be far more exhaustive and descriptive. This is an aspect which would require evidence. 8. Mr.Engineer then submitted that the matter had been settled between the parties as evidenced in the correspondence that ensued between the advocates. . By a letter dated 17.5.2005, the Defendants’ advocate forwarded the consent terms, deed of transfer pertaining to the suit premises and an irrevocable power of attorney in favour of the Defendants. . The Plaintiff’s advocate by a letter dated 13.6.2005 stated that "subject to finalization of the consideration" the Plaintiff approved the consent terms with a modification. . The Defendants’ advocate by a letter dated 6.7.2005 agreed to the modification and stated that the consideration had been agreed upon between the parties and thereafter incorporated in the consent terms. The consideration, as stated earlier, was Rs.15,00,000/-. There was no reply to the said letter. : 5 : . By a further letter dated 9.8.2005, the Defendants’ advocate stated that the consent terms were required to be signed and that a letter was also required to be addressed to the society by each of the nominees in respect of the suit premises stating that they have no objection to the Plaintiff transferring her undivided share in the premises to the Defendants. It was also stated that as the original share certificate issued by the society in favour of the deceased had been misplaced, a joint application for a duplicate share certificate would have to be made by all the persons having a share in the suit premises. There was no reply to this letter either. 9. The question whether the agreement as alleged by the Defendants had been entered into or not is a difficult one to answer in the absence of evidence. On the one hand the Defendants’ advocates letter stated that the consent terms were subject to finalization of the consideration but on the other, there was no reply to the statement that the consideration had already been agreed to between the parties. Further pursuant to a letter dated 9.8.2005, the parties signed an application dated 24.8.2005 to the society for issuance of a duplicate share : 6 : certificate as the original share certificate had been misplaced. This could indicate an acceptance of what is stated in the correspondence on behalf of the Defendants referred to above. 10. Evidence would also be necessary to ascertain whether the possession of the premises was taken wrongly. The Defendants’ case is that the dues of the driver of the deceased in the sum of Rs.25,000/- was paid by the Defendants to the knowledge of the Plaintiff and that the Plaintiff was aware that the driver had handed over the keys of the premises to the Defendants. 11. In these circumstances, it is necessary to safeguard the interest of both the parties pending the hearing and final disposal of the suit. There can be no objection to an injunction in terms of prayer (b) of the Notice of Motion. It is however, necessary to protect the interest of the Plaintiff for the use of the premises by the Defendants during the pendency of the suit. Mr.Engineer stated that the Defendants agree and undertake that in the event of the Plaintiff succeeding in the suit, the Defendants would agree to compensating the Plaintiff for the use of the premises to the extent of her half share and for that purpose, the Defendants further agree and undertake not to : 7 : compel the Plaintiff to execute the decree. The Defendants agree and undertake in that event if necessary to sell or adjust their half share to ensure payment of the said amount if they are otherwise unable to pay the same. 12. (i). In the circumstances, the Notice of Motion is made absolute in terms of prayer (b). Liberty to the Plaintiff to inform the Society of this order. (ii). Defendant No.3 submits to a decree in terms of prayer (a). (iii). Defendant No.1 shall occupy and use the said premises. Defendant Nos.2 and 3 are not in occupation of the said premises and shall not be entitled to use the same during the pendency of the suit. (iv). It is agreed on behalf of Defendant Nos.1 and 2 that in the event of the Plaintiff succeeding in the suit, the plaintiff will be entitled to claim her proportionate share for the use and occupation of the suit premises by Defendant No.1 and that any sum adjusted in this : 8 : respect shall be paid by Defendant No.1 and/or Defendant No.2 to the Plaintiff without requiring the Plaintiff to execute the decree. The statement is accepted. Further the said amount shall be recoverable from and out of the share of Defendant No.1 and/or Defendant No.2 in the suit property by sale or otherwise, if necessary. The statement to this effect is also accepted and it is so ordered. (v). The Plaintiff shall be entitled to withdraw the sum of Rs.15,00,000/- together with interest thereto, if any, without prejudice to her rights and contentions in the suit. No equities shall be claimed and no contention shall be raised by or on behalf of the Defendants on the basis of the withdrawal of the said amount by the Plaintiff. The Plaintiff will bring back and/or adjust the said amount in the event of it being so directed at the hearing of the suit. In that event, the amount shall be returned with such rate of interest as may be directed by the Court. 13. The parties have agreed that the evidence be : 9 : recorded on commission. Mr.Amit Jamsandekar, an advocate of this Court is appointed as Commissioner for recording evidence. The parties shall be entitled to cross-examine the witnesses without prejudice to their objections, if any, which shall also be recorded by the Commissioner. The costs of the Commissioner shall be paid by the Plaintiff on the one hand and by Defendant Nos.1 and 2 on the other subject to the final order in the suit. . The written statement to be filed within eight weeks. Affidavit of documents within six weeks thereafter. Discovery and inspection within four weeks thereafter. . Suit to be on board on 1.10.2008 for framing issues.