1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 974 of 2007 IN SUIT NO. 709 of 2007 Vrushali Vikas Ghate .. Plaintiff versus Anagha Mohan Kocharekar & ors. .. Defendants ... Mr.T.G. Vora with Mr.Tamhane i/b Tamhane & Co. for the plaintiff. None present for the defendants. CORAM : D.G.KARNIK, J DATED : 31st March 2008 P.C.: 1. Heard learned counsel for the plaintiff. None present for the defendants when called. 2. The plaintiff has filed this suit for 2 administration of the estate of Late Mohan Shantaram Kocharekar who died intestate on 18th March 2004. Plaintiff no.1 and defendant no.4 are married daughters of late Mohan Kocharekar, born of his first wife. The defendant no.1 is the second wife and defendant nos.2 and 3 are his children born of his second wife. According to the plaintiff, late Mohan Kocharekar left behind him among others, one flat bearing flat no.5 in a building known as Shivneri, at Plot no.73, Shivsrushti, Kurla (East), Mumbai and also left behind him other properties including money in bank accounts. The plaintiffs has further alleged that another flat, bearing flat no.401 in a building known as "Runanubandh", at N.P. Thakkar Road, Vile Parle (E) Mumbai was purchased by the defendant no.2 out of the estate of her late father. The plaintiff has alleged that defendants are trying to dispose of the property of late Mohan Kocharekar and has therefore claimed an injunction restraining the alienation. Plaintiff has also prayed for appointment of receiver. 3. By an order dated 13th March 2007, this court granted an injunction restraining the defendant nos.1 to 3 from alienating or creating third party rights in respect of flat no.5 at Shivneri, Kurla and flat no.401 at Runanubandh, Vile Parle. The Court 3 however declined to appoint a receiver at the ad-interim stage. 4. The defendant no.2 has filed an affidavit in reply on behalf of defendant nos.1 to 3. According to him, the deceased Mohan Kocharekar had left behind him only flat no.5 at Shivneri, Kurla and money in three bank accounts viz. a current account, a pension account and joint account in Canara Bank and one Maruti car. He had left no other properties and the flat no.401 at Runanubandh, Vile Parle was purchased by him after the death of his father out of the earnings of himself and his wife and plaintiff has no concern with it. 5. I have perused the affidavit in reply as also the documents annexed thereto. Prima facie there is no evidence to show that the flat no.401 at Runanubandh, Vile Parle was purchased by defendant no.2 out of the estate of late Shri Mohan Kocharekar. In the circumstances, no receiver can be appointed in respect of the said flat and the injunction in respect of flat no.401 needs to be vacated 6. As regards flat no.5 at Shivneri, Kurla (East) the defendant no.2, in his affidavit in reply, has clearly admitted that the said flat belonged to 4 his father and that name of defendant no.1 was only a nominee in the records of the society. The nomination would not create a title in the defendant no.1 but the defendant no.1 must hold the said flat for the benefit of all the heirs. In paragraph no.4 of the affidavit in reply, defendants have specifically admitted that the flat no.5 is vacant and Mr.Arvind Kocharekar is only allowed to take care of the flat for the purpose of cleaning and maintenance. It is therefore clear that the flat is vacant and the defendants are residing in other premises. In order to protect the said flat and to derive some income, if possible, it would be appropriate to appoint a receiver. Cost of receivership shall initially be borne by the plaintiff. In my view, the appointment of receiver is just and necessary in order to preserve the flat and also to earn income, if possible. In the circumstances, I pass the following order:- 7. The injunction granted in respect of flat no.401 at Runanubandh, N.P. Thakkar Road, Vile Parle is vacated. Injunction granted in relation to the flat no.5 at Shivneri, Plot no.7, Shivsrushti Kurla is hereby confirmed. The Court Receiver is appointed as receiver in respect of said flat no.5 at Shivneri. The Court Receiver is directed to take possession of 5 the said flat and explore the possibility of giving it on leave and licence and/or otherwise derive income from it. 8. Plaintiff shall deposit with the Court Receiver as the Receiver may direct for the purpose of initial expenses. 9. Rest of the prayers in the motion are rejected as not pressed, at this stage. (D.G. KARNIK, J)