1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3148 OF 2006 IN SUIT NO.2563 OF 2006 Vimal Madhusudhan Bhusrath .. .. Plaintiff v/s. Ashalaa Atmaram Andyal & ors. .. .. Defendants Mr.Suresh Rajeshwar i/by M/s.Leege Apex for Plff. Mr.Mahesh Joshi i/by M/s.O.P. Soni & Co. for Defts. ---- CORAM : SMT.ROSHAN DALVI, J. DATED : 17th July 2009 P.C. : 1.The Plaintiff claims a 1/4 th share in the suit properties which initially belonged to her father-in- law. The Defendants are her sister-in-laws. Her husband has expired. The relationship between the parties is admitted. The suit properties shown in Exhibit-A to the Plaint as the properties of the father-in-law of the Plaintiff are also admitted. The Plaintiff s husband would have 1/4 th share in the suit properties. The Plaintiff claims that 1/4 th share. The Plaint is essentially for partition of that share. The Plaintiff, as the widow of one of the co-sharers, has also applied for maintenance from the suit properties. 2.There appears to be certain disputes between the 2 Plaintiff and her husband during her life time. The Plaintiff had filed a Petition for judicial separation in the Family Court. The Plaintiff applied for the interim relief of maintenance therein. The question of ancestral properties and inheritance was considered by the Family Court upon the case of the husband of the Plaintiff. The husband was directed to pay interim maintenance of Rs.2,000/- per month to the Plaintiff with effect from 17.8.1998. Mr.Rajeshwar argued that the interim maintenance was not regularly paid. The Plaintiff had to take out application for execution. The husband died pending the Petition. The Plaintiff has now claimed as his heir. The Plaintiff is the heir of her deceased husband. The Plaintiff would, therefore, be entitled to her 1/4 th share which would have been the share of her deceased husband. Prima facie case of the claim of the Plaintiff is, therefore, seen. The interim relief to be granted in the Suit for partition would, therefore, have to be considered. 3.Given the fact that the relationship between the parties as well as the properties of the family are admitted, the Plaintiff would otherwise have been entitled to a preliminary decree. However, it is the case of the Defendants that the husband left a Will. In his Will, he has dis-inherited the Plaintiff. The Will is not probated. The Petition for probate is filed. 3 The Petition is contested. The Testamentary Suit is pending. 4.It would have to be seen whether the properties in the Suit are to be kept secured for considering the payment to the Plaintiff, if the Will is not probated. The Defendants have filed their Reply in respect of each of the properties mentioned by the Plaintiff. These, as admitted properties, are shown to be essentially tenanted. For each of these suit properties, the Defendants have shown the rent receivable but not received. Defendant No.2 is in management. She is shown not to have received any rent from certain of the tenants of the suit premises. The rent is received from certain other tenants. Admittedly, the Plaintiff has not been paid any part of the rents received. 5.The Advocate on behalf of the Defendants argued that the Plaintiff is not entitled to any share. He has been unable to show the Court how the Plaintiff would become disentitled to any share in any of the suit properties. 6.Since the properties are tenanted and the rent is received from some of the tenants but not from certain other tenants and no portion of the rents received is paid to the Plaintiff as the heir of her deceased 4 husband and since the Probate Petition is yet pending, the suit properties are required to be protected. Hence, the following order:- ORDER The Defendants shall not sell, transfer the tenancies, alienate, part with possession or create any third party rights in respect of any of the suit properties shown in Exhibit-A to the Plaint. The Court Receiver is appointed Receiver in respect of the suit properties. The Court Receiver shall collect rents from all the tenants shown in Exhibit-A to the Defendants Written Statement. 7. The Notice of Motion is disposed of accordingly. No order as to costs. (SMT.ROSHAN DALVI, J.)