IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. NOTICE OF MOTION No. 110 of 2007 IN SUIT SUIT SUIT No.72 of 2005 No.72 of 2005 No.72 of 2005 IN TESTAMENTARY PETITION No. 528 of 2005 Vijay Kumar Gupta ..Plaintiffs. Versus. Naresh Kumar Gupta ..Defendant. Mr V.V. Walawalkar i/b Gordhandas & Fozdar Advocate for the Plaintiff. Mr D.D. Madon, Sr. Counsel with Farhan Dubash i/b desai & Diwanji, Advocates for the Defendants. CORAM: CORAM: CORAM: V.C. DAGA,J. V.C. DAGA,J. V.C. DAGA,J. DATED: DATED: DATED: 13.2.2008. 13.2.2008. 13.2.2008. P.C.:- ------ ------ ------ 1. The petitioner/plaintiff Vijay Kumar Gupta has taken out this notice of motion seeking appointment of the Administrator pendente-lite to administer the entire suit property of the deceased under Section 247 of the Indian Succession Act, 1925 ("the Act" for short) with further direction to the respondent No.1 Naresh Kumar Gupta to deposit in the Court Rs. 22,47,000/- claimed by the M.I.D.C. for the alleged unauthorized and ( 2 ) illegal sub-letting of Thane property to one S.V.N. Consultants. 2. The petitioner/plaintiff has filed affidavit dated 9.10.2007 in support of notice of motion spelting out the circumstances and the necessity for the interim relief claimed in the notice of motion. 3. The above notice of motion is strongly opposed by the defendant Naresh Gupta. He has also filed affidavit in opposition dated 25.10.2007 denying the allegations made by the plaintiff in his affidavit and taking strong exception to the prayers made seeking appointment of Administrator and directions against him to deposit Rs.22,47,000/- deposited in this Court. 4. The factual matrix reveal that the claim of the plaintiff is based on the unregistered Will said to have been executed by one Trilokchand K. Agrawal dated 21.10.2004. According to the defendant, alleged Will dated 21.10.2004 propounded by the plaintiff is forged and fabricated document. 5. The defendant claims to have filed ( 3 ) complaint before learned Additional Chief Metropolitan Magistrate, Esplande, Mumbai being Criminal Case No. 445/M/2005 under Sections 143, 196, 269, 463, 464, 465, 471, 474 read with Sections 120-B/34 of the Indian Penal Code and the said complaint is pending for trial. 6. The defendant has also filed Testamentary Suit bearing No. 63/2006 to claim probate on the basis of Will dated 5.5.1998 said to be last Will and testament of the deceased. The said Will is registered with the Sub-Registrar of Assurances at Bombay bearing No. 785/2006. 7. In both the suits, the question of validity of the Will including the question as to which Will is last will, would be the issue for trial. 8. At this juncture, it is not possible for this Court to record any finding as to which Will is last and which one is genuine. However, at the prima facie stage, registered Will, will have to be given credence as against unregistered one. There is no reference to the Will dated 5.5.1998 in the ( 4 ) Will dated 21.10.2004. The execution of the registered Will by the deceased is an admitted fact. In view of this scenario, in normal circumstances, in the Will dated 21.10.2004 there ought to have referred the earlier registered Will. However, this is not to be found in the unregistered Will dated 21.10.2004. Of course, this is a prima facie; view of this Court at this interim stage; not binding on the Court at the stage of final consideration of the issues. 9. Both rival contentions canvassed before me, tried to establish their rival claims with equal force. 10. Considering the rival claims, during the course of hearing, it was suggested by this Court that the defendant should give an undertaking to this Court that in the event of liability falling on the property left by the deceased which is presently in the sum of Rs. 22,47,000/- as demanded by M.I.D.C., the defendant should given an undertaking to this Court to make good the liability. The defendant is also claiming to be the beneficiary under the registered will. Such undertaking if given, shall be subject to the ( 5 ) final decision of the suits. Mr Madon, learned Senior Counsel, after taking instructions from his client has agreed to this suggestion given by this Court to which Mr Wallawalkar appearing for the plaintiff did not take any exception. 11. So far as appointment of the Administrator was concerned, the Administrator has already been appointed to take inventory of the properties. Since inventory of properties has already been taken with the object of preservation of the property, the said purpose stands achieved. 12. In the aforesaid facts and circumstances and looking to the consensus between the parties, the defendant is directed to furnish an undertaking to this Court within two weeks from the date of this order undertaking to pay the existing and/or future liability of the Maharashtra Industrial Development Corporation in the event such liability falling on the property left by the deceased. The undertaking shall be subject to the final result of the suit. In the event of failure to furnish undertaking as ordered, the defendant shall deposit Rs. 22,47,000/- with ( 6 ) this Court subject to decision in this suit. No specific appointment of the Administrator as prayed in the notice of motion is necessary for the reasons recorded. 13. In the result, notice of motion stands disposed of in terms of this order. Rest of the prayers were not specifically pressed hence not dealt with. The same shall be treated as rejected. No order as to costs. (V.C.DAGA,J) (V.C.DAGA,J) (V.C.DAGA,J)