:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.133 OF 2006 WITH NOTICE OF MOTION NO.134 OF 2006 IN MISCELLANEOUS PETITION NO.23 OF 2001 Charles Vincent Rodrigues ..Deceased. The Administrator General of Maharashtra ..Petitioner. Vs. Abudin Fernandes & Anr. ..Respondents. And Parbat Karamshil Patel & Ors. ..Applicants in N/M.133/06. And Smt.Indu Mukendra Gudhka & Ors. ..Applicants in N/M.134/06. Ms.Sarkhot with Mr.R.V.Govilkar for the Petitioner. Mr.Rajiv Narula with Mr.C.Dasgupta i/b.J.Narula & Associates for the Applicants. Mr.C.D’Souza for some of the legal heirs. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 18TH JANUARY, 2008 DATED : 18TH JANUARY, 2008 DATED : 18TH JANUARY, 2008 P.C. : P.C. : P.C. : Smt.G.P. Patel and Rushi Construction Company have filed this Notices of Motion seeking a variation or modification of an order dated 27th :2: July, 2006 passed in Notice of Motion No.72 of 2006 to the extent that Flat No.202-A in a building named La Belle be excluded from the purview of the said order. The Applicants have also sought an order directing the Petitioner to release the said flat from attachment and/or possession of the Petitioner. 2. In Notice of Motion No.134 of 2006 identical reliefs are sought in respect of Flat No.202-B in the said building. The Applicant Nos.1 and 2 claimed to have purchased the said flats from Applicant No.3. 3. The facts in both the Notices of Motion are similar and therefore, with the consent of the parties, both the Notices of Motion are disposed of by common order. For convenience, I will refer to the facts in Notice of Motion No.133 of 2006. 4. One Charles Vincent Rodrigues (hereinafter referred to as the deceased) expired on 31.7.1998. The above Miscellaneous Petition is filed by the Administrator General of Maharashtra under Section 10 of The Administrators-General Act, 1963 to take possession of the properties of the deceased referred to therein which include the said flats and :3: to hold and realise the assets of the deceased and to ascertain the heirs of the deceased and to distribute the assets among such heirs under the directions of this Court. 5. The petition also seeks the letters of administration in respect of the deceased being granted in favour of the Administrator General of Maharashtra. 6. By an agreement dated 31.12.1985 entered into between the deceased and Applicant No.3, the deceased among others granted certain development rights to Applicant No.3. Under the said agreement, the deceased was to be given/entitled to certain flats, two of which are the subject matter of the present Notices of Motion. The two flats mentioned in the Notices of Motion are, according to some of the heirs referred to in the development agreement as one flat but was subsequently transferred to Applicant Nos.1 and 2 as two separate flats, after dividing the same. 7. In November, 2002 one R.A. Dias claiming to be the nephew of the deceased filed Petition (L) No.831 of 2004 for letters of administration in respect of :4: the deceased. A Notice of Motion No.3297 of 2004 was taken out by him in the said petition for interim reliefs, including in respect of the said flats. Ad-interim reliefs were refused. By an order dated 11.7.2005 the Notice of Motion itself was dismissed. According to the Applicants, Victoria, the wife of the deceased had entered into an agreement dated 26.1.2005 with Applicant No.3 whereunder, for a consideration of Rs.20,00,000/- she released her rights in respect of the said flats. The said Victoria expired on 10.1.2007. 8. As stated above, thereafter, Notice of Motion No.831 of 2004 was taken out by the said R.A.Dias in Petition (L) No.831 of 2004 which was dismissed. It is pertinent to note here that there is no serious dispute atleast as regards Victoria’s share in the said flats. 9. By an agreement dated 13.1.2002 entered into by Applicant Nos.1 and 2 on the one hand and Applicant No.3 on the other, Applicant No.3 sold to Applicant :5: Nos.1 and 2 Flat No.202-B for a consideration of Rs.15,00,000/-. The entire consideration has been paid. 10. By an agreement dated 12.7.2005 entered into between Applicant Nos.1 and 2 on the one hand and Applicant No.3 on the other, Applicant No.3 sold to Applicant Nos.1 and 2 Flat Nos.202-A for a consideration of Rs.12,00,000/-. The entire consideration has been paid. Possession of Flat Nos.202-A and 202-B was handed over to Applicant Nos.1 and 2 on 8.9.2005 and 29.11.2004 respectively. 11. It is not necessary here to refer to the documentary evidence relied upon by Mr.Narula to establish the authenticity of the aforesaid agreement and of the possession. The Applicants have made out more than just the strong prima-facie case in respect of the above facts. 12. As stated above, the petition was filed by the Administrator General in December, 2001. The petition was filed at the instance of some of the :6: heirs of the deceased. By an order dated 27.7.2006 Notice of Motion No.72 of 2006 taken out by the Administrator General was made absolute by the consent of the parties in terms of prayer (a) thereof, which reads as under :- "a) That the Petitioner be given further directions to take inventory and possession of the properties and assets of the deceased Shri Charles Vincent Rodrigues mentioned in para no.3 of the Affidavit in Support of the present Notice of Motion;" 13. The notice was pasted on the premises by the Administrator General. This is the first time that Applicant Nos.1 and 2 came to know about the order. It is in these circumstances, that the above Notices of Motion have been taken out. 14. As I have observed earlier, the Applicants have clearly established that they had entered into the said agreements referred to above. Applicant Nos.1 and 2 have further established that the agreements entered into by them dated 13.1.2004 and 12.7.2005 were entered into by them bona-fide. There is :7: nothing to indicate that Applicant Nos.1 and 2 in any manner whatsoever deceived any of the parties including the Administrator General. The Applicant Nos.1 and 2 have been in possession of the properties as stated above for more than two years. 15. It is however contended on behalf of Applicant No.3, the heirs referred to at Serial Nos.2, 3 and 4 of paragraph 6 of the above Miscellaneous Petition that they are among the heirs entitled to a share in the estate of the deceased including the said flats. The submission is based on Section 33 read with Section 28 of the Indian Succession Act, 1925 and Schedule I thereto. The four heirs are :- 1) Mr.Vernon Rodrigues 2) Mrs. Jennifer D’Souze 3) Darryl Rodrigues 4) Mr.Lester D’Silva 16. The petition was ultimately disposed of by an order dated 20.10.2006. By the said order, with the consent of the parties, the petition was granted in terms of prayer (b) which reads as under :- :8: "[b] To hold and realise the assets of the deceased and to ascertain the heirs of the deceased abovenamed and also to distribute the assets among the said heirs or to sell the assets pursuant to sec. 10 (1) & (2) of the said Act, under the directions of this Honourable Court or according to provision of Administrator General’s Act, 1963 as amended by Act 34 of 1999;" 17. The three heirs are brothers. Their father is a pre-deceased brother of the deceased. Strictly speaking, it is not necessary to seek a variation of the interim order dated 27.7.2006 in view of the fact that upon the final order having been passed in the petition on 20.10.2006, the same came to an end. The order dated 20.10.2006 cannot possibly affect the rights of the third parties and in fact, did not affect the rights of third parties. 18. It would be necessary for the Administrator General to adopt proceedings in accordance with law in respect of properties in the possession of third parties. The Administrator General, needless to add, is always at liberty to do so. 19. In any event, and even assuming that the interlocutory order dated 27.7.2006 subsists, this :9: is a fit case for variation or modification of the same for more than one reason. The Applicants are third parties and were not parties to Notice of Motion No.72 of 2006 when the order was passed. Parties cannot by consent obtain orders which affect the rights of third parties. In the facts of the present case, the bona-fides of the Applicants appear to be beyond doubt established atleast, specially by Applicant Nos.1 and 2. Despite the same, if there is any legal infirmity in the title, it would be necessary that if their rights are to be affected in any manner, it must be only in accordance with law. 20. Mr.Govilkar, the learned counsel appearing on behalf of the Administrator General fairly stated that the Administrator General himself does not have any adjudicatory powers to decide the disputes between the parties. It would be necessary for the Administrator General to adopt proceedings against the third parties. He further states that the Administrator General does not have the administrative machinery, necessary to do so and, if any application is made by the concerned heirs to adopt proceedings, the :10: Administrative General will consider the same and make an application to this Court for appropriate directions. 21. In the circumstances, the above Notices of Motion are made absolute in terms of prayers (a) and (b). 22. Mr.Narula states that for the period upto and inclusive of 31.3.2008 the Applicant Nos.1 and 2 will not dispose of, alienate, encumber, part with possession of or create any third party rights in respect of the said flats. 23. The Notices of Motion are disposed of accordingly.