1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 863 OF 2007 IN SUIT NO. 402 OF 2007 Roger Rodrigues & Ors. ...Plaintiffs. Vs. Russel Pereira & Ors. ....Defendants. --- Ms. Eventa A. Gonsalves, for the Plaintiffs. Mr. A.Y. Sakhare, Sr. Counsel i/b Nikita Trivedi, for Defendant no.1. Mr. Denzil D’Mello, for Defendant no.2. Mrs. Poonam Mital, for Defendant nos.3 to 5. --- CORAM : S.J. VAZIFDAR, J. DATED : 1ST SEPTEMBER 2009 P.C. :- 1. The suit is filed for administration of the estate of one Edger George Pereira and Smt. May Rose Pereira who expired on 13.07.1986 and 27.09.1993 respectively. Defendant nos.1 and 2 are the sons and Defendant nos.3,4 and 5 are the daughters of the deceased. The deceased also had a daughter viz. Astrid Rodrigues who expired on 19.10.1991. The three Plaintiffs are the husband and daughters of the said deceased Astrid Rodrigues. 2 2. There is no dispute that each of the Defendants have a 16.66% share in the estate of the deceased and that each of the Plaintiffs have a 5.56% share in the estate of the deceased through the said Astrid Rodrigues. It is also not disputed that the deceased died intestate leaving behind the properties mentioned in Exhibit-E to the plaint. 3. The properties mentioned “FIRSTLY” in Exh.`E’ are plots of land on one of which there is a cottage. Defendant no.1 is residing in the said cottage. Mr. Sakhare, the learned Counsel appearing on behalf of Defendant no.1 submitted that wife of Defendant no.1 has been looking after this property and had been permitting outsiders to use the same for film shooting and placing hoardings. He further submitted that any order that may be passed would affect her rights. 4. The wife of Defendant no.1 has no right whatsoever in the estate of the deceased. The fact that she may have been deriving income from the said property cannot be a answer to her continuing to do so to the exclusion of the other parties to the suit or otherwise. That she may have been using the said property only indicates that the estate would be entitled to call upon her to pay to the estate any income/ profit that may have been derived from the said property. This of course in another matter for which reliefs have not been 3 claimed at this stage. However, neither Defendant no.1 nor his wife can be permitted to use the property exclusively. Defendant no.1 or by his wife thus so far. Further, Defendant no.1 has not established any right either in his favour or in favour of his wife. Thus the mere grant of an injunction would not suffice. 5. Mr. Sakhare, submitted that Defendant no.1 had been looking after the property for many years and therefore Defendant no. 1 ought to be permitted to continue to use and commercially exploit the same even to the exclusion of the other heirs. I am unable to agree. Firstly if Defendant no.1 had been protecting the property for many years he is entitled at the highest to contribution from the estate. That would be determined at the final hearing of the suit. Secondly the submission even on merits cannot be accepted as admittedly Defendant no.1 and his wife have been deriving benefits from the said property to the exclusion of the other heirs. They therefore profited from the use of the property and did not loose anything by protecting the said property. If they protected the said property it was for their own benefit. 6. The property described SECONDLY in Exh.`E’ is a flat which is admittedly lying vacant. None of the parties have claimed any exclusive right over the said flat. They have no objection to the 4 appointment of a Court Receiver in respect thereof. 7. The property described `THIRDLY’ in Exh.`E’ is a tenanted flat. Defendant no.2 claims to be the tenant in respect of the said flat. According to the Plaintiffs it was the deceased who was entitled to the tenancy rights in respect thereof. Defendant no.2 has purported to surrender the tenancy and received a consideration of Rs.96,59,000/- under an agreement dated 20.06.2005. It was submitted on behalf of the Plaintiffs that Defendant no.2 ought to be ordered to deposit the said amount in court. 8. I am not inclined to pass an order against Defendant no.2 at this stage. The proceedings in respect of the said flat and the tenancy rights therein are pending in the Small Causes Court. 9. In the event of it being found at the trial of this suit that Defendant no.2 is liable to share the said amount with the beneficiaries adjustment can always be made from the share of Defendant no.2 in respect of the other properties mentioned in the Exh.E. 10. In the circumstances, the Notice of Motion is disposed of with the following orders: i) The Court Receiver, High Court, Bombay is appointed receiver in respect of the property described `FIRSTLY’ and `SECONDLY’ 5 in Exh.E to the plaint with all powers under Order XL Rule 1 of the Code of Civil Procedure. ii) The Court Receiver shall appoint an agent in respect of the said properties. The Court Receiver, however, shall not dispossess Defendant no.2 from the cottage known as “Pereira Cottage” standing at serial number I(D) of the properties described `FIRSTLY’ in Exh.E, but shall appoint him as an agent of the Court Receiver without security or royalty. iii) Till the Court Receiver takes possession the interim orders shall continue. 11. The order appointing the Court Receiver is stayed up to and inclusive of 31.10.2009. This stay, however, shall not operate in respect of other properties described `SECONDLY’ in Exh.E.