SPB IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 408 of 2006 NOTICE OF MOTION NO. 408 of 2006 NOTICE OF MOTION NO. 408 of 2006 IN IN IN SUIT NO. 4579 of 1996 SUIT NO. 4579 of 1996 SUIT NO. 4579 of 1996 Jagadish Umeshchandra Joshi & Ors. .. Plaintiffs Versus Dr.Niranjan Umeshchandra Joshi & Ors. .. Defendants. ... Mr.G.B.Kedia for plaintiffs No. 1 and 2. Mr. Chirag Balsara i/by Mulla & Mulla for the defendant no.1. Mr.Mr.Viraj Tulzapurkar i/by M/s. Divekar & Co. for defendant no.2 in support of NOtice of Motion. Ms. Anita A. Agarwal i/by S.S.Jinsiwale for defendant no.3. Ms. Kavita Shah for the defendant no.5. Mr. D.D.Madan i/by Thakore Jariwalla & Associates for the defendant no.6. Mr. M.P.Narayanaswamy for the defendant no.7. ..... CORAM : D.G.KARNIK, J CORAM : D.G.KARNIK, J CORAM : D.G.KARNIK, J DATED : 23rd June 2008 DATED : 23rd June 2008 DATED : 23rd June 2008 P.C.: P.C.: P.C.: 1. Heard learned counsel for the parties. 2. By this motion, the defendant no.2 seeks revocation of appointment of the Receiver in respect of the properties mentioned in Exh.‘C’ to the plaint. At the hearing of the motion, learned counsel for the defendant no.2 stated that he was seeking revocation of appointment of the Receiver only in respect of two immovable properties, namely, a Duplex Flat on 4th floor, Atharva Building, 4th Lanee, Hindu Colony at Dadar and the Factory on plot no. 42 on survey no.35 at Palghar, Dist. Thane, mentioned at serial no. II(1) and II (2) of at Exh.‘C’ to the plaint. This motion is, therefore, considered only in respect of those two properties. 3. Plaintiffs and the defendant nos. 1 to 7 are all children of late Umeshchandra Joshi. Umeshchandra Joshi was a rich businessman who started business in the name and style of M/s. Ramtirth Yogashram and amassed huge properties. Defendant no.2 claimed that he had inherited substantial properties of Umeshchandra under a will. However, his testamentary petition for probate has been dismissed and the will has been held to be invalid. In other words all the properties of the deceased Umeshchandra have devolved on all the heirs as per law of succession. 4. The plaintiffs, being three of sons of Umeshchandra, have filed this suit for administration of his estate. The plaintiffs, interalia, have alleged that the properties mentioned at serial nos. (1) and (2) of part II of Exh. ‘C’ to the plaint (hereinafter referred to as ‘the properties in question’) were also the properties belonging to the deceased Umeshchandra and that they have a share therein. Defendant no.2, however, contends that the properties in question are his self acquired properties and are not part of the estate of the deceased Umeshchandra. 5. Initially the plaintiffs took out a motion bearing Notice of Motion no. 103/1997, praying for appointment of a receiver in respect of the properties of Umeshchandra including the properties in question. By an ad-interim order dated 16th of December, 1996 this court (Coram: S.N.Variava,J.), after hearing the parties, appointed the court receiver as a receiver in respect of all the properties of the deceased Umeshchandra including the properties in question. The Appellate Bench, by its order dated 5th of February, 1997 passed in Appeal No. 30 of 1997 confirmed the order of appointment of receiver with a small modification that the defendant no.2 was allowed to continue as an agent of the court receiver in respect of the business and assets of M/s Ramtirth International and M/s. Ramtirth Exports and the properties set out in Exh. ‘C’ to the plaint without any security or royalty. The parties were given liberty to move the Single Judge for an early final hearing of the motion. 6. When the motion came up for final hearing, the learned Single Judge, by his order dated 20th January, 1998 directed that the interim order dated 16th December, 1996 passed by the Single Judge earlier, as modified by the Division Bench by its order dated 5th of February, 1997 be treated as the final order, with liberty to the parties to take out fresh proceedings after the receiver submitted his report. He also permitted the parties to produce evidence before the receiver to show that the properties in question were or were not self acquired properties of the defendant no.2. In pursuance of the said liberty the parties adduced evidence before the receiver. After considering the evidence led by the parties the court receiver by his report dated Nil, ( Exh.‘A’ to the affidavit in reply of the defendant no.2) held that the properties in question cannot be released from receivership. That report of the receiver is impugned herein with a prayer for releasing the properties in question from the receivership. 7. Mr. Tulzapurkar, learned counsel for the defendant no.2 submitted that the properties in question were purchased by the defendant no.2 out of income received by him from his proprietary concerns, namely, M/s. Ramtirth International and M/s. Ramtirth Export and therefore, they were not the properties of the deceased. 8. As stated earlier, the deceased in his life time was carrying on business in the name and style of Ramtirth Yogashram and was the owner of trade mark/ trade name "Ramtirth Brahim Oil". In the order dated 16th December, 1996, which has becomes final, this court has held : "that business and trade mark Ramtirth Brahim Oil would have to be protected". The court further held that the defendant no.2 resorted to start a partnership firm M/s. Ramtirth International and a proprietary concern M/s. Ramtirth Exports and used the trade mark of the deceased. In the circumstances, prima facie, the profits which are allegedly earned by the defendant no.2 by using the trade mark "Ramtirth Brahim Oil", would have to be accounted for by the defendant no.2 to the estate of the deceased. Even assuming that the properties in question were purchased by the defendant no.2 out of income of Ramtirth International and or Ramtirth Exports, it cannot be said that the said profits or income earned would belong solely to the defendant no.2 without he being required to account for it. This is because he derived that income by using the trade mark of Ramtirth Brahim Oil belonging to the deceased. 9. Mr.Tulzapurkar submitted that the receiver having held that the properties in question were purchased out of the income of Ramtirth International and Ramtirth Exports, he ought to have excluded them from receivership. For the reasons stated above, it cannot be said that these properties ought to have excluded from receivership. 10. Mr. Tulzapurkar, learned counsel for the defendant no. 2 invited my attention to some admissions purported to have been made by the plaintiffs no. 1 and 2 and defendant no.1 either in the letters or in the replies filed in the previous motion. He submitted that since the plaintiffs 1 and 2 have admitted that these properties are purchased by the defendant no.2 out of his separate business of Ramtirth International / Ramtirth Exports, the receiver ought to have discharged the properties in question as the admissions that were binding on the plaintiff nos. 1 and 2 and defendant no.1. Though these admissions appeared to have rescind by some of them later and even assuming that the admissions were binding on them still in my view the properties in question cannot be released from the receivership, because the suit is for administration of estate of late Umeshchandra. In such a suit other each of the defendants also has an interest in the properties and is in a position similar to that of any of the plaintiffs. The plaintiff no.3 has not given any admission. The defendants other than defendant no.1 have not given any admission that the properties were self acquired properties of the defendant no.2. In the circumstances, the alleged admissions of the plaintiff nos. 1 and 2 and defendant no.1 cannot bind the plaintiff no.3 and other defendants. It would not be of any assistance to the plaintiffs. 11. No other point was urged. 12. There is no merit in the motion, which is hereby dismissed. (D.G. KARNIK, J) .....