:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY AND INTESTATE JURISDICTION AND INTESTATE JURISDICTION AND INTESTATE JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 15 OF 2008 OF MOTION NO. 15 OF 2008 OF MOTION NO. 15 OF 2008 IN IN IN TESTAMENTARY TESTAMENTARY TESTAMENTARY SUIT NO. 83 OF 2005 SUIT NO. 83 OF 2005 SUIT NO. 83 OF 2005 IN IN IN TESTAMENTARY TESTAMENTARY TESTAMENTARY PETITION NO. 738 OF 2005 PETITION NO. 738 OF 2005 PETITION NO. 738 OF 2005 Jitendra Purshottamdas Gandhi & Anr. ...Plaintiffs. V/s. Mr. Jayendra N. Zaveri & Ors. ... Defendant. And Mrs. Kokila Jayendra Zaveri. ... Respondents. And Kumud Samir Vatsraj. ... Applicant. Mr. A.R. Bapat for the Petitioner. Mr. H.J. Thakkar with Mr. P.S. Shah for the Defendant. Mr. V.Y. Sanglikar for the Applicant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 10TH 10TH 10TH OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . Heard Mr. Sanglikar appearing for the Applicant in support of the Notice of Motion and Mr. Thakker appearing for the contesting Defendant No.1/Caveator. 2. At the outset Mr. Thakkar has contended that the Notice of Motion is not maintainable. He submits that a learned Single Judge of this Court has rendered a Judgment which is since reported in 2006(6) BCR 778 that even under inherent powers or otherwise this Court would have no jurisdiction in the present proceedings to grant any :2: interim order much else of the nature claimed in the present motion. 3. Mr. Sanglikar on the other hand contended that the view taken by the learned Single Judge is subject matter of an appeal which is admitted and pending. However, a Division Bench of this Court following the earlier view has held that even in the present proceedings and considering the powers under Section 247 of the Succession Act, interim reliefs and more particularly of the nature claimed, including appointment of Court Receiver/Administrator, can be granted. 4. Number of decisions were relied upon by Mr. Sanglikar. However, I have made it clear to both sides that I will proceed on the basis that the Motion is maintainable. They should address me as to how the reliefs claimed by the Applicant can be granted. 5. Mr. Sanglikar appearing in support of the motion contended that the Applicant and the Defendant/Caveator are brothers and sisters. The other sisters of the deceased mother are consenting to a grant of probate in favour of the Applicant and also confirmed the Will whereas the Defendant/Caveator disputes it and that is how the proceedings are contested. However, assuming that the Defendant/Caveator has a share in the estate of the deceased and further assuming that the Will is not true, :3: yet, he has only 20% share in the estate of the deceased and he cannot therefore deprive the Applicant who has nearly 80% share to her credit of the fruits of the estate. The real issue between the parties is a flat belonging to the deceased at Seeta Mahal, Seeta Co-operative Hsg. Society at Bomanji Petit Road, Mumbai. In the Will itself, according to Shri Sanglikar, flat was occupied by the Applicant alongwith the deceased. However, the deceased had made it very clear that upon her demise the Caveator should make arrangement for his residence elsewhere and should not obstruct the executors from disposing of this flat and distributing the proceeds. He has invited my attention to the Will and contends that the deceased has provided sufficiently for the Defendant/Caveator so also other heirs and that is how the Applicant is granted a right or share in the estate of the deceased. In such circumstances, and when the Applicant has no residential premises in Mumbai and she alongwith her family occupy premises far away at Borivali on leave and licence basis, that the reliefs should be granted. More so, when the Notice of Motion is moved in this 2008 and the Petition being pending for the last 3 years, the evidence is yet to be recorded. The proceedings are not likely to conclude immediately. 6. For all these reasons he submits that appropriate interim orders and more particularly, in the nature claimed in the present motion be granted. :4: 7. Shri Thakkar on the other hand invited my attention to the affidavit by the Defendant in reply. He submits that the motion is yet another attempt by the Applicant to obtain a relief at an interim stage which has been denied earlier. He submits that the Applicant’s husband is one of the Executors of the Will of the deceased. The Executors had applied for the very reliefs and Notice of Motion No.149 of 2005 was moved by them. That Notice of Motion came up before the learned Single Judge of this Court and at an ad-interim stage an undertaking was recorded by the Caveator/Defendant that he will not alienate, encumber or create third party rights or part with possession of the said flat. The undertaking was accepted. Thereafter, the matter was placed before the learned Single Judge of this Court on 27th July 2006 and the Notice of Motion was disposed of on the statement which was made at the ad-interim stage. The undertaking to the Court was accepted and prayer clause (f) of the Motion was granted. As far as other reliefs are concerned, parties were granted liberty to adopt appropriate proceedings. 8. The matter was then carried in Appeal and on 8th January 2007 the Appeal being Appeal No. 925 of 2006 was withdrawn. Even Notice of Motion No.4539 of 2006 before the Appellate Court was withdrawn. :5: 9. It is then contended by Shri Thakkar that Executors made another attempt to get the same relief and a Notice of Motion being Notice of Motion No.125 of 2007 was moved by the Applicant. That Notice of Motion was withdrawn on 21st January 2008 and the learned Single Judge before whom the matter was placed for Framing Issues had even directed the parties to file the documents so as to enable the Court to proceed and record the evidence. 10. After withdrawal of the earlier Notice of Motion on 24th January 2008, the present Motion is taken out on 30th January 2008 and Mr. Thakkar contends that there are no changed circumstances. It is not as if the Applicant is claiming interim relief on the ground or for reasons other than which were earlier pressed before this Court. He submits that all allegations are denied. The Defendant/Caveator has been occupying the premises with his family and it is nothing but an attempt to dis-possess him at an interlocutory stage. 11. I have perused the Motion and the affidavit in support so also in reply and rejoinder and their annexures. I have heard the learned Advocates at some length. 12. It is undisputed before me that the Executors had moved earlier Motion and even the Applicant had applied by Notice of Motion No.125 of 2007 for identical relief. In :6: the present Notice of Motion in the affidavit in support the very same grounds have been reiterated. The statements would reveal that the same assertions and even reference to the same correspondence is made. In the affidavit in reply the Defendant/Caveator has pointed out that his family consists of his grown up children and they would require independent rooms. He has alleged that the Applicant was sufficiently provided for and in any event the Applicant’s husband who is an Executor is a man of sufficient means to provide for independent accommodation. Now, proceedings are converted into a Suit and both sides have their version with regard to the Will and the stipulations therein. It is not necessary to enter into that controversy. It is not as if that at this stage any observations are being made with regard to the genuineness of the Will. From a perusal of the affidavits filed by the Applicant and more particularly, the affidavit filed in rejoinder it is apparent to me that the Applicant is claiming the same reliefs which have been claimed by the Executors so also by her at an earlier stage. The contentions raised are with regard to the merits of the controversy. It is not as if that the Applicant has pointed out any changed circumstances. Therefore, making identical allegations afresh would not in the present case amount to changed circumstances. The Motion has been moved merely to enable to recall the earlier order. These are matters where the Court has at the instance of the Executors and even the Applicant refused to exercise the :7: powers conferred by Section 247 of the Succession Act or the inherent powers to grant the relief claimed including to appoint an Administrator for disposing of the flat or take possession thereof and put the Applicant in possession of part or portion thereof. All such reliefs were claimed earlier either by the Executors or by the Applicant and they have been denied, I do not see any reason as to how in the present Notice of Motion same interim orders can be issued. As aforesaid, presuming that the Motion is maintainable, no prima-facie case is made out by the Applicant to grant Interim relief. Notice of Motion is dismissed. No costs. 13. However, it is directed that within a period of four weeks from today, the Applicant should file her affidavit in lieu of examination in chief and original documents. Thereafter, further directions can be issued with regard to hearing of the Testamentary Suit including appointing Commissioner for recording of evidence. 14. Post the main matter for directions on 14th November 2008 at 11.00 a.m. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)