:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1455 OF 1999 NOTICE OF MOTION NO. 1455 OF 1999 NOTICE OF MOTION NO. 1455 OF 1999 IN IN IN SUIT NO. 2606 OF 1999 SUIT NO. 2606 OF 1999 SUIT NO. 2606 OF 1999 Smt. Manorama Omprakash Ralhan ......Plffs. vs. Mr. Munesh Ralhan alias Ricky Ralhan and anr. ......Defnds. NOTICE OF MOTION NO. 2873 OF 1999 NOTICE OF MOTION NO. 2873 OF 1999 NOTICE OF MOTION NO. 2873 OF 1999 IN IN IN SUIT NO. 2606 OF 1999 SUIT NO. 2606 OF 1999 SUIT NO. 2606 OF 1999 Smt. Manorama Omprakash Ralhan ......Plffs. vs. Mr. Munesh Ralhan alias Ricky Ralhan and anr. ......Defnds. NOTICE OF MOTION NO. 2700 OF 2000 NOTICE OF MOTION NO. 2700 OF 2000 NOTICE OF MOTION NO. 2700 OF 2000 IN IN IN SUIT NO. 3748 OF 2000 SUIT NO. 3748 OF 2000 SUIT NO. 3748 OF 2000 Rupali Shah and anr. ......Plffs. vs. Mr. Munesh Ralhan alias Ricky Ralhan and anr. ......Defnds. :2: :2: :2: Ms. Kavita Shah for the plaintiffs in Suit No. 2606 of 1999 and for defendant no.2 in Suit no. 3748/00 and defendant no.1 in T.S.77/00. Mr. Anuj Narula i/b. Jhangiani Narula and Associates and for Defendants in Suit no. 2606/99 and T.S.77/00 and for defendant no.2 in Suit 3748/00. S.R. Rajguru for defendant no.3 in Suit no. 3748/00. M.P.S. Rao a/w. Madhavi Diwan and Naushad Engineer i/b. Desai and Diwanji for defendant no.2 in Suit no. 2606/99, Plaintiff in Suit no. 3748/00 and plaintiff in T.S. 77/00. D.R. Dhurat, 1st Asst to C.R. CORAM: S.U. KAMDAR, J. DATE : 27th October, 2005. JUDGMENT : 1. All the three motions are inrespect of the estate of the deceased O.P. Ralan and the relief sought therein are overlapping to each other and are therefore clubbed together and disposed off by this common judgment. For the sake of breavity and convenience the parties in the judgment are described as appearing in the Notice of Motion No. 2700 of 2000 in Suit No. 3748 of 2000. Some of :3: :3: :3: the material facts of the present case are as under : 2. O.P. Ralan was a well known film producer. He expired on 28.4.1999 leaving behind his last will and testament dated 4.9.98. The said will is supposed to have been witnessed by a surgeon, General Physician and a chartered accountant and the same is registered. It is the case of the plaintiff that under the will she was entitled to all the property. The plaintiff is the daughter of the said late O.P. Ralan. She has also been appointed as an executor of the said will alongwith her husband. Under the said will dated 4.9.98 the plaintiff is claiming the entire estate of the deceased as a sole beneficiary. The defendant no.1 and 2 are the son and the wife of the said deceased. According to the plaintiff there were bitter disputes between the deceased and the defendant no.2 and there was a separation of the defendant no.2 from the said deceased. It is also the case of the plaintiff that during the lifetime of the deceased there was a litigation between the :4: :4: :4: defendant no.1 and the said deceased and that various attempts were made by the defendant no.1 to usurp the properties of the said deceased and even after the death he has been intermedling with the estate of the said deceased. It is further the case of the plaintiff that deceased apart from leaving behind a large part of the various immovable properties also left behind large income tax liability and the Income tax authorities are threatening to dispose off the various properties for recovery of the tax dues. 3. The said deceased has left the following properties : 1) A flat admeasuring 2400 sq.ft in the building known as Sweet Home situated at Pali Hill Road, Bandra (W), Mumbai-50. The said flat as of today stands in the name of the second defendant. However the plaintiff is claiming that the said flat belongs to the deceased and not the 2nd defendant. :5: :5: :5: 2) A flat admeasuring 2500 sq.ft being flat no. 503 in Ashadeep building, 9, Hailey Road, Connaught place, New Delhi which is also standing in the name of the second defendant and is in occupation of the first defendant. The plaintiffs are also claiming that the said flat also belongs to the said deceased. 3) A bungalow admeasuring about 3400 sq.ft by the name of Ashoka House Bungalow situated at no.8, Jolly Maker I Premises Cooperative Soc. Ltd at Cuffe Parade, Mumbai-400 005. 4) A flat admeasuring about 1000 sq.ft approximately being flat no.138 situated at Nehru Nagar Co-operative Hsg. Soc Ltd, Juhu Tara Road, Santa Cruz (W), Mumbai-64 which is staining in the name of the firm of M/s. Ralhan Productions of which the said deceased was the sole proprietor,. The said flat is in the possession of the brother of the deceased. :6: :6: :6: 5) Land admeasuring about 3 Hectares 56 Aars bearing GAT No. 117 situated at Village Deharjee, Taluka- Jawahar, District Thane, Maharashtra. 6) Tenancy rights inrespect of the said flat admeasuring 1050 sq. ft in building known as Bhagwan Niwas situated at Khar (W), Mumbai-52 of the plaintiff herein. 7) Ancestral immovable property in Village Banga, Dist. Hoshiarpur, Punjab. 4. It is the case of the plaintiff that there are various movable properties also left behind by the said deceased particularly various film rights including the copy rights therein which can be exploited and income therefrom can be generated. According to the plaintiff there are various cine equipments which are lying in the Mahalaxmi :7: :7: :7: premises which also can be used or sold or given on hire and an income can be generate therefrom. 5. Inrespect of this estate a bitter dispute is in progress between he plaintiff on one hand and the defendant no.1 and 2 on the other hand. The plaintiff claims that the large amount of the properties of the deceased has been bequeathed to her under the said will dated 4.9.1998. The said will is the subject matter of probate in Testamentary Petition being No. 535 of 1999. The defendant no.,2 has also filed a suit being an Administration Suit No. 2606 of 1999 and the plaintiff has also filed another suit being Suit No. 3748 of 2000. The Suit No. 3748 of 2000 is inter-alia filed for the reliefs that the property namely ‘Ashoka House Bungalow’ situated at No.8, Jolly Maker 1 Co-operative Premises Soc, Ltd, Cuffe Parade, Mumbai-5 belong to the deceased and that the defendants have no right title and interest of any nature whatsoever therein. Further reliefs are also sought that the first defendant should be :8: :8: :8: ordered and directed by mandatory injunction of this court to remove all his belongings from the dining room of the said Ashoka House and that he should be restrained from entering into the said bungalow. A further declaration has been sought that assets of the company known as ‘M/s. Ralhan Productions’ and cine Equipments and the properties of the said firm exclusively belonged to the said deceased including the exploitation rights of the said Motion Pictures produced by him. Various other reliefs are also sought in the said suit which has been filed by the plaintiff who is the daughter of the said deceased. 6. The defendant no.2 who is the widow of the said deceased is inter-alia seeking the reliefs in her suit for declaration that the said deceased died intestate on 20.4.99 and the plaintiff and the defendant no.1 and 2 are entitled to the share in the aforesaid properties of the said deceased. A further declaration is sought by defendant no.2 that she is entitled to one-third share in the estate of the said deceased. Further directions :9: :9: :9: are also sought that the estate of the deceased must be administered by this court and pending the said reliefs various other interim orders are sought such as Receiver and injunction of the properties of the said deceased. These three Notice of Motions namely Notice of Motion no. 1445, 2770 and 2873 are taken out in these aforesaid two suits. Notice of Motion No. 1445 is taken out by the widow whereas Notice of Motion No. 2700 of 2000 has been taken out by the plaintiffs daughter and Notice of Motion No. 2873 of 2001 has been initiated by the 2nd defendant who is the son. 7. At this interim stage essentially I am required to protect the assets of the deceased so that the same is available for distribution in accordance with the final decision arrived in the said testamentary petition and or the aforesaid two suits. Thus it is necessary that the aforesaid properties of the deceased are protected and reliefs ought to be oriented towards the said object. In so far as the bungalow is concerned which is at Cuffe Parade there has already been a :10: :10: :10: history which is required to be set out before passing any order. It is the case of the plaintiff that after being separated from the 2nd defendant the deceased was residing alone at the said Ashoka House Bungalow, Cuffe Parade. Sometime in or about October 1995 fire broke out in the said bungalow and interiors were destroyed. Thereafter it is the case of the plaintiff no.1 that the said deceased was residing with her and she has been looking after the said deceased. Sometime in or about June 1998 it is the case of the plaintiff that the defendant no.1 came down from Delhi with an intention to stake claim on the said bungalow and in July 1998 the defendant no.1 broke open the lock of the said Ashoka house forcibly and illegally entered into and took over possession thereof. On 7.7.98 the deceased filed a complaint with the police station that the defendant no.1 is trying to break open the lock and enter into possession thereof. On 13.7.98 deceased filed another complaint inter-alia recording that the defendant no.1 with one Mr. Virendra Kumar Tuli has broke open the lock of the said bungalow and has entered :11: :11: :11: into possession of the said premises. The deceased thereafter moved the City Civil court at Bombay and filed a suit being Suit No. 3582 of 1998 inter-alia seeking interim order of injunction restraining the defendant no.1 from entering into the bungalow and disturbing his possession. On 15-16/7/98 the defendant no.1 at the hearing of the ad-interim order deposited one set of keys of the bungalow in court. It is the case of the plaintiff that on the night of 16.7.98 taking use of the duplicate keys the defendant no.1 entered into the said premises and pushed his belongings and articles in the said premises. On 17.7.98 the aforesaid fact was supposed to have been recorded by the advocate of the deceased inter alia stating therein that the said defendant no.1 has broken open the lock on the said night. On 17.7.98 ad-interim order was passed by the city civil court restraining the defendant no.1 from entering into Ashoka House. An appeal was preferred against the said order being Appeal No. 673 of 1998 and in the said proceedings the defendant no.1 has raised the claim of tenancy inrespect of the said property. :12: :12: :12: However on 20.7.98 the court declined to interfere with the ad-interim order passed by the city civil court save and except expediting the hearing of the notice of motion. on 4.8.98 in a reply filed by the defendant no.1 he has put forward the case of tenancy. On 7.8.98 the said notice of motion no. 4077 of 1998 was disposed off by the city civil court and the city civil court prima-facie gave a finding that the plea of tenancy is based on fabricated documents. Appeal was preferred therefrom being Appeal no. 801 of 1998. On 25.9.98 the said appeal from order against the order passed in the notice of motion came up for hearing before the learned Single judge and on 29.9./98 the said appeal was admitted and by an ad-interim order it was provided that the deceased could occupy the first floor and a ground floor bedroom, while defendant no.1 will be allowed to use the living and dining room on the ground floor for business purposes. On 21.11.98 the Commissioner took inventory of the various belongings of the defendant no.1. On 10.2.99 the said appeal from order no. 801 of 1999 was :13: :13: :13: disposed off by the High Court by directing that the defendant no.1 should not enter into the said bungalow. However the defendant no.1 was allowed to store his personal effects in the dining room of his bungalow under his lock and key. On 20.4.99 the said O.P. Ralan expired. It is the case of the plaintiff that on 21.4.99 i.e. on the next day of the death of the deceased the defendant no.1 entered into the said premises namely Ashoka bungalow and took possession of the said bungalow as if he was always in possession of the same. On 21.4.99 the plaintiff lodged a police complaint. On 3.5.99 the plaintiff filed a present probate petition being Probate Petition no. 535 of 1999. Similarly around the same time defendant no.1 also filed a suit in this court being administration Suit No. 2606 of 1999 inter-alia contending that the said deceased expired intestate and each of them are entitled to their respective shares as per intestate succession. A notice of motion was taken out being Notice of Motion no. 1570 of 1999 in the probate petition No. 535 of 1999. On 10.5.99 an ad-interim order was passed inrespect of the said :14: :14: :14: bungalow. However the dispute in respect of the said bungalow did not get resolved with the orders passed therein. Thereafter some time in or about April 2000 defendant no.1 filed a RAD suit being Suit No. 587/1086 of 1999 in the small causes court inter-alia seeking a declaration that he is the tenant of the Ashoka House originally belonging to the deceased. It is further the case of the plaintiff that sometime in or about April or May 2000 the Income Tax authority raised the demand for the income tax liability of the deceased for an amount of Rs.1,52,59,988/-. The said demand included a penalty of Rs.7525/- per day on the estate of the deceased. It is the case of the plaintiff that the said income tax liability was required to be paid off and therefore necessary orders for raising funds from the said property were required to be passed. On 22.5.00 the income tax authority issued a demand notice. On 18.9.00 the income tax authority threatened to auction the said bungalow if the arrears are not paid by the estate of the deceased. On 28.8.00 even the bank accounts were attached by the said income tax :15: :15: :15: authorities. Ultimately the notice of motion was taken out being Notice of Motion No. 2897 of 2000 seeking injunction against the income tax authority from auctioning the said property. On 5.10.2000 the learned single judge refused to pass any order against the income tax authorities because they were not parties to the said suit. In October 2000, the plaintiff moved a chamber summons being Chamber summons no. 1209 of 2000 inter-alia seeking to join the income tax authorities as a party to the suit and also sought an injunction against the auctioning of the said bungalow. On 9.10.2000 another learned single judge of this court passed an order restraining the said income tax authorities from auctioning the said bungalow. Some time in or about October, 2000 the plaintiff moved a review petition for review of an earlier order dated 10.5.99 and 6.10.99 in the light of the huge income tax liability which was threatening the sale of the property. Subsequently the income tax authorities contested the said chamber summons and ultimately by an order dated 1.12.2000 the income tax authorities were joined as parties to the said :16: :16: :16: proceedings. In the aforesaid circumstances on 23.3.2001 the plaintiff moved for further ad-interim reliefs in the present notice of Motion No. 2700 of 2000. By an order dated 23.3.2001 the learned single judge appointed a receiver inrespect of the bungalow inter-alia with further directions to the defendant no,.1 to remove his belongings which were stored in one room of the bungalow and further permitted that the said bungalow be given on leave and licence basis and the compensation received therefrom should be paid directly to the income tax department towards the dues of the income tax of the said deceased. On 27.7.2001 the plaintiff filed a Writ Petition being Writ Petition No. 1641 of 2001 challenging the income tax liabilities. However by an order dated 30.7.2001 the Writ petition which was filed was dismissed. In the mean time the defendant no.1 preferred an appeal against the order of the learned single judge appointing receiver inrespect of the said bungalow and the division bench by an order and judgment dated 30.7.2001 dismissed the appeal and confirmed the order passed by the learned single :17: :17: :17: judge. On 5.9.2001 the defendant no.1 sought a review of the said order dated 30.7.2001 rejecting the said Writ petition. However the said review petition was dismissed by an order dated 19.10.2001. On 23.10.2001 the learned single judge of this court directed the first defendant to remove his belongings from the bungalow immediately so that the bungalow can be available for letting out on leave and licence basis. Accordingly the court receiver invited the offers and an offer was received from IDBI which was accepted by this court by an order dated 8.12.2001. The defendant no.1 further challenged the said order appointing the court receiver of the said bungalow which was passed by the learned single judge and was confirmed by the Division Bench and SLP therefrom was dismissed by an order dated 14.1.2003. Subsequently on 1.11.2003 the said bungalow was given on leave and licence basis to one Gobind Daryanani for 11 months. On the expiry of the said 11 months period the bungalow has been given on leave and licence for 33 months to one M/s. ASC Enterprises. On 4.10.2004 the suit filed by the :18: :18: :18: defendant no.1 claiming tenancy inrespect of Ashoka House bungalow has been dismissed by small causes court for non-prosecution. 8. The prayers in the present Notice of Motion No. 2700 of 2000 is to confirm the ad-interim order passed by this court and to continue the leave and licence arrangement with the third parties under the hands of the Court Receiver. It has been further prayed that the money received therefrom be paid over towards the income tax liabilities. It is the case of the plaintiff that pursuant to the leave and Licence arrangement entered into by the court receiver a large amount has been recovered and has been paid over to the income tax authorities towards the discharge of the income tax dues and liabilities of the deceased but still huge amount of income tax liability is outstanding. It is also the case of the defendant that negotiations for one time settlement with the income tax authorities for various concession are in progress . On such concessions being granted the liabilities of the income tax dues of the :19: :19: :19: deceased would be substantially reduced by virtue of the said proceedings. 9. On the other hand the defendant no.1 in his notice of motion namely Notice of Motion no. 2873 of 2001 has sought that the defendant no.1 should be allowed to use, occupy and possess the premises namely Ashoka House Bungalow in accordance with the tenancy agreement signed in his favour by the deceased. 10. The learned counsel appearing for the plaintiffs has on the one hand contended that the ad-interim orders passed in this motion inrespect of the said bungalow should be confirmed because it is in the interest of the estate that the property is given on leave and licence basis so that income can be generated therefrom and the said money which is available can be utilised for the purpose of discharging all the tax liabilities. It has been further contended that the defendant no.1 should be given no relief as he has sought to set up an :20: :20: :20: adverse title against the deceased by claiming tenancy during his lifetime. It has been further contended that no relief should be granted to the defendant No.1 because during the lifetime of the deceased himself the defendant no.1 has broke open the locks of the said bungalow and has entered into the possession of the said premises. It has been contended that the said case of tenancy put forward by the defendant no.1 is bogus and further that once the suit is dismissed for non-prosecution his claim for tenancy has come to an end. 11. On the other hand the larned counsel for the defendant no.1 who has been supported by the learned counsel for defendant No.2 also has contended that prior to the receiver being appointed of the said bungalow the defendant no,.1 was found in possession of the premises and that he has been dispossessed pursuant to the ad-interim orders passed by this court in the present proceedings and therefore while confirming the ad-interim orders I must take into consideration that at the interim stage this court ought not to :21: :21: :21: disposes the persons who are found in possession of the said premises and status quo should be retained as on the day when the ad-interim orders are passed. Learned counsel for the defendant no.1 has also purpotedly contended that the bungalow has been substantially damaged by the Plaintiffs and/or Licencee. It has been contended that after the court receiver visited the said premises he has made a report stating that the internal walls thereof are demolished and thus it has been contended that the plaintiff has put such a person in possession of the premises who are damaging the said property and therefore such agency should not be permitted to continue. 12. Before I deal with the rival submission of the parties inrespect of the said bungalow it is necessary to point out the conduct of the court receiver’s office is most deprecable. The proceedings were before me and on the last four occasion the matter was substantially heard inrespect of the said bungalow. The matter was adjourned on one pretext or another on earlier :22: :22: :22: occasions. During the time when matter was heard by the court a visit is made by the Court Receiver to the bungalow for purported inspection thereof and report is prepared by him of so called damage to the said bungalow by the Agent. The said report is purportedly handed over to the defendant no.1 to utilise the same in present proceedings. The Court Receiver being aware of the present proceedings being heard by the Court ought not to have taken any such step without seeking leave of the Court. I am of the opinion that the Court Receiver cannot act in a manner so as to create evidence for either of the parties for the purpose of utilisation thereof in the course of the proceedings having known the mind of the court that the court is not inclined to disturb the possession of the Court Receiver. In the aforesaid circumstances I am of the opinion that the court receiver ought not to have taken visit of the said premises and prepare a report and hand over copy thereof to the defendant no.1 so as to enable him to utilise the same during the course of the hearing of the present proceedings. :23: :23: :23: 13. I find that the Receiver’s office has acted in