*1* 202-nms-2302-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srj NOTICE OF MOTION NO.2302 OF 2009 IN SUIT NO.1583 OF 2009 Shaikh Rehana Abdul Rehman & Others .. Plaintiffs V/s. Shaikh Mehboob Sayyed Abdul Majeed & Others .. Defendants Mr. R.P.Ojha, for Plaintiffs. Mr. Santosh Shetty, for Defendant No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 7th December, 2010. P.C. 1 The Plaintiffs have filed the suit for partition of the suit property more particularly described in the Ex. “B” to the plaint. The partition is sought on the basis that the Plaintiffs and Defendant Nos.6 and 7 have share in the same. The deceased Sayyed Abdul Majeed Abdullah Shaikh died in Mumbai on 22nd March, 2006, leaving behind him Plaintiff No.1 – legal heir of deceased daughter Shaikh Zareena Noor Mohammed i.e. Plaintiff Nos. 2 to 4 and Defendant Nos. 6 and 7, so also Defendant No.1. The heirs of the deceased son Shaikh Mahmood Abdul *2* 202-nms-2302-09 Majeed are also stated to be heirs of the deceased. In other words, the Plaintiff No.1 and the predecessor in title of the Defendant Nos.2, 3 & 4 and the predecessor in title of Defendant Nos.2 and 5 along with Defendant Nos.1,6 and 7 are the heirs of the deceased. 2 It is stated that the brother of Plaintiff No.1 and Defendant Nos.2 to 5 have been utilizing the property which even Muslim daughters are entitled as per the Law of Succession contemplated under the Mohammedan Law. It is stated that after the death of the deceased, the property has been utilized but nothing has been paid and there is apprehension that the estate may be dealt with by depriving the Plaintiffs and Defendant Nos.6 and 7 of their shares. 3 The Notice of Motion is moved for interim relief. 4 At the ad-interim stage, status quo order in respect of the properties mentioned in prayer clause (b) of the notice of motion has been passed by this Court which has been continued since 6th August, 2009. 5 The Affidavit and written statements are filed wherein what is asserted is that the late Shri Abdul Majeed Abdulla Shaikh, the father in law of Defendant No.2 and grand father of Defendants No.3 to 5, Shri Mehmood Shaikh, the husband of Defendant No.2 and father of Defendant No.3 to 5, Plaintiff No.1 and the sister in law i.e. mother of Plaintiff No.2 to 4 and Defendant No.2 and aunt of Defendant No.3 to 5 *3* 202-nms-2302-09 (now deceased) arrived at a family settlement whereby the mother of Plaintiff Nos.2 to 4 had received Rs.2 lacs prior to the death of the deceased from the account of husband of Defendant No.2. In other words, the mother of Plaintiff Nos.2 to 4 had received Rs.2 lacs by cheque no.432853 drawn on Standard Chartered Bank, Andheri branch, Mumbai on 27th July, 2006, in which the amount has been debited. Plaintiff No.1 received Rs.1,91,368/- from the account of the said deceased as and by way of family settlement. The husband of Defendant No2 had paid the balance amount of Rs.8,642/- out of Rs.2 lacs in cash to Plaintiff No.1 and, therefore, nothing is due and payable. 6 Rejoinder Affidavit has been filed by the Plaintiffs, in which it is stated that each and every allegations/contentions raised in reply affidavit and written statement of the Defendant No.2 to 5 are incorrect. There is no substance in the same inasmuch as sum of Rs.1,91,368/- was paid by the father of Plaintiff No.1 to the Plaintiff No.1 vide pay order no.177831 dated 8th March, 2006 with the sole intention of Plaintiff No. 1’s Haj visit and accordingly the said amount is not the amount of the share of the Plaintiff No.1 from property of the deceased. 7 The amount paid to the mother – Smt. Zarina is the amount given by the deceased from his joint account with the Defendant No.2’s husband for treatment of cancer disease. *4* 202-nms-2302-09 8 Mr. Santosh Shetty, Advocate appearing for Defendant No.1 states that Defendant No.1 and 2 to 5 are concerned with the second property which are at item nos. 1 and 2 in the schedule. As far as Defendant No.1 is concerned, he is carrying on business from the property at item no.2. That property has come to him under the deed of assignment during lifetime of deceased. As far as Maharashtra Hair Cutting Saloon is concerned (item no.1)- Ex. “B”, that property is in possession Plaintiff No. 2 to 5. 9 There is no document produced inasmuch as property at Sr. 4 is stated to be under re-development but presently, re-development has not been completed. 10 It is stated that some of the properties which are stated to be joint family property in which Plaintiffs and Defendant Nos.6 and 7, are claiming to be heirs, are in possession of other sharers. They are carrying on business therefrom. However, when it is stated that there is a family settlement and nothing is due and payable to Plaintiffs and Defendant Nos.6 and 7, then this version can be proved only at the trial. It would be necessary to preserve the subject matter of this litigation. Precisely, that is done by the order of status quo passed on 6th August, 2009. I see no prejudice to the parties if this order continues during pendency of the suit. However, when the Defendant No.1 is relying on the deed of assignment, *5* 202-nms-2302-09 but that is yet to be read in evidence, then the order of status quo must continue against Defendant No.1 with liberty to apply for variation or modification of this order, in case Defendant No.1 desires to deal with and dispose of this property. Defendant No.1 is not carrying on his flour mills business from the property at item no.2 and, therefore, at his request, the ad-interim cannot be vacated. 11 In these circumstances, this notice of motion is made absolute in terms of the ad-interim order dated 6th August, 2009 but with liberty to Defendant No.1 and 2 to apply for variation or modification thereof. 12 The order to continue till the disposal of the suit. (S.C. Dharmadhikari, J)