1 NMS.864/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 864 OF 2010 IN SUIT NO. 655 OF 2010 Sudha Tjuja & Ors. ..Plaintiffs. Vs. Raj M. Tejuja & Anr. ..Defendants. ---- Mr. M.P.S. Rao i/b M/s Legal Liaisons for the Plaintiffs. Mr. R.M. Tejua, defendant no.1 present in person. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 24 th AUGUST, 2010. P.C. 1] The plaintiffs have applied for interim reliefs in a suit wherein the principle relief of declaration of their share in the estate of the deceased Mohanlal M. Tejuja is claimed. 2] The relief is on the basis that plaintiff no.1 is the daughter-in- law of the deceased Mohanlal being married to his son Hiranand Tejuja. Plaintiff nos.2 and 3 are the grand daughters of the deceased. In other words, the daughters of late Hiranand. The first defendant is the brother of Hiranand. Second defendant is sister of the first defendant and late Hiranand. 2 NMS.864/2010 3] The mother of the first defendant and wife of the deceased predeceased him, whereas the deceased expired on 26.10.1996. 4] My attention is invited by Shri Rao, learned Senior Counsel for the plaintiffs to the list of properties at Exhibit-’I’ to the plaint. He also invites my attention to the fact that the deceased and the first defendant were carrying on business in partnership from a shed/premises in M.I.D.C. It is the submission of Shri Rao that the deceased had left a Will dated 7.1.1991, wherein the deceased desired that upon his death both sons inherit the estate. However, surviving son defendant no.1 has not taken any steps in furtherance thereof, and instead appropriated the properties to himself by misleading and misinterpreting one of the clauses of the Deed of Partnership, under which the deceased was carrying on certain business in partnership with the defendant no.1. Inviting my attention to to the Deed of Partnership, Shri Rao submits that same must be read as whole and clause 4 cannot be seen in Isolation. The M.I.D.C. shed/premises forms a part of the estate of the deceased and presently being vacant, therefore, it is just and convenient to appoint the Court Receiver, High Court, Bombay as a Receiver of the same so that the same will fetch some income. 5] So far as the flat which is forming part of the estate of the deceased, according to Shri Rao the daughter-in-law of the first defendant who has divorced his son (her husband) is residing therein under some 3 NMS.864/2010 arrangement pursuant to an order of the Family Court at Bombay. There is apprehension that the flat would be disposed of and it being valuable property so also at earlier point of time first defendant having made statement before the Court that he would not deal with/part with possession or dispose of the property/flat but now resiling therefrom this is a fit case where interim injunction should be granted in favour of the plaintiffs particularly when they are ladies and strong prima facie case is made out by them. Similarly according to Shri Rao the balance of convenience is in their favour and irreparable harm and injury would be caused if interim reliefs are not granted. 6] The contesting defendant is the first defendant who has filed affidavit in reply and appearing in person. Therefore, he was given full opportunity of being heard. I have heard him at length. He invites my attention to paragraphs 2 and 3 of his affidavit and submits that the partnership deed is very clear. He states that he is carrying on business in his exclusive right as owner, and therefore, shed/premises in M.I.D.C. can be utilized by him excluding all others as he is the sole survivor. As far as the flat at Santacruz is concerned, he states that he is sole owner of the same and during the lifetime of late Hiranand he has paid Rs.59,150/- by cheque which said Hiranand accepted in full and final settlement of his rights and his claim. For all these reasons according to defendant no.1 the 4 NMS.864/2010 properties belong to him exclusively and no interim injunction should be granted particularly when the proceedings are intended to harass him and create obstacle in smooth running of his business. He therefore prays that the motion be dismissed. 7] With the assistance of Shri Rao, I have perused the plaint and annexures thereto, so also affidavits filed on record. The principles on which interim injunctions are granted are well settled and need no reiteration and repetition. In so far as the request of Shri Rao for appointment of the Court Receiver in respect of shed/premises in M.I.D.C., the plaintiffs in the plaint have alleged that the property may be wasted and damaged and alienated by defendant no.1, as the said property is in absolute and exclusive control of defendant no.1. Further, earlier the parties desired to put an end to the dispute amicably but the first defendant’s attitude did not lead to any fruitful result. All that is stated that some brokers visited the premises and made inquiry. Defendant no.1 may try to create rights in favour of third party. 8] Beyond this there is nothing to indicate as to why when the deceased expired in the year 1996 that it is just and convenient to appoint Court Receiver in respect of the shed/premises at M.I.D.C. at this stage. To my mind such an order at this stage without any materials to indicate damage to the properties would not be proper. More so, when an order of 5 NMS.864/2010 injunction sufficiently protects the plaintiffs at this stage. Having recorded a statement of defendant no.1 that he would not dispose of the properties nor create any third party rights therein, but he being reluctant to continue the same,the interim injunction as prayed in the motion would be a fair and just order at this stage. The plaintiffs claim to be entitled to the estate of the deceased. They are claiming through the son of the deceased Hiranand. For protecting their share and ultimately to make available some properties to them, their request for an injunction is justified. Prima facie case to that effect has been certainly made out and equally I am in agreement with Shri Rao that balance of convenience is in favour of the plaintiffs and they will suffer irreparable loss and injury in case defendant no.1 is allowed to deal with the properties as exclusive owner thereof. That is the stand taken in the affidavit in reply and reiterated during oral argument by him. Further, Defendant no.1 in his affidavit in reply has not denied the share of the plaintiffs and defendant no.2. He does not dispute that during his life time his brother Hiranand was entitled to the estate of the late father Mohanlal. Therefore, to the extent of the share of Hiranand in the estate of his father (deceased Mohanlal) plaintiffs are entitled to maintain the suit. Secondly, the deceased left a Will dated 7.1.1991 bequeathing the estate to both late Hiranand and defendant no.1. Thirdly, the entire basis of the denials of the 6 NMS.864/2010 first defendant is a clause in the partnership deed. That partnership deed and the clause therein must be read together with other clauses and whether the same supersede the rights of the deceased Hiranand to succeed to the estate of his late father is something which will have to be gone in depth at the trial. 9] For all these reasons, the notice of motion succeeds to the extent that it is made absolute in terms of prayer clause (d) except bracketed portion i.e. “dealing with”. No order as to costs. Prayer clause (d) as re-worded reads thus:- “ That pending the hearing and final disposal of this suit, the Defendant No.1 be restrained by an order and injunction of this Hon’ble Court from in any manner (dealing with) or disposing or parting with possession of or creating third party rights in the entire estate of Mohanlal Tejuja including those more particularly described in Exhibit “I”. [S.C. DHARMADHIKARI, J.]