1 NM-3072 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Notice of Motion No.3072 of 2010 IN Suit No.2683 of 2000 Savitridevi Chhotelal Tiwari & ors. ... Plaintiffs v/s. Amravatidevi Budhiraj Tiwari & ors. ... Defendants Mr.Rajendra Mishra for Plffs. Mr.Vivek Dube h/f Mr.R.Danisha for Defts. ---- CORAM : SMT.ROSHAN DALVI, J. DATED : 21st December, 2010 P.C. : 1.The Defendants have applied for valuation of one shop being shop No.B/3, Ground Floor of Sai Krupa Complex, Sai Tower, Kasi Village, Mira Road (West), District Thane and Room No.98, Ground Floor, Kasi Mira Village, Mira Road (West), District Thane. These properties are stated to be purchased by the deceased-Plaintiff. The deceased-Plaintiff agreed with the Defendants under the Settlement Deed dated 29th June 1984 that each of the three brothers were to have a 1/3rd share in all the properties of the family. The deceased-Plaintiff was 2 NM-3072 to put in all his retiral benefits which would be divided amongst all the three brothers in equal share. The Defendants rely upon a letter of the employer s of the deceased-original Plaintiff, Lallubhai Amichand Pvt. Ltd. addressed to the Commissioner for Taking Accounts. The letter shows three amounts paid to the deceased-Plaintiff as and by way of his retiral benefits. These are Rs.1,75,280/- 82,517/- and Rs. 95,561/-. The Plaintiffs have produced the passbooks of the deceased-Plaintiff showing exactly these amounts deposited in the account of the deceased-original Plaintiff by cheque clearing and showing the name Lallubhai Amichand Pvt. Ltd. The total of these amounts is Rs.3,53,358/-. The Plaintiffs claim that these amounts have been separately kept and invested in Post Office Accounts. The Plaintiffs have produced two passbooks of Monthly Income Scheme (MIS) of Post Office Accounts showing investment of Rs.1,50,000/- each. This accounts for investment of Rs.3,00,000/- out of Rs. 3,53,000/-. The Plaintiffs, however, would have to share with the Defendants the total retiral benefits of Rs.3,53,000/-. 2.The property for which valuation is required is, therefore, not seen to be purchased from these investments. The retiral benefits have been received 3 NM-3072 in the year 1999-2000. The Post Office Accounts have been opened on 10th April 2000 and 24th June 2000. MIS accounts are for six years. The accounts were closed on 20th April 2006 and 3rd July 2006. Two properties are stated to have been purchased in the years 2004 and 2006. 3.Two agreements are produced by the Plaintiffs in respect of the aforesaid properties. One Agreement is dated 5th June 2004 in the name of Savitribai, the wife of the deceased-original Plaintiff with regard to the purchase of the flat. The other Agreement is dated 13th February 2006 in the name of Mohan Nair with regard to shop No.3. The receipts of registration of both these documents are in the name of Savitribai. Both these documents show the purchase of these properties prior to the maturity date of the MIS accounts in the Post Office. They are not in the name of the deceased-original Plaintiff. The properties prima facie are not seen to have been purchased by the deceased as a party to the Settlement Deed dated 29th June 1984. 4.Once the Plaintiffs have prima facie shown that the properties are not purchased by the deceased, they cannot form a part of the settlement deed and are not 4 NM-3072 liable for distribution amongst the three brothers unless the Defendants prove that those properties have been purchased by the deceased-original Plaintiff himself. Hence at present, the valuation of the properties cannot be done. 5.The Notice of Motion is dismissed. 6.Copies of the passbooks of the Monthly Income Scheme of the Post Office as also the two agreements shall be given by the Advocate for the Plaintiffs to the Advocate for the Defendants. (SMT.ROSHAN DALVI, J.)