1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. O.O.C.J. NOTICE OF MOTION NO.2441 OF 2008 NOTICE OF MOTION NO.2441 OF 2008 NOTICE OF MOTION NO.2441 OF 2008 IN IN IN SUIT NO.2078 OF 2008 SUIT NO.2078 OF 2008 SUIT NO.2078 OF 2008 Vaikunthrai & Yogendra A Matlal Bhatt .. Plaintiff V/s. Anjana Kanaiyala Bhatt & Ors. .. Defendants Mr.Sanjay Jain a/w. Mr.Ashok Purohit i/b. M/s.Zohair & Co. for the Plaintiff. Mr.S.S.Dubey with Mr.Nagendra Dubey for Defendant No.2. Mr.Piyush Shah a/w.Mr.Manoj K.Bhatt for Defendant Nos. 3 and 4 in suit no. 2078 of 2008. CORAM : ROSHAN S.DALVI, J. CORAM : ROSHAN S.DALVI, J. CORAM : ROSHAN S.DALVI, J. DATED : 11TH NOVEMBER, 2008. DATED : 11TH NOVEMBER, 2008. DATED : 11TH NOVEMBER, 2008. P.C. :- P.C. :- P.C. :- . The Plaintiff and the predecessor in title of the Defendants were two brothers. They were the sons of one Amratal Bhatt who left a Will executed in January, 1975. Under that Will the suit property, as also all his other properties, were to be equally divided between his two sons, the Plaintiff and the predecessor in title of the Defendants. 2. The Will was probated on 20th January, 1984. The Plaintiff sought to execute the Probate by division of the property to obtain his half equal share. The Plaintiff appears to have taken out various applications 2 in the Probate Petition. They were resisted on certain technical grounds. Ultimately, an application for execution for transfer was made by the Plaintiff. That application was granted on 8th September, 2003. An Appeal filed by the Defendants or their predecessor in title came to be rejected on 29th November, 2003. 3. The Plaintiff thereafter applied for addition of his name as a co-owner with the Defendants in the Records of Rights. 4. This aspect has been admitted by the Defendants in an MOU executed by them with one M/s.Regent Associates for development of the property. Under the recital ‘d’ of the said MOU the Defendants have admitted the Plaintiff’s half share in the suit property. Similarly, under the recital ‘f’ of the said MOU also the Defendants have sought to transfer their right, title and interest in the suit property subject to the rights of the Plaintiff. 5. Pursuant to the application for execution of the transfer granted on 8th August, 2003, the Prothonotary & Senior Master of this Court executed a partition deed on 14th February, 2005. 3 6 . The Plaintiff seeks partition of the suit premises as per the said transfer deed. 7. The suit premises consists of a building with ground and three upper storeys. The ground and the 1st floor are tenanted to various tenants. The Plaintiff occupies only one room being Room No.7 on the ground floor. The Defendants together occupy the 2nd as well as the 3rd floor of the building. The occupation of the properties is highly unequal. Though, the Plaintiff is entitled to half share, his actual possession and occupation is in respect of a far lesser area. 8. The Plaintiff has filed the above suit for partition of the half share, for sale of the property if it cannot be partitioned by metes and bounds and for an order for payment of Rs.12,48,000/- to the Plaintiff in lieu of such share. In the Notice of Motion, the Plaintiff has sought an injunction restraining alienation and transfer of such share and the appointment of the Court Receiver. 9. At the ad-interim stage itself, the Court Receiver came to be appointed. He was directed to take 4 symbolic possession. 10. The premises left by the father of the parties is not denied. The share of the parties is to be as per the Will. It is seen that though the Will has been probated since 1984, the Plaintiff has been deprived of his legitimate share for the last 24 years. The Plaintiff therefore has made out a clear case for appointment of Court Receiver for protection of his half share. The Court Receiver has already been appointed for such share. The Plaintiff has applied to be put in possession of the premises allotted to him under the Transfer Deed dated 14th February, 2005. Under the Transfer deed two flats on the 2nd floor, the open terrace of the 3rd floor and two garages of the northern side of the suit premises came to the share of the Plaintiff. The only order that can be passed in this Notice of Motion is to appoint the Plaintiff as the agent of the Court Receiver in respect of the precise share that has come to the Plaintiff under the transfer deed dated 14th February, 2005. When no cause is shown against the relief sought by the Plaintiff, courts have resorted to the remedy of directing the Defendant to hand over the possession of the undisputed property itself. In the case of Pratchett V/s. Drew 1924) 1 Ch 280 Pratchett V/s. Drew 1924) 1 Ch 280 Pratchett V/s. Drew 1924) 1 Ch 280 the 5 bankrupt mortgagee, who was in possession of the premises mortgaged, used as his residence, was directed to deliver up possession to the mortgagee in an auction for foreclosure or sale even though interim Receiver was appointed of the rents and profits as the mortgagee was found prima facie entitled to an order for possession. It was observed that as the mortgagor was adjudged insolvent there would be nothing to be gained by the mortgagee even if his tendency was attorned to the mortgagee. In this case, the Defendants are bound and liable to give half share in the property to the Plaintiff which aspect is not denied and earlier denials have all been negated. Only delay in handing over possession is sought to be caused by the Defendants in this case. 11. In the case of Marshall V/s. Charteris 1920 Marshall V/s. Charteris 1920 Marshall V/s. Charteris 1920 1920 1 ch 520 1920 1 ch 520 1920 1 ch 520 also possession was ordered to be delivered up to the Receiver when no rents and profits of the property were paid by the Defendant. In this case also except possession which is required to be handed over to the Plaintiff, nothing further is to be done. Already 24 years have passed since probate was granted. Possession is needlessly delayed. A case for putting the Plaintiff in possession as the Court Receiver’s agent is made out. 6 Hence, the following order : :: O R D E R :: :: O R D E R :: :: O R D E R :: (a) The Court Receiver shall obtain vacant possession of the aforesaid share for the Plaintiff from the Defendants or any of them who may be found in possession. (b) The Court Receiver shall take forcible possession, if peaceful possession is not given to the Defendants. (c) The Court Receiver shall be entitled to take police assistance, if required. (d) The Court Receiver shall put the Plaintiff in possession of two flats on the 3rd floor, the open terrace in the 2nd floor and two garages on the northern side of the suit property being Bhatt Banglow on Plot No.5 J.V.P.D.Scheme, Vile Parle (West), Mumbai - 56 as his Agent without payment of any royalty or security. 2. The Notice of Motion is, accordingly, disposed 7 of. 3. This order is stayed for three weeks. (ROSHAN S.DALVI, J.) (ROSHAN S.DALVI, J.) (ROSHAN S.DALVI, J.)