1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3405 OF 2007 IN SUIT NO.2546 OF 2007 Priti Kirit Shah ..... Plaintiff. V/s Ishwarbhai Chotalal Kothari and others ..... Defendants. Mr. Niranjan Lapashiya i/b Niranjan & Co. for plaintiff. Mr. Anil Singh along with Mr. Atul Singh i/b Manoj Upadhyay for defenant Nos. 4 and 5. Ms. Shweta Jain i/b Tushar Garodia for Defendant Nos. 1 and 2. CORAM: V. M. KANADE, J. DATE : 10TH MARCH, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of Plaintiff and the learned Counsel appearing on behalf of Defendants. 2. Plaintiff and Defendants are close relatives. Plaintiff is a daughter of Defendant No.1 and sister of Defendant Nos. 2 to 4. Defendant No.5 is husband of Defendant No.4. Plaintiff 2 has filed this suit claiming share in the two Flats being Flat No.702 and 703 situated at situated at ‘A’ Wing, 7th Floor, Rahul Enclave, Borivali (West) Mumbai 400 092. 3. It is the case of Plaintiff that her father viz. Defendant No.1 had purchased the property being Flat No.131 admeasuring about 844 sq.ft at Tardeo. This flat was transferred by him in favour of mother of the Plaintiff. Her mother nominated Defendant Nos. 3 and 4 in the nomination form. She died on 06/05/1992. Initially Defendant No.3 was residing in the said flat. This flat, however, after the death of the mother of the Plaintiff, was transferred in the name of Defendant Nos. 3 and 4. Defendant No.3’s name, however, was deleted and Defendant No.4, thereafter, sold this flat. It is the case of Plaintiff that out of the sale proceeds of this Flat, present two flats have been purchased in the joint name of Plaintiff and Defendant No.4. According to Plaintiff, Defendant No.4 started harassing Defendant No.1 and 3 and, as a result, they had to leave the flat and Defendant No.1 is now residing with the Plaintiff. During the pendency of the suit, several police complaints have been filed by Defendant No.1 against Defendant Nos. 4 and 5. The said criminal proceedings are pending. It is submitted that taking into consideration the aforesaid facts, Plaintiff and Defendant Nos. 1 to 3 have right in the property viz Flat Nos. 702 and 703 which is purchased out of the sale proceeds of the Flat situated at Tardeo. It is submitted that mother of the Plaintiff expired without leaving a Will. It is submitted that 3 the said Flat Nos. 702 and 703 are purchased out of the sale proceeds of the said Flat No.131 at Tardeo and, therefore, it is submitted that Plaintiff and Defendant Nos. 1 to 3 have equal share in said new flats alongwith Defendant No.4. It is, therefore, submitted that this is a fit case for appointment of the Court Receiver. 4. At the ad-interim stage, Defendant Nos. 4 and 5 have been directed not to create any third party rights in respect of the suit flats. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the Plaintiff. The facts and circumstances as narrated in the plaint do reflect the picture which is quite unfortunate. Defendant No.1 is 84 years old and is residing with Plaintiff. However, that by itself would not entitle the Plaintiff to seek an order of appointment of Court Receiver as long as the property is protected. Allegations made by the Plaintiff in the Plaint are specifically denied by Defendant Nos. 4 and 5 and it is alleged that the said property has been purchased out of their own funds and it is their self acquired property. This being the position, it is not necessary to appoint the Court Receiver. However, ad-interim relief will have to be granted during the pendency of the suit. Ad-interim relief is granted in terms of prayer clause (b) of the Notice of Motion. Defendant Nos. 4 and 5, however, shall pay maintenance of the said flats. Counsel for Defendant Nos. 4 and 5 makes a statement that they shall pay the maintenance and outgoings of the Society. 4 5. Notice of Motion is made absolute in the aforesaid terms. Place the matter for framing of issues after two weeks. (V.M. KANADE, J.)