: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.137 OF 2007 IN SUIT NO.2 OF 2003 IN PETITION NO.381 OF 2002 Ashok Kumar Agarwal & Anr. ....Plaintiffs V/s. Petitioners Vijay S. Agarwal ....Defendant Caveator Mr.S.V. Doijode with Ms.Meenakshi Iyer i/b Doijode Associate for the Plaintiffs. Mr.P. Samdani, Senior Counsel with Mr.S. Purohit i/b Little & Co. for the Defendant. CORAM : S.J. VAZIFDAR, J. DATED : 11TH MARCH, 2008. P.C. : 1. The Notice of Motion has been taken out by the Defendant for an order directing Plaintiff No.2 to allow him to have access to a bathroom/toilet between two bedrooms and directing Plaintiff No.2 to open the door, latch from the inner side leading to bedroom No.3. 2. The above Petition is filed for Letters of Administration in respect of the estate of the deceased father of the Petitioner and the Caveator. : 2 : On a caveat being filed, the Petition has been converted into a suit. 3. The reliefs in this Notice of Motion are claimed in respect of a flat which admittedly belongs to the estate of the deceased. It is not necessary for the purpose of this Notice of Motion to consider the rival contentions between the parties as to which one of them is entitled to the flat. The Petitioner contend that the flat devolves upon the heirs of the deceased father on intestacy. The Defendant has not produced a Will but has contended that in all probability the deceased father must have left a Will bequeathing the flat to his son who is not a party to the present proceeding. 4. In absence of the Will, it is difficult to grant the reliefs as claimed. In order to ensure that none of the parties are inconvenienced and they occupy the flat peacefully, it is necessary to issue certain directions. Admittedly the flat is presently being occupied by Plaintiff No.2 and the Defendant and the members of their respective families. 5. The flat consists of four bedrooms, a drawing cum-dinning room with a balcony attached thereto, two : 3 : kitchens and an area which can be used only as a bath and four other bathrooms. One bathroom each is attached to bedroom Nos.1, 2 and 4 as shown in the plan annexed as Exhibit "1" to the affidavit in support of the Notice of Motion. There is also a bathroom which is shown in Exhibit "1" as a servants bathroom. 6. Admittedly, bedroom Nos.1 and 2 are used by Plaintiff No.2 and his family and bedroom Nos.3 and 4 are used by the Defendant and the members of his family. 7. Plaintiff No.2 resides in the flat with his wife. He has two children, one of whom is married. Both children are presently living abroad. The unmarried son has graduated and is temporarily working abroad. . The Defendant has a son and two daughters, one of whom is married. The younger, unmarried daughter resides with the Defendant. The Defendant’s wife and son also reside in the said flat. 8. While there is an attached bath and toilet to bedroom No.4, there is no attached bath or toilet to : 4 : bedroom No.3. There is a bath and toilet between bedroom Nos.2 and 3. Bedroom No.2 is occupied by Plaintiff No.2. This bath and toilet has always been used exclusively by Plaintiff No.2. It is not desirable in the interest of peace and harmony that the Defendant be allowed to use this bath and toilet in common with Plaintiff No.2. It not having been so used for a number of years, I see no reason to change the status in this regard. 9. Having said so, it would be appropriate to permit the Defendant the use of another bathroom. The servant’s bathroom is approximately the same as the bath and toilet attached to bedroom No.4 being used by the Defendant. It would be appropriate to permit the Defendant to use bathroom shown in Exhibit "1" as the servant’s bathroom exclusively at this stage. The Defendant is therefore at liberty to use the same exclusively and for this purpose to renovate the same at his expenses. 10. All the parties agree that they will not use the said flat or any portion thereof for any commercial purpose. They further agree that they shall not exploit the flat commercially either by way of inducting tenants, licensee, paying guests or : 5 : otherwise howsoever. 11. Bedroom No.1 has certain cupboards in which the Defendant and his family members are presently storing their belongings. The Defendant agrees to remove all his belongings from the said cupboards. He however states that though he does not have any objection to the belongings of his wife being removed from the cupboards, he takes no responsibility for the same in view of his strained relationship with her. He has no objection to if Plaintiff No.2 deals with his wife in this regard. The Defendant himself shall remove his belonging within four weeks from today. 12. Plaintiff No.2 and the Defendant shall share all the dues, charges and expenses of the society equally. The parties are also at liberty to apply for a separate sub-meter from B.E.S.T. Plaintiff No.2 will make an application for a separate sub-meter. The Defendant shall execute all the documents, deeds and writings as may be necessary for issuance of a sub-meter. 13. The drawing and dinning room admeasures approximately 22 ft. x 19 ft. In addition thereto is a balcony. The said room has two entrance, it is in : 6 : the interest of both the parties that a temporary wooden partition is put up along the length of the room and Plaintiff No.2 and the Defendant use separate portions exclusively at this stage. The parties have agreed to try and do so by consent. However, in the event of their being unable to do so within four weeks from today, they shall make an application to the Prothonotary and Senior Master, who shall on such application being made appoint an Architect from the panel of the Court Receiver. The Architect shall visit the suit premises and file a report as to the most convenient manner of dividing the drawing and dinning room and balcony equally as far as possible. It is agreed that upon such division, the Defendant shall use the portion towards bedroom No.1 and Plaintiff No.2 shall use the portion towards bedroom No.2. . The costs of the Architect and the partition shall be shared equally between Plaintiff No.2 and the Defendant initially. The same shall be subject to final orders at the hearing of the suit. The parties agree and undertake to pay the costs of the Architect as above.