1 (51)NMS.3344.2010-S.3018.10.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3344 OF 2010 IN SUIT NO. 3018 OF 2010 Tyrone Peter Fernandes ...Plaintiff Vs. Trevor Peter Fernandes ...Defendant Mr. Chirag Balsara a/w. Ms. Komal Patil, Advocates i/b. Divya Shah Assoc., for Plaintiff Ms. Asmat Hippargi i/b. Rogue D’Mello, Advocates for Defendant Defendant present in person CORAM : SMT. ROSHAN DALVI, J. DATED : 4TH OCTOBER, 2011 P.C. : 1. The Plaintiff and the Defendant are brothers. The Plaintiff has been and is living in Australia. The Defendant was living with his parents in 2 rooms in a chawl. The chawl came to be developed. A building came to be constructed. The father of the parties was a tenant. He was given alternate accommodation. This was in the 2 suit flats stated to be flat Nos.101 and 102 in ‘A’ Wing, Utsahi Maratha Mandal Co-operative Housing Society Limited, Rebello Road, Bandra (W), Mumbai-400 050. 2. The Plaintiff has claimed his share in the estate of his father. The estate is stated to comprise of the two flats and one plot of land. The Defendant has shown that he has been residing in the said flat all 2 (51)NMS.3344.2010-S.3018.10.sxw through and he continues to reside with his family. The Plaintiff may be entitled to a share in his father’s estate, if the flats comprise a part of his father’s estate. These flats, therefore, are required to be protected against alienation. Since the Defendant has always resided in the flats and the Defendant continues to reside therein and the Plaintiff has always resided abroad no case for appointment of Court Receiver is made out. 3. The Defendant states that he does not desire to sell, alienate or part with the flats. 4. Regarding the plot of land claimed by the Plaintiff it is seen that there were two stables thereon. The Defendant states that they have been encroached by the tenants. The Defendant has also claimed that these plots are co-owned by other family members. The extract of the City Survey record has been provided to the Plaintiff. The other co-owners who would also claim rights in the said plots have not been brought on record. The Defendant states that he does not desire to sell or alienate or part with possession of that plot also. 5. Hence the following order: 1. Prayer (a) is refused. 2. Prayer (c) is complied. 3. Prayer (b) is granted in as much as the Defendant shall not sell, alienate, transfer, part with possession or create any 3rd party rights in the aforesaid two flat Nos.101 and 102 in ‘A’ Wing, Utsahi Maratha Mandal Co-operative Housing Society 3 (51)NMS.3344.2010-S.3018.10.sxw Limited, Rebello Road, Bandra (W), Mumbai-400 050. 4. Notice of Motion is disposed off accordingly. 6. The written statement is filed. The suit is adjourned to 24th November 2011 in regular Court for framing issues. (SMT. ROSHAN DALVI, J.)