1 JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 55 OF 2010 IN SUIT NO. 40 OF 2009 IN PETITION NO. 48 OF 2009 Amarlal Balchand Gaba. ... Plaintiff. V/s. Chander Verohmal Dudani & Anr. ... Defendants. And The Deputy Registrar, Co-operative Societies, Mumbai. ... Respondents. Mr. Ramesh Ramanmurthy for the Plaintiff. Mr. Bhargavan for Defendant 1. Mr. Golwala for Defendant 2. CORAM : R.Y. GANOO, J. DATED : 15th APRIL 2010. P.C. :- Heard learned Advocates on both sides. No formal affidavit in reply is filed by the Caveator – Defendant No.1 and the Respondent when the affidavit motion can be disposed of on merits. 2. It is noticed that Defendant No.1 has filed an Appeal before Respondent No.3 as his application for membership 2 came to be rejected by Respondent No.2 – Society. That Application to Defendant No.2 was filed on the strength of nomination executed by the testator in favour of Defendant No.1. 3. If Defendant No.1 succeeds before the Deputy Registrar, the Society would be bound and liable to transfer flat in favour of Defendant No.1. It will have to be made clear that if flat is transferred in the name of Defendant No.1 purely on the strength of nomination by the Society as per the orders passed by the Deputy Registrar that transfer by itself will not confer full ownership by Defendant No.1. Hence, there is no need to pass an order in terms of prayer clauses (a) and (b). So far as prayer clause (c) is concerned, the Court is informed that monthly maintenance is being paid by Defendant No.1. If Defendant No.1 wants to pay the monthly maintenance such an amount can be collected by the Society between the Plaintiff and Defendant No.1. Such a payment shall be without prejudice to the rights and contentions of the parties. The monthly maintenance must be paid to the Society and therefore, Defendant No.1 wants to pay it at his own risk. The learned Advocate for Defendant No.1 states that Defendant 3 No.1 will continue to pay the monthly maintenance. In view of this, there is no need to pass any order in terms of prayer clause (c). 4. Since the Testamentary Suit in regard to the last will and testament of Ms. Indira Verohmal Dudani is pending and since the flat No.43 described in prayer clause (a) constitutes the assets of the deceased, it will be proper to restrain Defendant No.1 from creating third party rights in regard to the said flat till the disposal of the Testamentary Suit. Hence, following order is passed :- (i) Motion is dismissed so far as prayer clauses (a) and (b) are concerned. (ii) Statement made by learned Advocate for Defendant No.1 that Defendant No.1 shall continue to pay monthly outgoings from time to time is noted. It is recorded that such monthly maintenance will be paid by Defendant No. 1without prejudice to the rights and contentions as between the Plaintiff and Defendant No.1. 4 (iii) Till the disposal of Testamentary Suit No.40 of 2009, Defendant No.1, his agents and servants are restrained from transfer and/or creating third party rights in respect of flat no.43 more particularly, described in prayer clause (a). (iv) Motion stands disposed of in the above terms. There shall be no order as to costs. (R.Y. GANOO, J.)