1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.313 OF 2008 IN SUIT NO.1489 OF 2006 Sheela Anand Chavan and others ..Plaintiffs. Vs. Manohar S. Chavan and others ..Defendants. .... Mr. Atul G. Damle for the Plaintiffs. Mr. Shailesh Shah with Mrs. S.A. Dhamale for the Defendants. .... CORAM: DR. D.Y. CHANDRACHUD, J. 7th February, 2008. P.C. : 1. The suit has been instituted for a declaration that the Plaintiffs are joint owners of land admeasuring Survey No.45, Hissa, No.2, CTS No.317, at Village Pahadi, Goregaon (West) and for a decree for possession in respect of the business of a banquet hall, clinic as well as an open plot of land admeasuring about 2,300 sq. mtrs. comprised within the aforesaid property. The deceased Shankarrao Chavan who was the father of the First and Second Defendants had four sons and two daughters. One of the sons was Anand Chavan, the predecessor-in-interest of the Plaintiffs. The land originally stood in the name of Shankarrao's wife 2 Parvatibai between 1945 until 1972. In 1972 or thereabout, the name of the Second Defendant Sumant was brought on the property register. The Second Defendant had executed a deed of mortgage on 12th June, 1973. The property was sold in realization of the mortgage debt and on 17th January, 1976 Anand, the predecessor in interest of the Plaintiffs, purchased the property. Anand died on 5th January, 2001. A suit was instituted by the Defendants in this Court seeking a decree of partition on the basis that the property in question belonged to the Hindu Undivided Family. A Notice of Motion was taken out for interim relief. By a judgment and order dated 13th December, 2004 a Learned Single Judge of this Court (Hon'ble Mr. Justice D.K. Deshmukh) came to the conclusion, prima facie, that there was no material to indicate that the property belonged to the HUF. Prima facie, the learned Single Judge was of the view that the property was of the sole ownership of Anand. The Notice of Motion for interim relief was, therefore, dismissed. This Court has been informed that an appeal has been filed against the judgment of the learned Single Judge which has been admitted. 2. In the present suit the claim proceeds on the basis that 3 Anand who was the predecessor in interest of the Plaintiffs was solely and exclusively entitled to the property. In the Notice of Motion the appointment of a Receiver has been prayed for. During the course of the hearing of the Motion, the learned counsel appearing on behalf of the parties have agreed in stating before the Court that the property comprised in Survey No.45, Hissa No.2, CTS 317 comprises of (1) premises in which a hospital by the name of Shri Sai Clinic is being conducted; (2) premises in which a wedding hall is conducted and (3) an open plot of land admeasuring 2,300 sq. mtrs. 3. The case of the Plaintiffs is that the learned Single Judge of this Court has already come to the conclusion though prima facie in the order dated 13th December, 2004 that the property was not the property of the Hindu Undivided Family, but that it was solely and exclusively owned by the predecessor in interest of the Plaintiffs. On the other hand, it has been urged on behalf of the Defendants that the finding of the Learned Single Judge has still not attained finality. The attention of the Court has been drawn to the averment contained in paragraph 9 of the written statement to the effect that when the property was put up for auction towards 4 payment of the mortgage debt of the Second Defendant, the amount which was paid for the purchase of the property was contributed by the Hindu Undivided Family. At this stage, it would only be appropriate and proper for the Court to observe that there is a prima facie finding of a Learned Single Judge of this Court dated 13th December, 2004 to the effect that the property did not belong to the Hindu Undivided Family. Apart from the fact that the order has been challenged in appeal, the question as to whether the HUF had a nucleus for the purchase of the property and whether as a matter of fact the property belongs to the HUF is a matter which has to be finally determined on the basis of evidence at the trial. However, the entitlement of the Plaintiffs and their shares in the property which forms the subject matter of the suit cannot be denied on either view of the matter. If, as the Plaintiffs contend the property was of the sole and exclusive ownership of their predecessor in interest, the Plaintiffs would be entitled to the entire corpus of the property. But even if the contention of the Defendants were to be accepted to the effect that the property belonged to the HUF, on that footing the Plaintiffs would unquestionably have a 1/6th share representing the branch of one of the six children of deceased Shankarrao Chavan. This position 5 is not disputed fairly even by the Defendants during the course of the hearing. Consequently, the appropriate interlocutory directions to issue would have to be such as would maintain the balance of justice between the branches of the family which are involved in the litigation before the Court. 4. Insofar as the premises which comprise of the hospital are concerned, the case of the Defendants is that the construction was originally put up by the HUF and a total of 15 shops were in fact sold to third parties from whom the premises were acquired by the Fourth Defendant. Accordingly to the Defendants, five shops were purchased by the Fourth Defendant in 1988, five in 2000 and five in 2005. Out of the 15 documents, 10 are stated to be registered. The Fourth Defendant is a doctor and is conducting the clinic in the premises. Prima facie, at this stage having regard to the aforesaid position, the appointment of a Receiver would not be warranted in respect of the premises of the hospital. 5. Now insofar as the premises of the wedding hall are concerned, the Defendants rely upon a deed of relinquishment – an agreement allegedly executed by the predecessor in interest of the Plaintiffs on 18th April, 1998. At earlier point of time, a hotel by 6 the name of Hotel Padmawati was carried out in the premises and was being conducted by a partnership firm consisting of the members of the family. By the alleged agreement dated 18th April, 1998 the predecessor in interest of the Plaintiffs is alleged to have agreed that a conducting agreement of 1980 which he had executed in favour of the partnership firm was terminated and that he had no objection to release his rights in favour of the First Defendant to the suit. Now it would be necessary to observe that the authenticity of this agreement has been seriously questioned on behalf of the Plaintiffs and the attention of the Court has been drawn to the clear variation in the signature of Anand on the alleged deed of 18th April, 1998 on the one hand and another document dated 5th May, 1999 executed by Anand furnishing his no objection for the registration of the nursing home. Prima facie, even a bare perusal of the two signatures would indicate a wide variation. But, be that as it may, it is undisputed that the agreement dated 18th April, 1998 has not been registered. If the agreement purports to constitute relinquishment by Anand of his rights, that can obviously have no force and effect in the absence of registration. In fact, counsel appearing for the Defendants has also fairly conceded that the 7 licences in respect of the hotel stood in the joint names of Anand and the First Defendant. The case of the Plaintiffs is that the shops and establishment certificate, the licence under the Bombay Prohibition Act, 1949 and the licence under the Prevention of Food Adulteration Rules all stood in the name of Anand. Having regard to the aforesaid position, the interest of the Plaintiffs would require to be protected by the appointment of a Receiver in respect of the premises of the wedding hall. The business of the wedding hall is presently being conducted by the First Defendant. The Receiver shall in the first instance furnish an opportunity to the First Defendant for being appointed as his agent, subject to royalty and security. 6. Insofar as the open land admeasuring 2300 sq. mtrs is concerned, it would be appropriate to direct that the Court Receiver shall stand appointed as Receiver of the land. The Receiver shall invite bids from the members of the family viz. the Plaintiffs and the Defendants and appoint as his agent such person who agrees to furnish the highest bid subject to such terms as to royalty and security as may be determined by the Receiver. Until the Receiver takes charge, there shall be an order of injunction restraining the 8 parties from creating any third party rights or from alienating or encumbering or from parting with the possession of the property. The Motion shall accordingly stand disposed of.