vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.167 OF 2008 APPEAL NO.167 OF 2008 APPEAL NO.167 OF 2008 IN NOTICE OF MOTION NO.110 OF 2007 IN TESTAMENTARY PETITION NO.528 OF 2005 IN TESTAMENTARY SUIT NO.72 OF 2005 A/W NOTICE OF MOTION NO.1164 OF 2008 NOTICE OF MOTION NO.1164 OF 2008 NOTICE OF MOTION NO.1164 OF 2008 IN APPEAL NO.167 OF 2008 IN NOTICE OF MOTION NO.110 OF 2007 IN TESTAMENTARY PETITION NO.528 OF 2005 IN TESTAMENTARY SUIT NO.72 OF 2005 Vijay Kumar Gupta ... Appellant V/s. Naresh Kumar Gupta ... Respondent Ms.Sneha Phene i/b M/s.Gordhandas & Fozdar for Appellant Mr.D.D. Madon a/w Mr.Farhan Dubhash i/b M/s.Desai & Diwanji for Respondent CORAM: S.B. MHASE & S.B. MHASE & S.B. MHASE & SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: JULY 8, 2008 JULY 8, 2008 JULY 8, 2008 P.C.: P.C.: P.C.: . Heard. 2. The order passed by the learned Single Judge in Notice of Motion No.110 of 2007 in Suit No.72 of 2005 in Testamentary Petition No.2528of 2005 is under challenge. : 2 : The dispute is about the property of the late Trilokchand Agarwal. It appears that Trilokchand Agarwal has died on 18.4.2005. During his lifetime, he has executed wills. The first will appears to have been executed on 16.9.1988, the second will appears to have been executed on 5.5.1998 and third will has been executed on 21.10.2004. One of the sons of the deceased Trilokchand Agarwal - Naresh is claiming the will executed on 5.5.1998 as the last will of the deceased and therefore Testamentary Suit No.63 of 2006 is filed. Another son, namely, Vijay is claiming that the will dated 21.10.2004 is the last will of the deceased and, therefore, Suit No.72 of 2005 is filed. Notice of Motion No.119 of 2006 in Petition No.528 of 2005 in Testamentary Suit No.72 of 2005 had been disposed of on 19.1.2007 with the consent of the parties by the learned Single Judge, namely, D.K. Deshmukh, J. While disposing of the Motion the learned Single Judge directed that "so far as the factory at Thane is concerned, the Court Receiver is appointed as administrator only for the purposes of making inventory of the machinery and other movables in the factory building. The learned counsel appearing for Respondent No.1 states that many of the machinery is presently lying in the factory building is either purchased or manufactured him. The said Naresh Kumar Gupta shall be free to submit before the Administrator evidence in : 3 : support of his claim. After the inventory is prepared, the administrator shall supply copy of the same to all the parties involved. Thereafter the parties shall be at liberty to take out appropriate application if necessary. It is common ground that presently, respondent No.1 - Mr.Naresh Kumar Gupta is in possession of the factory building and machinery. It is his case that he was managing the factory even during the lifetime of the deceased. Mr.Naresh Kumar Gupta shall furnish the accounts within a period of three months of the period from the date of death of the deceased till 31st December 2006 and shall continue to submit the accounts for the subsequent period annually. The accounts shall be submitted to the Prothonotary and Sr.Master of this Court in a sealed cover in the probate petition filed by him. Mr.Naresh Kumar Gupta is also directed not to create third party interest, alienate or part with possession of the factory building and machinery subject to his claim that some of the machinery is owned by him." Thus, with these directions so far as the factory is concerned, the concerned machinery was disposed of. This was a Motion taken out by Vijay Kumar Gupta. Some corrections were carried out by order dated 8.3.2007. The following sentence was added with the consent of the parties: "It is the claim of Respondent No.1 that some of : 4 : the machinery were also taken on hire by him". 3. Thereafter, it appears that the MIDC issued a notice to the respondents herein for induction of a third party and imposing penalty. Therefore, the respondent filed Writ Petition No.8278 of 2007. On 21.1.2008, the Division Bench of this Court consisting of J.N. Patel and Nishita Mhatre, JJ. granted rule in the matter and in the meantime, granted relief in terms of prayer clause (c) which is without prejudice to the proceedings before the testamentary Court i.e. Testamentary Suit No.72 of 2005 and Testamentary Suit No.63 of 2006 pending between the parties on the Original Side of the Court. So far as the intervention application is concerned, the same will be heard alongwith Petition at the time of final hearing. The Court clarified that the petitioner will not act contrary to the interest of the parties in the proceeding pending before the testamentary Court i.e. in Testamentary Suit No.72 of 2005 and 63 of 2006 and orders which may be passed in the Contempt Petition filed by the intervenor. Parties are at liberty to move the Court if any contingency arises. Thereafter, the appellant filed Motion No.110 of 2007 in Testamentary Suit No.72 of 2005 seeking relief that pending hearing and disposal of the present suit, this Court be pleased to appoint an administrator pendente lite of the entire : 5 : estate u/s 247 of the Indian Succession Act and commit in the hands of such Administrator the entire estate of the deceased with all expenses to be incurred as incidental to such appointment and discharge of such Administrators duties be borne out of the estate of the deceased, which is sought to be protected; (b) without recourse to the estate the 1st Respondent be directed to deposit in Court Rs.22,47,000/- claimed by MIDC for the unauthorised and illegal subletting of Thane Property to SVN Consultant. Thus according to the appellant, there is subletting by the respondent and penalty has been imposed by the MIDC and the said amount should be directed to be deposited and the company should be given in possession of the administrator. In reply to this Motion, the respondent has filed an affidavit and stated that he is doing job work and for the job work, the services of the SVN Consultant has been hired by him. It is neither a third party inducted in possession of the factory nor they are the licencees and there is no right created in their favour on their doing the job work for and on behalf of the respondent. SVN Consultant have filed their affidavit to the same effect. After hearing the parties, the learned Single Judge of this Court on 13.2.2008 disposed of the said Motion. So far as this property is concerned, this Court has found that in order to protect the appellant, the Single Judge of this Court has directed the : 6 : respondent to furnish an undertaking to this Court within two weeks from the date of the order. The undertaking was to the effect of paying the existing and future liabilities of the MIDC in the event of such a liability falling upon the property left by the deceased. The undertaking was subject to the final result of the suit. In the event of failure to furnish the undertaking as ordered, the defendant was to deposit Rs.22,47,000/- with this Court subject to decision in this suit. No specific appointment of the Administrator as prayed in the notice of motion is necessary for the reasons recorded. Thus, looking to the orders which are passed in the Motion Nos.119 and 110 of 2007, which are referred to above, we find that the present appellant has been sufficiently protected. Therefore, we do no find any substance in the appeal. Appeal is hereby rejected. 4. In view of the appeal being rejected, nothing survives in Notice of Motion No.1164 of 2008 and the same is disposed of accordingly. (NISHITA MHATRE, J.) (S.B. MHASE, J.)