1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4296 OF 2006 IN SUIT NO. 3416 OF 2006 Smt. Supriya Shailesh Patel ......Plaintiff V. Smt. Neela B. Patel and others ......Defendants Mr. D.D. Madon, Sr. Advocate a/w S.G. Gupte & Ms Meenakshi Iyer i/b Doijode & Associates for the plaintiff. Mr. Anil Anturkar a/w Mr. Vatsal Shah, Ayaz Bilawala, Deepali Deshmukh and Rajeev Rai i/b Bilawala & Co. for the defendants. CORAM : A.A. SAYED, J. DATE : 9TH JULY, 2009. P.C. 1 The above Notice of Motion is taken out by the plaintiff interalia for injunction and appointment of Court Receiver. 2 The suit is filed by the plaintiff for administration and partition of estate of her deceased husband Shailesh Patel, who died intestate and 2 also of her deceased father-in-law Babubhai Patel. Shailesh died on 2nd February, 2005. Babubhai died on 2nd October, 2006. According to the defendants, Babubhai died testate and had left behind him his last Will and Testament dated 10th March 2005. The plaintiff is claiming 1/2 share in the estate of Shailesh under the provisions of Hindu Succession Act 1956 and so far as the estate of Babubhai is concerned, the plaintiff is claiming 1/4th share under the provisions of the said Act viz: Hindu Succession Act, 1956. The estate of Shailesh and Babubhai and the plaintiff's share as claimed by her is set out by the plaintiff in the statement annexed as Exh. Y to the plaint. 3 The case of the plaintiff is that she has been deprived of her income and share in the estate of Shailesh and that of Babubhai by the defendants. The defendant No.1 is mother-in-law of the plaintiff and the defendant Nos. 2 and 3 are the sisters-in-law of the plaintiff. The plaintiff has averred in the plaint that she has no independent regular income of her own apart from some meagre interest/dividend income of about Rs. 30,000/- per annum and that she is required to maintain herself and her 15-year-old daughter from her previous marriage out of this meagre income. The plaintiff has therefore, filed the present suit and has claimed her share in the estate of Shailesh and of Babubhai. 3 4 The Learned Sr. Counsel for the plaintiff submitted that insofar share of the plaintiff in the estate of Shailesh is concerned, there is no dispute about the same. Learned Sr. Counsel for the plaintiff further submitted that the plaintiff is also entitled to the share in the estate of Babubhai under the provisions of Hindu Succession Act, 1956. He further submitted that the estate of Shailesh and Babubhai is being wasted by the defendants and her rights are required to be protected. He pointed out the ad-interim order dated 16-01-2007 whereby the defendants were injuncted from letting out and creating 3rd party rights in respect of the properties set out in Exh. C and Exh. X of the plaint and the defendants were further directed to make a disclosure of the assets and properties left by Shailesh and Babubhai, which the defendants have disclosed vide their Affidavit dated 20-02-2007. He submitted that it is essential that the Court Receiver be appointed in respect of estate of Shailesh as well as of Babubhai. Exh Y to the plaint, which sets out the estate of Shailesh as well as Babubhai and share of the plaintiff as claimed by her, is reproduced hereinbelow:- Sr Description of Share of Share of Share of No Property Shailesh Babubhai Plaintiff 1 Electroscope Systems. 1 Nil 1/2 a Proprietorship 4 2 Gala No.55 at Shah 1 Nil 1/2 Industrial Estate 3 Gala No. 60 at Shah 1 Nil 1/2 Industrial Estate 4 Trak Components Pvt. 1/2 Nil 1/2 of Ltd (Assets of the Shailesh's Company- one share plus Industrial Gala at 1/2 her own Mahape, Navi Mumbai) share 1/4+1/2) =3/4 5 Deonar Bungalow 1/2 Nil 1/4 (Palmyra) 6 Kashi Niketan 1/2 1/2 1/4 of Shailesh's share plus 1/8 of B.C. Patel's share (1/4 + 1/8) = 3/8 7 Nav Ketan 1/2 1/2 1/4 of Shailesh's share plus 1/8th of B.C. Patel's share (1/4 + 1/8) = 3/8 8 Rail view 1/2 1/2 1/4 of Shailesh's share plus 1/8th of B.C. Patel's share (1/4+ 1/8) = 3/8 5 9 Agricultural 1/2 Nil 1/4 land at Panchgani 10 Flat No.1 at Sawan 1 Nil 1/2 Plaza Co-operative Hsg. Society Koparkhairne, Navi Mumbai 11 Office No.6 in 1/2 Nil 1/4 New Bombay Co- operative Commercial Premises Society Ltd., Belapur,Navi Mumbai 12 Bungalow at Rajgol 1 Nil 1/2 Park, Lonavla 13 Patel Motels 2/5th Nil 2/10th Partnership firm (40%) ( 20%) 14 Highway Lodge 3/10th 1/10th 4/10th (30%) (10%) (22.5%) 15 Lunav Retreat 2/5th Nil 2/10th (Lodging House (40%) (20%) and Restaurant) 16 Property at Kashid 1 Nil 1/2 being bungalow and Plot No. 7 at Prakruti Resorts 17 Shanti Niketan Nil 1 1/4 18 Land and bungalow Nil 1 1/4 at Panvel 6 19 Property at Ambernath Nil 1 1/4 at Survey No. 37, Hissa No.6 (part), at village Moroli, Tal. Kalyan Dist. Thane 20 Property at Lonavla Nil 1 1/4 5. (i) Insofar as item No. 1 above, viz. Electroscope Systems is concerned, according to the plaintiff, it was a proprietary concern of Shailesh. The Plaintiff claims ½ share therein.The Defendants in the Written Statement admit that Shailesh was the sole proprietor of the said firm. (ii) In respect of item No.2 viz. Gala No. 55 at Shah Industrial Estate, according to the plaintiff, Shailesh was 100% owner. The plaintiff claims ½ share in the said gala. The Defendants in their further Affidavit dated 20th February 2007 admit that this Gala was owned by Shailesh and used by him to carry on his business of Electroscope Systems (Item No. 1 above) from this Gala. According to the Defendants, Defendant No. 1 has 50% share in this Gala. (iii) Item No.3 viz: Gala No.60 at Shah Industrial Estate – According to the plaintiff, Shailesh was 100% owner. The plaintiff claims ½ share in 7 the said gala. The Defendants admit that this gala was owned by Shailesh. According to the Defendants, Defendant No. 1 has 50% share in this Gala. (iv) Item No. 4 viz: Trak Components Pvt. Ltd. (Assets of company - one industrial gala at A-705, MIDC Industrial Area, Mahape, New Bombay) - According to the Plaintiff, Shailesh was owner of ½ of the shares of the Company and she was the owner of other ½ shares. The plaintiff claims 3/4th share. The defendants have stated in their written statement that this company does now have any business and is a defunct company and the gala is in possession of Defendant No. 1. In affidavit dated 31-01-2009 of defendants in para 4 it is stated that a sum of Rs. 31,82,214/- is receivable by this Company from one Tractor Engineering Pvt. Ltd., however this sum could not be recovered due to non cooperation from the plaintiff. (v) Item No.5 viz: Deonar Bungalow (Palmyra) - According to the Plaintiff, Shailesh had ½ share in the said bungalow. The Plaintiff claims ¼ share in the said bungalow. The Defendants in their written statement have stated that the remaining 1/2 share belongs to defendant No.1. It is however further stated that during his life time, Shailesh with the consent 8 of defendant No.1, had sold this property for lump sum of Rs. 80 lacs to one Shyam Prabha Creations Pvt. Ltd. The defendants have further stated that the agreement with Shyam Prabha Creation Pvt. Ltd. inter alia provided that a flat at cost price would be reserved for Shailesh and defendant No. 1. According to defendants the said Shyam Prabha Creation is in possession of the said property and copies of the documents are in possession of the plaintiff and/or Shyam Prabha Creation Pvt. Ltd. (vi) Item No. 6 viz: Kashi Niketan – According to the plaintiff, both Shailesh and Babubhai had equal ½ share in this property. The plaintiff claims 3/8th share i.e ¼th share of Shailesh plus 1/8th share of Babubhai (1/4 + 1/8 = 3/8). The defendants have not disputed that Shailesh has 1/2 share in this property. The defendants in their written statement have stated that this property comprises of ground plus two floors, out of which entire second floor was occupied by Babubhai and the areas on the ground floor and first floor is fully tenanted. According to the defendants, Babubhai was looking after and managing the affairs of the said building even during the lifetime of Shailesh who had authorized Babubhai to deal with the said property in a manner he would deem fit. The defendants in their written statement have further stated that, 9 Babubhai had bequeathed his 1/2 share in Kashi Niketan to defendant No.2 and children of defendant No.3 under his last Will and Testament dated 10th March, 2005. Pertinently, in para 16 of the written statement, it is stated as follows :- "..that B.C. Patel had during his lifetime created a tenancy in respect of premises Nos. 9, 10 and 11 on the ground floor in the building known as "Kashi Niketan" at Chembur, Mumbai in favour of Punjab National Bank which remained in their possession for more than two decades. Similarly, premises No. 14 in the same building was let out to Sumaya Family Trust and thereafter, Sumaya Family Trust had let out the said premises to Punjab National Bank and the said Bank used to occupy these premises as one unit with the consent of B.C. Patel. However having regard to the provisions of Section 3 of the Maharashtra Rent Control Act, Punjab National Bank was called upon to hand over possession of the said premises both to B.C. Patel and Sumaya Family Trust which they did. The Plaintiff knew that late B.C. Patel alone was managing and looking after various properties including "Kashi Niketan" and was authorized to deal with the same in such manner as he deemed fit. Shailesh had never objected to the same, including transfer of tenancy. As far as these defendants are aware, Shailesh had given written authority to his father to deal with the said properties. B.C. Patel had during his lifetime, created tenancy in favour of KPNPA Trust, a private trust formed under the Deed of Trust dated 10th March 2006 by the Defendant No. 1. The Defendants state that before any formal tenancy agreement could be signed and registered, he died on 3rd October, 2006. However, in accordance to his desire, the Tenancy Agreement was then executed by his Sole Executor in favour of KPNPA Trust which was duly registered as required under law. These Defendants state that KPNPA Trust with the consent of the Sole Executor, let out the Premises Nos. 9, 10 and 11 to Karur Vyaya Bank Ltd., upon the terms and conditions as contained in the Leave and License 10 Agreement dated 12th December 2006. Similarly in respect of Premises No. 14, Sumaya Family Trust also gave the premises No. 14 to the Karur Vysya Bank Ltd., upon the terms and conditions contained in the Leave and License Agreement dated 12th December, 2006. The Defendants submit that the documents that were executed in respect of Premises Nos. 9, 10 and 11 are within the knowledge of the Plaintiff as the same are duly registered as required under law." (vii) Item No. 7 viz: Nav Ketan – According to the plaintiff, this property was jointly owned by Shailesh and Babubhai having equal shares. The plaintiffs claims 3/8th share i.e 1/4th share of Shailesh plus 1/8th share of Babubhai (1/4 + 1/8 = 3/8 share). The defendants have not disputed the share of Shailesh in this property. The defendants in their written statement have stated that this property comprises of ground floor plus 3 upper floors and the ground floor is fully tenanted. A small portion being Office No 306 was occupied by Babubhai as the tenant in the said building and the said office is now occupied by defendant No.1. It is further stated that Babubhai was managing and looking after the said building and according to the defendants, Babubhai has bequeathed this property to defendant No. 2 and children of defendant No.3 under his last will dated 10th March, 2005. (viii) Item No. 8 viz: Railview – According to the plaintiff, this property belonged jointly to Shailesh and Babubhai having equal shares therein. 11 The plaintiff claims 3/8th share in this property i.e. 1/4th share of Shailesh plus 1/8th share of Babubhai (1/4+1/8 = 3/8) share. The defendants have not disputed the share of Shailesh in this property. The defendants in their written statement have stated that this building is fully tenanted and Babubhai used to look after and manage the said building. According to the defendants, Babubhai had bequeathed his ½ share in this property to the defendant No.2 and children of defendant No.3 under his last will dated 10th March, 2005. (ix) Item No. 9 viz: agricultural land at Panchgani – According to the Plaintiff, Shailesh had 1/2 share in this land. The plaintiff claims 1/4th share in this land. The defendants in their written statement have stated that this land was jointly owned by Shailesh and one R.K. Nigam and the said land is open land under the control of the said R.K. Nigam. (x) Item No. 10 viz: Flat No. 1 at Sawan Plaza Co-operative Housing Society Koparkhairne, Navi Mumbai. According to the plaintiff, this flat belonged to Shailesh. The plaintiff claims 1/2 share in the said flat. The defendants in their written statement have stated that this flat was sold during the life time of Shailesh to defendant No.2 and her husband Vashu Sumaya under a written Agreement dated 1st January, 2004 12 (correct date is 1-12-2004 ) which is executed by Shailesh during his life time. It is further stated that Shailesh had received the full consideration amount from them. However the said Agreement dated 1-12-2004 annexed at Exh. F to the Affidavit dated 19-12-2006 filed on behalf of the defendants discloses that out of agreed consideration of Rs. 3,50,000/-, a sum of Rs. 25,000/- only has been received. (xi) Item No. 11 viz: Office No. 6 in New Bombay Cooperative Commercial Premises Society Ltd. Belapur, Navi Mumbai – According to the plaintiff, this office was jointly owned by Shailesh and Mr. Yatin Dossa (husband of defendant No.3) and Shailesh had 1/2 share in the said property. The plaintiff claims 1/4th share this property. The defendant in their written statement have stated that possession of the said office No. 6 has not been received from the Builder till date. (xii) Item No. 12 viz: Bungalow at Raj Gopal Park, Lonavla – According to the plaintiff, Shailesh was the sole owner in respect of this property. The plaintiff claims 1/2 share in respect of this property. The defendants in their written statement have stated that this property is now locked and in possession of defendant No.1. 13 (xiii) Item No.13 viz: Patel Motels, a partnership firm – According to the plaintiff, Shailesh had 2/5 (40%) share in this firm. The plaintiff claims 2/10 (20%) share in this firm. The defendants have admitted in their further affidavit dated 20-2-2007 that in this partnership firm Shailesh had 40% share. According to the defendants, the partnership firm did not own any property and after death of Shailesh the estate of Shailesh is entitled only to the balance in the capital account of Shailesh at the time of his death. This item is apparently linked and to be read in conjunction with item Nos. 15 and 20. (xiv) Item No.14 viz: Highway Lodge – According to the Plaintiff, Shailesh had 3/10th Share (30%) share and Babubhai had 1/10th share (10%). The plaintiff claims 4/10 (22.5%) share. The defendants in their written statement, with regard to this property have stated that as follows: 1. "Highway Lodge is a partnership firm comprising of B.C. Patel and his family members which was constituted under Deed of Partnership dated 29th August, 2001. Shailesh had 30% Share in the said Firm of Highway Lodge. The defendants state that B.C. Patel was the Owner of the land admeasuring 1066 sq. yards situate at Plot No.1 of Suburban Scheme III having acquired the same by the Deed of Partition dated 5th June, 1959 being Exh. No.1 hereto. B.C.Patel had thereafter constructed a building thereon consisting of ground floor plus 3 upper floors and let out apart of the building to 14 occupants/tenants from whom he used to receive the rent, income and profit and retained with himself one half of the premises on the first floor and the premises on the second floor as well as premises on the third floor and this building was designated as "Shanti Niketan" B.C. Patel intended to carry on business of boarding and lodging in the said property. He had obtained licenses from the office of the Commissioner of Police as well as Local Authority for the said purpose. Earlier, he used to carry on the business in his capacity as the sole proprietor in the firm name and style of "M/s Highway Lodge". He intended to expand the business whereupon he held negotiations with the partners of "Highway Lodge" so that they could look after and manage the running business. Agreement of Leave and License was executed on 18th February, 1990 between B.C. Patel in his capacity as the Owner and M/s Highway Lodge as the licensees. Hereto annexed and marked as Exh.No.4 is a copy of the Agreement of Leave and License. The License given by B.C. Patel was initially for period of 5 years with an option of renewal on the same terms and conditions and further option was given on the terms to be mutually agreed upon. Thus, the firm of M/s Highway Lodge is only a licensee. The ownership of the land at Chembur belonged to B.C. Patel and on his demise to his estate. The Deed of Partnership, interalia, provided that upon death of a partner the partnership firm ceases insofar as the deceased partner is concerned . The Defendants crave leave to refer to and rely upon a copy of the Deed of Partnership of the said Firm when produced. The Defendants state that on the death of Shailesh his estate is only entitled to the balance amount standing to his credit in the Capital Account." This item is apparently linked and to be read in conjunction with item No. 17. (xv) Item No. 15 viz: Lunav Retreat (Lodging House and Restaurant) - According to the plaintiff, Shailesh had 2/5th share (40%). The plaintiff claims to have 2/10th share (i.e 20% share) The case of the defendant in their written statement is that Lunav Retreat is the building where Patel 15 Motels carried on business and the building and the land belonged to Babubhai who used to recover the rent, income and profits from the tenants having acquired the same under the Deed of Partnership dated 5th June 1959 and the firm of Patel Motels or Lunav Retreat could not have any right, title and interest in the land and/or building. This item is apparently linked and to be read in conjunction with item Nos. 13 and 20. (xvi) Item No. 16 viz: Property at Kashid being Bungalow and plot No. 76 at Prakruti Resorts – According to the plaintiff Shailesh was a sole owner of this property. The plaintiff claims 50% share in this property. The defendants in their Written Statement have stated as follows: " that under the Agreement dated 12th January, 2000 Shailesh was alloted a plot of land by M/s Prakruti Resorts and he had during his lifetime awarded a contract of construction of bungalow to M/s Shyam Prabha Creations and thereafter the bungalow was constructed under an arrangement between Shailesh and M/s Shyam Prabha Creations whereunder M/s. Shyam Prabha Creations had invested substantial amounts which Shailesh failed to pay during his lifetime. As far as the Defendants know Shailesh had created a lien on the said property for outstanding amounts due and payable to M/s Shyam Prabha Creations. Shailesh intended to create a family trust for the grand children of B.C. Patel. However the Trust was not created by him. The estate of Shailesh is indebted to M/s Shyam Prabha Creations in sum of more than Rs. 67,00,000/- and unless the estate of Shailesh pays the outstanding dues to M/s Shyam Prabha Creations, his estate will not be able to recover the possession of the bungalow and 16 land from them who are at present holding the same as security for the amounts spent in constructing the bungalow. The Plaintiff is fully aware of this arrangement and yet she has made a false claim on this property. The plaintiff is fully aware of these dealings which Shailesh had contacted with Shyam Prabha Creations and she is in possession of the documents executed by Shailesh." (xvii) Item No. 17 viz: Shanti Niketan – According to the plaintiff, Babubhai was the sole owner of this property and Shailesh had no share therein. The plaintiff claims 1/4 the share in this property. The defendants case in their written statement is that Babubhai was sole owner of Shanti Niketan having acquired the same under registered deed of partnership dated 5-6-1959 and had construction of ground plus 3 upper floors and is fully tenanted. A portion of first and second and 3rd floors were given on leave and license basis to Highway lodge (Item No.14). According to the defendants, Babubhai had bequeathed this property to defendant No. 2 and children of defendant No.3 under his last will dated 10-3-2005. This item is apparently linked and to be read in conjunction with item No. 14. (xviii) Item No. 18 viz: land and bungalow at Panvel – According to the plaintiff Babubhai was the sole owner of this property and Shailesh and no share therein. The plaintiff claims 1/4th share in this property. The 17 case of the defendant in their written statement is that this property was acquired by Babubhai during his life time by a deed of conveyance dated 10-9-1998 and he has bequeathed the same to defendant No.2 and children of defendant No.3 under his last will dated 10-3-2005. (xix) Item No.19 viz: property at Ambernath at survey No. 37 Hissa No.6 at village Moroli, Tal. Kalyan Dist. Thane – According to the plaintiff, Babubhai was the sole owner of this property and Shailesh did not have any share therein. The Plaintiff claims to have 1/4th share in this property. The case of the defendants in their written statement is that this property was acquired by Babubhai during his life time under a deed of conveyance dated 10th September, 1998 and he has bequeathed the same to the defendant No.2 and children of defendant No. 3 under his last will dated 10th March, 2005 and this property is under acquisition of Government of Maharashtra. (xx) Item No. 20 viz: property at Lonavla – According to the plaintiff this property belonged solely to Babubhai and Shailesh did not have share therein. The plaintiff claims 1/4th the share in this property. The defendants have, in respect of this property, stated in their written statement as follows: 18 " The land at Lonavala was owned by B.C. Patel who acquired the same under a registered Deed of Partition dated 5th June, 1959 during his lifetime. Hereto annexed and marked as Exhibit No. 1 is a copy of Deed of Partition. B.C. Patel had, during his life time, constructed a residential building on the said land. He had awarded a building contract to one M/s Construction Associates at Lonavala under a written Agreement dated 2nd October, 1987. B.C. Patel had spent about more than Rs. 16,00,000/- but was not able to complete the same on account of his age whereupon negotiations commenced between B.C. Patel on the one hand and Defendant No. 2 and 3 and Shailesh on