1 ao62,63-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO. 62 OF 2010 IN NOTICE OF MOTION NO. 1390 OF 2008 ALONGWITH CIVIL APPLICATION NO. 106 OF 2010 AND APPEAL FROM ORDER NO. 63 OF 2010 IN NOTICE OF MOTION EXHIBIT 2 ALONGWITH CIVIL APPLICATION NO. 107 OF 2010 Dennis Trevor D'Silva & Anr. .. Appellants v/s. Rodney Medard D'Silva & Anr. .. Respondents .... Mr. Satyam Vaishnawa a/w. Mr. Anil Chauhan i/b. M/s. N. N. Vaishnawa and Co. for the Appellants. Ms. Z. S. Irani and Mr. Prashant Tiware for Respondent No.1. Mr. A. R. Shaikh for Respondent No.2. .... CORAM : J. H. BHATIA, J. DATE : OCTOBER 18, 2010. P.C. Heard the learned counsel for the parties. 2. The Plaintiffs have preferred these two Appeals against the rejection of Notice of Motion No. 1390 of 2008 and Notice 2 ao62,63-10 of Motion marked Exhibit 2. Admitted facts are that the Plaintiffs and Respondent No. 1 are brothers inter se. They have one more brother namely Stephen Fredrick. Their father Dr. Lewis D'Silva had executed a Will in the year 1972 in respect of certain movable and immovable properties belonging to him. One of the property was Sylvan Home. As per the said Will, he had bequeathed all his immovable as well as movable properties to his wife Mary F. D'Silva for life with power to sell the same if needed and after death, the Sylvan Home was to go to Defendant No.1 Rodney D'Silva. Admittedly, Dr. Lewis D'Silva entered into a contract with a builder and as a result of the same, the Sylvan Home was demolished and a new building came to be constructed, out of which, 20 flats were sold to third parties by the builder and they formed a Cooperative Society. Four flats were allotted to the owner of the old Sylvan Home. The construction of the building was completed in the year 1978-1979. Dr. Lewis D'Silva died, leaving behind his wife, three sons and six daughters. According to the Plaintiff, after the death of his father, the said four flats were owned and occupied by the Plaintiff, Defendant No.1, their brother Stephen and their 3 ao62,63-10 mother. After some years, their mother also died and that flat was in possession of their sister. Defendant No.1 recently entered into an agreement with Defendant No.2 for demolition of the said four flats and for redevelopment. The Plaintiff filed a suit, taking objection to the demolition and redevelopment of the same without his consent as he is owner and occupier of one of the flat on the second floor of that building. According to him, he was living abroad for few years and taking advantage of that, Defendant No. 1 had entered into the said contract of redevelopment and is also trying to block his entry. By the Notice of Motion, he sought temporary injunction restraining Defendants from demolishing the said building without his consent. By another Notice of Motion Exhibit 2, he sought direction to the Defendants to hand over the key of the main gate of the second floor, so that he can approach his flat wherein his belongings are lying. 3. The Defendants contended that under the Will of his father, the Sylvan Home came to his share after their mother and he is exclusive owner of the four flats also now known as “Sylvan Home”. He denied that the Plaintiff has any right, title, 4 ao62,63-10 interest or possession over any of the flats. He also contended that a probate of the said Will has been granted in the year 1992. 4. The Plaintiff has produced several documents including electricity bills showing that he is in possession of one of the flat on the second floor of the said building. It is also pointed out by the learned counsel for the Plaintiff that their father had executed a Will in the year 1971 when the old Sylvan Home was in existence, but that building was demolished and redeveloped in the life time of their father. He contends that under the Will, the said Sylvan Home was bequeathed to wife of Dr. Lewis and after her death, the said house was to go to Defendant No.1, but, as that house was no more in existence at the time of death of Dr. Lewis, the testator, part of the said Will to the extent of Sylvan Home has become infructuous and is not executable. In place of the old building called Sylvan Home, a new building has come up, and out of which four flats were given to this family and the said four flats were occupied by the Plaintiff, Defendant No.1, their brother and their mother. The flat in possession of their mother is now in 5 ao62,63-10 occupation of their sister. As pointed out earlier, there is a documentary evidence to show that one of the flats appears to be in possession of the Plaintiff. In these circumstances, the Will of their father and its implications need to be interpreted at the time of final hearing of the suit. Therefore, the said building cannot be demolished and redeveloped at the instance of Defendant No.1 alone. Prima facie, it appears that consent of the Plaintiff, who is occupier of one of the flats, may be necessary. It may be noted here that the Municipal Corporation has also issued a notice for demolition of the building under Section 354 of the Municipal Corporation Act, on the ground that the building is in a dilapidated condition. The Municipal Corporation is not a party in this suit, nor any relief is sought against the Municipal Corporation. In view of the above circumstances, it is necessary to grant some interim relief in favour of the Plaintiff, pending the suit. 5. Therefore, without consent of Plaintiff No.1, the suit building shall not be demolished and redeveloped by Defendant Nos. 1 and 2 or anybody on their behalf, pending the suit. However, it will not come in the way of its demolition 6 ao62,63-10 by the Municipal Corporation or as per the orders of the Municipal Corporation under section 354. Even if the building is required to be demolished under the directions of the Municipal Corporation, there shall be no further redevelopment and construction without consent of Defendant No. 1 or till the decision of the suit. Defendant Nos. 1 and 2 shall open the lock of the main gate and also the first floor so as to allow the Plaintiffs to take away their belongings from the said flat, as according to the parties, the remaining three flats are already vacated. 6. The trial Court shall expedite and dispose of S.C. Suit No. 880 of 2008 as early as possible, and preferably within one year. 7. Both the Appeals and Applications stand disposed of accordingly. [ J. H. BHATIA, J. ]