1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2487 OF 2009 IN SUIT NO.1700 OF 2009 Yogesh N. Patel .. Plaintiff Versus Narayanbhai P. Patel and Anr. .. Defendants. Mr.Uday Bobde with Mukesh Subramaniam for plaintiff Mr.Jaideep Mitra with Vinod Singh for defendant Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. DATE : December 18, 2009. P.C.: 1] The plaintiff is seeking interim relief in terms of prayer clauses (b) and (c) of the motion. 2] The plaintiff has filed this suit for declaration that he and the defendants are co-owners of the properties, forming part of the suit. The plaintiff has stated that he is non resident Indian. The first defendant is the father of plaintiff and defendant No.2. The dispute is between the 2 plaintiff and defendant No.2. It is stated that the mother of plaintiff and defendant No.2 late Shardaben also left behind her heirs. However, the sisters of plaintiff and defendant No.2 and daughters of defendant No.1 have given up their claim. Plaintiff states that these are ancestral properties. The details of the purchase by the joint family are set out in paras 2 and 3 of the plaint. It is also stated that the joint family of defendant No.1 was partitioned between defendant No.1 and his brother and as per the partnership deed, the suit properties have come to the share of defendant Nos.1 and his family. It is stated that two flats were purchased in 1977 when the plaintiff and defendant No.1 were doing business jointly. They were purchased in the name of defendant No.2 and his wife. It is stated that in the year 1999, the plaintiff and his family migrated to USA. However, the possession of flat No.102 is claimed by the plaintiff. His claim for physical possession need not be gone into inasmuch as that was part of the distinct suit under section 6 of Specific Relief Act and interim relief has been denied therein. 3] An oral agreement between plaintiff and defendant No.2 is pleaded and it is in pursuance thereof that the flat No.102 was transferred to the plaintiff. Thereafter, the shares in the ancestral property are referred to in 3 para 8 of the plaint and the apprehension after defendant No.2’s conduct qua the plaintiff is set out in subsequent paras. Plaintiff prays that until this court determines the rights of both sides, it would be desirable to preserve and protect the subject matter of the suit and more particularly the flats. 4] It is for such reliefs that the notice of motion with the aforementioned prayers has been filed. The reply affidavit of the defendants and more particularly of defendant No.2 is that the defendant No.1 after purchasing the property and more particularly the flats mentioned in the suit have bifurcated the share. Defendant No.1 is paying necessary taxes. The suit property is not an ancestral property but it has been acquired by defendant No.1 and except defendant No.1 none has any right to claim right, title and interest in the said properties. Plaintiff is claiming 1/3rd share on the basis that these are ancestral properties just to harass the defendant No.1 in his old age. 5] It is stated in para 11 of the affidavit in reply that the plaintiff has no right in the suit property as the same is acquired by the father in law of the defendant No.2. Moreover, the suit premises are owned by defendant 4 No.2 i.e. wife of defendant No.1. In para 14 it is asserted that till the lifetime of defendant No.1, no legal heir of defendant No.1 can claim any right, title or interest in the property as it is not an ancestral property. The details of the acquisition of the property are then set out. 6] It is surprising that affidavit is filed by defendant No.2 but the statements therein pertain to defendant No.1. It is stated that this is a joint affidavit. However, from a perusal of the same carefully, it is apparent that this is nothing but the version of second defendant. The first defendant does not claim that he is desirous of disposing of or dealing with the property at this stage. It appears to be second defendant’s insistence that no interim injunction should be granted and on the basis that the suit property is not ancestral property. 7] To my mind, the core question at this prima facie stage is whether the suit properties are ancestral or have been self-acquired properties by defendant No.1. True it is that in the life time of defendant No.1 both plaintiff and defendant No.2 will have no claim but once the version is that there should be a partition on account of disputes, then, until the entire controversy is resolved and the version of both sides is yet to be 5 substantiated, the subject matter of this litigation will have to be preserved and protected. Accordingly, the following order would serve the ends of justice. 8] Pending hearing and final disposal of the suit, the defendants shall not alienate, encumber, transfer or dispose of the suit properties, save and except with prior leave and sanction of this Court. (S.C.DHARMADHIKARI, J)