1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1271 of 2008 IN SUIT NO. 1039 of 2008 Sunil Harishchandra Sharma .. Plaintiff versus Vasundhara H. Sharma & ors. .. Defendants ... Mr.Deepak J. Lulia for the plaintiff. None for the defendants. CORAM : D.G.KARNIK, J DATED : 27th June 2008 P.C.: 1. Heard learned counsel for the plaintiff. None present for the defendants. 2. By this motion, the plaintiff seeks appointment of a receiver in respect of the suit properties and also an order of injunction 2 restraining the defendants from selling, transferring or alienating the same during the pendency of the suit. 3. When the matter came up before this court on 23rd April 2008, the defendant through their counsel made statement that they were selling transferring or alienating the property described in Exhibit-A to the plaint (for short "the suit property"). The plaintiff to that extent is protected. 4. As regards prayer for appointment of receiver, the only allegation that is made is to be found in paragraph nos.2 and 3 of the affidavit in support of the motion which reads thus:- 2. I say that the Defendants are causing waste of the suit property left by my deceased father in which they have no exclusive right, title and interest and they are trying to misuse the said property to which I am entitled in the circumstances mentioned in the Plaint. 3. I say that in order to avoid further damage to the suit property and with a view to protect the interest of 3 the suit property left by my deceased father it is absolutely necessary and in the interest of the justice that pending hearing and final disposal of the suit the the Court Receiver, High Court, Bombay or some other fit and proper person be appointed as a Receiver for the suit property left by my deceased father under Order 40 Rule 1 of Code of Civil Procedure and Receiver be directed to take possession of the suit property left by the deceased. Except the bare allegation that the defendant are causing waste no further details have been furnished, the acts which allegedly constitute waste have not been specified. By filing an affidavit in reply, the defendants have denied the allegation of waste. In the circumstances, in the absence of any particulars of the alleged waste and any material in support thereof, it is not possible to hold that the defendants are causing waste of the suit property. 5. According to the plaintiff, the suit property originally belonged to Harishchandra, his father, and therefore he and each of defendants have 1/4th share 4 in the property. The defendants have not denied that the plaintiff has 1/4th share in the suit properties except the properties mentioned at Serial nos.4, 7, and 8 of the Exhibit-A to the plaint. As regards property at Sr. No.4 of the Exhibit-A to the plaint, the defendants have stated that the same was disposed of by Harishchandra during his life time. As regards property at Serial nos.7 and 8, the defendants have denied that they were the properties of deceased Harishchandra. Properties at Sr.Nos.7 and 8 stand in the name of defendant no.3. There is no material on record to show that the properties at Sr.No.7 and 8 belong to the deceased. At this stage therefore, it cannot be said, even prima facie, that the deceased was the owner of the properties mentioned at Sr.Nos.7 and 8 of Exhibit-A to the plaint. As regards the movable properties, the defendants have stated that movable properties and/or documents relating to them are in the possession of the plaintiff and the plaintiff himself is aware of the extent of the movable property belonging to the deceased. In any event, since the defendants are not claiming exclusive ownership in any of the movable properties, there can be injunction against the transfer of the movable properties. 6. As stated earlier, in the absence of any 5 allegations of waste and proof in support thereof, a receiver cannot be appointed in respect of the properties. Hence, I pass the following order:- O R D E R O R D E R O R D E R . Prayer for the appointment of receiver is rejected. The defendants are restrained from selling, transferring, alienating or parting with the possession of any of the movable or immovable properties mentioned in the list of immovable properties annexed as Exhibit-A to the plaint save and except the immovable properties mentioned at serial nos.7 and 8 of the Annexure-A. (D.G. KARNIK, J)