spb/- 1 nms2460-06.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2460 OF 2006 IN SUIT NO. 2154 OF 2006 Mr. Paresh C. Parekh ... Plaintiff. V/s. Mr. Kamlesh C. Parekh & Ors. ... Defendants. ----- Mr. Bhavesh Parmar i/by Sailesh Thakkar & Co. for the Plaintiff. Mr. Ashish Kamath a/with Ms. Shreevardhan Parchure i/by N. Shah & Himayatullah for Defendant Nos 1 and 2. . ----- CORAM : D. G. KARNIK, J. DATE : 30th JUNE, 2011. P.C. : 1 Heard. 2 This Notice of Motion is taken out by the plaintiff in the administration suit for (i) disclosure of the assets of the deceased, (ii) for appointment of a Receiver of the estate and property of the deceased and (iii) for an injunction, restraining the defendants from selling, transferring, alienating the property of the deceased-Lilavati Parekh. 3 Counsel for the plaintiff does not press the prayer for appointment of a Receiver. The prayer regarding the disclosure of the assets of the spb/- 2 nms2460-06.sxw deceased has already been granted and as the assets have been disclosed the prayer no longer survives. Only prayer that is required to be considered is the prayer for injunction against alienation. 4 Mrs. Lilavati Chhotalal Parekh died on 12th April, 2006, leaving behind three sons, a daughter and widow and children of 4th pre-deceased son. It appears that the dispute mainly consists of inheritance to Flat No. 11, situate in Utkarsh Building, Girgaum Co-operative Housing Society Ltd., Mumbai -04. The defendant nos. 1 and 2 claimed that the flat has been bequeathed to them under the Will and Codicil of Mrs. Lilavati and therefore, the plaintiff has no right, title and interest therein. The plaintiff has filed the suit for administration of the estate of Mrs. Lilavati and for declaration that the Will and Codicil are bad, illegal, null and void. It cannot be disputed that but for the Will the plaintiff is entitled to a share in the property of the deceased. 5 Section 213 of the Indian Succession Act provides that no right as as executor or a legatee can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed. The defendant no.1 has not obtained probate of the Will. Counsel for the defendants submitted that an application for spb/- 3 nms2460-06.sxw probate has been made and it is numbered as probate Petition No. 545 of 2011. It is worthwhile to note that Lilavati died in the year 2006, the suit has been filed in the very year i.e. 2006 and no attempt has been made by the defendant no.1 to obtain probate of the Will till the year 2011. The fact remains that till today no probate of the Will has been granted and therefore, defendants not yet established their right to the suit flat under the Will. 6 Learned counsel for the defendants then submitted that during her life time, Mrs. Lilavati has transferred the flat to the defendant no.1 by transferring the membership of the society. Under section 17 of the Registration Act, right to an immovable property cannot be transferred without a registered deed. No registered deed of transfer is produced. In the case of Ramesh Himmatlal Shah vs. Harsukh Jadhavi Joshi (AIR 1975 Supreme Court 1470), the Supreme Court has held that right to occupy a flat in the co-operative society is species of property which is transferable. In my view that right can be transfered only under a registered instrument. In the absence of any transfer under the registered instrument, prima facie, it cannot be said that the defendant has become owner of the property during the life time of Lilavati herself. spb/- 4 nms2460-06.sxw 7 Counsel for the defendants then contended that the balance of convenience was not in favour of the plaintiff inasmuch as the plaintiff has not averred that the defendant no.1 was trying to sell the suit property. If the defendant no.1 does not intend to sell the flat, the injunction would not affect him and the balance of convenience would not be against him. On the other hand, if the defendant sells the flat during the pendency of the suit, the plaintiff would be prejudiced. In the circumstances, the submission of the defendants that the balance of convenience is not in favour of the plaintiff cannot be accepted. In my view, the plaintiff is entitled to an injunction against alienation. 8 Hence, the Motion is allowed in terms of prayer clause (d). [D.G. KARNIK, J.] .....