-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 190 OF 2010 IN NOTICE OF MOTION NO. 4260 OF 2007 IN SUIT NO. 3046 OF 2007 Mr. K. Rajeevandas Rai & Ors. ..Appellants. Versus Mr. K. Sataranjandas Rai. ..Respondent. Mr. G. S. Bhat for the appellants. Mr. G. V. Aiman for respondent. Coram : F.. I. REBELLO & R. V. MORE, J. Date : June 9, 2010. Oral Order (Per R. V. More, J.) : 1. Heard learned counsel for the respective parties. Admit. In view of the short question involved, appeal is taken up for final hearing with the consent of learned counsel for the respective parties. 2. The appellants – original plaintiffs take exception to the order dated 2nd December 2009 passed by the learned Single Judge in Notice of Motion No. 4260 of 2007 in Suit No. 3046 of 2007 whereby the appellants’ notice of motion was partly made absolute. The appellants being aggrieved by the refusal of part of the reliefs, has approached this Court by way of the aforesaid appeal. The brief facts giving rise to the present appeal are as follows : -: 2 :- . The appellants (original plaintiffs) and the respondent (original defendant) are brothers and sisters. The appellants have filed Suit No. 3046 of 2007 for the administration of estates of their deceased father. The father of the plaintiffs and defendant in and around 1950 started business in the name and style of “Jaylaxmi Hindu Hotel” in shop Nos. 6 & 7 on ground floor of Chandan Mansion situated at Gokhale Road, Dadar, Mumbai – 400 080. The deceased father of the appellants and respondent had obtained the said shops on tenancy basis. For the sake of brevity, the said shops are referred to as “the suit premises” and the business run therein is referred to as “the suit business”. The suit business was run in the suit premises by the deceased father of the appellants and respondent till his death on 10th June 1975. After the death of their father, the suit business was transferred in the name of mother of the appellants and respondent in the Municipal record, however, tenancy continued in the name of their deceased father. It is the case of the appellants that their mother was housewife who never did actual business or participated in the same though the licence of suit business was standing in her name. The business was carried on by all the brothers till the death of mother. The mother of the Appellant nos.1 to 5 and respondent expired in the year 2005. The suit business was carried on jointly by the appellants and defendant till October 2005 and thereafter the defendant did not allow the appellants to participate in the business. The defendant has also stopped -: 3 :- giving share in profit and accounts of the business to the appellants. It is the case of the appellants that since the deceased father of the appellants and respondent acquired the tenancy in respect of the suit premises and started the suit business, they are entitled to 1/9th undivided share in it. 3. The appellants filed Notice of Motion No. 4260 of 2007 for interim inunction restraining the respondent from selling, transferring, assigning, parting with possession of the suit premises or inducting anyone or alienating or encumbering the suit business and premises or allowing anyone else to conduct the business carried now in the name and style of New Malwani Kinara therein. The appellant also sought appointment of the Court Receiver, High Court, Bombay with further direction to appoint the plaintiffs or defendant or any third party by holding the bid to run the business carried on therein. 4. The learned Single Judge after hearing learned counsel for the respective parties allowed the appellants’ notice of motion partly thereby restraining the respondent from encumbering or creating any further right, title or interest in favour of any party including the present conductor in respect of the suit premises and the business carried on therefrom without the leave of Court. The defendant was also directed not to part with possession of the said premises in favour of any party. He was also restrained from surrendering tenancy of the suit premises. Learned Single Judge further directed that the draft of any proposed conducting -: 4 :- agreement in future shall be forwarded to the plaintiff’s advocate at least two weeks before finalising the same. The appellant was also granted liberty in that event. Learned Single Judge clarified that the respondent shall be entitled to compensation/royalty even in respect of future conducting agreement or leave and licence agreement. The amount, however, shall be subject to adjustment at the final hearing of suit. The appellant being partly aggrieved by this order, has filed the present appeal. 5. Learned counsel for the appellants submitted that the suit premises was obtained on tenancy basis by the deceased father of the appellants and respondent and today also tenancy stands in the name of their deceased father. Their father expired in the year 1975 and thereafter the appellant and defendant alongwith their mother filed S. C. Suit No. 2223 of 1976 in the City Civil Court against third parties for possession of the suit premises. The said suit was decreed on 6th March 1985 and possession was directed to be handed over to all the parties to suit. He further contended that the mother of the parties expired on 23/2/2005 and prior thereto licence of the said business was transferred in the name of their mother. He also submitted that the deceased mother transferred licence of the suit business in the name of the respondent without their knowledge though the appellants and respondent till 2005 were conducting the suit business together. He submitted that the appellants are entitled to inherit the suit premises as well as the suit business running therein; and since they have -: 5 :- been ousted from the suit business their rights deserve to be protected by granting interim relief as claimed in the notice of motion. 6. Learned counsel for the respondent, on the contrary, supported the impugned order. He relied upon the provisions of Section 7, sub-clause (15) of the Maharashtra Rent Control Act, 1999 and submitted that since respondent was conducting the suit business in the suit premises alongwith the mother at the time of death of their mother, they become tenant of the suit premises to the exclusion of appellants. He submitted that at present the business in the suit premises is being carried on by the third party on the conducting basis for compensation of Rs.18,000/- per month and this agreement with the third party will expire on 31st December 2010. He submitted that the rights of the appellants are sufficiently protected by the impugned order and therefore no interference is called for. 7. Having heard learned counsel for the respective parties and having gone through the impugned order and appeal memo alongwith the compilation of papers, we find merit in the appeal. There is no dispute that tenancy in respect of the suit premises was acquired by the deceased father of appellants and respondent prior to 1950 and even after death of their father in the year 1975, the tenancy till today continues in his name. After the death of father, the appellants and respondent alongwith their mother filed civil suit being S. C. Suit No. 2223 of 1976 in the City Civil Court, Bombay for possession of the suit premises against third party who -: 6 :- was conducing the business in the suit premises. The said suit was decreed on 6th March 1985 and possession was directed to be handed over to the appellants, respondent and their mother. The fact that the above suit for possession was filed jointly by the appellants, respondent and their mother fortifies the appellants’ contention that the suit premises and the suit business was treated as joint family properties by the parties to the suit. 8. The licence of the suit business was transferred in the name of the deceased mother of appellants and respondent and thereafter in the name of respondent. However, in our view the respondent cannot claim exclusive right over the suit premises and the suit business as the same were inherited by the appellants alongwith the respondent after the death of their deceased father. This fact was accepted by the respondent by filing S.C.Suit No. 2223 of 1976 in the City Civil Court alongwith the appellants for possession. The respondent claims that licence came to be transferred by the deceased mother in his favour and therefore he has exclusive right in the suit business. His further contention is that the mother bequeathed the suit business in his favour. We find no merit in the said contentions. Firstly, the mother of appellants and respondent at the most could bequeath only her share in the suit business in favour of the respondent and not the entire business. Otherwise also the alleged Will or probate is not produced on record. The appellants have denied the existence of any Will by their deceased mother. In any event the deceased mother had no -: 7 :- right to bequeath tenancy rights in the suit premises in favour of the respondent since the same belong to the deceased father of the appellants and respondent and the appellants and respondent alongwith their deceased mother had equal right in the suit premises and the suit business. So far as the contention of the respondent that he became exclusive owner of the suit property in view of provision of section 7(15) of the Maharashtra Rent Control Act, 1999 is concerned, same is also meritless since initially the tenancy was in the name of their father and by virtue of filing of the above suit in City Civil Court, Bombay, the respondent admitted the appellants rights in the suit premises and suit business. The respondent is now estoped from contending contrary to the pleading in the said suit. 9. It is not disputed that presently the suit business is being carried on by the third party under the business conducting agreement. The respondent is getting an amount of Rs.18,000/- per month by way of compensation from the said third party. We find merit in the contention of the appellant that they have been ousted from the suit premises and suit business unjustly by the respondent. We are of the prima facie view that the appellants have share in the suit premises and suit business since the same were acquired by their deceased father prior to 1950. We are also of the considered opinion that by the impugned order the interest of appellants are not sufficiently protected. -: 8 :- 10. In the circumstances, we dispose of the appeal by passing following order : (1) The impugned order is quashed and set aside. (2) The third party conducting the suit business is allowed to continue the same till 31st December 2010 on payment of compensation of Rs.18,000/- per month. The respondent is, however, directed to deposit the said amount of compensation in this Court from July 2010. (3) From January 2011 the suit business shall be conducted by the highest bidder between the appellants, respondents or third parties. The bids for that purpose shall be held by the Prothonotary and Senior Master of this Court for a conducting agreement for a period of one year only. (4) The amount of compensation shall be deposited in this Court. (5) It will be open to the parties to apply before the learned Single Judge for a share in the compensation. The learned Judge to decide the same. (6) Subject to the above directions, the appellant or respondent during the pendency and till final disposal of the suit shall not encumber or create any further right, title and/or interest in favour of any party in the suit premises and suit business. -: 9 :- (7) Any reasonable expenses incurred by the office of the Prothonotary & Senior Master will be deducted from the amounts received for the conducting agreement. (R.V. MORE, J.) (F. I. REBELLO, J.)