1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1441 OF 2005 IN SUIT NO. 1306 OF 2005 Mohammad Ali Zafar Sardar ....Plaintiff Versus Sayeed Zaafar Sardar & Ors. ....Defendants Ms. Anita Castilino i/b. S. M. Kazi, Advocate for the Plaintiff. Mr. Hatim i/b. M/s. Nandlal Kothari & Sabir for Defendant Nos. 1 & 6. Mr. S. G. Deshmukh, Advocate for Defendant No.2. Ms. Kavita Shah i/b. Mr. Ravindra Joshi for Defendant No.3. CORAM : R. V. MORE, J. DATE : 19TH NOVEMBER, 2009. P.C. : Heard Ms. Castilino, learned Counsel for the Plaintiff, Mr. Hatim, learned Counsel for Defendant Nos. 1 and 6, Mr. Deshmukh, learned Counsel for Defendant No.2 and Ms.Kavita Shah, learned Counsel for Defendant No.3. 2. The present notice of motion is filed by the Plaintiff for the following reliefs: (a) that pending the hearing and final disposal of the Suit, the Court Receiver, High Court, Bombay and/or some other fit and proper Person be appointed as “Receiver” of the Properties mentioned in Exhibit- “B” to the Plaint and left by the said Deceased Father with all the powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including the powers to take possession of the Properties of the Deceased Father “Zafar Husein Sardar”. 2 (b) that pending the hearing and final disposal of the Suit, the Defendants, their servants, agents and/or any other Person or Persons claiming through them be restrained by an Order and Injunction of this Hon’ble Court from selling, dealing with, disposing of and/or parting with possession of the Properties left behind by the Deceased “Zafar Husein Sardar” and/or encumbering the said properties more particularly mentioned in Exhibit -”B” to the Plaint in any manner whatsoever. 3. The Plaintiff has filed the above suit for administration and partition of the estate of the deceased – Zafar Hussein Sardar. The Plaintiff alongwith Defendant No.6 claimed to be children of the said Zafar Hussein Sardar from his second wife. The Defendant Nos. 1 to 3 are the children from the first wife of the said Zafar Hussein Sardar and Defendant Nos. 4 & 5 are the children of the deceased daughter from the first wife of the said Zafar Hussein Sardar. 4. In the suit, the relief of administration and partition of the estate is claimed in respect of the following six properties: (i) a Building known as “Bage” consists of Ground plus 2 Floors and situated behind Radhabai Hospital, Mahim (W), Mumbai – 400 016; (ii) Plot of Land being Plot No.31, Opposite John’s Rebert Compound, Court Road, Sewri (E), Mumbai – 400 016; (iii) Plot of Land acquired from the Bombay Port Trust; (iv) Business of Deep Services and the Rent from the Tenant of Licensees; (v) Income or the Sale Proceeds from the Sale of portion of the Structure on the said Plot of Land to one Mr. Sharma. (vi) Income from the business of National Harbour Launch Services and its Office at Indira Green, Road No.1, Mole Station, Ballard Pier, Mumbai – 400 038. 3 The said relief of administration and partition of the estate in respect of the above properties is claimed on the ground that the said properties belonged to deceased – Zafar Hussein Sardar and the Plaintiff has a share in it. 5. The Defendant No. 1 and 3 have filed affidavit in reply and opposed the notice of motion. It is the contention of the Defendant No.1 that the property at serial no.(i) is a building which consists of ground plus two floor. It is his further contention that this property was purchased by his mother – Fatima and one Smt. Hoorunnissa under a registered deed of conveyance dated 19th September, 1967. It is further stated that the property which is described at serial nos.(ii), (iii) & (v) is one and the same and it is in possession of Defendant No.3. So far as the property at serial no.(iv) is concerned, it is a limited company floated in the year 2004 by the Defendant No.3. The Defendant No.3 and his wife are the only Directors of the said Company. The property at serial no.(vi) is a business in which the deceased – Zafar Hussein Sardar had 25% share. However, after the death of the deceased, a fresh partnership was entered into between one Sidi Ibrahim Sidi Husain Sardar, Defendant No.1 and Defendant No.3. 6. The Defendant No.3 has also filed an affidavit opposing the notice of motion. He is mainly concerned with the property at serial nos. (ii), (iii) and (v). His contention is that the plot belongs to the Mumbai Port Trust. Initially, it was given to the uncle of his deceased father for a period of 15 months on lease. The premium of lease was not paid and therefore, the Mumbai Port Trust filed a suit against the uncle of the deceased – Zafar Hussein Sardar. In the suit, a decree was passed against the uncle of the deceased and the suit against the Defendant No.2 i.e.deceased father was dismissed. Being aggrieved by the said judgment and decree, Mumbai Port Trust preferred and Appeal and the matter was remanded back to the Trial Court. In the meantime, the father died and Defendant No.3 alongwith the other legal heirs of the deceased father was brought on record. The matter was independently settled with the Mumbai Port Trust and a fresh lease was executed in favour of the Defendant No.3 after 4 accepting an amount of Rs. 53,00,000/- by the Mumbai Port Trust from Defendant No.3. 7. It is also the contention of the Defendant Nos.1 & 3 that one property i.e. the plot of land admeasuring 3 Gunthas at Majari, Post Rajpuri, Taluka Murud, District Raigad was in possession of the Plaintiff’s mother. This property which is mentioned at clause (i) on page 5 of the plaint, was sold by the Plaintiff. It is the contention of the Defendant Nos. 1 & 3 that this factor should also be taken into consideration while considering the reliefs claimed under the notice of motion. 8. The learned Counsel for the Defendant No.2, at this stage opposes the prayer in the notice of motion on the ground that he is out of the property alleged to have been acquired by the deceased father – Zafar Hussein Sardar. He submits that if the suit properties are proved to be properties belonging to the deceased father – Zafar Hussein Sardar, then, he is entitled for a share, in the same. 9. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the plaint, the affidavit in support of the notice of motion alongwith affidavit in reply filed by the Defendant No.1 & 3 respectively. So far as the property at serial no.(i) is concerned, the same is acquired by the mother of Defendant No.1 and one Smt. Hoorunnissa by registered sale deed of 1967. The learned Counsel for the Plaintiff submits that the mother of Defendant No.1 had no independent income and she must have purchased this property out of the income of her deceased husband. The Defendant No.1 has produced registered sale deed, the inspection of which was already given to the learned Counsel for the Plaintiff. In my view, the submission of the learned Counsel for the Plaintiff regarding source of money to acquire the property cannot be gone into at the interim stage and ultimately, if the Plaintiff, after leading evidence on record, succeeds to prove that the property was acquired by Defendant No.1’s mother out of the 5 money given by his father, then appropriate orders will be passed in that regard. But today, I do not see any reason to pass order in terms of prayer clauses (a) or (b) in respect of the said property. It is pointed out that in this property there are four tenants and the Defendant No.1 is receiving rent from the tenants. In my view, the interest of the Plaintiff will be protected, if the Defendant No.1 is directed to keep accounts in respect of the income and outgoing of the said property during the pendency and final disposal of the suit. 10. So far at property at serial nos.(ii), (iii) and (v) is concerned, this is a plot of land being Plot No.31, Opposite John’s Rebert Compount, Court Road, Sewri (East), Mumbai – 400 059. There is no dispute that the property belongs to Mumbai Port Trust. After careful perusal of the submissions of the learned Counsel for the Plaintiff and Defendant No.3, it is clear that a fresh lease was executed by the Mumbai Port Trust in favour of Defendant No.3 on 27th June, 2002, after Defendant No.3 paid huge sum of Rs.53,00,000/- to the Mumbai Port Trust as a premium of lease. In view of that fact, since the Defendant No.3 has deposited huge amount, I am of the opinion that no interim order deserves to be passed in respect of this property. 11. So far as the property at serial no.(iv) is concerned, the same is a business started by the Defendant No.3 and his wife, independently, in the year 2004 by floating private limited company. Therefore, no interim relief can be granted in respect of the said property, also. 12. The property at Serial No.6 is a new partnership firm entered into between one Sidi Ibrahim Sidi Husain Sardar, Defendant No.1 and Defendant No.3, after the death of the father. During the lifetime, the father had 25% share in the property. If this share of 25% is to be distributed amongst his lineal descendants, then the share of the Plaintiff will at the most come approximately to 5%. At present, the Defendant No.1 and son of Sidi Ibrahim Sidi Husain 6 Sardar are doing partnership business. In my view, the Plaintiff prima-facie could establish that he has share to the extent of 5%. However, this share is very meagre and therefore, instead of granting any relief as claimed under prayer clauses (a) and (b), I am of th opinion that Plaintiff’s interest can be protected by directing the Defendant No.1 to keep accounts of the business of National Harbour Launch Services during the pendency and final disposal of the suit. One more reason why I am not inclined to grant any relief as claimed under prayer clauses (a) and (b) of the notice of motion is that the Plaintiff himself was in possession of the Majari property which was subsequently sold. 13. In the facts and circumstances, I dispose off the notice of motion by passing the following order : a) The Defendant No.1 is directed to keep accounts of income and outgoing in respect of the property at serial no. (i) i.e. “a Building known as “Bage” consists of Ground plus 2 Floors and situated behind Radhabai Hospital, Mahim (W), Mumbai – 400 016” and the business of National Harbour Lauch Services during the pendency and final disposal of the suit. Sd/- (R. V. MORE, J.)