1 NM-3402 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Notice of Motion No.3402 of 2010 IN Suit No.3037 of 2010 Hansa Rajkumar Sharma .. .. Plaintiff v/s. Parmeshwari Baijnath Sharma & ors. .. Defendants Mr.P.A. Sarwankar i/by Sarwankar & Co. for Plff. Mr.S.S.Kudalkar for Deft.Nos.1 to 3. Mr.Paresh S. Madkaikar for Dect.No.4. Mr.V.N. Bolinjkar for Deft.No.5. Mr.Kishore L. Siram for Deft.No.6. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 11th January 2011 P.C. : 1.This is a partition suit between the siblings and their mother. There are several facts which are admitted. The suit relates to one flat which stood in the name of the father of the Plaintiff and Defendant Nos.2 to 5. These are the only heirs of the deceased father. Defendant No.1 was his widow. The father made a nomination in favour of Defendant NO.1. The children have not challenged the nomination. The mother has been transferred the flat pursuant to the nomination. The mother has sold the flat to Defendant No.6 in Defendant No.7-Society. Defendant No.6 does not desire to sell, transfer, alienate, encumber or part with 2 NM-3402 possession of the suit flat. The aforesaid are all admitted facts. It will have to be seen on these admitted facts whether the nomination of the mother, which has not been challenged by her children, have become final upon the transfer of the flat and whether she derived full and complete title pursuant to the title upon such nomination. If that was so, the mother could gift the flat to any of her children or sell the flat to an outsider or otherwise deal with or encumber the flat as a full and complete owner. If not, she would have to hold on to the flat as a trustee for the estate of her deceased husband for the rest of her life. The flat would then be transferred upon succession. In such an event she would not be even entitled to bequeath the flat to one of her several children. It would necessarily have to go by intestate succession. If on the other hand, the mother became the full owner of the flat upon the transfer pursuant to the nomination which never came to be challenged by her children and became the full and complete owner, her flat would devolve by succession, testamentary or intestate. Further the question of the mother s right to the residence in the said flat as an incident of her maintenance under Section 14 of the Hindu Succession Act would also have to be considered. This being the only property of the deceased father of the Plaintiff and the flat being in the possession of the mother, it 3 NM-3402 would be in lieu of her maintenance right as held in the case of Lady Ramabai Patwardhan vs. Pranaya Patwardhan in FA No.21 of 1998 in Special Civil Suit No.18 of 1979. Even under that circumstance, the mother would have been absolutely entitled to the suit flat under Section 14(1) of the Hindu Succession Act. This question of law would have to be decided in the suit. 2.It is, however, contended by the Defendants that the Plaintiff and Defendant No.4 renounced their right in respect of the suit flat. That writing would have to be seen and proved in the suit. 3.At the hearing of the ad-interim application, Defendant No.6, who is the purchaser in possession, made a statement not to alienate, encumber, part with possession or create any third party right in the suit premises in any manner. Defendant No.6 is agreeable to continue that statement in the Notice of Motion itself. 4.Hence the Notice of Motion is made absolute in terms of prayer (c). Prayer (b) is refused. 5.All parties shall file their Written Statement within 30 days. The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.) 4 NM-3402