1 NMS.521.07-S.362.07.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 521 OF 2007 IN SUIT NO. 362 OF 2007 Doulat Ramchand Daswani ...Plaintiff Vs. Parshotam @ Pishu Ramchand Daswani & Ors. ...Defendants Ms. J. Sidhwa i/b. Desai Desai Carrimjee & Mulla for Plaintiff Mr. Darshan Zaveri i/b. B.R. Zaveri for Defendants 1 and 2 Ms. Rita Shroff i/b. K.V. Cheda for Defendants 3,4A to 4C & 5 CORAM : SMT. ROSHAN DALVI, J. DATED : 21ST NOVEMBER, 2011 P.C. : 1. The suit is between siblings. The suit flat was self acquired property of the father of the parties. The father expired on 11th March 1976 leaving behind the Will dated 9th May 1969. The Will has not been probated. The father left behind 11 children. Out of these 7 children are stated to have been bequeathed the suit flat. Defendants 1 and 2 alone reside in the suit flat. These facts are admitted by the parties. 2. It is the case of Defendants 1 & 2 that after the death of the father the parties agreed not to enforce the Will, but to allow Defendants 1 and 2 to continue living in the suit flat and for Defendants 1 and 2 to pay off the other brothers. 4 brothers are stated to have been paid off. 5 brothers remained to be paid including the Plaintiff and 2 NMS.521.07-S.362.07.sxw Defendants 3 to 5 who support the Plaintiff. 3. The Plaintiff and Defendants 3 to 5 claim their rights under the unprobated Will. To claim these rights the Will would have to be probated. 4. In this suit the defence of the Defendants of giving a go bye to the Will and entering into an oral arrangement between the brothers would have to be adjudicated. 5. It is seen that the facts governing the parties and properties are all admitted. It is only for Defendants 1 and 2 to prove the oral arrangement and its part execution. 6. A case for grant of injunction is made out, but not for appointment of Court Receiver. 7. The Plaintiff and the other brothers who do not reside in the suit flat have been allowed to reside in the suit flat whilst they are in Bombay as per the ad-interim order. That order deserves to be continued pending the suit. 8. The written statement is filed. This suit is pending for the last 4 years. It would be in the interest of the parties to have the issues framed and to proceed to trial. 9. Defendants 1 and 2 would have the right to begin the evidence in view of the aforesaid admissions and in view of their case of oral 3 NMS.521.07-S.362.07.sxw arrangement. Hence the following order: 1. The ad-interim order shall continue pending the suit. 2. Defendants 1 and 2 shall not deal with, dispose off, alienate, encumber, part with possession, transfer or create any 3rd party rights in the suit flat pending the Suit. 3. The Plaintiff and the other brothers who live out of Mumbai shall be entitled to live in the suit premises whilst in Mumbai pending the suit. I S S U E S 1. Whether Defendants 1 and 2 prove the oral arrangement pursuant to the joint meeting held in 1980 as claimed by them. 2. What relief, if any, is the Plaintiff entitled to ? 10.Defendants 1 and 2 shall file their affidavit of examination-in-chief to begin the evidence and their affidavit of documents, if any, within 4 weeks from today. 11.If Defendants 1 and 2 rely upon any documents, the admissibility of such documents will be considered by the Court. If not, the parties may proceed before the Court Commissioner and Defendants 1 and 2 shall be entitled to file their affidavit of evidence directly before the Court Commissioner. 4 NMS.521.07-S.362.07.sxw 12.By consent of all Counsel Mr. Sandeep Parekh is appointed Commissioner to record the evidence in this suit. 13.Parties shall appear before the Commissioner initially on 12th January 2012 at 5 p.m and thereafter as fixed by the Commissioner. 14.The Court Commissioner shall record the evidence preferably day-to- day. 15.The parties shall pay the fees as fixed by the Court Commissioner equally between Defendants 1 and 2 on one hand and between Plaintiff and other Defendants on the other. 16.After the evidence of Defendants 1 and/or 2 is completed the Plaintiff shall be entitled to lead his evidence directly before the Commissioner. 17.The Plaintiff shall be entitled to file affidavit of documents, if any. If the Plaintiff relies upon any documents the admissibility of those documents shall be considered by the Court. If the Plaintiff does not rely upon any documents, parties to proceed for cross examination of the Plaintiff before the Commissioner directly. 18.Parties to place the suit on board at appropriate time. 19.Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)