1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2702 OF 2009 IN SUIT NO. 1787 OF 2009 Liladhar Achut Mondkar & Anr. ... Plaintiffs. V/s. Devendra Achyut Mondkar & Ors. ... Defendants. Ms. S.M. Dandekar for the Plaintiffs. Mr. Mohit Bhansali i/b. S.B. Prabhavalkar for Defendants 1 to 3. CORAM : R.Y. GANOO, J. DATED : 7th APRIL 2010. P.C. :- The Plaintiffs and the Defendants are related to each other. Narendra Mondkar happened to be the brother of Liladhar – Plaintiff No.1, Devendra – Defendant No.1. One Satyendra was the brother of said Narendra. Satyendra expired in 1991. Therefore, Plaintiff No.2, his son has joined hands with Plaintiff No.1 for filing this Suit. Defendant No.4 is son of Satyendra. Defendant Nos. 2 and 3 are sons of Defendant No.1 Devendra. Said Narendra expired on 27th February 2007. His wife had expired in 2001. According to the Plaintiffs, Plaintiffs and Defendants are heirs of said Narendra in accordance with the provisions of Hindu Succession Act. According to the Plaintiffs, said Narendra left behind him various properties set out in paragraph 6. According to the Plaintiffs, the Plaintiffs and Defendants are entitled to succeed to the estate set out in prayer clause (b). 2 By this Motion, the Plaintiffs want that the Defendants should not create third party rights in regard to Item Nos. 1 to 5 set out in prayer clause (b). The Plaintiffs want that the Defendants should disclose the particulars of gold ornaments and investments those held by Narendra as per prayer (a). By prayer clause (c), Receiver in regard to Flat No.403 hereinafter referred to suit flat is sought. Parties have completed the pleadings so far as this Notice of Motion is concerned. 2. Learned Advocate Ms. Dandekar, appearing on behalf of the Plaintiffs, upon instructions made a statement that Narendra had executed a Will and Defendant No.3 has applied for probate of the said will in this Court and said probate proceedings are pending under Probate Petition No.216 of 2010. Earlier, that is on 27th January 2010, statement was made by the learned Advocate for the Defendants that item Nos. 2,3 and 5 mentioned in the prayer clause (b) to the Notice of Motion do not exist. These items pertain to shares in various companies, gold ornaments and fixed deposits. In so far as these items are concerned, if the Defendants have made a statement that they are not in possession of the various properties mentioned in Item Nos.2,3 and 5 as of today, that statement will have to be accepted particularly when a Probate Petition has been filed in the Court wherein all the assets of the deceased will get reflected. In any case, if the Plaintiffs get further and better particulars about any of the properties set out in Item Nos.2,3 and 5, they are at liberty to amend the plaint by giving full particulars. With this, 3 the only question now to be attended to is as regard to Flat No.403. 3. So far as this flat is concerned, it is common ground that the said flat is in possession of Defendant No.3. It is also common ground that under the said Will, Flat No.403 has been bequeathed in favour of Defendant No.3. 4. Learned Advocate Ms. Dandekar, appearing on behalf of the Plaintiffs prays for Receiver in regard to the subject flat in terms of prayer clause (c). In so far as the question of the appointment of Court Receiver with regard to Flat no.403, I am inclined to observe that such a relief cannot be granted because the deceased died on 27th February 2007. The present Suit came to be filed on 6th May 2009 i.e. practically after two years. It is not as if that the information regarding the ownership of the flat by said Narendra was not available to the Plaintiffs. If the Plaintiffs apprehended that Defendant No.3 who was in possession of the flat little after the information about the death of the deceased Narendra, then the Plaintiffs should have instituted the Suit for partition and should have applied for Receiver immediately. It is also required to be noted that under the Will, Narendra is said to have bequeathed the said flat to Defendant No.3. The wishes of the testator Narendra will have to be read as it is till such time the probate petition is decided, which means, prima- facie, the right of Defendant No.3 to succeed to the said flat will have to be noted. If this be so, there is no urgent need to 4 appoint a Court Receiver as the Plaintiffs have not able to show that Defendant No.3 is doing any act which will endanger the right of the Plaintiffs. The argument that the Defendant No.3 is not enjoying the property with other co- sharer, cannot be accepted as such a question will not arise on noting that under the Will (which is sought to be probated), said flat is bequeathed to Defendant No.3. 5. Next question is what arrangements should be made in so far as this Flat No.403 is concerned. Learned Advocate Mr. Bhansali, appearing on behalf of Defendant No.3 drew my attention to the written statement where Defendant No.3 has stated that Defendant No.3 has no intention to dispose off the said flat. This may go to show that Defendant No.3 does not wish to change the situation as is stands today. At the same time, it would be proper to pass an order of injunction restraining Defendant No.3 from creating third party rights or parting with possession of said flat till the disposal of the Probate Petition as well as this Suit. It is also required to be mentioned that this Suit will have to be tagged alongwith Probate Petition No.216 of 2010. 6. In so far as prayer clause (a) is concerned, there is no need to pass an order in terms of prayer (a). It is open for the Plaintiffs to carry on investigation and if the Plaintiffs come to know about any asset which are not specifically set out in the present plaint, they are free to amend plaint. In view of the above, following order is passed to dispose off Motion :- 5 “ Prayer clause (a) is disposed off with no order. In so far as prayer clause (b) is concerned, no orders as regards Item Nos.2,3,4 and 5. In so far as Flat No.403, 4th floor, Dadarkar Tower Co-op., Housing Society Ltd., Defendant No.3 is restrained from creating third party rights in respect of the said flat. Defendant No.3 shall not part with possession in regard to the said flat. This order shall continue till the disposal of Probate Petition No.216 of 2010 and this Suit. The Office is directed to tag this Suit alongwith Probate Petition No.216 of 2010. There shall be no order as to costs. (R.Y. GANOO, J.)