1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3138 of 2007 Alongwith Court Receiver's Report No.175 of 2008 In Suit No.1777 of 2004 Salma A. Makati & ors. .. .. Plaintiffs v/s. Shabbir S. Pachorawala & anr. .. Defendants And M/s.Raj Bucket Factory. .. .. Applicant Ms.J. Sidhawa with Mr.Rashid Khan i/by M/s.Zaidy & Co. for Plaintiffs. Mr.Sunil Gangan i/by M/s.RMG Law Asso. for Deft.No.1 . Mr.Madhav Jamdar for Deft.No.3 . ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 6 th October, 2008 P.C. : 1. This Notice of Motion is taken out by one Raj Bucket Factory as the Applicant for release of certain properties for which the Court Receiver came to be appointed. The Applicant- Firm was initially the sole proprietary Concern. Thereafter, the father of the parties to the Suit, who expired on 18.5.1997 (deceased), took in Defendant No.1 as his partner. Thereafter from time to time the wife of the deceased, the wife of Defendant No.1 and the children of 2 Defendant No.1 have been taken in as partners. The Firm at present carries on business with Defendant No.1, his wife and his children. The Court Receiver came to be appointed of the estate left behind by the deceased on 16.6.2005. The Plaintiffs filed an Appeal therefrom under which that order came to be modified on 15.12.2005. The Court Receiver continued to be appointed as per the initial order dated 16.6.2005. Specific directions were passed with regard to the properties of the Firm. 2. The order dated 15.12.2005 in Appeal shows three parties who have been leased/licensed certain properties on monthly rent/compensation. The Court Receiver has been directed to collect those rents and compensations. 3. It is the case of the Applicant that these leases/licences have been executed by the Applicant and that these properties do not form a part of the estate of the deceased. Hence the Applicant wants the Court Receiver to be discharged in respect of those properties and those properties to be released from Court Receivership. 4. It is the case of the Applicant that from time to time certain Partnership Deeds have been entered into by the deceased bringing in the property at Ghodbunder Road as the asset 3 and property of the Firm. Such property is shown in Exhibit- H as a part of the estate of the deceased. The Applicant also claims that this property has been shown in the income tax returns as the property of the Firm which returns were filed by the deceased himself. 5. The Plaintiffs have shown that the properties continued in the Record of Rights as that of the deceased. The deceased mortgaged these properties with the Bank to raise finance as reflected in the copy of the Affidavit of the deceased made to the Union Bank of India, treating the property as his individual property upon which a loan came to be obtained by the deceased. All these aspects, prima facie, show that the property was not irrevocably treated as the property of the Firm under Section 14 of the Partnership Act, though the deceased interchangeably did consider it as a property of his own Partnership Firm of which he was a partner with major share. 6. It is contended on behalf of the Applicant that there are certain properties in Bangalore as well as Balsar which have gone to the share of Plaintiff No.2 and Defendant No.2. These were also the properties of the deceased which are claimed by Plaintiff No.2 and Defendant No.2 as their own individual separate properties. 4 7. Mr.Jamdar on behalf of the Applicant drew my attention to a copy of the Deed of Dissolution annexed as Exhibit- G to the Affidavit of the Applicant, showing how the deceased, Defendant No.1 and Defendant No.2 retired from the Partnership upon its dissolution and the property at Balsar came to be given to Plaintiff No.2. This Deed of Dissolution would, prima facie, show that the property at Balsar could not have been separate distinct property acquired by Plaintiff No.2. 8. Similarly Mr.Jamdar drew my attention to a Notice issued by M/s.Zaidy & Co. on behalf of the deceased against Defendant No.2, showing how the funds of the Applicant- Firm came to be diverted by Defendant No.2 in Bangalore where he started certain 5 new businesses. It will have to be seen at the stage of trial as to whether those properties would also constitute the estate of the deceased or whether they were from the very inception the distinct separate properties of Defendant No.2. 9. The properties at Bangalore and Balsar are not shown as the estate of the deceased. A part of the property shown as the estate of the deceased is claimed by the Applicant. 5 10. The Suit is for administration of the estate of the deceased. The entire estate would have to be ascertained, collected and administered. At the trial the entire estate would be considered upon cross- examination of Plaintiff No.2, Defendant No.1 and Defendant No.2 who are the main contesting parties. 11. The Suit is filed also by the daughters of the deceased. They certainly have a share in the estate of the deceased. They have been deprived of their share altogether by all the aforesaid three brothers. Defendant No.1 made a statement that he would support the sisters. He does not have to support the sisters. He has to give them their due share as per the law governing the parties. 12. Under the circumstances, Court Receiver is required to continue as Receiver appointed of the properties stated to be the part of the estate of the deceased. The Firm is not an outside third party, whose property cannot be custodia legis with the Court Receiver. In fact, the Partnership Firm of the Applicant is not separate distinct legal entity as a Corporation. Defendant No.1 is the main partner running the business with his wife and children. Pending the Suit, the Court Receiver must, therefore, continue as a Receiver of the properties otherwise shown as the property of the Firm 6 also. This is only for securing the estate of the deceased for the successful party in the Suit. 13. The order of the Appeal Court shows the precise amounts to be collected as rent which have been collected by the Applicant- Firm in which Defendant No.1 is the partner. The Court Receiver shall have to collect those rents as per that order. The Receiver shall continue as Receiver of the suit properties pending the Suit. Hence the Court Receiver shall recover the amount as shown in the order dated 15.12.2005 of the Appeal Court from the three parties mentioned therein. 14. The Notice of Motion and the Court Receiver's Report are disposed of accordingly. 15. All the original documents tendered in Court by the parties are returned. [SMT.ROSHAN DALVI, J.]