1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.874 OF 2008 IN SUIT NO.666 OF 2008 Durgadevi w/o. Subhash Chandra Chaurasia & Ors. ..Plaintiffs. vs. Chameladevi w/o. Krishna Prasad chaurasia & Ors. ..Defendants. .... Mr. G.N. Salunke, i/b. Mr.Umesh Kurund, for Plaintiffs. Mr.Rakesh K. Agrawal, for Defendant Nos.1 to 5. Mr.Anand Kumar Singh, for Defendant No.6. Durgadevi Chaurasia, Plaintiff No.1, present. Chameladevi Chaurasaia, Defendant No.1, present. Genalal Chaurasia, Defendant No.2, present. Suresh Chaurasia, Defendant No.3, present. Mahesh Kumar Chaurasia, Defendant No.4, present. Ganesh Chaurasia, Defendant No.5, present. .... CORAM : S.J.KATHAWALLA, J. DATE : 7TH JULY 2009. P.C. This Notice of Motion is taken out by the plaintiff no.1 seeking leave of this Court to allow plaintiff no.1 to enter into a 2 compromise with defendant nos. 1 to 5 for self and on behalf of her minor children (plaintiff nos.2 to 4) in terms of the consent terms, copy of which is marked as Exhibit-A to the affidavit in support of Notice of Motion. 2. The suit is filed by the plaintiffs for a declaration that all the properties mentioned in Exhibit-B to the plaint are the properties of the joint Hindu families of the plaintiffs and the defendants and the plaintiffs have 50% share in the properties. The plaintiffs have also sought an order for sale of all the joint Hindu properties including 50% share in shop no.1 and division of the amount realised from the said sale between the plaintiffs and defendant nos.1 to 5 equally. 3. Under clause 1 of the consent terms, the defendant nos. 1 to 5 have jointly and severally agreed to pay to plaintiff nos. 1 to 4 in aggregate an amount of Rs.15 lacs out of which Rs.2,75,000/- is already paid to the plaintiff no.1 and the balance amount of Rs. 12,25,000/- is agreed to be paid as set out in clause 2 of the consent terms. 3 4. Under clause 3 of the consent terms, the defendant nos.1 to 5 have relinquished their right, title, interest and possession in shop no.1 at 105-B- Dulhanbee Kasam Khan Chawl, Elphinstone Road, Mumbai (wherein the defendant no.6 has half share) in favour of the plaintiff nos.1 to 4 and it is agreed that henceforth the plaintiff nos.1 to 4 in aggregate, with the defendant no.6 shall be entitled to equal share in the suit shop. It is also agreed that upon the execution of the consent terms, the plaintiff nos. 1 to 4 alongwith defendant no.6 shall be in the joint possession of the shop no.1 at 105-B-Dulhanbee Kasam Khan Chawl, Elphinstone Road, Mumbai-400 013. Under clause 6 of the consent terms, defendant nos. 1 to 5 have undertaken that they shall jointly and severally pay the 50% of the entire arrears of rent, tax, etc. pertaining to shop no.1 at 105-B-Dulhanbee Kasam Khan Chawl, Elphinstone Road, Mumbai till the date of filing of the consent terms to all or any of the plaintiffs as and when it is demanded by the plaintiffs and required to be paid to the landlord and/or Municipal 4 Corporation, Government, etc. and the balance 50% of such arrears upto the date of filing of the consent terms shall be paid and borne by the defendant no.6. 5. Under clause 4 of the consent terms, the plaintiff no.1 has for herself and on behalf of the plaintiff nos.2 to 4 relinquished the right, title, interest and possession from the three properties set out in the said paragraph. 6. The learned Advocate for the plaintiff has also produced a valuation report dated 30th June 2009 which is at Exhibit-A to the additional affidavit filed by the plaintiff no.1 dated 6th July 2009. 7. The learned Advocate for plaintiff no.1 has also issued a certificate as provided under Order 32 Rule 1 of the Civil Procedure Code, 1908 (Exhibit-B to the affidavit in support of Notice of Motion) wherein he has certified that the compromise between the plaintiff no. 1 for self and for her minor children is in his opinion for the benefit of the minors. 8. In view thereof, I pass the following order in the Notice 5 of Motion :- Leave is granted to plaintiff no.1 to enter into a compromise with defendant nos.1 to 5 for her minor children, i.e. plaintiff nos. 2 to 4, in terms of the consent terms dated 28 th April 2009, subject to the following :- (i) The sum of Rs.11,25,000/- received by the plaintiff on behalf of the minors shall be deposited in a Nationalised Bank in the names of the three minors in separate accounts, i/.e. Rs. 3,75,000/- in each account and the said minors shall be entitled to withdraw the same from the bank, only upon attaining the age of 21 years. However, the plaintiff no.1 shall be entitled to use the interest received from the amount, so deposited for the upkeep of the said minors till they attain the age of 21 years. The plaintiffs shall be at liberty to apply to this Court if the plaintiffs are required to use any part of the amounts deposited with the Bank, prior to the minors attaining the age of 21 years. The Prothonotary and Senior Master shall appoint / nominate an 6 officer of this Court, to open separate fixed deposit accounts in the names of the three minors jointly with the plaintiff no.1. Upon receipt of the said amount of Rs.11,25,000/- the Advocate for the plaintiff shall hand over the same to the officer of this Court, appointed/ nominated by the Prothonotary and Senior Master and also assist such officer in opening and depositing Rs.3,75,000/- in each such fixed deposit account on such terms and conditions, which would accrue maximum returns on the said deposits. The bank shall be instructed not to allow withdrawal of the amounts deposited with the bank in all the three fixed deposit accounts without the signature of the officer of the Court. However, the signature of the said officer shall not be required for withdrawal of interest accrued on the deposits by plaintiff no.1. The learned Advocate for the plaintiffs shall under cover of his letter, forward a copy of this order to the said Bank and ask them to keep the same on their records and act accordingly. (ii) Plaintiff no.1 shall not part with possession or create 7 any third party rights or surrender tenancy rights to the landlord/s or to any other person in respect of their 50% share in shop no.1 at 105-B-Dulhanbee Kasam Khan Chawl, Elphinstone Road, Mumbai, until all the three minors i.e. defendant nos.2, 3 and 4 complete the age of 21 years or without obtaining permission of this Court. 9. The Notice of Motion is disposed of accordingly. [ S.J.KATHAWALLA, J. ]