1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO. 223 OF 2007 IN SUIT NO.89 OF 2007 Pankaj Pranlal Doshi ...Plaintiff Vs. Smt. Jyotsanaben Pranlal Dhoshi & Anr. ...Defendants Ms. Rita Bhatia for Plaintiff Ms. Sasuma Merchant i/b. Nandlal Kothari for Defendant Nos.1 & 2 Defendant No.2 present in person CORAM: SMT.ROSHAN DALVI, J. DATED: 2 ND FEBRUARY, 2009 P.C. 1. The Plaintiff is one of the heirs and legal representatives of his father whose Will has been probated in Testamentary Petition No.83 of 1999. DefendantNo.1 is the Plaintiff's mother. Defendant No.2 is the Plaintiff's brother. The Plaintiff claims his share in various movable and immovable properties shown in the Schedule of the Estate annexed to the Will which has been probated. 2. Since this is an interim application, the estate of the deceased requires to be protected. There are 3 immovable 2 properties in which 1/3 rd share is claimed by the Plaintiff. These are as follows :- a) Plot No.10- 19 at 1 st Road, JVPD, Vile Parle, Mumbai . Under the Plaintiff's father's Will his mother has been given 40% share in the said property. The Plaintiff and Defendant No.2 are given 30% share each. The Municipal records show the Plaintiff's 30% share. This is as per Clause 5 of the Will, the English translation of which is annexed to the plaint. Under Clause 6 of the Will the father has given right and authority only to Defendant No.2 to sell, transfer or let out the land or to carry out construction thereon. The Plaintiff claims sub- division of the property. Upon reading the Will as a whole, the Plaintiff cannot be given a subdivided part of the property. The Plaintiff shall be entitled to 30% of the sale value or the construction value, if and when the property is sold or developed by Defendant No.2. b) Residential Flat at Ghatkopar : 3 The Share Certificate stands in the name of th Plaintiff's mother, Defendant No.1. She is, therefore, the owner of the said plot. It cannot form part of the estate of the deceased. It is not even shown in the Schedule of Estates annexed to the Will. No directions in respect of the residential flat can be passed. c) The tenanted premises of M/s. Hind Hardware Stores at Lohar Chawl, Mumbai- 400 02: No rent receipt in respect of the said property is shown. Hence, the tenancy rights are not prima facie shown. The Plaintiff claims that the tenancy rights have been surrendered by the Defendant No.2 to the landlord without the consent of the Plaintiff. It is the Defendant's case that tenant of said premises was one Chogilal Motani. The Schedule of Estates shows only the cash on hand or in the said firm. There is no mention of the tenancy rights in the Schedule of Assets. The tenancy rights not having been shown, no order in respect thereof can be passed. 4 3. Aside from the above immovable properties there are certain movable properties shown in the Schedule of Assets. These are as follows:- a) Cash on hand : The cash in hand is Rs.5549.61 ps. The Plaintiff does not press his claim upon the cash on hand. b) Silver & Gold ornaments: Under Clause 8 of the Will the gold and silver ornaments are divided 1/2 between the wife of the Testator and the wives of the 2 sons of the Testator. The English translation is incorrect. Strictly speaking the Plaintiff is not the beneficiary. The Plaintiff's wife is the beneficiary to the extent of 25% of the jewellery mentioned in the Schedule of Assets. The Defendant No.2 claims that all the wives have been given their respective shares of the jewellery. The Probate has been obtained in November 2003. The Defendant contends that because the jewellery has been distributed the Plaintiff's wife has not made any claim thereto. The Defendant however, has not produced any receipt from the Plaintiff's wife showing 5 the jewellery given. He claims that that is because it is a family matter. The Defendant No.2 also claims that the account of the estate was made and furnished prior to the Probate and the Plaintiff had given consent to Defendant No.2 to obtain Probate. It is clear that the Plaintiff's wife would be entitled to 25% of the jewellery or its share as reflected in the Schedule of the Assets annexed to the Will of which the Probate is filed. In view of the dispute with regard to the payment, order in respect of 1/4 share of the jewellery shown in the Schedule of Assets can be passed only at the trial after the Plaintiff and his wife have been examined on that aspect. c) The Bank Accounts, deposit receipts, – Shares in Companies : The particulars of these investments and Bank Accounts are mentioned in the Schedule of Assets. The Plaintiff shall obtain certified copies of the Bank statements under the Banker's Book Evidence Act with regard to the Bank accounts as also the deposits to the authorities mentioned in the Schedule of Assets. The Plaintiff shall also write to the 2 6 companies in which the deceased held shares making inquiries about the position with regard to the shares. The Plaintiff shall obtain the necessary information at his own costs. The relevant Bank's authorities and companies shall furnish the required information to the Plaintiff. 4. It may be mentioned that the Plaintiff has resided in the USA. The Plaintiff's Advocate states that from 1996 to 2002 the Plaintiff was not in India. He came to India intermittently. He is now again residing in USA. The Plaintiff's Advocate has produced a xerox copy of a letter dated 06/13 / 2008 and an envelope signed by the Plaintiff requesting his Advocate to pursue his case until it is decided. I may mention that this is a very unique letter sent by the client to his Advocate in India. Copy of letter is taken on record. 5. There shall be no other order on the Notice of Motion. 6. No order as to costs. (SMT. ROSHAN DALVI, J.) 7