*1* nms.2656.09.s.1895.09.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2656 OF 2009 IN SUIT NO.1895 OF 2009 Dr.Maya Kiran Khandwala. ..Plaintiff -Versus- Madhusudan M. Sanghavi and others. ..Defendants .......... Mr.Rajesh Shah a/w Mr.D.Shukla i/b Vinod Mistry and Company, for the Plaintiff. Mr.D.D.Madon, Senior Counsel a/w Mr.S.Ganoo, Mr.Vivek Shiralka, Ms.Deepali Khare i/b Shiralkar & Company, for the Defendant No.1. Mr.Kishore Jain a/w Ms.Nisha Parmar, for the Defendant No.2. Mr.Y.M.Kanchan i/b U.Dhingraja, for the Defendant No.3. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd December, 2010. P.C. 1 This Notice of Motion is filed in a suit for declaration that the properties more particularly described in Exhibits-A and B to the plaint, are joint family properties and the Plaintiff and each of the Defendants have 1/5th share therein, and for relief of partition by metes and bounds. 2 The Plaintiff is a married daughter of Mansukhlal Kapurchand Sanghvi and Sushila Mansukhlal Sanghvi. The Defendant No.1 is eldest member being her brother, so also, the Defendant No.2. The Defendant Nos.3 and 4 are married sisters. 3 It is contention of Mr.Shah, learned counsel appearing on behalf of the Plaintiff, that the properties have been usurped by the Defendant No.1 taking advantage of the fact that he is eldest member of *2* nms.2656.09.s.1895.09.sxw the family and he has deprived his sisters from their legitimate shares in the family properties. Mr.Shah submits that exclusion from the family properties became known to the Plaintiff only after the building at Fort which is also a part of the estate was demolished and was redeveloped. Further it is only during the course of correspondence and that too in the year 2007 for the first time the Defendant No.1 alleged that the parents had died leaving behind them their respective Wills. In such circumstances, that the suit had to be filed. 4 Mr.Shah invited my attention to the email, copy of which is annexed to the affidavit in rejoinder and it is submitted that this email is an admission of the Defendant No.1 that the property is a joint family property. Now the estate is usurped to such an extent that tenancies have been created in favour of close relatives of the Defendant No.1 and further valuable property at Goregaon has been transferred to a company which is a family unit of the Defendant No.1. For all these reasons, interim reliefs be granted as prayed. 5 On the other hand, the contesting Defendant No.1 who is represented by Mr.Madon, learned Senior Counsel, submits that the suit is filed at the instance of the Defendant No.2. The Plaintiff has admittedly settled down in America, so also, the Defendant No.4. Equally the Defendant No.2. However, as far as the Defendant No.3 is concerned, surprisingly a notice came to be issued at her instance by the Advocate who is common Advocate for the Plaintiff and the Defendant Nos.2 to 4, wherein, it is stated that the property is being usurped by the Defendant No.1. However, the Defendant No.3 herself is signatory to the several documents and in any event, she is aware of the fact that the deceased had left the Wills. In such circumstances, this is a claim which is raised at the instance of the Defendant No.2 and with ulterior motive and for *3* nms.2656.09.s.1895.09.sxw obvious reasons, considering that the properties are now valuable. For all these reasons, it is submitted that the Notice of Motion be dismissed. 6 Mr.Madon relies upon a judgment of the Hon’ble Single Judge of this Court reported in 2008(4) All M.R. 339 (Kobad Rustomji Noble v/s Miss.Nelly Rustomji Noble) and submits that the suit is time barred. This is not a suit where the Plaintiff is seeking any relief other than administration of estate of the deceased. Such a suit has to be filed within three years from the date of death of deceased which is in the instant case way back in the year 1982 and 1988 and hence, the suit is time barred. The Motion be dismissed on this count itself. 7 After having heard the learned counsel for the parties at some length and perusing with their assistance the record, I am of the view that the Plaintiff has approached this Court belatedly. The issue as to whether the claim is time barred or not need not be gone into further details and particularly considering the impact of the prayers and the nature of reliefs claimed in the suit. The Plaintiff is seeking declaration that the properties are joint family properties and further partition by metes and bounds. Whether it is a suit simplicitor for administration of the estate or not, is an aspect which can be gone into at the trial. 8 Suffice it to note that for interim reliefs the Plaintiff approaching the Court has to be diligent. In the instant case on own showing of the Plaintiff the deceased father expired in 1982 and to be precise on 17.01.1982 and the mother expired on 20.02.1988. Prima facie, there is substance in the contention that at least the Defendant No.3 was aware of the fact that the estate was being dealt with by the Defendant No.1. Even the Defendant No.2 was aware of this fact and prima facie of the existence of some Wills because there is reference to the same in the documents which are relied upon and particularly the Deed of *4* nms.2656.09.s.1895.09.sxw Conveyance convening the property at Goregaon to a private limited company. Further assuming it to be a private limited company and family concern, yet, the averments go to show that neither the said company is impleaded as a party nor the document such as conveyance in its favour is impugned or challenged. In such circumstances, at the behest of the Plaintiff who has approached this Court belatedly, no interim relief can be granted save and except to the extent of recording the statement made by Mr.Madon that the Defendant No.1 himself and all persons claiming through him will not transfer any tenancy in respect of the property at Fort which is more particularly described at Annexure-A to the plaint and the details of the tenancies are set out in the affidavit in reply of the Defendant No.1 at page Nos.6 & 7. This statement is accepted as an undertaking to this Court and the parties will have to abide by the same till the disposal of the suit. On instructions, Mr.Madon states that none of the tenants are paying rent but in fact are seeking execution of conveyance in furtherance of the agreement for sale of the Fort property and the suit in that behalf is pending to which everybody is party including the Plaintiff. In such circumstances, no interim relief can be granted as far as this property is concerned. 9 As far as the property at Goregaon is concerned, the Plaintiff seems to be aware that it has been dealt with by the Defendant No.1. At least after disclosures made on affidavits, no steps are taken to impugn or challenge the said conveyance. In such circumstances and on account of belated nature of claim, no interim reliefs can be granted. In the result, the motion fails and is accordingly dismissed. 10 Needless to state that in the light of contents of the email of December, 2006 and until the Court conclusively determines the rights of parties and the shares in the estate, the Defendant No.1 shall maintain the *5* nms.2656.09.s.1895.09.sxw accounts. The Defendant No.1 shall also file his personal accounts and the accounts of the Company of which he is director namely Madhu Snap Fasteners Manufacturing Company Private Limited, every six months in this Court. 11 The Notice of Motion is, accordingly, disposed of. (S.C. Dharmadhikari, J)