1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4823 OF 2007 IN SUIT NO.916 OF 2004 PREMA PATRICIA RODRIGUES & ORS ..PLAINTIFFS VS. FINLAY PIUS BRAGANZA & ORS. ..RESPONDENTS Mr. Anjal Amin i/b B. Amin & Co. for the Plaintiff Mr. Finlay Puis Braganza, Defendant No.1, present in person Mr. M.N.Vakil i/b Mulla & Mulla C. B & Co for Defendant No.2 CORAM: Smt. ROSHAN DALVI, J. DATED: 30 th March, 2009 P.C.: 1. The suit relates to one of the properties of the deceased Testator who is the father of the parties. Defendant No.2 is the Executor. He has obtained the probate of the Will of the Testator. The parties have entered into the Memorandum of Understanding (MOU) on 21.03.2009 with regard to the administration of the entire estate of the Testator. That 2 includes the Agreement of the parties with regard to the suit flat. All the members of the family have agreed in paragraph 10 of the MOU that the suit flat would be given to Defendant No.1. Defendant No.1 resides in the suit flat. The Advocate of the Plaintiff has taken instructions of the Plaintiff No.1 for herself and on behalf of the other Plaintiffs in court. They state they would abide by the MOU including clause (10) thereunder. 2. They also state that accounts would have to be prepared as per clause (12) & (13) of the MOU. The final MOU would have to be signed by all the beneficiaries including Defendant No.1. 3. This Notice of Motion is for a direction to the court Receiver to sell the suit flat and pay over the proceeds to Defendant No.2 who is the executor. Since Defendant No.1 has been residing in the suit flat and the beneficiaries have agreed that the suit flat can be given to Defendant No.1, the Court Receiver cannot sell the suit flat and pay over the proceeds to Defendant No.2. The Court Receiver cannot dispossess Defendant No.1. Hence prayer (a) cannot be granted. However, since the parties have started the administration of the estate as shown in the MOU dated 21.03.2009, the Court Receiver need not continue as Receiver of the suit flat. Hence 3 prayer (b) requiring discharge of the Court Receiver without passing accounts can be granted. Hence the following order: The parties shall abide by the terms of the MOU dated 21.03.2009 with regard to the administration of the estate of the deceased. So far as the suit property is concerned, prayer (a) is refused. Prayer (b) is granted. The court Receiver stands discharged subject to the payment of his costs, charges and expenses. Defendant No.1 shall be entitled to continue to reside in the suit flat. The accounts of the estate shall be taken taking into consideration the shares of the other beneficiaries in the suit flat which has been given to Defendant No.1 by consent of all the beneficiaries. Copy of the MOU, signed by all the beneficiaries, is kept on record. Notice of Motion disposed of accordingly. (Smt. Roshan Dalvi, J)