1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.9 of 2008 IN Testamentary Suit No.34 of 2005 IN Probate Petition No.141 of 2005 Jini Hormusji Umrigar @ Jini H. Umrigar @ J.H. Umrigar @ J.H.U. ... ... Deceased Mr.Dhanju Darab Chichgur .. .. Petitioner/ Plaintiff v/s. Mrs.Jeroo Rustom Engineer & 3 ors. .. Defendants/ Respondents WITH Notice of Motion No.10 of 2008 IN Testamentary Suit No.36 of 2005 IN Probate Petition No.140 of 2005 Yazdi Darab Chichgur & anr. ... Plaintiffs (orig. Petitioners) v/s. Mrs.Jeroo R. Engineer & anr. ... Defendant (Org.Caveators) And Darius Dhanju Chichgur ... Respondent No.3 2 The Court Receiver, High Court, Bombay. ... ... Respondent No.4 WITH Notice of Motion No.17 of 2008 IN Testamentary Suit No.36 of 2005 IN Probate Petition No.140 of 2005 Aloo Hormusji Umrigar @ Aloo H. Umrigar @ A.H. Umrigar @ A.H.U ... ... Deceased Mr.Yazdi Darab Chicgur & anr. .... Petitioners v/s. Mrs. Jeroo Rustom Engineer & anr. .... Respondents A n d 1.Mr.Dinyar Jamshedji & ors. .... Interveners/ Applicants Mr.Cyrus Ardeshir with Mr.S.H . Merchant, Ms.Chaitra Rao and Ms.Urvashi Tapas i/by M/s. M & M Legal Venture for plaintiffs/petitioners. Mr.D.D. Madon, Sr. Advocate with Mr.G.S. Bhat for res.No.3. Ms. S.V. Thakkar for applicant / deft. No.1. Mr.Ashish Kamat for applicants. Mr.Girish Desai for respondent No.2. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 6th June, 2008 3 P.C. : 1.One Jini Umrigar and one Aloo H. Umrigar are two sisters who have died. Both of them are stated to have left a Will. Two Probate Petitions have been filed. These Probate Petitions are contested. 2.Respondent No.3 claims to be the distant relative of the deceased sisters. He was also their neighbour. 3.Two sisters of the deceased sisters i.e. defendant Nos.1 and 2 challenged those Wills. Defendant Nos.1 and 2 are allowed to proceed on the basis of denials of the statements made in the Affidavit in reply since no rejoinder is filed, though the affidavit in reply was served upon them earlier. 4.In the Testamentary Suit, a Court Receiver came to be appointed in respect of the flat in which the two deceased sisters lived together being flat No.5 in Dilkhush, 2nd floor, 758, Dadar Parsi Colony, Dadar, Mumbai. Respondent No.3, who was in possession of the flat and who claims under the last Will and Testament of the deceased sisters, allowed the Court to appoint the Court Receiver without payment of any royalty. The Court Receiver came to be appointed. He continued in possession the suit property. On his request, 4 the board of the Court Receiver was not affixed on the suit property. 5.An Agency Agreement with the Court Receiver has not yet been executed by respondent No.3.. There has been dispute as to under which circumstances the Agency Agreement remained to be executed. A provisional undertaking, however, came to be executed on 1.9.2005. Under that undertaking, Respondent No.3 undertook to carry out various other acts, some of which have also not been carried out. 6.After the appointment of the Court Receiver, Respondent No.3 carried out certain additions and alterations in the flat. A complaint came to be made by defendant Nos.1 and 2. A Court Receiver's Report came to be filed and considered. The Court Receiver was directed to take inspection of the flat and report on the additions and alterations. The report shows, inter alia, the flat having been painted, granite having been put at various places, tiles having been fixed, kitchen platform having been constructed in place of an old kitchen platform, glass shelf having been put for keeping a music system, the glasses in the ventilators having been fixed, certain bath fittings, commode, basin, new geyser having 5 been fixed in the bathrooms, the flooring being tiled and electricity switch board being fixed, the wooden roof being changed into a roof with G.I. Sheets, a metal rod being fixed in the balcony, a new wiring made in a room, bedroom being converted into a dinning room, a telephone connection being taken, old window being covered by a net window, an old geyser being replaced by a new geyser, an old Indian style toilet being replaced by a western style toilet, a mori being removed, a new platform constructed in place of old platform, a new gas stove being put, a new electrical connection and a new fitting being made. 7.It is contended on behalf of defendants 1 and 2 as well as the landlord that these are additions and structural alterations. They have damaged the building and hence, the Agency Agreement should be terminated. 8.The purpose of appointment of the Court Receiver is for protection of the suit premises. Consequently, the agent of the Court Receiver must necessarily prevent waste and damage to the suit premises. The aforesaid additions and alterations do not damage the suit premises. They, in fact, enhance its value. If the suit premises is, at the final hearing of the Petition, or even landlord' s Suit in the Small 6 Causes Court, handed over to the 1st and 2nd defendants in these Petitions and/or the landlord in the Suit in the Small Causes Court, the property with additions and alterations would be handed over. 9.Nevertheless, the agent of the Court Receiver must not carry out any alterations, structural or otherwise, without the permission of the Court Receiver or the Court. His Counsel has conceded that fact. Respondent No.3, in possession, has failed to do that. The consequences of such act, done without regard to the Court and with impertinence, are to be decided. Though it is seen that there is no waste or damage to the suit property, it is seen that the act of the agent is rather insolent. He must, therefore, pay for his insolence. 10. The Notice of Motion seeks various reliefs, including his removal from the suit premises, possession of the premises, delivering its keys, sealing the premises and damages of Rs.5,00,000/- for the damages done to the premises and suffered by defendants 1 and 2 as well as for restoration for the premises to the original form and shape. 11.Defendants 1 and 2 as well as the landlord seek to rely upon a report of their personal Architect. Just as much as 7 the agent has, without regard to the Court, carried out the additions and alterations in the flat, Defendants 1 and 2 have obtained the report of the Architect with equal disregard to the Court and without making any application thereto. 12.I have been shown a report of my brother Judge Bobade dated 23rd November 2007, which has allowed, inter alia, the landlord' s representatives and the heirs of the deceased to accompany the Receiver to identify articles in the suit flat. It has not allowed any Architect to enter into the suit flat and even if he enters as the landlord's representative to make any report. The Court is, therefore, not liable to consider any such report. The Court is required to consider the Court Receiver's report which is as above. Under the circumstances, any of the aforesaid reliefs need not be granted. For the impertinence of Respondent No.3 in possession as the Court Receiver's agent, he must be penalised. 13.Hence, the following order : ORDER (i) Respondent No.3 shall not transfer, alienate, create any third party rights or sell the suit premises being 8 Dilkhush, 2nd floor, 758, Dadar Parsi Colony, Dadar, Mumbai pending the Petitions and the Suits. (ii) Respondent No.3 shall deposit a sum of Rs.One Lac with the Maharashtra State Legal Services Authority, if he seeks to continue as the Court Receiver' s agent. (iii)The Agency Agreement with the Court Receiver is yet not executed. Though the parties have given different reasons for its non-execution, the Agency Agreement is required to be executed with the required safeguards as are provided in each of such Agreements. Respondent No.3 in possession shall, therefore, execute the required Agency Agreement with the Court Receiver within two weeks from today. Henceforth, the board of the Court Receiver shall be put on the front door of the suit premises, pending the aforesaid two Suits and the Probate Petitions. (iv) There is a Fixed Deposit Receipt in the joint names of the daughter of Respondent No.3 and the deceased. Such FDR has not been directed to be deposited in the Court as it is not in the names of any of the parties to the Suit/Petition. However, it constitutes a part of the estate of the deceased. 9 Fixed Deposit Receipt No.205582, dated 25.6.2004 for Rs.10,000/- in the name of the daughter of respondent No.3 shall be deposited with the Prothonotary and Senior Master of this Court, pending the Petitions and the Suits. It shall be renewed by the Prothonotary and Senior Master from time to time until the disposal of the Petitions and the Suits. (v) There is a prayer for deposit of the share certificates in the Court. There has been no order passed in these Petitions with regard to any share certificates. Hence, no share certificates need be deposited at present since no further case with regard to any share certificates or their alienation is made out. 14.All the above three Notices of Motion are disposed of in terms of the aforesaid order. This order is stayed for a period of two weeks. 15.Well after the above Notices of Motion were argued, the Advocate for defendant Nos.1 and 2 contended that the plaintiffs be directed to pay royalty for the suit flat. There is no such prayer in the Motions. It is contended on behalf of Respondent No.3 that, therefore, he is not able to meet such prayer. It may be mentioned that an application for payment 10 of royalty and/or security in respect of the suit flat, now renovated, in which the Respondent No.3 resides, would have been the only apt prayer. However, since that is not prayed, it cannot be considered at present. 16. Defendants 1 and 2 press for papers in these Petitions/Suits to be sent for an inquiry against some staff members of this Court for having altered certain previous order. The Advocate for Defendants 1 and 2 is unable to show any such previous Court order to this Court. Records & Proceedings in this Suit may be sent as directed earlier. 17.It will do well for defendant Nos.1 and 2 to prosecute the Suits themselves so that the true facts may be brought on record. Rather than channelling their energy in that direction, the defendants have chosen to take out several applications and seek to get the records and proceedings sent out of Court, which would needlessly delay the hearing of the Suits themselves. 18.Counsels state that parties have filed their affidavits of documents. Parties shall offer and take inspection of documents. 11 19. The plaintiffs shall file their affidavit of examination- in-chief and produce original documents in Court to consider their admissibility. Suits/Petitions adjourned to 15.7.2008 for directions. [SMT.ROSHAN DALVI, J.]