pvr 1 A1086-10 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1086 OF 2010 FROM NOTICE OF MOTION NO.1736 OF 2010 IN SUIT NO.1727 OF 2010 Manish Kantilal Kapadia. ...Appellant vs. 1.Kilip Kantilal Kapadia & Ors. ...Respondents --- Mr.Rohit Kapadia, Sr.Advocate with Mr.P.K.Samadhani, Sr.Advocate with Rahul Dwarkadas, Ms.L.Marshall i/b. Wadia Gandhy & Co., for Appellant. Mr.Virag Tulzapurkar, Sr.Advocate i/b. Desai & Diwanji, for Respondent nos.1 & 3. Mr.N.H.Goswami i/b. Bilawala & Co., for Respondent no.5. Mr.N.S.Fadia, for Respondent no.2. --- CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 13th June,2011 pvr 2 A1086-10 P.C.: 1. Admit. Heard finally by consent of parties. 2. By this appeal the original Plaintiff in civil Suit no.1727 of 2010 challenges the order passed by the learned Single Judge dated 2.9.2010 in Notice of Motion no.1736 of 2010. That Notice of Motion was taken out by the Plaintiff seeking an order for appointment of Receiver and for temporary injunction. The learned Single Judge by his order impugned in the appeal has granted temporary injunction in favour of the Plaintiff and has also issued certain interim directions to the Defendants. In the present appeal, the Plaintiff challenges the order of the learned Single Judge only to the extent that the learned Single Judge refuses to appoint Receiver on the property which is subject matter of the suit. The suit of the Plaintiff is for administration of the estate of his deceased father Kantilal pvr 3 A1086-10 Keshavlal Kapadia. The plaintiff was seeking appointment of Court Receiver in respect of the estate of the deceased, in particular the Plaintiff was seeking appointment of Receiver on the residential flat in the building Anupama . The learned Single Judge has granted a temporary injunction restraining the Defendants from dealing with the flat. The learned Single Judge has also directed Defendant Nos.1 and 2 to render accounts and make complete and proper, so also truthful disclosure of the estate. The learned Single Judge in paragraph 23 of his order, in so far as prayer for appointment of Receiver is concerned, has observed thus:- The Court Receiver could have been appointed had the plaintiff not been a signatory to the deeds and documents in 1986. 3. We have heard the learned Counsel appearing for both the sides at length. It is clear from the observations of the learned Single pvr 4 A1086-10 Judge found in paragraph 23 of the order which we have quoted above that the only reason given by the learned Single Judge for not appointing Receiver is the fact that the Plaintiff has signed the deeds and documents in 1986. The 1986 s deed to which the learned Single Judge makes reference is the memorandum of understanding dated 4.7.1986. The learned Single Judge relied on Clause 3 and 4 of that memorandum of understanding. That memorandum of understanding was between the plaintiff and is deceased father. By that memorandum of understanding, the plaintiff separated from HUF of deceased father and retired from certain partnership etc. Pursuant to the said memorandum of understanding, a Deed of release dated 13.9.1986 also came to be signed and executed by the plaintiff. By that Deed, the Plaintiff gave up all his rights in relation to the flat in the building Anupama which according to the Deed stood in the name of mother Shantaben. There is some dispute between the parties  whether mother pvr 5 A1086-10 Shantaben had any interest in that flat . However, keeping that controversy aside, even assuming that the deceased father was the owner of the flat, can it be said that when the Plaintiff gave up his rights in relation to the flat by the memorandum of understanding, the plaintiff also gave up his right to succeed to the interest of his father in the flat in case the father died intestate. It prima facie appears that if it is assumed that father of the plaintiff died intestate, then only because of the documents of memorandum of understanding, the plaintiff cannot be denied his share in the estate left behind by the father. The learned Single Judge has observed that by signing the memorandum of understanding, the plaintiff declared his intention to separate from the family. Even, if it is assumed to be so, then also the separated son is entitled to the estate left behind by the father as his heir though the son might have separated from the father earlier. In our opinion, therefore, the learned Single pvr 6 A1086-10 Judge was not justified in declining to appoint a Receiver on the basis of memorandum of understanding. However, the fact remains that defendant no.1 who is presently occupying the flat is definitely one of the sharers inasmuch as if the plaintiff succeeds, the defendant no.1 will be entitled to his 1/6th share in the property, and therefore, there may not a case for appointment of the Receiver on the property, however, in view of the peculiar attitude adopted by defendant no.1 it is necessary to direct the defendant no.1 to deposit occupation charges during the pendency of the suit. The peculiar conduct of defendant no.1 to which we are referring is the attitude adopted by defendant no.1 in disclosing the estate of the deceased. The defendant no.1 filed his first affidavit dated 29.7.2010 and dealt with the estated and purported to deal with various items of the estates. The said disclosure in that affidavit is not truthful and lacks in material particulars. The plaintiff then pointed out the suppression pvr 7 A1086-10 and discrepancies in the above said affidavit to the learned Single Judge. The learned Single Judge passed order dated 23.8.2010 directing defendant nos.1 and 2 to make a detail affidavit. Pursuant to that direction, defendant no.1 filed second affidavit dated 27.8.2010. There are many discrepancies in the second affidavit filed by defendant no.1. There is an attempt on the part of defendant no.1 to conceal and suppress the estate and its effect in the evidence. Even, the learned Single Judge in the order impugned in the appeal has referred to this aspect of the matter as observed in paragraph 25. It reads as under:- To that extent, Mr.Kapadia is right in contending that the versions of defendant nos.1 and 2 on affidavit do not inspire confidence. They have not given complete disclosure of the affairs. Therefore, in addition to the interim injunction, it would be necessary to direct defendant nos.1 and 2 to render accounts and make complete and pvr 8 A1086-10 proper, so also truthful disclosure of the estate. In our opinion, in view of this finding recorded by the learned Single Judge which has not been challenged by defendant no.1, the learned Single Judge should have directed the defendant no.1 to deposit the occupancy charges so that the interest of the plaintiff and other defendants who may be entitled to the share in the property left behind by the deceased father would be protected. In our opinion, therefore, the following order would meet the ends of justice:- The defendant no.1 shall be liable to deposit in the Court the occupancy charges for the flat that he is occupying in Anupama building. For the purpose of working out the occupancy charges, the Prothonotary & Sr.Master of this Court shall appoint, from the panel maintained by her, a valuer who will submit a report as to the monthly rent that the flat is likely to fetch. On the basis of that report, pvr 9 A1086-10 the Prothonotary & Sr.Master of this Court shall fix the amount of monthly occupancy charges. The amount of monthly occupancy charges fixed by the Prothonotary & Sr.Master of this Court shall be deposited every month by the defendant no.1. On deposit of the amount, it shall be invested in fixed deposit in a nationalised bank to the credit of the suit. While depositing the monthly occupancy charges, the defendant no.1 shall be entitled to deduct 1/6th share of defendant no.1 himself. The defendant no.1 shall also be entitled to deduct the shares of defendant nos.2, 4, 5 and 6 in case they give their consent for such deduction. The appeal is disposed of. The order of the learned Single Judge shall continue in force with the aforesaid addition/ modification. (D.K.DESHMUKH,J.) (R.G.KETKAR,J.)