abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1391 OF 2008 IN SUIT NO. 1024 OF 2008 Sheela Ramesh Rangnekar & Anr. .. Plaintiffs V/s Rajesh Ramesh Rangnekar & Ors. .. Defendants Mr.V.P. Vaze for the plaintiffs. Mr.S.K. Shinde for the defendants. CORAM : D.G. KARNIK, J. DATE : 18TH JUNE 2008 P.C. P.C. P.C. : 1. Heard. 2. This motion is taken out by the plaintiffs for injunction restraining the defendants from dealing with the suit flat and other incidental reliefs. 3. The flat bearing no.195 in building no.C-22 (for short "the suit flat") originally belonged to Ramesh Rangnekar who died leaving behind him the plaintiff no.1 (widow), the plaintiff no.2 (daughter) and the defendant - 2 - no.1 (son) as the heirs of Class-I. The plaintiffs claim that each of them have 1/3rd share in the flat. 4. Learned counsel for the defendants submits that the suit is not maintainable as it is hit by section 91 of the Maharashtra Co-operative Societies Act. The building was constructed some time in the year 1972-73 by Maharashtra Housing and Area Development Authority (MHADA) and the suit flat was purchased by Ramesh from MHADA. After payment of all instalments by individual flat purchasers, they were permitted to form a cooperative housing society and accordingly a cooperative housing society was formed years later. Ramesh became member of the society and was allotted the suit flat by the society. There is no document on record to show that the ownership of the flat or the building was ever transferred by the original owners, i.e. all the flat holders, to the cooperative housing society. The cooperative housing society may have been formed by the flat owners for managing the building and for its maintenance. There is no prima facie material on record to show that the society acquired the ownership of the building and allotted the suit flat to individual flat holders including Ramesh Rangnekar. In the circumstances, it cannot be said that Ramesh was claiming any rights in the suit flat through a cooperative society. The plaintiffs as heirs of Ramesh - 3 - are not claiming the rights in the suit flat under a cooperative society. In any event, that issue would be considered at the hearing of the suit. Prima facie, it cannot be said that the suit is barred by section 91 of the Maharashtra Cooperative Societies Act. 5. Learned counsel for the defendants then submitted that Ramesh Rangnekar had executed a will under which the suit flat has been bequeathed exclusively to the defendant no.1. The will is not yet probated though a probate petition is alleged to have been filed. Under section 214 of the Indian Succession Act, the title to the suit flat cannot be established by the defendant no.1 without proof of the will. 6. In the circumstances, prima facie, until the will is proved it will have to be held that the plaintiffs as heirs of Class-I have made out a prima facie case for having share in the suit flat. Therefore, they are entitled to an injunction. Hence, ad-interim order passed by this Court on 15th April 2008 is confirmed till the disposal of the suit. 7. The defendants are at liberty to move the court for modification after the probate is granted. 8. The notice of motion is disposed of. - 4 - (D.G. KARNIK, J.)