acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 865 OF 2007 IN SUIT NO. 632 OF 2007 Kamlesh Navinchandra Shah …Plaintiff. Vs. Yatin Navinchandra Shah & Ors. …Defendants. --- Mr. Kapadia i/b L.J. Law, for the Plaintiff. Mr. Shah i/b Shukla & Shukla, for the Defendants. ---- CORAM: S.J. VAZIFDAR, J. DATED: 28 TH AUGUST 2009 P.C.: 1. The suit is filed for administration of the estate of the deceased mother of the Plaintiff and Defendant nos.1 to 3. Defendant no.4 is the Associated Cement Company Ltd. 2. The main shares are of Defendant no.4/ACC Ltd. There is no dispute that the deceased mother was the first named holder of these shares, which were purchased on 13.07.1990. They stand in the joint names of the deceased mother and Defendant no.1. It does not necessarily follow that Defendant no.1 is the sole beneficiary of the said shares upon the death of his mother. 1 3. According to the Plaintiff their deceased mother purchased the said shares from out of the sale proceeds of the property which belonged to her deceased husband. According to Defendant no.1 it is he who has purchased the said shares from out of his own funds and that the name of their deceased mother was added only for convenience. This stand has been taken in paragraph-13 of the written statement. However, in the affidavit-in-reply, Defendant no.1 had initially contended that the shares were jointly purchased by his mother’s maternal uncle and himself. However, the name of the maternal uncle is not shown as a joint holder thereof. 4. There is no evidence to establish at this stage the case of Defendant no. 1 that he is the sole beneficiary of the said shares. For instance, there is nothing on record to indicate that the benefit of these shares over the past almost twenty years were transferred/paid over by the deceased mother to him. There is no evidence to indicate that the consideration for the said shares were paid directly from out of the funds of Defendant no.1. 5. I appreciate that it may be difficult for the parties to produce evidence in respect of the records which pertain to a period over a decade ago. That, however, cannot be a ground for refusing an injunction where it is otherwise, prima facie, established that the deceased mother had an interest in the said shares. 6. By an ad-interim order dated 28.03.2007, Defendant no.1 was directed to file “disclosure affidavit” within four weeks from service of the said order. 2 Defendant no.1 has disclosed the assets of his deceased mother. Mr. Kapadia, learned counsel appearing on behalf of the Plaintiff submits that the disclosure is in violation of the said ad-interim order. 7. I do not agree. The order does not specify the nature of the disclosure. I do agree with Mr. Kapadia that the disclosure pertained not merely to what according to Defendant no.1 constituted the assets of his deceased mother but also assets wherein the name of the deceased mother was shown/appeared even jointly with others. The failure to disclose the same, if any, is however, not any breach of the ad-interim order. Even if technically it constitutes a breach it was not done intentionally and hence no action against Defendant no.1 is at all warranted. 8. In the circumstances, the Notice of Motion is disposed of with the following orders:- i) The Notice of Motion is made absolute in terms of prayers (a), (b) and (d). Defendant no.4 is directed to keep all accretion, rights, dividends in respect of the said shares in a suspense/separate account. The parties are at liberty from time to time make an application to have the dividends deposited in this court and to seek an order for the investment thereof. ii) As are the prayer (d) is concerned, the declaration shall now include those assets in which the deceased mother’s name stood 3 either jointly with others or in which she was or is shown to have any right, title or interest. iii) Liberty to Plaintiff to apply after prayer (d) is complied with. iv) Prayer (d) to be complied with within eight weeks from today. 4