1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1736 OF 2010 IN SUIT NO.1727 OF 2010 Manish Kantilal Kapadia .. Plaintiff Vs. Dilip Kantilal Kapadia and Ors. .. Defendants Mr.Rohit Kapadia a/w Mr.P.K.Samdani, Mr.Rahul Dwarkadas, Mr.Rhie Marshell i/b M/s.W.Ghandy and Co. for the plaintiff Ms.Alpana Ghone a/w Mr.Virag Tulzapurkar i/b M/s.Desai and Diwanji for defendant nos.1 and 3 Mr.N.S.Fadia for defendant no.2 Ms.Punita Soni a/w Mr.Rajeev Rai i/b M/s.Bilawala and Co. for defendant no.5 CORAM : S.C.Dharmadhikari, J. DATE : September 2, 2010 P.C. : 1. Since all affidavits in reply and rejoinder are filed with the consent of the parties and their counsel, this notice of motion is disposed of finally by this order. 2. The plaintiff is a son of the deceased Kantilal Keshavlal Kapadia. He has filed a suit for administration of the estate of the deceased by and under 2 the directions of this court. The claim is on the basis that he has 1/6th share in the estate of the deceased Kantilal Kapadia and on the basis of intestate succession. It is in furtherance of and in the aid of this final relief that the interim relief has been claimed. 3. Mr.Kapadia, learned Senior Counsel appearing on behalf of the plaintiff submits that the plaintiff has disclosed in all fairness that he is the son of the deceased and defendant nos.1 and 2 are his younger brothers. Defendant no.3 is the wife of defendant no.1 and defendant nos.4 to 6 are sisters of the plaintiff. In other words, the relations as brothers and sisters are admitted and it is stated that the deceased along with the plaintiff and defendants were members and coparceners of Vajechand, Mulchand HUF and Kantilal Keshavlal Kapadia HUF. 4. Mr.Kapadia submits that in the year 1986, there were certain disputes between the plaintiff and deceased with regard to the business and the HUF deals. Therefore an MOU dt.4.7.86 copy of which is annexed at Exhibit A to the plaint came to be executed. However, according to the learned Senior Counsel, this deed and all recitals and clauses therein do not deprive the plaintiff of his right, title and interest, in so far as share in the estate of the deceased is concerned. According to Mr.Kapadia, this document must be seen as one ending the dispute and differences between the father and the son in relation to various businesses either in partnership or otherwise. However, the disputes in the management of HUF led to the execution of 3 this deed. Beyond this, nothing more need be read into it and therefore the administration of the estate of the deceased can be sought by the plaintiff on the basis of this share. 5. Mr.Kapadia, submits that the deceased left behind several movable and immovable properties which are listed in para 16 pg 11 and 12 of the plaint. He further submits that one of the prime immovable property is a flat bearing no.91 , 9th floor, Anupama Co-operative Housing Society, 11, Manav Mandir Road, Malabar Hill, Mumbai 400 006. This flat according to Mr.Kapadia admeasures 3000 sq.ft. and would fetch nearly Rs.35 to 35 crores going by the present day market value. Mr.Kapadia submits that defendant nos.1 to 3 together with the deceased and his wife Shanta Kapadia were in possession of this flat. 6. After the death of the deceased, the defendant no.1 has commenced several proceedings, purportedly, against the Society but with a clear intention to usurp his flat unto himself. This is a valuable property and if the share certificates are permitted to be corrected to include only the names of defendant no.1 and his wife defendant no.3, then, such a valuable property would be lost to the heirs. 7. Mr.Kapadia cites another instance of a valuable property of the Fort, Bombay which are office premises at 25/31 Ropewalk Street, Aban House, 1st Floor, Fort, Mumbai 400 023. This is a office admeasuring 1000 sq.ft. and the 4 disclosures on affidavit do not inspire any confidence and according to Mr.Kapadia with relation to other properties as well, now the estate cannot be taken away to the exclusion of the plaintiff s share. ’ 8. Mr.Kapadia submits that defendant nos.1 and 2 amongst themselves are propounding three wills, two of which are stated to have been made by the deceased and one by the mother of the plaintiff Shanta Kapadia. According to the learned Senior Counsel, these wills are tainted and suspicious, so also, not genuine and the probate proceedings in that behalf are being contested by the plaintiffs. 9. Mr.Kapadia submits that there are inter se disputes between defendant nos.1 and 2 in relation to some of the properties of the deceased. In view of these disputes and the suspicious circumstances surrounding the will, it would be just, fair and proper and convenient as well to appoint the Court Receiver High Court, Bombay as receiver of the estate. 10. This court should, thereafter, ensure that the parties like defendant nos.1 to 3 who are in physical possession should not be thrown out at this stage but can continue as agent of the Receiver on the terms and conditions to be determined by him. 11. Mr.Kapadia submits that in the affidavits filed by defendant nos.1 and 2 while denying the plaintiff s share, reliance is placed only on the deed dated ’ 5 04.07.86 but the disclosures are not honest and truthful. If the management of the estate is left to these defendants, ultimately nothing would be left for the plaintiff and his suit will be rendered infructuous. 12. Mr.Kapadia then submits that assuming without admitting that any of the rights of the plaintiffs are not surviving because of the deed executed on 4.7.86, yet going by the affidavit of defendant no.5 who is the daughter of the deceased and entitled to a share in the estate of the deceased, the protection as claimed for, needs to be granted. The order of injunction will not suffice in the peculiar facts of the case. He places strong reliance upon the decisions rendered and reported in the case of Adapala Subba Reddy and another v. Adapala Andemma and others reported in AIR (38) 1951 Madras 393 and another in the case of Rupali Mehta v. Tina Narinder Sain Mehta reported in 2006(6) Bom.C.R. 778. He has invited my attention to a commentary of Woodroffe on Law relating to Receivers and “ ” submitted that for applying these principles, this is a fit case where interim receiver should be appointed. 13. On the other hand, Ms.Ghone appearing on behalf of defendant no.1 submits that the ad interim order as made would suffice in the present suit. It protects the interest of the plaintiff and the contesting defendants adequately. In other words, she submits that the order of injunction at this stage is enough protection and this is not a case where it is just and convenient to appoint a Court Receiver of the estate of the deceased. She 6 has invited my attention to the deed of 4.7.86 and submits that a proper and complete reading of the same would indicate that not only the plaintiff has given up the shares and his right, title and interest in the business including partnership and HUF business but has separated from the family completely. During the life time of the deceased, the plaintiff was provided with separate amount and even the immovable property was left for him. In such circumstances, somebody who has separated from the family nearly 24 years back, now cannot claim any right in the estate of the deceased father merely because the father expired in the month of December 2009 and because there are two wills being propounded as far as his estate is concerned. The dispute with relation to the will is not something which should enable this court to appoint a Receiver and particularly with regard to residential premises, as that would mean that the rights of the parties in the estate are finally adjudicated at this stage. At the instance of a party like the plaintiff, this court should not pass such drastic orders but continue the order of injunction of the estate as prayed. 14. Mr.Fadia appearing for defendant no.2 while adopting some of the contentions of Ms.Ghone points out that on affidavit the defendant no.2 has highlighted the fact that not only the document dated 4.7.86 but by further documents dt.13.9.86 the plaintiff has separated from the family, as also relinquished his share in the property belonging to the deceased. It is false to suggest that the deceased died intestate. The deceased left a will according to Mr.Fadia on 27.2.06 and a probate petition being No.488 of 2010 7 has been filed in this court on 27.2.10. The will proceeds on identical lines as the M.O.U. dt.4.7.86 and records that the plaintiff has separated from the family and whatever was due and payable to him has been handed over to him in the year 1986 itself. Therefore, his family members have no right, title and interest in the estate left behind on the date of the death. Once the benefit of these deeds and documents have been obtained, then, merely because defendant no.2 has challenged the subsequent will dated 3.1.09 propounded by defendant no.1, does not change the situation nor confer any right on the plaintiff and would not enable him to obtain the relief of appointment of Court Receiver. The order of injunction as made, would sufficiently protect the parties. Despite inter se disputes, the defendant no.1 does not urge that this court should appoint a Receiver of the estate nor is the defendant no.2 doing so. Therefore, Mr.Fadia submits that continuation of the ad interim order would suffice in the facts and circumstances of this case. 15. Having perused the plaint and and annexures thereto, so also, the affidavits filed in the Notice of Motion, it is apparent that the parties are in agreement that a prima facie case for grant of interim injunction has been made out and even the balance of convenience is in favour of the plaintiff. To that extent, the alleged loss, if any, to him can be avoided by the interim injunction and further all properties enlisted in para 16 of the plaint, save and except the clarifications of the defendants pertaining thereto, can be brought within the purview of such an injunction. 8 16. Defendant nos.1 and 2 submit that the interim orders should not prevent them from utilizing the properties and they would render true and faithful accounts of the same during the pendency of the suit. The only plea now remains for consideration is whether it is just and convenient to appoint a Court Receiver. In this behalf, the case of the plaintiff as pleaded needs to be noticed. 17. In para 6 of the plaint, he fairly concedes that the memorandum of understanding / deed was executed on 4.7.86. Mr.Kapadia submits that this is a document pertaining only to the disputes and differences covering the business and the management of HUF and this document together with its clauses would not deprive the plaintiff from claiming his share in the estate of the deceased. In other words, even if such a document is construed as putting an end to the rights of the plaintiff to claim anything in the business namely partnership and management and administration of HUF yet, after the death of the deceased in December 2009 on the basis of intestacy, the plaintiffs right to succeed and claim a share in his father s’ property is intact and not affected by the M.O.U. Dated 4th July, 1986. 18. For appreciating this contention the MOU dated 4.7.86 needs to be perused. The recitals therein record that the parties are father Kantilal Kapadia and plaintiff Manish Kapadia. Both record that differences and disputes have arisen between them and they were desirous of putting an end to them 9 amicably. In consideration of the father / deceased paying to the plaintiff as agreed a sum of Rs.7 lacs what plaintiff has agreed is to transfer to the father and or his nominee 1200 shares held by him and members of his group in Economic Pharmaceuticals Pvt.Ltd. and also 113 shares held in Keshavlal Vajechand and Sons Pvt.Ltd. Cambay and 175 shares held in Satish Textiles Pvt.Ltd. Cambay. He confirms that he and his family members cease to be partners and have retired from the partnership business, more particularly set out in the MOU and they will execute the necessary deeds and documents. Further, the plaintiff agrees to give up and release his right, title and interest in Vajechand Mulchand & Sons H.U.F. Cambay and K.K.Kapadia HUF Bombay. Clause 3 and 4 of the same read as under: 3. “ It is agreed that upon the payment of the aforesaid sum of Rs. 7,00,000/- (Rupees seven lakhs only) MKK or his family members shall have no right title or claim of any nature whatsoever in the various partnership firms mentioned hereinabove and their assets including silver lying with Kirtikumar & Co. (Export-Import) to the credit of MKK in their books of Account as also in the assets of the HUF of KKK as well as Vajechand Mulchand and Sons HUF as also the flat standing in the name of Mrs.Shantaben Kantilal Kapadia situated in the Building Anupam at “ ” Manav Mandir Road, Walkeshwar, Bombay 400 006 as also in the personal firms of Mrs.Shantaben Kantilal Kapadia, Dilip Kantilal Kapadia and Parekh Kantilal Kapadia, telephone bearing Nos. 8121326 and 8129858 and telexes installed at 10 the said flat at Anupam and or the Companies mentioned herein above as also in all articles and things as well as movable and immovable properties belonging to KKK and his wife Mrs.Shantaben as well as his sons Dilip and Paresh and their family members and the KKK HUF. Similarly KKK and his group shall not have any claim right title or interest on the flat No. 14 at Punam , Napean “ ” Sea Road, Bombay and the telephone bearing No. 8281906 installed thereat as well as other articles and things as well as movable and immovable properties belonging to MKK and his group. 4. Requisite documents like Deeds of Retirement from Partnership firm and or Deeds of Dissolution, Deeds of Release releasing right title and interest in HUF shall be prepared by KKK s Advocates and ’ shall be executed by MKK and or his group as the case may be within a period of seven days from the date of submission thereof for execution by MKK and or his group.” 19. From a perusal of the same together with the other clauses, it is apparent that the plaintiff does not dispute execution of the M.O.U. and further documents dt.13.9.86. Thus, at least from that date, he has separated from the family. Despite this, the argument of the plaintiff is that he is entitled to a share in the estate of the deceased as class I heir. In other words, since deceased has expired intestate his share should devolve by the rule of Succession laid down in Schedule I to Section 8 of he Hindu Succession Act, 11 1956 and going by that rule, the plaintiff is entitled to receive 1/6th share in the estate of the deceased. 20. In this behalf, it would be proper to notice the clauses which are reproduced above. Prima facie, if the intention of the plaintiff had been not to separate from the family and give up his right, title and entitlement in the estate, so also, release himself therefrom, there was no occasion to state anything about flat no.91, 9th floor, Anupama Co-op.Housing Society in the said clause and the M.O.U.. 21. Though the deceased was residing therein with his wife and defendant no.1 and 3, the allegation in the plaint is that the defendant no.1 has initiated some legal proceedings. It is alleged that the deceased was the original member of the Co-op.Housing Society. It is alleged by defendant no.1 that the deceased submitted the application dt. 2.1.71 to admit his wife Shantaben as as an associate member of the Society. That the managing committee meeting was held on 5.3.81 wherein the Committee took the decision to make the mother as a joint holder. Thereafter, it is submitted that the mother, father and brother executed a trust deed on 4.4.00 and requested the Society to mention in the share certificate that the trust and the trustees are entitled to the flat in question. The Society convened a general body meeting on 6.8.06 and deleted the name of defendant nos.1 and 3 altogether from the share certificate and reversed the entry to reflect the name of the deceased. Defendant nos.1 and 3 have therefore, lodged a 12 complaint with the Registrar of Co-operative Societies and proceedings in that behalf have been initiated and are stated to be pending. Based on all this and the wills which are brought on record, so also the clarification given by the affidavits, it is urged that it is just and convenient to appoint the Court Receiver. The developments from 1986 to 2009 have no bearing on this issue but considering the present status and value of the properties, the receiver is necessary and that is the only safeguard and protection. 22. While it is conceded that in such a suit, a Court Receiver can be appointed, ultimately his appointment is justified on the facts and circumstances of each case. Beyond stating that the defendant nos. 1 and 3 have initiated proceedings so as to enter their names in the share certificate, it has not been pointed out as to how this asset belonging to the estate of the deceased is being frittered away or wasted or damaged by the parties. It may be true that their explanations with regard to the property and the present status may be conflicting and contradictory. 23. Mr.Kapadia pointed out at length as to how about each property there is a discrepancy in the explanation and the disclosures made by defendant nos.1 and 2 but that by itself is not sufficient to conclude that it is just and convenient to appoint the Receiver. The court receiver could have been appointed had the plaintiff not been a signatory to the deeds and documents in 1986. 13 24. Prima facie, the execution thereof binds him and it will not be possible to hold straightaway that the deceased or his shares in the estate devolves upon the plaintiff on the basis of intestate succession. Assuming that there are disputes pending about the genuineness and validity of the wills propounded by defendant nos. 1 and 2. Yet, going by the recitals in the deed to which the plaintiff has been party since 1986 and he on his own admitting his disassociation from the estate and business from that date, is enough to conclude that it is not just and convenient to appoint a Court Receiver. The request, therefore, made in his behalf is rejected. 25. At the same time, going by the affidavits filed on record and even one of the daughters of the deceased now coming forward to claim a share prima facie, the case for grant of interim injunction has been made out. 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 proper, so also truthful disclosure of the estate. The balance of convenience has also been made out. There will be loss to the heirs if ultimately the wills are held to be not genuine and valid, so also, on evidence being led if the court concludes that the defendant is entitled to 1/6th share in the estate of the deceased. In these circumstances, the following order would serve the ends of justice: 14 26. Notice of Motion is made absolute in terms of prayer clause (c), except the words dealing with and by permitting the parties who are presently using ‘ ’ the properties but this does not absolve them or discharge them from their liability to pay taxes, statutory dues, monthly outgoings and maintenance in that behalf. It is directed that defendant no.1 shall not proceed with any matters including the pending Revision Application initiated under the Maharashtra Co-op.Societies Act, 1960 in relation to the flat at Manav Mandir Road. All such proceedings will remain in abeyance during the pendency of the suit. 27. Further, save and except in usual course of business parties will not create third party rights or part with possession of the assets and properties in any manner. In other words, they can use and utilize them in the ordinary and normal course of business. In addition, there will be an order in terms of prayer clause (a) of the Notice of Motion and it is directed that the defendant nos.1, 2 and 3 shall render accounts and make complete disclosure in terms of this prayer on affidavit which shall be filed every quarter during the pendency of the suit. In other words, quarterly accounts and disclosures shall be made as directed. Notice of Motion is made absolute in these terms. There is no order as to costs. In the view that I have taken it is not necessary to refer to the decisions brought to my notice in further details. ( S.C.Dharmadhikari, J. )