NMS4344-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4344 OF 2009 IN SUIT NO.759 OF 2009 Rajesh Ramanlal Vyas .. Plaintiff Versus Nitin Ramanlal Vyas & Anr. .. Defendants Mr.L.C.Joshi for plaintiff Mr.G.K.Shah for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 19th November 2010. P.C.: 1] This suit is filed for a declaration that the plaintiff is entitled to a sum of Rs.12.74 lakhs being 1/3rd share as per the prevailing market value of flat in the suit. It is stated that plaintiff is elder brother of defendant Nos. 1 and 2. Defendant No.2 is married sister who is supporting plaintiff. Their late father Ramanlal Vyas was absolute owner of the flat in the Cooperative Housing Society more particularly described in Exh.A and he left behind after his death NMS4344-09 2 mother of the plaintiff and defendant. It is stated that thereafter the wife of the deceased father i.e. Mother of the parties expired and upon her death they are each entitled to 1/3rd share. 2] It is stated that after the death of deceased, defendant No.1 who is in occupation, was requested by the plaintiff to allow him to reside in the flat with his family. Despite plaintiff being handicapped, this reasonable request was denied and now the plaintiff has to accommodate himself in premises which are not commensurate with his Status and requirement. It is a chawl premises and the first defendant is exclusively enjoying the property. 3] In the affidavit in support of this notice of motion an apprehension is expressed that on account of conduct of the first defendant, after the death of close relatives, first defendant may create third party rights in the property and therefore, interim injunction should be granted. NMS4344-09 3 4] From a perusal of the relevant materials including the plaint and annexures and affidavit in support of notice of motion, it is apparent that what the plaintiff is claiming 1/3rd share in the prevailing market value which is stated to be Rs.38.28 lakhs. That would be around Rs. 12.75 lakhs. If that valuation is taken in to account, plaintiff and defendant No.2 should be provided their 1/3rd share and that will not be possible if the flat is exclusively occupied and appropriated by the first defendant unto himself, is the foundation of the claim. 5] From a perusal of these materials, I am satisfied that no prima facie case is made out with regard to the alleged apprehension of the property being disposed of. On the other hand, there is written statement filed by the first defendant. He has stated therein that the understanding between the parties during the lifetime of their mother was that the first defendant would be entitled to the property. In any event, there is absolutely no apprehension based upon which interim orders could be passed, is the stand taken in the written statement. NMS4344-09 4 6] In such circumstances and when the plaintiff and defendant No. 2 are claiming share in the property, which is crystalised by them in monetary terms, I see no apprehension of that being defeated even if the property is dealt with. That share would always be secured if at all the property is disposed of. Reserving that right to the plaintiff and defendant No.2 and considering that there is no apprehension that the property is likely to be disposed of to the detriment of their share, I am of the opinion that no prima facie case is made out for grant of interim reliefs. Notice of motion, therefore, fails and the same is dismissed. (S.C.DHARMADHIKARI, J)