1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3842 of 2008 IN Suit No.3052 of 2008 Mrs.Kusuma Balkrishna Anchan .. .. Plaintiff v/s. Mrs.Yamuna R. Amin & ors. .. .. Defendants Mr.Vishal Gosalkar with Mr.R.M. Bhandari for Plff. Mrs.A.S. Malvankar for Deft.Nos.1 to 5. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 22nd April, 2010 P.C. : 1.This Suit is filed by the Plaintiff representing herself and her children to claim 1/5 th share in the various properties of the family which was the share of her husband, since deceased. The family carried on business of two hotels Ram Darshan and Viman Darshan. The share of the deceased husband of the Plaintiff and accordingly her share along with her children is admitted in Ram Darshan. The Plaintiff has shown the business carried on in Viman Darshan also. 2.In the Affidavit-in-reply to the Notice of Motion filed initially on 27.12.2008, the Defendants stated that the 2 hotel Viman Darshan was sold for Rs.50 Lakhs in repayment of their loan. 3.In the further Affidavit filed by the Defendants on 5.4.2010, the Defendants have stated that they have entered into a Conducting Agreement dated 5.5.2009 with one Prashant and Vijay Shetty and are receiving the compensation of Rs.30,000/- for the said hotels. The Plaintiffs claim that the compensation is not adequate. The Defendants have produced the Conducting Agreement dated 5.5.2009, which is unregistered and which shows the compensation receivable by the Defendants in paragraphs 3(a) and 3(b) thereof. 4.The two statements are contradictory. The first statement is falsified by the Defendants own documents. The Defendants are receiving Rs.65,000/- for hotel Ram Darshan. The Plaintiff contends that similar amount is received for another hotel also. 5.Both the hotels are stated to be in the same area, near Airport and of about the same dimension. Hence the Defendants unregistered document, which is not executed as per law, cannot be accepted as truth. The property is required to be utilised for fetching higher income, which it is capable of. Hence a case for appointment of Court Receiver is made out. In fact, 3 Mrs.Malvankar on behalf of Defendants Nos.1 to 5, states that Court may appoint Court Receiver since the Court asked Mrs.Malvankar whether the Defendants would not want higher income, if possible. Court Receiver is appointed Receiver in respect of the hotel Viman Darshan Restaurant & Bar, situate at LBS Marg, near Petrol Pump. Opp.Kalpna Talkies, Kurla (West) Mumbai. The Court Receiver shall initially determine the amount receivable for the premises at the aforesaid address where the business of Viman Darshan Restaurant & Bar is carried on. If the Court Receiver finds that the amount which can be received is far in excess of the amount stated in the leave and licence agreement executed by the Defendants with the aforesaid Prashant and Vijay Shetty, the Court Receiver shall initially call upon Prashant and Vijay Shetty to deposit further amount receivable from the Restaurant & Bar with the Court Receiver. If the licensees deposit such additional amount, they may continue as such licensees pending the suit. In that case, the Plaintiff shall be paid her 1/5 th share therefrom. The Defendants shall be paid the remainder. This payment would be after deduction of the Court Receiver s costs, charges and expenses. If the licensees do not deposit the amount ascertained by the Court Receiver as licence fees receivable in respect of the premises of Hotel Viman Darshan, the Court Receiver shall not renew the licence 4 from the date of its expiry and thereafter the Court Receiver shall appoint a third party who is prepared to pay the licence fee determined by the Court Receiver to run Viman Darshan Restaurant & Bar on the same terms and conditions. The Court Receiver shall enter into the usual agency agreement and take the usual undertaking whether from the aforesaid Prashant and Vijay Shetty or the third party. 6.With regard to the property described in paragraph 3(a) of the Plaint which is a flat in Golden Arch Society, Opposite Kalina Masjid, Santacruz (East), Mumbai, the Defendants make a statement that they do not desire to sell, transfer or encumber the flat. The Defendants, therefore, shall not sell, transfer, alienate, encumber, part with possession or create third party rights in the flat on the 1 st floor of Golden Arch Society, Opposite Kalina Masjid, Santacruz (East), Mumabi-400 029. 7.With regard to the property shown in paragraph 3(k) of the Plaint, it is the case of the Plaintiffs that a flat of about 700 sq. ft. in Suhana building was sold and out of the sale-proceeds thereof, new flat No.303 at Nerul New Mumbai, is purchased. The Plaintiff claims her 1/5 th share in the said property also along with her children. This is on the premise that the 5 flat in Suhana building was purchased from the joint family funds received from the income of the two hotels which was earned by the joint family members. It is the Defendants case that the husband of the Plaintiff had relinquished his right, title and interest in the said flat. The onus would lie upon the Defendants to prove the relinquishment. If the relinquishment is not proved, 1/5 th share of the Plaintiff would be required to be paid to her from proceeds of the flat in Suhana building, from which the new flat is purchased by the Defendants. Defendant No.2 in his Affidavit-in-reply dated 5.4.2010 has admitted sale of the flat in Suhana building for Rs.12 Lakhs and purchase of the flat in Nerul. The Defendants shall not deal with, disposed of, sell, transfer, encumber, alienate or create any third party right in flat No.303, purchased at Nerul by Defendant No.2. 8.The hotel Ram Darshan including a staff room and a pan- bidi shop is admittedly the family property and the income derived therefrom is admittedly for the family. The Plaintiff s 1/5 th share in the said property is admitted. Consequently,a separate Notice of Motion bearing No.3072 of 2009 has also been taken out by the Plaintiff for a judgment on admission for her 1/5 th share in the said property. That property has to be valued. The valuer from the panel of this Court is 6 appointed for that purpose. Pending the Suit and valuation, the Defendants shall not deal with, dispose of, sell, transfer, encumber, alienate or create any third party right in the hotel Ram Darshan, including the staff room and the Pan-bidi shop. 9.One Gala mentioned in paragraph 3(d) of the Plaint is claimed by the Plaintiff to be a part of hotel Ram Darshan. It is claimed by the Defendants to be a part of hotel Viman Darshan. Both the hotels are family properties. Hence the Defendant shall not deal with, dispose of, sell, transfer, encumber, alienate or create any third party right in the said Gala also. 10.The property described in paragraph 3(e) of the Plaint which is a flat in Palm Villa Co-operative Housing Society Ltd. is stated by the Plaintiff to be a part of the family properties. The Defendants claim that to be a separate property of Defendant No.2 and dispute the Plaintiff s 1/5 th share therein. It is the case of the Defendants as set out in the Affidavit-in-reply to Notice of Motion No.3072 of 2009 that this property stood in the name of the deceased husband of the Plaintiff, but it is occupied by Defendant No.1, his mother. Consequently, another property being flat No. 12 in Suchita Housing Society was purchased for the husband of the Plaintiff. The Plaintiff resides 7 therein with her family. The Plaintiff claims that that is a separate property of her husband which is the self acquired property, acquired from individual funds. It would be for the Plaintiff to prove that the flat in Suchita Housing Society is a separate property of her husband. However, if the Plaintiff shows that fact the flat in Palm Villa Society would be the joint family property and would be required to be partitioned to give the Plaintiff her 1/5 th share therein. Hence the Defendants shall not deal with, dispose of, sell, transfer, encumber, alienate or create any third party right in the said flat in Palm Villa Co-operative Housing Society Ltd. 11.The properties described in paragraph 3(f) of the Plaint are three Galas in a chawl at Allapool in Kurla, Mumbai. The rent receipts of the said Galas stand in the name of the father of Defendant No.2 and the deceased husband of the Plaintiff. The Plaintiff would, therefore, be entitled to 1/5 th share therein. Pending the Suit, the Defendants shall not deal with, dispose of, sell, transfer, encumber, alienate or create any third party right in the said three Galas situated in a chawl at Allapool in Kurla, Mumbai. 12.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)