*1* nms.547.10 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.547 OF 2010 IN SUIT NO.462 OF 2010 Kamlakant Natwarlal Shah. ..Plaintiff -Versus- Jagdishchandra Natwarlal Shah and others. ..Defendants .......... A.M.Saraogi, for the Plaintiff. Anil C. Singh a/w Atul S. Singh i/b D.R.Shah for the Defendant No.1. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 27th September, 2010. P.C. 1 This Notice of Motion is moved by the Plaintiff. It is the case of the Plaintiff that he holds 87.5% share in the flat more particularly described in prayer clause (a) of the plaint. This flat is at Peddar Road, Mumbai and it is stated to be valuable. It is the case of the Plaintiff that he and the Defendant No.1 are real brothers. The Defendant No.2 is mother of both the Plaintiff and the Defendant No.1 and the Defendant No.3 is their sister. The mother and sister are stated to have relinquished their rights, title and interest in favour of the Plaintiff and the Defendant No.1. The Plaintiff states that there is a flat at Deccan Chambers, Girgaon which flat is described in paragraph No.3 of the plaint. It is stated to have been jointly purchased by the Plaintiff and the Defendant No.1. The Plaintiff is in possession of this flat but it is alleged by him that during the lifetime of his father Natwarlal, the Plaintiff and the said Natwarlal jointly purchased the flat at Peddar Road. A copy of agreement in that behalf dated 23.11.1984 is annexed at Annexure-C to the plaint and it is stated that the *2* nms.547.10 names of Plaintiff and his father are in the record of the Co-operative Housing Society including the share certificate as a joint owner. It is on this basis, the Plaintiff alleged that since the father of Plaintiff and the Defendant No.1 has expired on 28.06.1999, they together being the only heirs and legal representatives are entitled to the estate and they have 50% equal shares. The Plaintiff claims 87.5% share on the basis that larger share is being used by the Defendant No.1 because according to the Plaintiff the Defendant No.1 is only entitled to 12.5% share. The value of flat, according to the Plaintiff, would be in the vicinity of Rs.1.30 crores. The Defendant Nos.2 and 3 have surrendered their 12.5% shares each in favour of the Plaintiff and therefore, his share as on today is 87.5%. 2 This version is controverted by the Defendant No.1 and it is pointed out that during the lifetime of father, there was an agreement and arrangement under which the flat at Deccan Chambers is exclusively occupied by the Plaintiff and as far as the flat at Peddar Road is concerned, the Plaintiff voluntarily relinquished his rights, title and interest therein in 1st Defendant’s favour by executing an affidavit dated 29.03.1994. In other words, the arrangement in writing is that the Plaintiff voluntarily relinquished his share in the Peddar Road flat vide affidavit dated 29.03.1994 and in return, vide affidavit dated 30.03.1994 the Defendant No.1 relinquished his rights, title and interest in the Deccan Chamber flat. Equally the father has also executed such writing dated 04.10.1995. Further, the Defendant No.1 places reliance on the Will dated 18.08.1998 executed by the father in favour of the Defendant No.1 of which the probate is sought and the probate proceedings are pending in the competent Court at Gujarat. It is also urged that Rs.25 lacs are paid in the lifetime of the father to the Plaintiff’s wife so that the Plaintiff and her wife relinquish their share in the Peddar Road flat. *3* nms.547.10 3 In the rejoinder, the Plaintiff denies this assertion and states that to the knowledge of the Plaintiff and the Defendant No.1, this arrangement/ family settlement has not been acted upon. 4 According to Mr.Saraogi, learned counsel appearing on behalf of the Plaintiff, this is reason enough for appointing the Court Receiver in respect of the flat at Peddar Road without any power to dispossess the Defendant No.1 at this stage. He submits that once there is a prima facie proof of the agreement/ arrangement between the family members being given a go-bye and two Wills being set up by the Defendant No.1, then it is just and convenient to appoint the Court Receiver as prayed. Mr.Saraogi submits that even the share certificates and documents which are annexed to the rejoinder would demonstrate as to how the Plaintiff has been deprived wrongfully of his share in the Peddar Road flat. Mr.Saraogi submits that the interim injunction restraining the transfer of flat at Peddar Road would not suffice in this case. 5 On the other hand, Mr.Singh appearing on behalf of the Defendant No.1 urges that the probate proceedings are pending. Though the Plaintiff states that the flat at Deccan Chambers is jointly purchased, yet, the Plaintiff is exclusively utilizing the said flat. Mr.Singh urges that so far as this flat is concerned, the Plaintiff accepts the version in the affidavit in reply and is silent about the writing of the Defendant No.1 giving up his rights in respect of the Deccan Chamber flat but when it comes to the flat at Peddar Road, the Plaintiff disowns the family settlement and arrangement. All this is nothing but an attempt to seek permanent injunction restraining the members of a joint family to occupy and use the immovable property and the relief of Court Receiver being pressed would amount to indirectly dispossessing Defendant No.1 from the flat at Peddar Road, which is prohibited in law. For all these reasons, *4* nms.547.10 Mr.Singh submits that interim injunction would sufficiently protect the Plaintiff. 6 With the assistance of the learned counsel for the parties I have perused the plaint and Annexures so also all affidavits on record. It is unfortunate that there are disputes and differences between the real brothers. It is further unfortunate that after the death of father there are some writings executed by the Plaintiff which he is not willing to accept. Further the Plaintiff refutes that receipt of Rs.24 lacs was in full and final settlement and in lieu of giving up the share in the Peddar Road flat. In such circumstances, there is clear dispute between the Plaintiff and the Defendant No.1 who are claiming to be joint owners of the immovable property. The flat at Peddar Road is stated to be very valuable and is in possession of the Defendant No.1 and his family since 1998 and the Plaintiff is in possession of the Deccan Chamber flat since 1989. Hence, interest of justice would be served if both the immovable properties are directed to be protected inasmuch as the Plaintiff and the Defendant No.1 will not transfer the flats in their possession and occupation nor shall they create any third party rights in respect thereof in any manner whatsoever till the final decision of the suit. The probate proceedings are pending in the competent Court at Gujarat and depending upon out come of the same, it would be open for the Plaintiff to apply for such further and other interim reliefs as are permissible in law. 7 Considering the fact that the mother (Defendant No.2) is of advanced age and the Plaintiff and the Defendant No.1 have also crossed 60 years of age, list this suit for framing the issues on 26.10.2010. Hearing of the suit is expedited. (S.C. Dharmadhikari, J)