RAJAN RAGHUNATHRAO DESAI Vs. SANJITA RANESARDESSAI

JUDGEMENT

(1.) RULE by consent made returnable forthwith.

(2.) HEARD learned Senior Counsel Shri M. S. Usgaonkar for the petitioner and learned Counsel Shri Mascarenhas for the respondent nos. 1 and 2. The petition is directed against the order passed by the learned First Additional Civil Judge, S. D. , Margao on 29. 8. 2007, whereby the learned Judge held the respondent Nos. 1 and 2 entitled to 2/3rd amount from the amount deposited by the Judgment Debtor in view of orders passed by this Court in W. P. 26/2005 on 5. 10. 2005. This amount was deposited in pursuance of decree, where Vijaymala, the mother of the petitioner and respondent Nos. 1 was to get 50 % of the sum in respect of price of ore up to 2 Lacs tonnes per year and her children were to get 10 % each from price up to 2 Lacs tonnes per year. Beyond two lakh tonnes, Vijaymala was entitled to get entire price, if vijaymala expired. It is not necessary to go into the question of shares of the parties in pursuance of Vijaymala's Will. Two siblings of the petitioner and respondent No. 1 are stated to have renounced their share. This aspect also need not be gone into now. The grievance of respondent Nos. 1 and 2 is that the petitioner had appropriated for himself a large chunk of sum of Rs. 1,64,92,072/-deposited by the Judgment debtor from time to time. Therefore, they justify the impugned order dated 29. 8. 2007, which entitles them to 2/3rd share in the amount now in deposit.

(3.) ONE wrong allegedly committed by the petitioner in appropriating himself a sum of Rs. 1. 64 Crores, would not entitle the respondent to take 2/3rd share in the amount now deposited in the trial court. Their shares were 10 % each in terms of the decree. 50 % was to go to Vijaymala. Since, she had 5 children, irrespective of what happens on account of adjustment of shares, in terms of the will or renunciation, they would get another 10 % share each, if renunciation and Will are not considered for the time being. Thus, the petitioner as well as respondent No. 1 would have 1/5th share each. In any case, the share of respondent No. 1, if will and renunciation are excluded, is not likely to exceed 1/5th share. Her husband does not have an independent share of himself and takes along with her share. Therefore, the learned trial Judge was obviously in error in holding the respondents entitled to 2/3rd share in the amount in deposit. In view of this, the impugned order will have to be quashed and set aside.