RAJESH OM PRAKASH KAKAR Vs. KEVAL KISHAN HITKARI

JUDGEMENT

(1.) HEARD Mr. Naphade, the learned counsel for the plaintiffs, Mr. Iqbal Chagla and Mr. Devitre, the learned senior counsel appearing for defendant nos.1 and 2, Mr. J.B. Lentin, the learned counsel for defendant no.3, Mr. Madon with Mr. Desai, the learned counsel for defendant nos.4 and 5 and Mr. D.J. Khambhatta, the learned counsel for defendant nos. 6 and 7.

(2.) SHRI Balakram Hitkari married Smt. Durgadevi and out of the wedlock one son and two daughters namely, Shri Keval Krishna, Nishchint and Tara were born. The present plaintiffs are the son and daughter of Tara. Tara predeceased Shri Balakram and Durgadevi. Balakram died in the year 1971. Durgadevi died in the year 1991. Defendant no.2 is wife of Keval Krishna. Defendant nos.4 and 6 are sons of defendant no.1 Shri Keval Krishna and defendant nos.5 and 7 are wives of defendant nos.4 and 6 respectively. The plaintiffs have filed the present suit for administration of estate of deceased Durgadevi claiming 1/3rd right in the estate of deceased Durgadevi. The details of the properties are stated in paragraph 32 of the plaint which comprise cash, movable and immovable properties. The claim is contested by the defendants on different grounds. The plaintiffs have taken out the notice of motion in the suit praying therein for appointment of Receiver on the properties left by Smt. Durgadevi and for temporary injunction restraining the defendants from disposing of, selling or creating any third party rights or interest in the property left by Smt. Durgadevi. Prior to the present suit the defendant no. 4 filed two petitions for probate of the will dated 29.7.1966 said to have been executed by Balakram bequeathing his entire estate to his wife Smt. Durgadevi. Smt. Durgadevi executed a will dated 11.6.1991 whereby Durgadevi bequeathed all her properties to Defendant no. 4. In one of the petitions praying for probate of the will dated 11.6.1991 caveats were filed including the present plaintiffs and the said petition has now been registered as Testamentary Suit. According to defendant no. 4, the plaintiffs have no right, title or interest in the properties left by deceased Durgadevi in view of the aforesaid wills. On the other hand case of defendant no.1, is that the plaintiffs have only 1/20th share in the properties left by deceased Durgadevi if it is assumed that Durgadevi had died intestate. Thus, there is serious dispute between the parties about their respective rights in the properties and it appears that some of the defendants are relying on the will alleged to have been executed by Balakram on 19/5/1964 and another will dated 29/7/1966 alleged to have been executed by Shri Balakram. It also appears that the defendant no.1 also relies upon the will dated 6.8.198Z alleged to have been executed by Durgadevi while defendant no.4 is relying upon the will dated 11.6.1991 allegedly executed by Durgadevi in favour of defendant no.4. The defendant no.3 in her affidavit in reply had referred to another will alleged to have been executed by Durgadevi. However, the details of that will have not been disclosed. In this background, the learned counsel for defendants did not object to making the notice of motion absolute in terms of ad-interim order. However, the learned counsel appearing for defendants seriously opposed the prayer of the plaintiffs for appointment of Receiver over the properties left by Durgadevi.

(3.) THE appointment of Receiver was particularly sought by the learned counsel for the plaintiffs on the grounds stated above with regard to immovable properties situated at Nagdevi Street, Chembur and half of the Sky Lark building details of which have been given at item nos.8, 9 and 11 of Schedule I in paragraph 32 of the plaint. From the available material it is clear that the immovable property situate at Nagdevi Street was self acquired property of Durgadevi. It appears that the said property after the death of Durgadevi has come in possession of defendant no.3. The learned counsel for defendant no.3 made a categorical statement on instructions of his client that the status quo as was obtaining on the date of the filing of the suit is being maintained by defendant no.3 and that the tenants who were occupying the portions in the said building on the date of the filing of the suit continue to occupy the said portions and that no third party right or interest has been created in respect of the said property after the filing of the suit. As regards the immovable property situated at Chembur, there is no dispute that the said building is residential building and is in occupation of the defendant nos.4 and 6 and their family members including defendant nos.5 and 7. On the date of the filing of the suit the said property was in possession of the defendant nos.4 and 6 and their family members and that continues to be so. The learned counsel appearing for defendant nos.4 and 6 have made the statement at bar on their behalf that they would not create any third party right or interest in the said property nor have they done so in view of the ad-interim injunction order. So far as Sky Lark building is concerned, defendant no.6 in his affidavit has stated in unequivocal terms that 6th floor premises of the said building are in the occupation of Economic and Political Weekly since more than 20 years as tenants. The 7th floor of the Sky Lark building is in use and occupation of Hitkari Multifilters Limited since 1971 as tenant and other part of the 7th floor premises is used by his family companies namely, Hitkari Cigarette Components Private Limited and Hitkari Trading Pvt. Ltd. Mr. Khambhatta, the learned counsel appearing for defendant no.6 has made the statement at bar after seeking instructions from defendant no.6 that with regard to the 6th floor and 7th floor premises of Sky Lark building the defendant no.6 would maintain the same position as stated in his affidavit filed today and that if any of the tenants or occupiers vacates the said premises or part thereof, he (defendant no. 6) would not create any third party interest in the said portion so vacated save and except the permission from this Court. As regards ground and first floor of Skylark building Mr.Madon the learned counsel appearing for defendant nos.4 and 5 submits that the premises on ground and first floor of the said building are in possession of the said defendants and their family companies and that position would be maintained till the disposal of the suit save and except permission from this Court. Mr. Madon informed that portion which was in occupation of Maharashtra State Electricity Board has come in possession of defendant no.4 during the pendency of the suit and that the defendant no.4 would not create any third party interest in that portion in any manner save and except permission from this Court. The aforesaid facts would clearly demonstrate that after the filing of the suit, the defendants have not altered the position of the disputed immovable properties either prejudicial to the interest of plaintiffs or to the detriment of such properties and therefore the allegation of the plaintiffs that the defendants have created third party interest after filing of the suit does not inspire any confidence. The interest of the plaintiffs, I am of the considered judgment, would be fully secured and safeguarded if the defendants are restrained by an order of injunction with regard to aforesaid immovable properties and in the facts and circumstances I am satisfied that no case for appointment of Court Receiver is made out.