SUNIL V KAPADIA Vs. SUMATI V KAPADIA

JUDGEMENT

(1.) THIS Notice of Motion is taken out in an Administration Suit for appointment of Receiver and injunction Virendra C. Kapadia, father of the plaintiff and defendant No.2, hereinafter referred to as "the deceased", died on 9th July, 1994. Defendant No.1 is the widow of the deceased. Plaintiff is the eldest son. The deceased died intestate. List of properties allegedly left behind, various immovable and movable properties are mentioned in Exhibit-B. The main relief is sought with regard to the residential flat at 304, Panchvatti Co-operative Housing Society, Near Manek Moti, Off. Yari Road, Versova, Bombay-61. This flat is presently in occupation of the widow and the brother-defendant No.2. According to the plaintiff, the aforesaid flat was purchased by the deceased from his own funds. Earlier the deceased along with his family members were residing in a different flat. This was sold for a sum of Rs.22 lakhs. Out of these sale proceeds, the deceased purchased the residential flat at Panchvatti for a sum of Rs.13 lakhs. Rest of the money was invested in shares and debentures of various Companies. Thus, it is stated that the deceased was the absolute owner of the flat and the share certificate stands in the name of the deceased. The plaintiff submits that the entire estate of the deceased is in the wrongful hands of the defendants. They are depriving the plaintiffs right in the flat and also in the shares and debentures. No accounts of the administration of the estate is being given by the defendants. The plaintiff is entitled to 1/3rd share in the estate as per the provisions of the Hindu Succession Act, 1955.

(2.) AN affidavit in support of the Notice of Motion has been filed. The defendants have filed a reply to the affidavit. It is stated that the suit is one of the series of threats given by the plaintiff from time to time to the mother and defendant No.2. The plaintiff has been harassing the defendants. All these facts are narrated in the Advocate's letter dated 30th August, 1997. The suit is said to be barred by limitation. The allegations made in the plaint are denied. It is denied that the deceased was the owner of the residential flat at Panchavatti Building. The flat is said to have been purchased by the defendants but the name of the deceased was added in the share certificate of the society out of respect for him and after his death his name is removed from the share certificate of the society. It is admitted that the other flat mentioned by the plaintiff was owned by the deceased. That was sold in April, 1991. In fact the entire management of the estate was in the hands of the plaintiff. According to the defendants, it is the plaintiff who has not given any account of the various investments in securities which may belong to the deceased. It is stated that in fact the plaintiff is in possession of the entire assets of the deceased. Therefore, there is no question of the defendants alienating or encumbering any part of the estate of the deceased. The plaintiff himself is in possession of the entire securities mentioned in Exhibit-B. It is stated that the residential flat was purchased by the mother. At present defendant Nos.1 and 2 are the recorded owners of the flat.

(3.) I have heard the learned counsel for the parties. From the aforesaid it is prima facie shown that the deceased did have some interest in the residential premises. Therefore, the Plaintiff is entitled to the relief of injunction in terms of prayer clause (b). Notice Motion is made absolute in terms of prayer clause (b) except the bracketed portion. Prayer clause (b) reads as under: