VINODKUMAR SHARMA Vs. ASHOKKUMAR S UPADHYAYA

JUDGEMENT

(1.) THIS order will dispose of Notice of Motion Nos.1756 of 1996 and 3209 of 1996.

(2.) NOTICE of Motion No.3209 of 1996 has been taken out by the plaintiff with a prayer that pending the hearing and final disposal of the suit, the Prothonotary and Senior Master be directed to hand over the keys of the main door of the suit flat to the plaintiff with liberty to the Plaintiff to hand over the same to Ms.Emily Noqueira and Ms.Judith Noqueira, hereinafter referred to as "Emily and Judith" respectively.

(3.) BOTH the Notices of Motion have arisen out of the controversy about the possession of the disputed portion of the flat after the death of the original plaintiff on 18th June, 1996. Present suit was filed by the original plaintiff against the original defendant for a declaration that the original plaintiff was holding 500 shares of the suit flat as a member of the society and on ownership basis and that the defendants have no right, title or interest of any nature in respect of the suit flat. Prayer is made for permanent injunction directing the original defendant to remove himself from the suit flat. This suit is lodged on 13th February, 1981. Original defendant was the brother of the original plaintiff. He also died on 18th September, 1986. Defendant Nos.1, 2 and 3 are the children of the original defendant. Present plaintiff claims to he the executor of a Will purportedly executed by the original plaintiff on 7th April, 1981. The aforesaid Will has been registered with the registrar of Assurances. It is common ground that the Will is not probated. It is also common ground that the probate petition was opposed by defendant Nos.1 to 3 and has now been converted into Probate Suit No.97 of 1998. There is also other litigation between the parties after the death of the original plaintiffs. Defendant Nos.1 to 3 have filed Administration Suit No.3128 of 1996. In that suit Notice of Motion has been taken out for appointment of Receiver. The same is pending. Initially a suit was filed by the original defendant being Suit No.6583 of 1980 in the City Civil Court. That suit has been ordered to be transferred to this Court to be decided along with the present suit. It is the case of Emily and Judith that they are the legatees under a Will. It is also their case that Emily had been residing with the original plaintiff since 1971.