Indian Succession Act sec. 213 does not bar a party from relying on the will at interim stage of proceeding. Trial court will finally decide the rights of the parties at trial of the suit.
Principles of law which emerge in this case are
crystallized as under:-
1. No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by long
possession of years or decades such person would not acquire
any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long possession. The
caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the
possession of a caretaker, servant or any person who was
allowed to live in the premises for some time either as a friend,
relative, caretaker or as a servant.
4. The protection of the Court can only be granted or
extended to the person who has valid, subsisting rent
agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”
HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.306 OF 2012 in
NOTICE OF MOTION NO.577 OF 2012 in
SUIT NO.552 OF 2012
Ramesh Sippy Vs. Suresh Gopaldas Sippy & ors.
CORAM : MOHIT S. SHAH, C.J. &
N.M. JAMDAR J.
Wednesday, July 4, 2012.
JUDGMENT:
This appeal is directed against the judgment and order dated 18
April 2012 of the learned single Judge of this Court, in Notice of Motion
No.577 of 2012 in Suit No.552 of 2012 filed by the appellant / plaintiff for
obtaining possession of the Flat No.5/B situated on the 5th floor ( the suit
premises ) in a building known as “Shree Vijayaa Bhavan” in Mumbai.
The suit is filed on the basis that the appellant is the owner of the said flat
by virtue of holding shares in the Unique Enterprise Co-operative Housing
Society. The appellant filed the above numbered Notice of Motion for
appointment of Court receiver and for a direction to the respondents /
defendants to deposit interim compensation during pendency of the suit.
2. At the first ad-interim hearing on 15 March 2012, the trial Court
recorded the statement made on behalf of the defendants that until further
orders, they will not dispose of, alienate, encumber, part with possession or
create any third party rights in the suit flat. At the next ad-interim hearing
on 18 April 2012, the appellant / plaintiff prayed for further direction
regarding appointment of Court receiver and for deposit of interim
compensation. The learned trial Judge however, in the impugned order
dated 18 April 2012 observed that merely because the affidavits were filed3 APP30612
it cannot be said that there was such grave urgency that the Court must
appoint a Court receiver at this stage or direct that the defendants should
pay sum as interim compensation or mesne profit. Learned trial Judge
accordingly granted only ad-interim order in terms of prayer clause (b)
restraining the defendants from disposing of, alienating, encumbering,
parting with possession or creating any third party rights in the suit flat.
Notice of Motion was ordered to be heard in due course by keeping open
the contentions of the parties.
3. We may also note at this stage that the defendants have raised
preliminary issues that the suit is barred by Law of Limitation and also that
the Court has no jurisdiction to entertain and try the suit which can only be
entertained and tried by the Court of Small Causes, at Mumbai. However,
for the present it is not necessary to decide these issues as the same will be
decided by the learned trial Judge at the hearing of Notice of Motion in
which the above issues are sought to be raised as preliminary issues. In this
appeal, we are only concerned with the limited question, whether during
pendency of the Suit any orders are required to be passed at this stage for
appointment of Court receiver or deposit of any interim compensation.
4. Mr.Seervai learned counsel for the appellant / plaintiff has
submitted that in 1972, Unique Enterprise Co-operative Housing Society
Limited allotted 500 shares to the appellant and in view of the allotment of
the said shares, appellant / plaintiff is an owner of Flat no.5/B situated on
the 5
th
floor of the building known as “Shree Vijayaa Bhavan” belonging to
the above co-operative society. It is further stated that when some of the
share certificates were misplaced, appellant made application to the society
for duplicate share certificate and after issuing a public notice, the co-4 APP30612
operative society issued duplicate share certificates to the appellant in the
year 2004. Respondent No.1 is the brother of the appellant, respondent
No.2 is the son of respondent No.1, respondent Nos.3 & 4 are the sons of
the sister of appellant and respondent No.1. Since the said sister was a
widow, the father of appellant and respondent No.1 had allowed the
widowed sister with her children i.e. respondents No.3 & 4 to occupy the
suit flat. It is submitted that however, the plaintiff had allowed respondents
No.1 to 4 to occupy the suit flat only gratuitously and because they are
relatives but that did not confer any right upon the respondents to occupy
the suit flat.
5. Relying on the judgment dated 13 July 2011 of another Division
Bench of this Court in Appeal No.1062 of 2010 (Geetanjali Minhas vs.
Rishi Minhas & anr.) Mr.Seervai contended that the presumption of
regularity attaches to a share certificate issued by a Co-operative Housing
Society, and therefore the Court, atleast at the prima facie stage, will have
to go according to the share certificate. It is therefore, submitted that at this
stage the Court must proceed on the basis that the appellant / plaintiff is the
absolute owner of the suit flat and the respondents have no right to occupy
the same.
6. Mr.Seervai learned counsel for the appellant has also heavily
relied on the decision dated 21 March 2012 of the Supreme Court in the
case of Maria Margarida Sequeira Fernandes and others v/s Erasmo Jack de
Sequeira(Dead) through L.Rs. (Civil Appeal No.2968 of 2012) arising out
of SLP (C) No.15382 of 2009 in support of the contention that the
possession of the respondent / defendants holds no good against the
appellant / plaintiff who is the rightful owner of the suit flat. Relying on5 APP30612
said decision it is contended that possession is important when there are no
title documents and other relevant records before the Court, but, once the
documents and records of title come before the Court, it is the title which
has to be looked at first and possession cannot be considered in vacuum. If
the title dispute is removed and the title is established in one or the other,
then, in effect it becomes a suit for ejectment where the defendant must
plead and prove why he should not be ejected. It is therefore, submitted that
since the defendants do not have any title to the suit flat, they are liable to
be ejected and therefore at this stage, the Court should appoint a Court
receiver requiring the Court receiver to give out the suit flat on license and
the license fees should be deposited in the Court. He submitted otherwise
even after the suit is decreed, the appellant will not be able to recover
mesne profits from the defendants. It is contended that in the Judgment
referred above, the Supreme court has held that the Court should fix adhoc
amount which the person continuing in possession must pay and the
plaintiff may withdraw such amount after furnishing an undertaking. The
Supreme Court has made it clear that should the Court pass any order for
reimbursement it will be a charge upon the property.
7. Strong reliance is also placed on paragraphs No.90, 91 and 92 in
the above decision and in the paragraph 101 laying down the principles,
which read as under -
“Mesne Profits
90. Experience has shown that all kinds of pleadings are
introduced and even false and fabricated documents are filed in
civil cases because there is an inherent profit in continuation of
possession. In a large number of cases, honest litigants suffer
and dishonest litigants get undue benefit by grant or refusal of an
injunction because the Courts do not critically examine pleadings
and documents on record. In case while granting or refusing6 APP30612
injunction, the Court properly considers pleadings and
documents and takes the pragmatic view and grants appropriate
mesne profits, then the inherent interest to continue frivolous
litigation by unscrupulous litigants would be reduced to a large
extent.
91. The Court while granting injunction should broadly
take into consideration the prevailing market rentals in the
locality for similar premises. Based on that, the Court should fix
adhoc amount which the person continuing in possession must
pay and on such payment, the plaintiff may withdraw after
furnishing an undertaking and also making it clear that should
the Court pass any order for reimbursement, it will be a charge
upon the property.
92. The Court can also direct payment of a particular
amount and for a differential, direct furnishing of a security by
the person who wishes to continue in possession. If such amount,
as may be fixed by the Court, is not paid as security, the Court
may remove the person and appoint a receiver of the property or
strike out the claim or defence. This is a very important exercise
for balancing equities. Courts must carry out this exercise with
extreme care and caution while keeping pragmatic realities in
mind and make a proper order of granting mesne profit. This is
the requirement of equity and justice.
101. Principles of law which emerge in this case are
crystallized as under:-
1. No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by long
possession of years or decades such person would not acquire
any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long possession. The
caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the
possession of a caretaker, servant or any person who was
allowed to live in the premises for some time either as a friend,
relative, caretaker or as a servant.7 APP30612
4. The protection of the Court can only be granted or
extended to the person who has valid, subsisting rent
agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”
8. On the other hand Mr.Dhond, learned counsel for the respondents
has submitted that the appellant / plaintiff has no case, much less prima
facie case. It is submitted that as far back as in the year 2001,
Mr.G.P.Sippy, father of the appellant and respondent No.1 and grandfather
of respondents No.2, 3 & 4 had written a letter dated 15 January 2001 to the
Secretary of the Co-operative Housing Society when Mr.G.P.Sippy
received letters from M/s Crowford Bayley & Co., advocates of the
Society. In the said reply dated 15 January 2001, Mr.G.P.Sippy had clearly
stated the following -
“I would therefore like to clarify a few things before you take any
further steps :
1. The entire 5
th
floor flat which consists of Flat no.5 (A & B)
had been bought by me from my own funds for the residential
purpose of my family members, which included my son
Mr.Ramesh Sippy and my married daughter Mrs.Soni
R.Uttamsingh who has since expired.
2. Mr.Ramesh Sippy was an active member in my film business
at one time and therefore it was mutually decided among the
family members to allot some Shares of my flat and therefore I
gave permission to the Society to mark as 'B' and issue separate
Share Certificates in his name.
3. On inspection of the flat you will find that there is only one
kitchen in the full flat and only one living hall which clearly8 APP30612
explains that the whole 5
th
floor is only one flat which belongs to
me.
4. We further state that all the payments towards cost of
premises as well as maintenance charges till date have been made
by me and no payments have been made by Mr.Ramesh Sippy,
which clearly shows that he has got nothing to do with the title of
the flat and was living only as a family member.
With reference to the above facts, it is interesting to mention that
Mr.Ramesh Sippy had left my house about 10 years back to
settle down in his own premises which he has bought some
where else and is living there with his family. It is since that
my two grandchildren, Shaan Uttamsingh and Sameer
Uttamsingh are living with me after the death of my daughter
Soni. I think it is therefore very surprising how all of a sudden
he is now trying to make a claim on my falt and interfering with
the living arrangement of my family. I am pained to learn that
he has written letters to you which are misleading. I request the
Society to cancel the name of Mr.Ramesh Sippy as a Share
holder from your records which was done earlier at my request
and finally treat the entire floor flat in my single name”.
9. It is submitted that thereafter Mr.G.P.Sippy had made a Will
dated 23 December 2003 bequeathing the entire residential premises on the
5
th
floor of 'Shree Vijaya Bhavan' to Unique Enterprises Co-operative
Housing Society, to defendants No.3 and 4 who are sons of the deceased
widow and daughter of Mr.G.P.Sippy as per paragraph No.6 of the said will
which reads as under -
“I am the sole owner of residential premises situated on the 5
th
floor of Shree Vijaya Bhuvan, Unique Enterprises Co-operative
Housing Society Ltd. Altamount Road, Mumbai-400 026
(hereinafter referred to as the 'said flat'). I hereby bequeath and
devise all my rights, titles, claims and interest in the said flat at
5
th
floor of Shree Vijayaa Bhuvan including all my rights, titles,
claims and interest in the Shares of Unique Enterprises Cooperative Housing Society Ltd., and all furniture and fixtures,9 APP30612
equipments, household goods lying therein to my late daughter
Sunita's Sons ( My Grandson ) SHAAN UTTAMSINGH and
SAMEER UTTAMSINGH equally. I have made nomination in
respect of the said shares and said Flat in favour of my
grandsons SHAAN UTTAMSINGH and SAMEER
UTTAMSINGH with the said Unique Enterprises Co-operative
Housing Society Ltd.”.
A copy of the said Will was submitted by Mrs.Mohini Sippy, mother of
appellant and respondent no.1 and the grandmother of the other parties to
the society as far back as on 15 January 2008 as will be apparent from the
society's reply dated 28 January 2008. It is submitted that inspite of the
aforesaid reply dated 15 January 2001 from Mr.G.P.Sippy and inspite of the
letter dated 20 February 2001, having been written by Unique Enterprise
Co-operative Housing Society to the appellant / plaintiff, the plaintiff did
not file any suit or any proceedings for getting possession of the suit flat.
Even in the paragraph No.10 of the plaint, the appellant / plaintiff has
referred to the Will propounded by the widow Mrs.Mohini Sippy, of
Mr.G.P. Sippy who is the mother of appellant, respondent No.1 and
grandmother of the other parties. The plaintiff admittedly came to know
about the said Will upon reply of the Society dated 28 January 2008.
10. Mr.Dhond learned counsel for the respondents, states that in
view of the disputes being raised about the ownership of the flat, which has
been bequeathed by Mr.G.P.Sippy to respondents No.3 & 4, defendants
will take out the appropriate proceedings for probating the Will dated 23
January 2003 executed by Mr.G.P.Sippy.
11. As regards the plaintiff's claim of ownership of the flat, the same
is denied not only on the basis of the reply dated 15 January 2001 at Exhibit
'I' but also after referring to the fact that the plaintiff claims to have been10 APP30612
given the suit flat in lieu of his dues upon retirement from partnership firm.
However, the plaintiff retired from the said partnership firm in the year
1975 as per the Retirement deed dated 12 January 1975. It is clearly
mentioned in the said Retirement deed that the plaintiff voluntarily retired
from the partnership on 12 June 1975 and it was agreed that the
controversies were settled between the parties and that the retiring partner
i.e. plaintiff “will be paid the amounts due to him by the continuing
partners on demand by retired partner”. It is submitted that in view of the
above clause in the deed of Retirement, it is clear that nothing done in the
past was to be treated as consideration for retirement of the plaintiff from
partnership firm and therefore the allotment of 500 shares in favour of the
plaintiff in the year 1972 cannot be explained away by referring to the deed
of Retirement dated 12 June 1975.
12. In rejoinder Mr.Seervai, has submitted that the Will not having
been probated, the defendants cannot rely upon the said Will. Reliance has
been placed by the appellant on the provisions of section 213 of The Indian
Succession Act, 1925 in support of the contention that the defendants No.3
& 4 cannot assert any right as legatee, unless court of competent
jurisdiction has granted probate of the Will under which defendants No.3
& 4 are claiming their right. Strong reliance has been placed on decision of
a three-Judge Bench of Supreme Court in Mrs.Hem Nolini Judah (since
deceased) and after her legal representative Mrs.Marlean Wilkinson, v.
Mrs.Isolyne Sarojbashini Bose and others -A.I.R 1962 Supreme Court
1471. It has been held that -
“........This section clearly creates a bar to the establishment of
any right under will by an executor or a legatee unless probate or
letters of administration of the will have been obtained.11 APP30612
…... The section does not say that no person can claim as a
legatee or as an executor unless he obtains probate or letters of
administration of the will under which he claims. What it says is
that no right as an executor or legatee can be established in any
Court of Justice, unless probate or letters of administration have
been obtained of the will under which the right is claimed, and
therefore it is immaterial who wishes to establish the right as a
legatee or an executor. Whosoever wishes to establish that right,
whether it be a legatee or an executor himself or somebody else
who might find it necessary in order to establish his right to
establish the right of some legatee or executor from whom he
might have derived title, he cannot do so unless the will under
which the right as a legatee or executor is claimed has resulted in
the grant of a probate or letters of administration. Therefore, as
soon as the appellant wanted to establish that Mrs.Mitter was the
legatee of Dr.Miss Mitter and was therefore entitled to the whole
house she could only do so if the will of Dr.Miss Mitter in favour
of Mrs.Mitter had resulted in the grant of probate or letters of
administration. Admittedly that did not happen and therefore
S.213(1) would be a bar to the appellant showing that her mother
was the full owner of the property by virtue of the will made in
her favour by Dr.Miss Mitter. The difference between a right
claimed as a legatee under a will and a right which might arise
otherwise is clear and in this very case. The right under the will
which was claimed was that Mrs.Mitter became the owner of the
entire house”.
Mr.Seervai has also relied on a decision of Division Bench of this Court in
Vaman Ganpatrao Trilokekar and others v. Mrs.Malati Ramchandra Raut
and others -A.I.R 1988 Bombay 321, wherein it has been held as follows -
“........What it says is that no right as an executor or legatee can
be established in any Court unless probate or letters of
administration have been obtained of the will under which the
right is claimed and therefore, it is immaterial who seeks to
establish the right as a legatee or an executor. Whosoever seeks
to establish that right he cannot do so unless the will under which
the right is claimed has resulted in the grant of probate or letters
of administration.12 APP30612
30. Mr.Chagla submitted that the bar of Section 213
applied only to the establishment of a right and, therefore, only to
the passing of a decree. It was no bar to the continuation of a
suit. Only valuation had here been ordered and that was an order
in continuation of the suit.
31. As we have held, no Court may apply the provisions of
Sections 2 and 3 until it has determined and has declared who the
sharers in a property are and what their share is. Such declaration
by preliminary decree cannot be made until and unless the
executors or heirs of deceased parties have established their
rights to the property by obtaining probate or letters of
administration.”
13. On the other hand, Mr.Dhond learned counsel for the repondents
has submitted that, all that section 213 provides is that no right as executor
or legatee can be established in any Court of law, unless the Will has been
probated but that does not preclude the Court from considering the claim of
the legatee under a Will at the interim or ad interim stage. It is submitted
that just as section 212 provides that a right to any part of property of a
person who has died intestate cannot be established in any Court unless
letters of administration have first been granted by a Court of competent
jurisdiction, similarly section 213 provides that when a deceased has left a
Will, the right of the executor or legatee cannot be established without the
Court of competent jurisdiction having granted probate of the Will or letter
of administration with the Will or copy of an authenticated copy of the Will
annexed. Reliance has been placed by Mr.Dhond on a judgment of the
Division Bench of this Court in the case of Ramniklal Amritlal Shah v.
Bhupendra Impex Pvt. Ltd. and others -AIR 2001 Bombay 224 in support
of the contention that though no decree can be passed without obtaining
probate of a Will, the claim under the Will can certainly be relied upon at
the interim or ad interim stage.13 APP30612
14. The defendants No.3 and 4 are claiming to be legatees under the
Will dated 23 December 2003 of their grandfather Mr.G.P.Sippy. The Will
was propounded by Mrs.Mohini Sippy the widow of Mr.G.P.Sippy and the
grandmother of the defendant No.3 & 4. The question thus arises is
whether the said Will can be permitted to be pressed in service by the
respondents at this stage of the proceedings.
Section 213 of the Indian Succession Act needs to be noticed
which reads as under -
“213. Right as executor or legatee when established – (1) No
right as executor or legatee can be established in any Court of
Justice, unless a Court of competent jurisdiction in (India) has
granted probate of the Will under which the right is claimed, or
has granted letters of administration with the Will or with a copy
of an authenticated copy of the Will annexed”.
Plain reading of the section indicates that no party as an executor or legatee
of a Will can establish any right in Court of law unless Court of competent
jurisdiction has granted probate or Letters of Administration as the case
may be in respect of the Will. The Apex Court in the case of Mrs.Hem
Nolini Judah (supra) has held that, a party which wishes to establish right
under a Will shall not be granted any relief unless the party has obtained
probate or Letters of Administration. The Apex Court by referring to
section 213 of the Indian Succession Act laid down that the said section
creates a bar for establishment of any right by an executor or legatee unless
a probate or Letters of Administration have been obtained. The Division
Bench of this Court in the case of Vaman Ganpatrao (supra) held that a
party could not claim any relief on the basis of rights flowing from Will
unless a probate or letters of administration are obtained. However ratio of
the aforesaid judgments cannot be pressed in service to advance a14 APP30612
contention that even at interim stage the party is not entitled to refer to the
fact that a Will has been executed. In both the judgments, as the facts
therein will show, the legatee / executor were seeking a final relief based
on a Will without there being any probate or Letters of Administration and
such relief obviously could not be granted in view of the clear language of
section 213 of Indian Succession Act. The position of law laid down in
section 213 of the Act and the judgments referred to hereinabove cannot be
stretched to import such a bar even at the hearing at interim stage of the
proceedings. Such interpretation would mean that during the pendency of
proceedings for probate or Letters of Administration the fact that there is a
Will in existence cannot even be used at the interim stage in collateral
proceedings. Submission advanced by Mr.Seervai based on the above
judgment and section 213 of the Act cannot be applied to the facts of the
present case. In fact Division Bench of this Court in the case of Ramniklal
Amritlal Shah v. Bhupendra Impex Pvt. Ltd. and others -AIR 2001 Bombay
224, has made this position amply clear. The Division Bench after
considering the provisions of section 213 of the Act held that, the bar under
section 213 is merely regarding “establishing” a right as an executor or
legatee in an action and not for the purpose of seeking an interim relief.
The observations of the Division Bench in paragraph no.7 read thus -
“7. The next contention of Mr. Doctor is that, even
presuming that the suit is maintainable without production of the
probate certificate, the appellant in his capacity as executor could
not have sought any interlocutory relief. This is the argument
which seem to have appealed to the learned Single Judge. The
contention is that to claim interim relief the appellant had to
establish, apart from the merits of the case, his character as the
executor; this he could not do without production of a probate
certificate by reason of section 213, even prima facie.
Consequently, no interim relief could have been granted. In our15 APP30612
considered view, this argument is fallacious. A party seeking
interim relief in a suit is not required to 'establish' his rights.
Question of establishment of rights is relevant only for the
purpose of the final decree in the suit and not at an Interlocutory
stage. In order to seek or get interlocutory relief, all that a party
has to show is that the suit is not frivolous, that there is a
probability of his succeeding in the suit, apart from balance of
convenience, with which we are not concerned here. As far as the
argument of Mr. Doctor goes, we focus our attention on the
"establishment" of the appellant's character as an executor. In our
view, it was not necessary for the appellant to 'establish' his
character as executor at this stage. It was necessary to show,
prima facie, that he was the executor. This could have been done
by the production of the Will of the deceased-original plaintiff
and, unless upon a perusal thereof the Court came to the
conclusion that there was no way the appellant could claim to be
an executor under the Will, that would prima facie show the
character of the appellant as an executor under the Will. The
stage for the appellant to establish his right as an executor under
the Will is yet to come in the trial if the suit goes on and. under
the law as laid down by the Supreme Court, the appellant would
fail unless he produces the probate certificate at the time when
the Court finally decides the suit. At all intermittent stages,
therefore, the insistence upon establishing the appellant's right as
an executor, was neither necessary nor required. It was sufficient
that he showed that he had a prima facie right to that character.”
We agree with the observations of the Division Bench that
section 213 of the Indian Succession Act does not bar a party from relying
on the Will at the interim stage of the proceedings.
15. Thus having considered all the rival submissions, we are of the
view that, as held by a Division Bench of this Court in Ramniklal Amritlal
Shah's case AIR 2001 Bom.224, though right under a Will cannot be
established without obtaining a probate, for the purposes of interlocutory
proceedings claim can be made under a Will. We have also recorded the
statement of the learned counsel for the respondents that the respondents16 APP30612
No.3 and 4 are going to file a petition for probate within one month from
today. In this view of the matter, it is open to the respondents to invoke
their claim under the Will dated 23 December 2003 of Mr.G.P.Sippy.
16. From the documents on record, it would prima facie appear that
Mr.G.P.Sippy had purchased the entire flat on the 5
th
floor of the building
in question and for convenience the flat was bifurcated into two parts 5A
and 5B. According to the case of the defendants, Mr.G.P.Sippy was thus,
the absolute owner of the property and before his death he had executed a
Will in favour of defendants No.3 and 4 bequeathing the entire flat on the
5
th
floor in favour of defendants No.3 and 4 who are the sons of the predeceased widowed daughter of Mr.G.P.Sippy who was thus, the sister of
appellant and respondent No.1. Defendants No.3 and 4 are claiming to be
legatees under the Will dated 23 December 2003 of their grandfather
Mr.G.P.Sippy. The defendants therefore, have an arguable case.
Ultimately it will be at trial of the suit that the trial Court will finally decide
the rights of the parties. At this stage, it is not possible to accept appellant's
contention that the respondents particularly respondents No.3 & 4 do not
have any claim in the suit flat whatsoever. It will be at the trial of the suit
that the Court will finally determine the rights of the parties. At this stage,
we do not find any warrant for passing any order for appointment of a
Court receiver or for deposit of any amount by way of adhoc mesne profits.
17. In the view that we are taking, the question about the preliminary
issues raised by the respondents / defendants would not be required to be
decided at this stage. No useful purpose will, therefore, be served by
keeping Notice of Motion pending before the learned trial Judge.
Accordingly Notice of Motion No.577 of 2012 is disposed of -17 APP30612
(i) after recording statement of the learned counsel for the
respondents that the respondents will be filing the petition for
probate of the Will dated 23 December 2003 of Mr.G.P.Sippy,
within one month from today, and
(ii) after confirming the ad-interim relief granted in terms of
prayer (b) seeking interim injunction against the disposal etc. of
the suit flat, granted by order dated 18 April 2012 as interim
relief during pendency of Suit No.552 of 2012.
CHIEF JUSTICE
N.M.JAMDAR, J.
No comments:
Post a Comment