MHATRE NISHITA (Smt.), J.: - Notice of ~ Motion No. 885 of 2005 has been taken out by the plaintiffs for a direction to defendant No. 1 to furnish a list of the present and the past tenants in the suit property and to render true and correct accounts of his dealings in respect of the property from 1st April, d 2002. A prayer for appointment a Receiver has also been made and an injunction is h claimed against defendant No. 1 from disposing off or parting with or alienating, encroaching or creating third party rights in respect of the suit property and from transferring the tenancies in the suit property.

2. Notice of Motion No. 2283 of 2005 has been taken out by the plaintiffs for appointing Court Receiver in respect of the suit property. In the alternative, it is prayed that defendant No. 1 be directed to deposit the excess/surplus rent collected by him in respect of the suit property after deducting the taxes payable to the Mumbai Municipal Corporation with effect from 1st April 2002.

3. By way of ad interim relief, this Court while hearing Notice of Motion No. 885 of2005, has passed the following operative order :

"During the pendency and till the final disposal of the motion, the defendants are restrained by an order of injunction from transferring the property or transferring any of the tenancies of any of the tenants in the suit property or letting out or creating any new tenancies in the suit property without prior permission of this Court. The defendants are also directed to file the list of all tenants and rent receivable from each of them. It is clarified that this order does not prevent the defendant No. 1 from collecting the rent from the existing tenants. Motion is made returnable in due course."

4. Notice of Motion No. 2283 of 2005 was directed to be heard along with Notice of Motion No. 885 of 2005 and no ad interim relief was granted. These two Motions are, therefore, taken up for final hearing together.

5. One Khatal Moosa Phaniband married Azambi in 1925 under Mahomedan law. A Nikah was performed. The plaintiffs, defendant No.2 and the father of defendant No. 1 were their children. Plaintiffs brother i.e. defendant No.ls father, pre-deceased Khatal Moosa Phaniband. It appears that Khatal Moosa Phaniband and his wife solemnized heir marriage again under the Special Marriage Act, 1954, on 14th September 1970.

The plaintiffs claim a right to the property and estate of their father who they contend died intestate, to the exclusion of defendant No. 1. According to the plaintiffs, the administration of the estate of the deceased must effected in accordance with the Mahomedan law. Defendant No. 1 would thus not be entitled to any share in the estate as his father had pre-deceased his grand-father. M The plaintiffs contend that defendant No.1s father having expired before the succession S. to the estate of Khatal Moosa Phaniband was opened, defendant No. 1 has no right to the in estate of his grand-father. The plaintiffs contend that they and their sister, defendant No. 2 herein, would, therefore be entitled to an A equal share in the property of Khatal Moosa Phaniband i.e. a 1/5th share each.

6. Defendant No. 1 contends that his grand-father expired leaving a Will dated 27th December 1978 under which he has been bequeathed all the property except for an amount of Rs. 1,001/ - to be paid to the plaintiffs and defendant No.2, each. Defendant No. 1 contends that in view of the marriage of the deceased Khatal Moosa Phaniband and s his wife being registered under the Special Marriage Act, 1954, subsequently, the succession to the estate of the deceased Khatal Moosa Phaniband would be governed by the 1 Indian Succession Act, 1925 and not the Muslim Personal Law. According to defendant No.1, the restriction on a Muslim to be queath only 2/3rd of his property under Muslim Law is removed in view of the fact that the marriage of the deceased has subsequently been registered under the Special Marriage Act, 1954. Reliance is placed

Click Here to Read the rest of this document