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2012 Supreme(Bom) 1187
High Court of Judicature at Bombay
MOHIT S. SHAH & N.M. JAMDAR
Ramesh Sippy
Versus
Suresh Gopaldas Sippy & Others
APPEAL NO.306 OF 2012 in NOTICE OF MOTION NO.577 OF 2012 in SUIT NO.552 OF 2012
Decided on : 04-07-2012
For the Appellant:N.H. Seervai, Senior Advocate with Rohaan Cama, Gulnar Mistri i/by M/s. Bachhubhai Munim and Co., Advocates.
For the Respondents:R3 & R4, Venkatesh Dhond, Senior Advocate with Archit Jayakar i/by Jayakar & Partners, Advocates.
The right under a Will cannot be established without obtaining a probate, but for the purposes of interlocutory proceedings, a claim can be made under a Will.
Headnote:
Court Receiver - Property Dispute - Indian Succession Act, 1925, Section 213 - The court discussed the applicability of Section 213 of the Indian Succession Act, 1925, and held that while the right under a Will cannot be established without obtaining a probate, for the purposes of interlocutory proceedings, a claim can be made under a Will. The respondents were given one month to file a petition for probate of the Will dated 23 December 2003 of Mr.G.P.Sippy. The court also found that the defendants had an arguable case and that the final determination of the rights of the parties would be made at the trial of the suit. As a result, the court did not find it necessary to pass any order for appointment of a Court receiver or for the deposit of any amount by way of adhoc mesne profits.
Fact of the Case:
The appellant filed a suit for obtaining possession of a flat based on ownership through shares in a cooperative housing society. The respondents claimed ownership under a Will executed by Mr.G.P.Sippy, the deceased grandfather of respondents No.3 and 4. The appellant alleged that the respondents had no right to occupy the flat.
Finding of the Court:
The court found that the respondents had an arguable case and that the final determination of the rights of the parties would be made at the trial of the suit. The court did not find it necessary to pass any order for appointment of a Court receiver or for the deposit of any amount by way of adhoc mesne profits.
Issues: The issues included the ownership of the flat, the applicability of Section 213 of the Indian Succession Act, and the need for appointment of a Court receiver or deposit of adhoc mesne profits.
Ratio Decidendi: The court held that while the right under a Will cannot be established without obtaining a probate, for the purposes of interlocutory proceedings, a claim can be made under a Will. The respondents were given one month to file a petition for probate of the Will dated 23 December 2003 of Mr.G.P.Sippy. The court also found that the defendants had an arguable case and that the final determination of the rights of the parties would be made at the trial of the suit.
Final Decision: The Notice of Motion was disposed of after recording the statement of the respondents' counsel that the respondents would be filing the petition for probate of the Will dated 23 December 2003 of Mr.G.P.Sippy within one month from the date of the judgment. 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, was confirmed as interim relief during the pendency of Suit No.552 of 2012.
Chief Justice
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 filed 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 5th 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-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 (Gee
