The main legal point established in the judgment is the court's authority to appoint a Receiver for a property dispute, based on the failure of the Defendant to substantiate his claim and the wastage of the property.

JUDGMENT :

1. Heard Mr. Kadam learned Senior Advocate for Plaintiffs; Mr.Cama, learned Advocate for Defendant No.1 and Mr. Kachwala, learned Advocate for Defendant Nos.2 and 3.

2. The present Notice of Motion is filed in 2015 for the following reliefs:

(a) that pending the hearing and final disposal of the suit, this Hon’ble Court be pleased to pass an order of injunction restraining Defendant nos. 1 and 5, their servants, agents, assigns or any person or entity claiming by under of through them, from in any manner transferring, alienating, encumbering or creating any third party rights, title or interest or parting with possession of or inducting any third party in the suit property, more particularly described in Exhibit A to the Plaint or any part thereof or in respect of any right of interest therein;

(b) that pending the hearing and final disposal of the suit, this Hon’ble Court be pleased to appoint the Court Receiver, High Court, Bombay as the Receiver of the suit property with all powers under Order XL, Rule 1 of the Code of Civil Procedure, 1908, including to collect all rent/license fees/income/amounts in respect of the suit property including to take possession of the suit property and to handover possession of the same to the Plaintiffs;

(c) that pending the hearing and final disposal of the present suit, this Hon’ble Court be pleased to order and direct the Defendant No. 1 to :

(i) deposit in Court the rent/license fees or such other income/amounts received by or to be received by Defendant No. 1 in respect of the suit property;

(ii) Disclose the entire accounts in respect of the payments made to Defendant No. 1 towards rent, compensation and/or license fees for using and/or occupying the suit property.

3. Parties shall be addressed to as Plaintiffs and Defendants for convenience. Plaintiffs and Defendant Nos. 1 to 4 are children of late Mr. Amarchand Sunderji Doshi who passed away on 15.08.1984 and late Mrs. Chandangauri Amarchand Doshi who passed away on 07.10.2012. Plaintiffs have filed the present Suit, inter alia, seeking partition of the suit property being land hereditaments and premises lying and being situate at Bail Bazar Road, i.e. Kurla Andheri Road and now known as Kale Marg, Kurla, Mumbai – 400 070 as in Greater Bombay in registration District of Mumbai city and suburban bearing CTS No. 117 forming part of land of a larger plot admeasuring area of 3169.17 sq. mtrs. or thereabouts along with the structure consisting of ground floor having an area admeasuring 2,234 sq. mtrs. Recorded in the Municipal Assessment No. L-3113(1B) 33 C.2202.00 sq.mtrs. (“Suit property”) in four equal shares as gifted by Chandangauri under Gift Deed dated 31.03.2001 in favour of Plaintiffs and Defendant No. 4 and put the Plaintiffs in possession of their ¼th share each.

3.1. Notice of Motion is filed seeking, inter alia, injunction from creating third party rights in respect of the suit property, appointment of Court Receiver to collect all rent, license fee, income in respect of the suit property including to take possession of the suit property and direct Defendant No. 1 to deposit in Court the rent/license fee received by him in respect of the suit property.

4. Facts which are relevant for the purpose of passing order on interim relief are outlined herein under:-

4.1. Amarchand Doshi was the owner of properties descried as “the said estate” at Exh. “B” to the Plaint. The said estate includes Survey Nos. 115, 116 and 117. Suit property i.e. Survey No. 117 forms part of the said estate. During his life time he created a Trust in connection with the adjoining property (suit property in another companion Suit No. 733 of 2016) in favour of Defendants to the exclusion of the Plaintiffs and Defendant No. 4. On 15.12.1965, Amarchand Doshi made a Will and appointed his wife Chandangauri as executor and bequeathed the said estate in her